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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC Admin 144
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Case No: CO/1774/2000
Neutral Citation Number:  EWHC Admin 144
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 23 February 2001
THE HONOURABLE MR JUSTICE HOOPER
The Queen on the application of Hestview Ltd Claimant
Snaresbrook Crown Court Defendant
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Philip Kolvin (instructed by Friend and Co. for the claimant)
Mr Richard Beckett Q.C. and Mr Gerald Gouriet (instructed by Weightmans for the interested party, Chase Romford Ltd)
- - - - - - - - - - - - - - - - - - - - -
As Approved by the Court
Crown Copyright ©
1. This is an application for judicial review of the grant on the 10th March 2000 by Snaresbrook Crown Court (His Honour Judge Wakefield and four Justices) of a betting office licence at 6-8 High Street North, East Ham to Chase Romford Limited ("Chase"). Chase appears as the interested party. The defendant is not represented. The claimant Hestview Limited as the owner of Surrey Racing was the unsuccessful objector to the grant of the licence. Surrey Racing was described before the Crown Court as a "small independent" and Chase as "an owner managed business".
2. The Crown Court treated the "locality" as the area having a ¼ mile radius from 6-8 High Street North. That finding was not challenged before this Court.
3. In October 1978 Coral Racing Limited ("Corals") opened up the first betting office at 1 Kempton Road which is immediately adjacent to the High Street and within the ¼ mile radius. By the time of the hearing, that office provided excellent facilities and had a substantial turnover. There is a betting office just outside the ¼ mile radius run by Ladbrokes and opened in November 1999 following a move from very close by the new site. The opening of that office might have affected the figures particularly for the Corals office. The Crown Court said, however, that Ladbrokes was only of peripheral relevance. That finding was not challenged.
4. In October 1997 a small betting office at 278 Barking Road was closed. 278 is within the ¼ mile radius.
5. On 7 November 1997 a new licence was granted for 2 High Street North to Chase 8 Racing Limited (not connected with the interested party). The premises are very close to the claimant's premises and the premises now operated by Chase. Both the claimant and Corals objected to the application. At that time 278 Barking Road was not open for trading. The claimant however made it clear that their premises would be re-opening. When the licence was granted to Chase Racing 8 Limited in respect of the premises at 2 High Street North, it was in the knowledge that the grant might very well result in three trading licensed Betting Offices in the locality. The premises proposed by Chase Racing 8 Limited were substantial with betting areas on both the ground and first floors. The usable floor area for the customers was some 136 square metres. The conventional yardstick (and the yardstick used in this case) by which the comfort level is judged is one punter to every 15 square feet. That would give a comfort level of 95 punters.
6. As it later turned out, no advantage could be taken of the licence for 2 High Street North due to a subsequent refusal of planning permission.
7. In February 1998 the small office at 278 Barking Road was re-opened by Surrey Racing. The premises at 278 Barking Road had a comfort level of 18 (i.e. the square foot of the customer area, about 270 square feet, divided by 15).
8. On 24 August 1999 the Betting Licensing Committee for the Petty Sessional Division of Newham met to consider the applications for new licences being made by Chase and the claimant. Surrey Racing had applied for a new licence at 20 High Street North, agreeing that, if granted, it would give up its licence at 278 Barking Road. The premises at High Street North had a customer area of about 584 square feet and therefore a comfort level of 39. The licence was granted with an expiry date of 31 May 2000. It follows that the opening by the claimant of their premises at 20 High Street North and the closure of their premises at 278 Barking Road led only to an extra 21 "places".
9. Chase had applied for a new licence at 6-8 High Street North proposing premises with a comfort level of 67 punters (1000 square feet divided by 15). By the terms of an agreement between Chase Racing 8 Limited and Chase, Chase had agreed to make an immediate payment of £1,000 in consideration of Chase Racing 8 Limited surrendering its current licence. Chase agreed to take all reasonable steps to obtain a licence for 6-8 High Street North and upon production of evidence that a Betting Office licence had been obtained for those premises and upon payment of a further sum of £4,000, Chase Racing 8 Limited would surrender their existing licence in relation to 2 High Street North (blue bundle Tab 8). On 24 September 1999 the claimant successfully applied for and obtained the cancellation of the licence at 2 High Street North on the ground that it had not been trading for 12 months.
10. Prior to the hearing Chase had objected to the grant of a licence to the claimant and vice versa. Corals also objected to the application being made by Chase. The consequence of Chase making the objection was that the claimant's application could not go through "on the nod", i.e. after (normally) a short hearing of some 5 minutes. The Committee adjourned both applications to another day. Some three days before the hearing, Chase withdrew its objections, having accomplished its objective that both applications should (for obvious reasons) be considered together. Both the claimant and Corals relied upon the grounds for refusal as set out in paragraphs 19(b) (ii) of the first Schedule to the Betting, Gaming and Lotteries Act 1963. They also formally relied upon section 19 (b)(i) but that was not pursued.
11. The Betting Licensing Committee decided to hear all the evidence relating to the two applications. Given that there was no opposition to the claimant's application, very little evidence was put before the Committee by the claimant. I am told that Mr Wilson gave evidence, produced a radius map and showed that the application involved a move to better premises within the area. No financial information of the kind which was later presented to the Crown Court was put before the Committee. Mr Kolvin told me that in practice it is normally easy to obtain a new licence if it merely involves the relocation of a betting shop within the area.
12. The Committee having heard the evidence announced that the claimant had succeeded in its application and that Chase had failed. The Committee gave the following reasons for the refusal:
"Application denied.Having regard to paragraph 19(b)(ii) the Committee feels that the grant would be inexpedient having regard to the demand for the time being, in the locality for the facilities afforded by licensed Betting Offices and to the number of such offices for the time being available to meet that demand.
Number currently sufficient to meet demand, including the fact that the one licence is not trading [2 High Street North].
No evidence that current demand is not satisfied.
Facilities currently, and to be available, are sufficient to meet demand."
13. The reference to "to be available" must be a reference to the application for a new licence which the Committee had already granted to the claimant. It was not (apparently) a reference to the licence granted to Chase 8 Racing Limited for 2 High Street North because, so it appears from the grounds of appeal to the Crown Court, the Committee did know that Chase 8 Racing Limited was intending to surrender its licence following the grant of a licence to Chase.
14. On 31 August 1999 Chase appealed against the refusal of the licence. The grounds of appeal were:
"1. The Committee had no reasonable grounds for concluding that the grant of such a licence would be inexpedient.2. The Committee failed to attach sufficient weight to the appellant's intention to arrange for the surrender of an existing licence in the locality granted to Chase Racing 8 Limited for premises at 2 High Street North, East Ham in the event of the application being granted.
3. The Committee had no reasonable grounds for concluding that two licensed betting offices were sufficient to meet the demand for betting in the locality.
4. The Committee were wrong in deciding whether the grant would be inexpedient to take into account the facilities proposed by Surrey Racing at their new shop at 20 High Street North, East Ham when such facilities were not "for the time being available".
5. The Committee were wrong to conclude that there was no evidence that demand was not being satisfied, given the evidence from Surrey Racing regarding their plans to invest and improve their facilities in the locality.
