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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Davies v Westminster City Council [2002] EWCA Civ 844 (10 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/844.html Cite as: [2002] LLR 437, [2002] EWCA Civ 844

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME APPLICATION
FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Wednesday, 10th April 2002

1. LORD JUSTICE LAWS: There are two applications before me this morning. The first is for permission to appeal against the refusal of Mr Justice Moses on 12th December 2001 to grant permission to seek judicial review. The second is for permission to appeal against an order of Mr Justice Pitchford, made on 14th January 2002, that the applicant should pay the costs of the Westminster City Council incurred on the council's application for an injunction against the applicant when the applicant gave an undertaking to the judge in the terms sought. The costs were summarily assessed in the sum of £2,077.50.
2. The applicant is a street trader. He has a pitch in Abbey Road NW8, licensed by the Westminster City Council. It was a condition of his licence that he should sell newspapers only. He desired to sell Beatles' souvenirs and memorabilia. As is well known, the Beatles' recording studio was in Abbey Road. He applied to Westminster City Council for a variation of the licence. The process is governed by the City of Westminster Act 1999. I need not set out the details of the statute, part of which is included in the papers before me. In short, a hearing before a Licensing Sub-committee was convened, and took place over two separate days in March at April 2001. The applicant appeared before the committee represented by counsel. He gave evidence. He called witnesses and/or produced documentation in support of his case. He also relied on the evidence of a traffic expert called Mr Sproul.
3. The committee rejected the application. They gave detailed reasons for doing so in a written minute, which I have read. The primary reason, as I see it, was the apprehension of crowds and congestion having an adverse effect on the amenity of some of the local residents. Before me this morning, Mr Davies has sought to characterise the council's objection to his application more in traffic terms. Clearly, that was an element in the decision.
4. Before Mr Justice Moses the applicant took a number of points. He said the committee paid insufficient attention during the hearing, that there had been inadequate consultation of those behind the objection to the variation, that the committee were unaware of the correct siting of his pitch - there was apparently a document showing a pitch in the wrong place - and that the evidence of the applicant's expert should not have been rejected to the extent it was. I have not only a transcript of the judgment of Mr Justice Moses but a transcript of the argument before him. The judge thought that all the applicant's points went to the factual merits of his application and there was no basis for judicial review. Accordingly, he dismissed the application for permission.
5. In substance, the applicant Mr Davis seeks before me to take essentially the same points. In his notice of appeal he complains of these matters:

(1) the decision of the sub-committee was based on false information,

(2) the sub-committee was deliberately misled,

(3) the decision was grossly unfair,

(4) the sub-committee was not impartial.

6. In supporting those grounds in the papers before me, he has made it clear he will rely on these assertions and he has repeated the same matters very clearly this morning:

(a) the consultation process was not carried out properly, the witnesses were unreliable, the committee failed to give adequate weight to his expert;

(b) at the hearing there was repeated mention of a tour group which had nothing to do with Mr Davies, and should have been left out of account;

(c) the sub-committee did not take proper account of the evidence of Parkgate Aspen who, I think, were the managing agents for Abbey House.

7. In addition to his grounds there is also a covering letter in which Mr Davies adds some further points.

(d) There is a statement from the lady who does the Beatles' Tours, as I think they are called, making it clear that Mr Davies is not involved with them at all;

(e) the St John's Wood Society Annual Report implied that they decided the variation would not be granted - that was before the consultation process was carried out;

(f) a ward councillor Mr Nemeth had made a mistake - he had said a particular block of flats was in his ward when it was not;

(g) there is a tape of a radio broadcast the day after the decision was made in which the person who chaired the meeting, a lady called Ann Barnes, implied that her decision had been made on the basis that if the application were to succeed Mr Davies would have to be given a larger pitch.

8. All these various matters, it is said, go to undermine the basis of the decision which Mr Davies asserts was accordingly arrived at unfairly. Although I am not sure that Mr Davies accepts this, all these points in one form or another were raised before Mr Justice Moses. It is time that the point about Mr Nemeth was not raised very clearly. All that was said to the judge about him was that he had got mixed up; there is a reference to that in the transcript.
9. The judge considered that the points all went to the factual merits of the application and he was clearly affected - and I have to say rightly affected - by the fact that Mr Davies had been represented by counsel at the hearing who, presumably, had a proper opportunity to correct any errors about which he was instructed.
10. I have read the minutes of the sub-committee and other documentation placed before me. There is nothing to substantiate any suggestion of bad faith, bias or procedural unfairness. As regards consultation, I have looked at the provisions in the City of Westminster Act 1999, in particular Section 7. Although it may be clear that the consultation process was not as Mr Davies would wish, I cannot see that there is any breach of the statute. Whether or not mistakes were made of a factual kind at the hearing, there is not a mistake of the kind that ought to give rise to judicial review. The committee were entitled to make what they did of the expert evidence. It is worth citing two paragraphs towards the close of the minutes of the meeting on 26th April 2001, the passage in which the committee expressed its principal reasons:

