The right of appeal - the Chorion v Westminster battle ends

The Chorion and Westminster battle has come to an end

A recent high court case involving Westminster Council's policy on licensing has once again focused attention on policies adopted by august bodies and more importantly how they are applied.

Last year, bar operator Chorion bought some premises in Hanover Square in central London in an area covered by Westminster. Part of the site was already licensed for public entertainment but the company also acquired premises immediately next door. It wanted to enlarge the existing premises to create a new bar called the Loop, so it had to apply for a new public entertainment licence (PEL).

It made an application to Westminster Council requesting a terminal hour of 3am. Although the PEL was granted, the terminal hour was set at only 1am. So, Chorion then appealed to the magistrates court for the 3am terminal hour. On January 13 this year, the magistrates allowed the appeal and granted the licence with the 3am terminal hour.

Four days later, the council went ahead and issued the PEL with the 3am terminal hour. It included a covering letter which read: "I enclose an amended licensed document to reflect the decision reached, along with a copy of the council's rules of management."

But, after giving it quite a lot of thought, Westminster decided to appeal against the 3am terminal hour to the crown court. The crown court supported the council and the terminal hour was once again cut back to 1am. Chorion responded by appealing to the high court.

The background to this saga was that Westminster adopted a policy that premises falling within its designated "central activity zone" - in other words the fun areas of London - would not be granted a new licence unless they could demonstrate that it would not cause any nuisance to residents. Even if Chorion climbed that hurdle, the council would still allow only a 1am terminal hour rather than the required 3am.

On July 17, Chorion challenged the crown court's decision. It claimed that the crown court was being unreasonable when it decided that it had no choice but to follow the council's policy. Chorion also alleged that the court's decision was not the conclusion it should have reached based on the facts of the case and that the reasons given by the court were wholly inadequate in all the circumstances.

As far as the issue of the Loop's licence was concerned, the judge in the High Court was prepared to agree with Chorion. He was interpreting 19(2) of Schedule 2 of the London Government Act 1963 and specifically the requirement that "any person aggrieved by the order of a magistrates court may appeal [from there] to the crown court".

The crown court therefore had not followed the law accurately and the appeal should never have proceeded before the crown court in the first place.

The judge also ruled that the crown court was wrong in applying the policy regardless of the facts. The crown court had admitted "there is no issue as to the excellent way in which these premises are run". It also accepted that: "The premises present no nuisance to the immediate area, there is no problem from sound from the premises. The merits for the grant of the extended licence individually are high."

The criticism laid at the crown court's door by the high court judge was that, having being told these facts, the policy was applied without exercising any discretion.

The judge stated: "I... hold that there was no basis upon which the policy should have been held to be applicable, whatever the circumstances, particularly in the light of the crown court's specific finding in relation to the manner in which the operations at these premises were conducted."

So common sense prevails. Sometimes it does happen. Of course all the judge was doing was reaffirming the case law in this area - that each application will be dealt with on its merit. As we already know, justices must look at the facts and circumstances of each case before them, and not apply adopted policy if an exception to that policy can be justified.

It is reassuring to know that the high court stamp of approval has been added to the armoury of arguments called upon by advocates having to make this point on behalf of their clients.

by Suzanne Davies of thePublican.com's legal team​