6. The Committee failed to attach sufficient weight and significance to the fact that Coral Racing Limited chose not to give evidence regarding levels of slippage and turnover in their betting shop in the locality.
7. The Committee adopted an unfair and inconsistent approach when they granted Surrey Racing's application for a new Betting Office Licence at 20 High Street North, East Ham, when that application was made on 23 June 1999 and the appellants application was made on 26 May 1999. There were no reasonable grounds for the Committee to distinguish between both applications by granting that application and refusing the appellants application.
8. The Committee failed to attach sufficient weight to the unchallenged evidence given by the appellant regarding the style and nature of the proposed new facilities that would be available in the event of the application being granted.
9. That the grant of the licence would not be inexpedient having regard to the demand for time being in the locality for the facilities afforded by Licensed Betting Offices at the number of such Betting Offices for the time being available to meet the demand.
10. Such further grounds as may be adduced in evidence by the appellant upon the hearing of this appeal."
15. Unfortunately the appeal to the Crown Court was not heard until 10 March 2000. An earlier hearing had had to be adjourned because one of the justices chosen to sit on the appeal had sat on the Committee which refused the application.
16. Three days before the hearing of the appeal the claimant relocated from 278 Barking Road to 20 High Street North.
17. The Crown Court heard the case over 2 days. His Honour Judge Wakefield sat with four justices, two of whom (as is normal) were members of the Newham licensing committee.
18. There was and is no dispute that the Crown Court must not only conduct a de novo hearing but must also decide the factual issues on the basis of the situation at the time of the appeal. Thus, if the appeal had been heard before 7 March the claimant would still have had its office at 278 Barking Road albeit, of course, that it was intending to relocate.
19. His Honour Judge Wakefield gave brief reasons at about 6.15 p.m. on the Friday evening of the second day for allowing the appeal. A note of those reasons was made by solicitors for Chase and, at my request, were produced during the hearing and is now to be found at page 21A of the bundle. It is accepted that they are sufficiently accurate for the purposes of this hearing, although the second paragraph as noted does not make entire sense. His Honour Judge Wakefield said that they had considered the evidence at some length and he then went on to say:
"There is a possibility that demand in the locality is insufficient to support the opening of a further Betting Office given the fact that there is a new licensed betting office recently opened by Surrey Racing and there are two good shops operated by Corals and Ladbrokes. We put it no higher than that.
However we are not (sic) here to consider whether it would be inexpedient for Wayne Marler (sic) to grant a betting office licence to Wayne Marler nor (sic) to the other Bookmakers in the area. We do not see there is any public interest reason for refusing this licence. There is no possibility of any detriment to the betting public or the public generally if the licence were to be granted.
Therefore, there is no sufficient reason for a refusal and we therefore grant this betting office licence to Mr Marler."
20. Mr Marler is the Managing Director of Chase. He had given evidence for some four hours during the hearing and had produced a considerable volume of material. Likewise, Mr Wilson gave evidence for the claimant and also produced a volume of material. Unfortunately no note or transcript of the evidence has been made available to me. I shall return to the material later.
21. Following the hearing in the Crown Court solicitors for the claimant wrote a letter to Snaresbrook Crown Court (page 21). The letter reads in part:
"We act for Surrey Racing, who were objectors both at first instance and on appeal.
We have considered the brief reasons adumbrated by the Learned Judge for the decision. We appreciate that the reasons were given at 6.15 pm on a Friday evening, the Learned Judge having (within his discretion) elected to sit on in order to complete the case. We have discussed the matter with Counsel and our client. We are advised that we are entitled to a fuller statement of the reasons which led to the decision which was made, and we are instructed to apply to you in this regard.
We are also authorised to state that the second objector, Corals plc, supports us in this application.
Would you please let us know when you anticipate that the Court will be able to deliver its written reasons, so that we can advise your client accordingly."
22. On 22 March His Honour Judge Wakefield signed a one page document containing the requested reasons (page 22). That document states in its entirety:
"Wayne Marler - Appeal - A1999/0269
Decision - 10 March 2000 - Reasons
1. We were concerned with Mr Marler's application for a betting office licence in respect of 6-8 High Street North, East Ham, and whether we should refuse the application on the ground that the grant of the licence would be "inexpedient" having regard to the demand for the time being in the locality for the facilities afforded by licensed betting offices and to the number of such offices for the time being available to meet that demand. There was no evidence to support any other ground for refusing the licence.
2. We considered all the evidence. We treated the "locality" as the area having a quarter mile radius from 6-8 High Street North. Within that area is the office run by Coral at 1 Kempton Road and the office run by Surrey Racing at 20 High Street North. There is a Ladbrokes office to the north of the locality, but outside it, which we treated as having only peripheral relevance. Away from the shopping areas, the locality has a hinterland of dense residential development. There appeared to be a strong demand for betting office services. The Coral office was well patronised. That office should continue to be a strong business, regardless of the recently opened premises of Surrey Racing and the opening of a new office at 6-8 High Street North, although some custom will be drawn away from Coral to those premises.
3. The evidence presented on behalf the applicant, Mr Marler, exaggerated somewhat the profitability of three offices in the locality, in the event of the new licence being granted. We had to make allowance for that. On the other hand, the evidence presented on behalf of Surrey Racing was too pessimistic. We took the view there was a possibility that demand was not sufficient to sustain offices at both Number 20 and Number 6-8 High Street North. We put it no higher than that. Having taken that possibility into account, we decided it should be left to market forces to determine whether both of those offices could co-exist as viable businesses.
4. We did not consider there was any public interest reason for refusing the applicant a licence. We found there would be no adverse effect on the betting public or the general public if the licence was granted. We decided it was not inexpedient that a licence be granted to the applicant. The licence was therefore granted."
23. Although Corals was an objector both before the Betting Licensing Committee and the Crown Court, it is not a party to these proceedings.
24. On 28 April 2000 the licence granted to Surrey Racing was renewed from 1 June 2000 until 31 May 2003. Three months later Surrey Racing gave up its licence and Wilson Sports and Racing obtained a licence in its place, with the same expiry date of 31 May 2003.
25. On 22 May 2000, Chase received formal notification of an application for judicial review. They had been told on March 13 that the claimant intended to apply for judicial review. On 28 April 2000 Chase completed its leasehold acquisition of the premises 6-8 High Street North, East Ham for a term of 20 years at an annual rent of £35,000. The total cost of the investment by Chase amounts, on the evidence now available to me, to some £160,000. The premises opened for trading on 7 September 2000 and are still open.