"The sub-committee was of the view that the proposed variation of the specification resolution would only damage the amenity of the local residents, and, in particular, the amenity of Albany Court Residents. Of greater concern was a real and genuine belief that the operation of a stall selling Beatles memorabilia might result in a crowd of people gathering around the stall at certain times of day, especially during the tourist season, which might result in pedestrians having to walk into the carriageway. Evidence was submitted which showed that groups of people do collect outside the Abbey Road studios and it was considered that there was a real possibility that many of these people would be attracted to a stall in close proximity to those studios, even if that stall was not presently considered to be part of the `tourist route'.

The expert evidence submitted by Mr Sproul only related to pedestrian and traffic activity between 11 am and 12.30 pm on two days in March. It did not specifically deal with the situation at other times of day during the summer months when tourist activity would be that much greater. Moreover, it did not fully address the problems that might be caused as a direct result of people congregating around the stall, thereby reducing the width of the footway and adversely affecting the sight lines for vehicular traffic, particularly traffic emerging from Garden Road.

Consequently, the sub-committee has resolved not to vary the existing specified resolution."

11. In my judgment, these are all matters as to which the sub-committee were entitled to reach the conclusions they did. If Mrs Barnes said the following day something about the size of Mr Davies' pitch, there is nothing in the decision itself which shows any misapprehension of the legal or factual position in relation to that.
12. Mr Justice Moses was, in my judgment, right to reject this application and it is my duty therefore to refuse permission to appeal.
13. There remains the applicant's application relating to the order for costs against him. As regards this, just as regards the judicial review, Mr Davies has addressed me forcefully but perfectly courteously.
14. On 21st December 2001 - therefore of course some months after the committee's refusal to vary the licence - Westminster City Council issued an application in the High Court for an injunction against the applicant to prohibit him from trading in breach of his licence. Their evidence was that he had been selling Beatles' memorabilia. The application was properly constituted pursuant to
15. Section 222 of the Local Government Act 1972. The council has provided a typed note of the hearing before Mr Justice Pitchford. It is plain that the applicant told the judge he would not resist an injunction, that the council had earlier written to the applicant saying they would accept an undertaking but only if it were given to the court. I interpolate, no doubt the reason for that was that if the undertaking was given to the court it would be equivalent to an injunction. That would not be the case if the undertaking were merely given to Westminster City Council. It is also clear from the note of the hearing that there was discussion of the applicant's intended application for permission to appeal against Mr Justice Moses' decision.
16. At length, Mr Justice Pitchford accepted an undertaking in terms of the order sought for some six months, and, as I have said, ordered the applicant to pay the council's costs severally assessed at £2,077.50. A breakdown in that sum was presented to the judge and is before me. Mr Davies makes one particular comment on it and that is to object to the fee of £500 for counsel who was apparently of 25 years' call. I think the argument is that no one of that seniority - and therefore earning such a high fee - needed to be instructed. Mr Justice Pitchford, for his part, refused permission to appeal against his order for costs. This is what he said:

"The evidence that the respondent was in repeated breach of his licence condition was of overwhelming. I did not accept his oral assertion that he had given the previous undertaking in the terms which he conceded. Prospects on appeal are negligible."

17. The applicant says he had already given a verbal undertaking in the previous November. The official of the council, whom he telephoned after being served with the papers through the letter box, said the application was made because he had not sent to her a written undertaking.
18. He has not worked since November 2001. He is on incapacity benefit and income support and, as it is put, is up to his eyes in debt. Whether another judge would necessarily have made the same order for costs I cannot say. What is clear is that on the material before him Mr Justice Pitchford made an order which was well within the scope of his proper judicial discretion. The application has to be dismissed in principle.
19. I have considered whether the court could interfere with the amount on the basis that the £500 fee for counsel was not reasonable. It seems to me that it would have to be shown that the judge was in some way wrong in principle to make the summary assessment he did. There is nothing to demonstrate that. This application, too, has to be dismissed.
Order: Applications dismissed