26. I turn now to the relevant statutory provisions. Betting office licences were introduced by the Betting and Gaming Act 1960. The Betting, Gaming and Lotteries Act 1963 was a consolidating statute and in paragraphs 19 and 20 of Schedule 1 reproduced, subject to some irrelevant modifications, the provisions in the 1960 Act dealing with grounds for refusal to grant or renew betting office licences. Paragraph 20(1) provides:
"Save as provided by paragraphs 15 to 19 of this Schedule, the appropriate authority shall not refuse any application for the grant or renewal of a ... betting office licence made, so far as lies within the control of the applicant, in accordance with the provisions of this Act, but shall grant or renew the permit or licence on payment by the applicant to the clerk to the authority of a fee of ... ." (Underlining added)
27. Pargraph 19 provides:
"In the case of an application for the grant or renewal of a betting office licence in respect of any premises, the appropriate authority-
(a) shall refuse the application if they are not satisfied-
(i) in the case of an applicant other than the Totalisator Board, that on the date with effect from which the licence would come into force, or, as the case may be, would be continued in force, the applicant will be the holder either of a bookmaker's permit or of a betting agency permit; and
(ii) that the premises are or will be enclosed; and
(iii) that there are or will be means of access between the premises and a street otherwise than through other premises used for the effecting with persons resorting to those premises of transactions other than betting transactions;
(b) may refuse the application on the ground-
(i) that, having regard to the lay-out, character, condition or location of the premises, they are not suitable for use as a licensed betting office; or
(ii) that the grant or renewal would be inexpedient having regard to the demand for the time being in the locality for the facilities afforded by licensed betting offices, and to the number of such offices for the time being available to meet that demand; or
(iii) that the premises have not been properly conducted under the licence."
The underlined words are central to this case.
28. There have, over the years, been many changes either to the Act or the regulations as to the manner in which the business of licensed betting offices may be carried out. The spartan atmosphere of the 1960s betting office is very much a thing of the past- notice boards and tannoys being used as the only means to communicate information. Before the Crown court (page 42) was a "Chronology of Deregulation and New Products" "Affecting Off-Course Licensed Betting Offices". The document reads:
"1985-86 The introduction of live Racing and market information in betting shops via Satellite, direct from the race course.
Facilities introduced allowing customers to dwell within the betting shop environment.
1993 Evening opening of betting shops between April & August.
1994 National lottery introduced.
1995 Sunday opening of Betting Shops.
Opening up of shop frontages allowing for the display of events and prices, plus other products.
The extension of the provision of food/cold snacks.
1996 AWPs ["one-armed bandits/fruit machines"] introduced.
Launch of the 49's numbers game.
Cut in betting duty from 10% to 9%.
1997 Relaxation on the advertising and marketing of licensed betting offices and their facilities. Persons in licensed betting offices can be encouraged to bet.
1998 AWPs Jackpot increased from £10 to £15."
29. The claimant is now able to offer, through a terminal, betting on continental European sporting events- a far cry from the 1960s. In the bundle are photographs showing the facilities and level of comfort now available to the punters of East Ham- again a far cry from the 1960s.
30. It will be noted that paragraph 19 (b)(ii) refers to both the grant or renewal of licences. As part of the 1997 deregulation, a new paragraph 20A was introduced dealing with unopposed renewals. This gives the power to the clerk (or his delegate) to grant the renewal. Paragraph 20A provides:
"20A (1) Where-
(a) an application for the renewal of a ... betting office licence ... has been made in accordance with paragraph 9 of this Schedule, and
(b) immediately before the meeting of the appropriate authority at which the application would, apart from this paragraph, fall to be considered-
(i) the clerk to the authority has not received any objection to the renewal of the permit or licence, or
(ii) every such objection received by him has been withdrawn, the clerk may act for the authority in relation to the determination of the application.
(2) Sub-paragraph (1) of this paragraph shall not have effect to enable the clerk to the appropriate authority to act for the authority in-
(a) refusing the application, or
(b) granting the application in circumstances where there is a discretion to refuse it.
(3) The clerk to the appropriate authority may not act under sub-paragraph (1) of this paragraph in any case where to do so would be contrary to the authority's directions.
(4) The functions of the clerk to the appropriate authority under sub-paragraph (1) of this paragraph shall also be exercisable by such other officer of the appropriate authority as the clerk may designate for the purposes of this paragraph."
The reference to circumstances in sub-paragraph (2)(b) (the clerk shall not act for the authority to grant an "application in circumstances where there is a discretion to refuse it"), appears to be a reference to circumstances known to the clerk. There is no dispute that paragraph 19 involves, at least in some circumstances, the exercise of discretion and yet, I was told, clerks routinely renew licences.
31. The following evidence, as taken from the claimant's form 86A, was undisputed:
"(a) Chase's witness Lawrence accepted that there was no difficulty placing a bet at any of the existing premises;
(b) Lawrence accepted that there was no overcrowding of any of the existing premises. Even Corals, a busy unit with a capacity of 66 had enjoyed a maximum attendance of 47 during his visits, which occurred before the opening of Surrey Racing's High Street premises;
(c) there was no evidence from punters, who are commonly called to give evidence regarding demand for betting office facilities;
(d) there was no market research evidence showing demand, or latent demand locally. Chase called a market research expert to give evidence about demand in Romford who stated that he could have researched the state of the market in East Ham, but had not been asked to do so;
(e) there was a mix of multiple operators and an independent operator. All of them ran good quality premises, two of which (Ladbrokes and Surrey) were brand new;
(f) there was no criticism of the opening hours of the existing premises;
(g) there was little to choose between the bets and prices offered between Chase and Surrey, as Mr Marler accepted in cross examination."
Mr Kolvin described these as the key indicators of unsatisfied demand.
32. He submitted that paragraph 19(b)(ii) had to be approached in two stages. Stage one raised what he described as the following question of fact: "What is the demand for betting office facilities in the locality and is it met by the existing supply?". Mr Kolvin submitted that "demand" is concerned with the quantitative and qualitative "service issue from the punter's point of view". Whether or not a Betting Office could be run viably was not the proper question to ask. Viability and demand are quite different. He accepted, however, that profitability may be part of the factual matrix from which conclusions about demand may be made. In his reply he submitted that the sub-paragraph was concerned with whether or not demand is met, and not with profitability.
33. He gave the following example to demonstrate his submission:
"This may be tested. There may be 10 betting offices on a high street all trading at 25% capacity and offering an excellent standard of service. On the Applicant's approach under Stage 1, demand for betting office facilities is clearly met. However, on the basis that each office would only lose 9% of their trade if an 11th opened, 11 offices may well be viable. Thus, a different result arises, depending on which construction is preferred."
34. He accepted, as he had to, that upon an application to renew, paragraph 19(b)(ii) applies. Thus, using his example and applying his argument, when the 10 licence holders had to seek a renewal (as they would every three years and at the same time), the betting licensing committee should apply the demand test. Should demand "for the time being" have declined, then the Committee should (on his argument) reduce the numbers, by deciding that one or more of the current holders should lose their licence. Mr Kolvin was unable to give me the criteria on which the choice would be made. Neither Mr Kolvin or Mr Beckett could recollect any case where, upon renewal, this had been done. Indeed, as I have already said, renewals will usually be undertaken by a clerk.
35. Stage two, he submits, raises a value judgment: "Having regard only to the determination of facts under stage one, is it inexpedient to grant a further licence?" He submitted that there was no wider test of public interest. He described this as a "closed discretion".
36. Mr Kovin relied upon R v Secretary of State for the Environment, ex parte Lancashire County Council and ex parte Derbyshire County Council 1994 4 All E.R. 165 (Jowitt J). In that case the relevant legislation provided that any change recommended by the Local Government Commission to the Secretary of State
"shall be such as appear to the Local Government Commission desirable having regard to the need (a) to reflect the identities and interests of local communities and (b) to secure effective and convenient Local Government." (page 171G)
Jowitt J points out that at one stage Mr Collins QC, who appeared for the Secretary of State, had argued that the two statutory criteria in (a) and (b) were not all embracing. Jowitt J reached the conclusion that they were and he says that Mr Collins had accepted this. (page 172 C-H)
37. Mr Kolvin submits therefore that "inexpediency" can only be tested by reference to demand. Likewise he said that, in 19(b)(i) and (b)(iii), the discretion to refuse the application can only be exercised by reference to the matters set out respectively in (i) and (iii). For example, if the premises have not properly been conducted under the licence then, so he submits, the application could be granted but only if the authority was satisfied that the premises would now be properly conducted. Given that under paragraph 20 the authority is obliged to grant the licence unless a ground of refusal is made out, he submits that the authority could not refuse an application unless they were satisfied, on the balance of probabilities, that it was inexpedient having regard to the demand. He submitted that if at stage one the demand test was not met, then it would follow, subject to one exception, that it would be inexpedient to do other than refuse the licence. It might still not be inexpedient to refuse a licence if (and only if) demand was being met but only just, i.e. there was only a small imbalance. He did suggest that the quality of the existing betting offices might be relevant at this stage. Later in this judgment, I reach the conclusion that quality is relevant when considering demand. If it is found to be inexpedient then, he submitted, "may" becomes "shall".
38. In support of the proposition that there is a two stage process, he cited R v Knightsbridge Crown Court, ex parte International Sporting Club (London)Limited and another  1 Q.B. 304 (Divisional Court). The applicant's gaming licence had been cancelled by the Gaming Licensing Committee on the grounds that it was not a fit and proper person to hold a gaming licence. The applicant entered a notice of appeal and before the hearing of the appeal radically restructured itself. Before the Crown Court the applicant contended that despite past mis-conduct the applicant was now reformed. Griffiths LJ giving the judgment of the Court at page 316 E-F said:
"We would have expected the judge's judgment to have followed this basic outline: first a consideration of and decisions upon whether it had been shown that the companies were not fit and proper persons to hold a licence ... or that while the licences had been in force the relevant premises had been used for an unlawful purpose ...; and secondly, assuming findings against the companies on either or both of these grounds, whether the Court should exercise its discretion to cancel the licences."
39. Mr Kolvin also relied on the following passage in which Griffiths LJ said if the Court concludes that an applicant is not a fit and proper person, "it is difficult to conceive many grounds upon which it would be right to exercise the discretion not to cancel the licence." (page 316G)
40. Mr Kolvin submitted further that the application should succeed, if for no other reason, because of a failure by the Court to set out its reasons as to why it reached the conclusion it did. In particular he complained of the failure on the part of the Crown Court to describe what he said were the usual or key indicators of unsatisfied demand and explain how, notwithstanding their absence, it was still right to grant the licence. As to the need to give reasons, he cited R. v. Harrow Crown Court, ex parte Dave  1 W.L.R. 98, at 107A-B (Divisional Court), the International Sporting Club case and R. v. Licensing Justices, ex parte Warner (unreported) 15 October 1998 (Ognall J.).
41. He further submitted that, on the evidence before the Crown Court, the decision to grant the licence was, on the evidence, Wednesbury unreasonable.
42. He submitted that both the legislation by its restrictions on the way that licensed betting offices can operate and the Divisional Court in R v Essex Quarter Sessions ex parte Thomas  1 W.L.R. 359 had given a "policy steer" to an authority applying paragraph 19(b)(ii). He submitted, basing his argument on a passage in that case (page 362F), that an application must be refused if "made quite irrespective of any demand, but merely to entice custom away from another betting shop in the locality" or "to stimulate demand and to encourage people to bet". Citing Padfield v. Ministere of Agriculture, Fisheries and Food  A.C.997 (H.L.). he submitted that the discretion must be exercised to promote the policy and objects of the Act.
43. In Thomas a Betting Licensing Committee had refused an application by a company for a betting office licence and the company had appealed to Quarter Sessions. There were 8 betting offices within a half a mile of the proposed premises, 5 of which were owned by the company. Lord Parker C.J., in a judgment with which Ashworth J and Widgery J agreed, said (page 361 C-E):
"In the course of giving their decision, the chairman, so it is said, used words to the effect that the neighbouring betting shops were owned by the company, and that the company was willing and anxious to invest further capital in yet another betting office in the vicinity was very good evidence of need for another licence. The chairman, by an affidavit which he has put in, acknowledges that he used words to that effect in giving judgment. What is said here is that quarter sessions wrongly exercised their discretion to grant a licence, having regard to the only evidence available, which was that the company merely stated that they wanted to open another betting shop." (Underlining added)
44. Lord Parker went on to say (pages 362A-363):
"What is urged here by Mr. Durand is that the mere fact that a particular applicant for a betting office licence applies for and desires to get a betting office licence in respect of certain premises is not evidence of any demand, and accordingly that quarter sessions here wrongly exercised their discretion, relying on the application made as showing that there was a demand. For my part I am quite unable to say that quarter sessions went wrong in law. It seems to me that an application made by a bookmaker for a betting office licence may in certain circumstances be evidence of a demand in the locality; it is certainly not conclusive evidence otherwise every application would have to be granted; nor in general is it any evidence to which weight could be attached for two reasons, as it seems to me. In the first place the application might be made quite irrespective of any demand, but merely to entice custom away from another betting shop in the locality; and secondly the application might merely be made not because there was an existing demand, but, if I may put it this way, to stimulate demand and to encourage people to bet. Accordingly, in the ordinary way very little, if any, weight could be attached to the fact that the applicant thought it worth while to invest money and open a new betting shop.
So far as the present case is concerned, however, there was no question of seeking to divert custom from a neighbouring betting shop, because as the plan shows, the proposed premises were a long way away from other betting shops in the locality other than one which was associated with the company; in other words, if the desire was to take away custom, it would be to take away custom from itself. So far as the object being merely to stimulate demand as opposed to satisfying demand, the question as to what weight should be attached to the evidence must depend on what view quarter sessions took of the company's evidence. The evidence before quarter sessions was that of Monty Landsberg, a director of the company B. & J. (Turf Investments) Ltd., and the chairman in his affidavit said:
`Monty Landsberg, who gave evidence upon the appeal, struck me and the justice who with me formed the majority of the court as a sensible and practical businessman who, by reason of his already considerable experience of the betting office business in Romford, had a shrewd appreciation of the demand in the locality for the facilities for which he was seeking a licence. His company's application for a licence was made in the belief that additional facilities were required.'
That was evidence which quarter sessions accepted, and I think that once they accepted that evidence, they were entitled to give some weight - what weight was a matter for them - to his evidence as being evidence of a demand in the locality.
I should say this. It is not a question of what any member of this court sitting in quarter sessions might have decided. Speaking for myself, I would hesitate, and I would expect any chairman of quarter sessions to hesitate, long before differing from the local justices who had dealt with the matter in their locality with the greatest care. But to say that he was as a matter of law not entitled to differ from them is a very different matter. Sympathising as I do with the local justices, who were clearly exercised with the number of betting shops in this locality and the desire to see that no more did come to the area than were really required by demand, I cannot think that quarter sessions went wrong in law. Accordingly, I would refuse this application. "
45. Mr Kolvin also drew my attention to the July 2000 Annual Report of the Gaming Board as reproduced in Paterson's Licensing Acts, 2001. The Board conducts a monthly census. If, at busy times, the average usage in the licensed casino or casinos in the relevant area is more than 50% of capacity, the Board will not normally object to the grant of a new licence on the grounds of lack of demand. If less, the Board "will give active consideration to an objection on the grounds that, at these levels, there could be a real risk that additional supply might threaten successful regulation".
46. Mr Kolvin also relied upon R v Manchester Crown Court, ex parte Cambos Enterprises Limited (unreported) 2 March 1973 (Divisional Court). Mr McCowan sought an order of certiorari to quash a decision of the Crown Court of Manchester dismissing an appeal against the refusal of the Gaming and Licensing Committee of the Justices to grant a Bingo Licence in respect of premises at 55 Bolton Road, Walkden. In Walkden there was a licensed Bingo Club known as the Palace Bingo Club. The Crown Court were unimpressed with its the facilities. There was no dispute that the applicants, if they received a licence, would set up a very much more elaborate establishment than that which was run by their potential competitor, the Palace Bingo Club. It would be "a very much more comfortable and lavish establishment" (page 2D). The relevant legislation was paragraph 18 of Schedule 2 of the Gaming Act 1968:
"18.- (1) The licensing authority may refuse to grant a licence under this Act if it is not shown to their satisfaction that, in the area of the authority, a substantial demand already exists on the part of the prospective players for gaming facilities of the kind proposed to be provided on the relevant premises.
(2) Where it is shown to the satisfaction of the licensing authority that such a demand already exists, the licensing authority may refuse to grant a licence if it is not shown to their satisfaction-
(a) that no gaming facilities of the kind in question are available in that area or in any locality outside that area which is reasonably accessible to the prospective players in question, or
(b) where such facilities are available, that they are insufficient to meet the demand."
47. Lord Widgery, C J, in a judgment with which the other two members of the Court, Ashworth and Bridge JJ agreed, noted what he described as the "slightly odd phraseology" of the first sub-paragraph and went on to say (page 4C):
"that must mean that the intention of Parliament was in general that if a substantial demand was not proved, a refusal of the application was to be expected."
If the demand referred to in sub-paragraph 1 was not proved: "to their satisfaction, then prima facie the application should be refused." (page 4 D-F)
48. Lord Widgery went on to hold that:
"... it does not mean that gaming facilities are provided merely by providing a dark draughty ill-lit room with a bare minimum required for the playing of bingo." (page 5G-6A)
49. Lord Widgery said that if the people of Walkden (pages 6E-F): "found the Palace inadequate for their gaming requirements and wanted something else, then there you have at once the seeds of a demand already existing for gaming facilities of that kind."
50. The Crown Court had come to the conclusion that it had not been established to their satisfaction that a substantial demand already existed and therefore they had to refuse the application (page 7 B-C). As to this Lord Widgery said:
"On my reading of the legislation there is no such mandatory obligation to refuse the application simply because a substantial existing demand is not proved. The language of the paragraph is clearly discretionary; they may refuse the application, and there was therefore a discretion remaining in the Court which fell to be exercised even if they had quite properly reached a conclusion that an existing demand had not been proved. They may well say: what more is there to discuss, what other considerations are to be applied? Obviously Parliament intended that there should be an opportunity for considerations other than the existence of a demand to be taken into account, and I think what is really contemplated here is that in the absence of proof of a substantial demand, the licensing committee may in their wisdom and with their knowledge of the area, still think it right to grant a second bingo licence for the district, and I think that they would be perfectly entitled if they thought it right, to be influenced in favour of granting further facilities to a competitor, by the fact that the competitor was prepared to supply the gaming facilities in question on a more lavish scale, with greater comfort, and in circumstances which the patrons would find more attractive than the existing establishment.
That in my judgment is the kind of legitimate consideration which might move the Committee to make their decision in favour of the Applicants even though no existing substantial demand had been proved."
51. In the latter part of this passage Lord Widgery contemplates qualitative issues as being relevant "even though no existing substantial demand had been proved." There is some conflict between this passage and the passage which suggested that quality can be considered in deciding whether there is an existing substantial demand (page 6E). Bridge J said that in deciding whether or not existing facilities are or are not sufficient to meet the existing demand, "not only the quantity but also the quality of those facilities" should be considered (page 9E-F).
52. It seems to me that Bridge J is right and that issues of quality are relevant when considering demand.
53. Mr Beckett did not accept the two-stage process. He submitted that the authority had to decide whether the grant or renewal would be inexpedient and that in deciding whether it was or was not expedient, the authority was not limited in the manner submitted by Mr Kolvin. Mr Beckett submitted that the word "may" left the authority with considerable discretion and permitted the court to take into account the public interest. He characterised Mr Kolvin's approach to demand as one long since abandoned by licensing committees. Whereas Mr Kolvin concentrates on his so-called "key indicators", Mr Beckett points out that the committees are concerned with latent demand. He draws attention to the passage in Cambos, which I have already cited, referring to "the seeds of demand". The mere fact that punters may not have to queue up to place their bets or collect their winnings, that they have a wide variety of choice and that all current holders offer comfortable modern surroundings, does not mean that the application must be refused.
54. Mr Beckett doubts the "stealing customers" or "not stimulating demand" "policy steer" advocated by Mr Kolvin. He points to the very significant relaxation of the regulatory system over the last 40 years. Mr Beckett relied upon the Thomas case. The only evidence in that case was "that the company merely stated that they wanted to open another betting shop". Viability, so he submitted, was an inherent part of demand.
55. As to the need to give reasons Mr Beckett relied upon the following passage in Eagil Trust Co. Ltd v. Piggott-Brown and another  3 All E.R. 119 (C.A., Sir John Arnold P. and Griffiths L.J.):
"The next general observation I want to make is as to the judge's duty to give his reasons for his decision. A professional judge should, as a rule, give reasons for his decision. I say `as a general rule' because in the field of discretion there are well-established exceptions. The most obvious and frequently used is the exercise of the judge's discretion on costs. As a general rule the judge gives no reasons for the way in which he is exercising his discretion on costs, although if he were to make an unusual award of costs, it is clearly desirable that he should give his reasons for doing so. Another recent example of the judge not being required to give his reasons is when he refuses leave to appeal to the Court of Appeal, having refused leave to appeal from an arbitrator (see Lord Diplock in Antaios Cia Naviera SA v Salen Rederierna AB, The Antaios  3 All ER 229 at 237, AC 191 at 205).
Apart from such exceptions, in the case of discretionary exercise, as in other decisions on facts or law, the judge should set out his reasons, but the particularity with which he is required to set them out must depend on the circumstances of the case before him and the nature of the decision he is giving. When dealing with an application in chambers to strike out for want of prosecution, a judge should give his reasons in sufficient detail to show the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. It is sufficient if what he says shows the parties and, if need be, the Court of Appeal the basis on which he has acted, and if it be that the judge has not dealt with some particular argument but it can be seen that there are grounds on which he would have been entitled to reject it, this court should assume that he acted on those grounds unless the appellant can point to convincing reasons leading to a contrary conclusion (see Sachs LJ in Knight v Clifton  2 All ER 378 at 392-393, Ch 700 at 721)."
56. In his reply Mr Kolvin accepted that an authority could rely on latent demand. He said that those who run betting shops hope that everyone is a prospective punter- "No-one is unpuntable". He stressed, however, the importance of the key indicators. In reply Mr Kolvin accepted, for the first time, that, in determining whether a grant or refusal would be inexpedient, that the authority can have regard to the future. In fact this is what the claimant had done both in 1997 and 1999, opposing, respectively, the grant of a licence to Chase 8 Racing Limited and Chase. The claimant asked the court, when deciding expediency, to take into consideration, respectively, the future re-opening of their premises at 278 Barking Road and the opening of their premises in the High Street (the latter being a matter about which Chase complained in its grounds of appeal to the Crown Court). Mr Kolvin had moved from a position where only "demand for the time being" was relevant to whether the grant or refusal was inexpedient, to a position where the future situation was relevant.
57. I turn to my conclusions on the law. Whilst not accepting that an authority should always consider demand first on an application for a grant or renewal of a licence, I take the view that an authority considering the grant of a licence should normally do so.
58. I reject the claimant's submissions that the so-called key indicators of unsatisfied demand (paragraph 31 above) are all important, indeed decisive in this case. In assessing "demand for the time being" a matter such as lack of overcrowding in the offices for the time being available is only one of the factors which an authority may wish to take into account. I give an example: assume that the only betting office in the locality is owned by the market leaders, Corals or Ladbrokes, assume that the office is exceptionally well run with a wide choice of events on which to bet, assume a good range of competitive prices and that the premises are not at all overcrowded. Nonetheless, an authority would not be excluded from granting a licence to a small owner managed business, upon evidence of an unsatisfied demand for such an outlet. Assessing actual demand "for the time being" may be done in a variety of ways. I have already cited the Gaming Board's provisional approach not to object if usage exceeds 50% capacity (paragraph 45 above). I doubt it would be Wednesbury unreasonable for an authority to adopt such an approach, provided that its approach was not simply mathematical.
59. Mr Kolvin does not dispute that demand includes what has been described in this hearing as latent demand. If latent demand is unmet, then the demand test is satisfied. In determining whether latent demand is being met, the quanity, quality and type of the existing facilities may be relevant. It is for the authority charged with deciding whether to grant or renew licences to make this determination and this Court will be reluctant to interfere.
60. How is latent demand determined? Mr Kolvin criticises the absence of evidence in this case from punters regarding demand for facilities and the absence of market research. That is a matter for the authority. In my judgment, an authority which did not require such evidence would not be acting in a Wednesbury unreasonable manner.
61. An authority may, in my judgment, make a finding of latent demand on the basis that the applicant for a new licence or the renewal of a licence is prepared to invest money in the launch of a new office or the retention of an existing office. Thomas provides an example of the former. To do so would not be Wednesbury unreasonable.
62. I turn to Mr Kolvin's submission that in assessing demand an authority should take into account what he described as the "policy steer" both in the legislation and in Thomas: there should not be more licences than is required by demand and that, in the absence of demand, applications should be refused if made merely to entice customers away from the current licensed offices or to stimulate demand. That must be right if there is an absence of demand. Nonetheless in deciding whether there is an unmet demand, an authority may feel that it should not be overly concerned with whether the consequence of granting a licence may be that customers will be enticed from existing offices to the proposed new office. In Cambos the relevant legislation was much more restrictive than the legislation with which this case is concerned. Yet the result of granting a new licence would have led to the "stealing" of customers from the Palace Bingo Club. In the present case Chase relied on figures which showed that there might be a shift of custom away from the claimant and Corals. It is hard to envisage that such evidence would defeat the application. Likewise an authority deciding whether there is an unmet demand, may feel that it need not to-day be overly concerned with whether a new licence would stimulate demand. So much has changed since the legalisation of betting shops in 1960. When a betting office can, as now, encourage persons in the office to bet and when it can encourage persons to come into the office by, for example, advertising on the office window the odds being offered or by offering snacks and fruit machines, it seems to me to be unrealistic to be overly concerned with stimulating demand. Furthermore, there are now many ways in which persons minded to "have a flutter" can do so. In addition to telephone credit betting (always permitted), bets may now be placed via the internet. The claimant produced a list of 33 offshore companies providing betting facilities to persons in this country (page 99). Because these companies do not have to add a betting duty or add only a lower duty than the duty in force in this country, there may be a financial advantage in betting offshore. Since 1994 there has been a national lottery, heavily advertised on television with odds of winning the jackpot of some 14 million to 1 against. Spread betting is popular. Even if exaggerated there is some truth to-day in Mr Kolvin's expression: "No-one is unpuntable".
63. Mr Kolvin sought to argue that the meaning of the word "demand" cannot change and must be interpreted in its original meaning as first enacted, relying on Birmingham City Council v. Oakley  3 WLR 1936 (H.L.), particularly at page 1947 per Lord Hoffmann. Assuming that that is right, notwithstanding all the changes to the Act, nonetheless how an authority assesses demand may change with the passage of time.
64. I turn to Mr Kolvin's argument about inexpediency. Although he submitted that "having regard" must mean "having regard only", he accepted, in his reply, that in determining expediency an authority could take into account the future as well as the position "for the time being". The future could include the opening of further offices for which licences have been given but which have not yet opened. It could include the creation of a new housing estate or shopping centre in the area. That distinguishes the decision of Jowitt J. referred to in paragraph 34 above.
65. I have already commented (paragraph 34 above) on the difficulty of applying a rigid closed discretionary test to renewals. Likewise, if an application is, in effect, an application for the transfer of a licence from one premises to another close by, with some increase in the size of the customer area, then an authority might well conclude that the grant would not be inexpedient with little or no analysis or re-analysis of demand "for the time being". Likewise it seems unrealistic to expect an authority to re-evaluate demand when, as in this case, Wilson Sports and Racing obtained the licence previously held by the claimant (paragraph 24 above).
66. I take the view that the use of the word "inexpedient" alone or coupled with the word "may" leaves an authority with a discretion in deciding whether to grant or renew. The absence of demand "for the time being" must be an important factor but not decisive. In the absence of evidence of any sufficient unmet demand "for the time being" or in the future, it is much more difficult to envisage a situation where the discretion could be exercised at least in favour of an applicant for what is a new licence (rather than a transfer or renewal).
67. Mr Kolvin accepts that it may not be inexpedient for an authority to grant a licence when demand is being met but there is only a small imbalance between supply and demand. In deciding whether it is inexpedient in such circumstances, I see no reason why the authority should not have regard, in these circumstances, to public policy considerations. One of those could be the consideration used by the Gaming Board and referred to in paragraph 45 above, namely the risk to regulation of additional supply. Whether that is a real risk or only a fanciful risk in the case of betting offices in a particular area would be for the authority to decide.
68. I turn to the facts of this case. In addition to the evidence which I have already set out in paragraph 31 above, Mr Marler presented a good deal of documentary evidence. In section 10 of the bundle he presented evidence to show how in Romford the opening of a Chase betting office had led to an increase in turnover for all 5 offices (3 Ladbrokes, 1 Corals and one new Chase office) of some £815,000 or 24%, as well as the "stealing" of business from the other offices. This, it was submitted, showed the level of unfulfilled demand in Romford, said to be a comparable area to East Ham. Mr Marler then, by way of a predicted forecast, applied those figures to East Ham should Chase be granted a licence. It was the evidence of the predicted East Ham figures which led to HHJ Wakefield to say that the evidence presented by Mr Marler "exaggerated somewhat the profitability of the three offices in the locality, in the event of a new licence being granted".
69. The claimant relied upon the figures of increased consumer area and presented figures to show that there was a slippage rate at 278 Barking Road (the old premises) of some 1700 a week, with a slippage decrease over the year of 1.04%. The claimant produced newspaper articles which were pessimistic about the future of betting offices in the light of the competition. This kind of material had not, for obvious reasons, been presented to the Betting Licensing Committee when the claimant obtained its new licence. The claimant also produced figures projecting a loss for of £23,583 and a loss of £42,057 for Chase, should Chase be granted a licence. This evidence was described by the judge "as too pessimistic".
70. I turn to the reasons for the decision of 22 March (paragraph 22 above), against the finding of some exaggeration on the part of Chase and the finding that the Surrey figures were too pessimistic. These findings cannot be described as Wednesbury unreasonable.
71. There is no dispute that in paragraph 1 the judge properly set out the law. It should also be remembered that, over the two days, there was only one issue, namely whether, applying paragraph 19(b)(ii), the licence should be granted or refused.
72. No complaint is made about paragraph 2, except in so far as it is suggested that the reference to "strong business" could be an indicator that the judge was applying the wrong test. That paragraph includes the important finding that there is a "strong demand" for betting office services in the locality.
73. The thrust of Mr Kolvin's criticism relates to the last three sentences of paragraph 3 and to paragraph 4. He submits that the references to "sustain", "market forces" and "viable businesses" shows that the Court was concerned with viability rather than demand. I repeat those three sentences:
"We took the view there was a possibility that demand was not sufficient to sustain offices at both Number 20 and Number 6-8 High Street North. We put it no higher than that. Having taken that possibility into account, we decided it should be left to market forces to determine whether both of those offices could co-exist as viable businesses"
74. If there was a mere possibility that demand was not sufficient to sustain the office, it followed that, in the view of the Court, it was probable that demand was sufficient to sustain the two offices. Notwithstanding the description of the evidence presented by Chase as "exaggerated somewhat", the Court must have accepted the thrust of the evidence which had been presented to the Court by Mr Marler based on his experiences at Romford. The Court was accepting the existence of an unmet demand which Chase could meet, as it had at Romford, even if the extent of that demand was somewhat exaggerated. There was only a possibility that unfulfilled demand was insufficient. The evidence presented by the claimant did not therefore convince the Court- it was too pessimistic. Having reached this conclusion, it seems to me that the grant of the application was likely to follow unless the grant would be inexpedient. I see no particular need to have added in the reference to market forces, but it does not in my judgment invalidate the finding relating to demand and could be said to be part of the "expediency" test.
75. In paragraph 4, having properly set out the law in paragraph 1, the Court reached the conclusion that it was not inexpedient to grant the licence. Having found evidence of sufficient unmet demand, a finding that the grant would not be inexpedient was likely to follow. Nonetheless, the Court was, in my view and for the reasons which I gave earlier, entitled to consider whether there would be any adverse effect in granting the application.
76. In conclusion I also reject the submission, for the reasons already given, that it was necessary to refer to the so-called key indicators. I also reject the submission that the reasons were inadequate. Applying the passages in the Eagil Trust case (paragraph 55 above), the reasons are sufficient to explain the basis on which the Court acted.
77. For these reasons this application fails.
MR JUSTICE HOOPER: For the reasons which I now hand down, this application fails. I thank counsel, Mr Gouriet and Mr Kolvin, very much for your corrections. I am very grateful to you both. Mr Kolvin, I feel, as you see the modified paragraph 62, that I had perhaps not properly explained what you are seeking to argue on that consideration.
MR KOLVIN: I am grateful.
MR GOURIET: May I ask for costs?
MR KOLVIN: I cannot resist that. I have one small point to make which is in relation to two counsel. Can I direct your Lordship to the relevant provision in the White Book? My Lord has an option of saying that the matter should be looked at with detailed assessment. If my Lord does not want to hear the submission--
MR JUSTICE HOOPER: No, I will listen to you. Who would make the decision as to whether or not Mr Gouriet should be led by Mr Becket?
MR KOLVIN: It is really a question of whether Mr Becket should have led Mr Gouriet--
MR JUSTICE HOOPER: It is the other way around?
MR KOLVIN: It is the other way around, yes.
MR JUSTICE HOOPER: Mr Gouriet, you did the appeal?
MR GOURIET: My Lord, yes.
MR KOLVIN: My Lord may express a view, but whether or not my Lord expresses a view the matter can be raised in detailed assessment.
MR JUSTICE HOOPER: I think I am not going to express a view but I will not shut it out. If I can just remain neutral and then the thing can be argued.
MR KOLVIN: I felt it proper to raise it here. There is one other matter which is merely to safeguard the position, I have an application for permission to appeal in this case. Can I deal with it as briefly as may be? There are three points. The first arises at paragraph 67 of my Lord's judgment when my Lord stated that the Betting Licensing Committee on appeal to the Crown Court may have regard to public policy considerations. My brief submission, which my Lord has, is that the public policy in this statute is to be found in the statute which is that there should not be more offices than are required to meet the demand. An appeal to a more general public policy point which is not found in the Act, and indeed which an objector may be unprepared to meet (certainly a Betting Licensing Authority would be unprepared to meet), may lead to some uncertainty both in practice and in principle.
My Lord will remember that in this case the Crown Court made a specific appeal to the general public interest in deciding to grant this appeal. My short submission is that if that can be an overriding consideration, that is an overriding consideration of demand and supply, then the legislative policy here may be emasculated. So the role of public policy (if I can highlight it in that way) is an important point which, in my submission, ought to be looked at further.
MR JUSTICE HOOPER: Before you go on - I am not seeking to defend my judgment.
MR KOLVIN: No, of course not.
MR JUSTICE HOOPER: Are you not reading rather a lot into paragraph 67? What paragraph 67 is dealing with is where you have already found that there is a small imbalance between supply and demand, you then concentrate on expediency. It is not inviting everyone to look at public policy considerations on every occasion, but only when that fine balancing act has to be performed.
MR KOLVIN: My Lord, yes, the question is whether the public policy, which can be raised at that point, is a public policy which has regard to that demand, supply and imbalance, or whether a wider point can be raised. In short (and one may find this in paragraph 66 as well) whether it is open to an Applicant to come to Court and say: "Look I accept that demand is met by supply here but I ask the Court rhetorically, 'What is the harm? What is the public policy consideration which militates against the ground? Where is the inexpediency?'" I say that the inexpediency is a very specific matter which is to be judged according to the legislative policy.
My learned friend would argue, and did argue, that the Court is entitled to have regard to a wider consideration which is whether there is an adverse effect on the general public. In a nutshell that is the argument which has occurred up and down the Courts in this land in the last year or so as people have raised these points. Where is the actual harm to the public interest as opposed to what is the demand to supply and imbalance? That is an important question which, in my respectful submission, ought to be looked at by the Court of Appeal.
MR JUSTICE HOOPER: In the last sentence in paragraph 66 I do envisage, do I not, if there is sufficient funding, if there is no evidence, or in the absence of evidence of sufficient unmet demand then it is more difficult to see how the discretion could be exercised?
MR KOLVIN: Exactly and then the question is on what material ought discretion to be exercised? Is it open for the Applicant to say 'I accept, as a result of this ruling, it is more difficult', but of course one licenses in the public interest and one must always balance that narrow question of supply and demand against the wider look at the public interest. Although it is more difficult, the question is: upon what material is it legitimate for the Licensing Committee to say, notwithstanding the imbalance, in this case the licence ought to be granted? Ought that discretion to be exercised merely by (inaudible) supply and demand in the present future, or can one have a look at the wider consideration which goes to that narrow question?
MR JUSTICE HOOPER: I do not think I can resolve that issue, can I, because I do not actually say one way or the other what the answer is?
MR KOLVIN: My Lord, no, exactly. That is precisely what I say ought to be looked at by the Court of Appeal otherwise essentially, day in and day out, there is going to be an argument: can one look at a question wider than supply or demand if one looks, for example, at employment in the locality or the desire to maximise and so on. Could a Betting Licence Committee say, 'We do not much mind about supply or demand here. We think betting is a jolly thing.'
MR JUSTICE HOOPER: Thank you very much. Your second point?
MR KOLVIN: That is the first matter. The second matter is as to the role of what in the past have been treated as key indicators, that is whether there is spare capacity in premises, whether the facilities on offer are good facilities or bad, whether it is easy or hard to place a bet, and so on. In short, from the qualitative viewpoint, whether demand is being met by supply. It is open apparently, on the face of the Crown Court's judgment, for an Applicant to come to Court and say, 'Look whatever the result is of those tests there is profit in it. I can produce more profit by opening a new unit.' In this case the Crown Court made no reference whatever to those indicators of supply and demand. That raises a question about whether the test in the future is to be a qualitative based test, based on a real assessment of supply and demand, or whether it is to be an economic test of whether a new office can generate profit or not.
This was exemplified in this case where, on the one side, the Claimants said, 'There is profit in it. Look at Romford (?)" and the objectors said 'Look at the qualitative indicators'. If one is not going to have some form of direct schism between those two forms of test in these two forms of case, in my respectful submission there ought to be some resolution of those two ways of looking at the problem. My Lord may feel that again, as a matter of practice and principle, this is something which ought to be looked at by the Court of Appeal.
MR JUSTICE HOOPER: That is really paragraph 58.
MR KOLVIN: My Lord has, in a sense in his judgment, said these factors are of course not overriding. They may not be. My simple submission is that they are not just irrelevant but highly irrelevant in an overall assessment. They are completely absent in this case in the overall assessment. In my respectful submission that is something which ought to be looked at if only to give guidance to Applicants, the objectors and licensing committees in what they are supposed to be looking at when they come to consider these applications. That is the second matter.
The third matter is very short. As my Lord knows,
CPR 52, paragraph 3, suggests that there are two bases upon which an application for permission may be granted: the one is real success and the second is a compelling case. I opened this application by telling my Lord about the importance of this matter to the betting industry. In the last 40 years this is the only thorough analysis of the Betting Licensing legislation there has been and whatever the result of these proceedings is it is likely to be the touchstone for the future applications.
As I have said, there are 9,000 betting office licenses in this country. It is a matter of great importance to the betting industry, whether it is the new independent breaking into the market, or the larger multiples, in many cases, trying to protect their own interests. If for that reason, and for no other, I submit this is a case of sufficient importance that the Court of Appeal ought to have an opportunity to look at it and consider what exactly the legislation was driving at, whether it succeeded and whether in the light of new social conditions that legislative policy should, or should not, be followed.
MR JUSTICE HOOPER: If you are asking for permission to appeal on public interest grounds, are you minded to give any form of undertaking that, in any event, you will not seek the removal of licences?
MR KOLVIN: I am not in a position to give an undertaking.
MR JUSTICE HOOPER: Would you like to consider that and then I will consider the application on paper?
MR KOLVIN: If my Lord is minded to give permission on the narrow public interest ground rather than the wider legal ground, what my Lord could require of me is that you give the permission, if I am prepared, within whatever days to undertake in writing that I shall not seek the cancellation of the licence already granted. Then I would not be able to take the permission forward on that basis without giving that undertaking. What I am not in a position to do this morning is to give the undertaking. That will leave me with three options: one is not to prosecute at all, the second is to give the undertaking, and the third is to go to the Court of Appeal and ask for their permission.
MR JUSTICE HOOPER: Mr Gouriet?
MR GOURIET: On that basis I do not think there is much I have to say.
MR JUSTICE HOOPER: I have not made up my mind yet.
MR GOURIET: If that be the course and the Court proceed with that I certainly would not wish to address the Court. If you were to make the order I suggested, and my friend pursued any one of those three routes right now, there would seem to be little I could usefully add. As I have understood the proposal, it is either that there be an appeal on the matters of principle which could not, because of the undertaking, take away my client's licence from him, or whether there should be an appeal would be argued in front of the Court of Appeal on some future date. I am content with either of those courses. My client's licence is protected in either event.
MR JUSTICE HOOPER: It is not protected in either event. The Court of Appeal might say, 'I was wrong to require of Mr Kolvin an undertaking'. That is a matter for the Court of Appeal.
MR GOURIET: There is not, arising before the Court today in my respectful submission, either an arguable point or a point of such importance that the Court of Appeal ought to be seized of it. There is a difference between an arguable point, on the one hand, and, on the other, no or little point over which there is constructed a heavy disguise. There has been a number of words spoken by Mr Kolvin in this case and a great number of points written on analysis. We have a judgment of the Crown Court which is unimpeachable by your Lordship's ruling and, on analysis, one can see at each stage the complaints made against it -- Mr Kolvin's arguments fail. What is really being used as a limitation to your Lordship this morning is something of an academic pursuit because the point is said of some importance.
It would be a good thing to have a decision from the Court of Appeal upon it. It is said that it would be resolution where there is currently some division of opinion in what is happening up and down the country in licensing cases. None of these points truly arises from proper analysis of the Crown Court's judgment which, at each stage, as I have said, can be seen to have been properly arrived at taking into consideration matters that the Court is obliged to take into consideration, and applying the law which had been properly determined before its application to the facts.
MR JUSTICE HOOPER: Thank you very much.
MR KOLVIN: I do not wish to add anything further.
MR JUSTICE HOOPER: This judgment, Mr Gouriet and Mr Kolvin, is still in draft and I am concerned that I may have given the wrong impression in paragraph 66, which I did not mean to, because paragraph 67 deals with public interest. I propose to add before the words "more difficult" the word "much" to reflect the point I am trying to make. I am afraid you will have to go to the Court of Appeal. I refuse you.