Belfast City Council v. Miss Behavin' Ltd (Northern Ireland)

Factual and Procedural Background

Company A operated an unlicensed sex-shop on premises in The Street within The City. Under the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985 (“the 1985 Order”) a premises may not be used as a sex-shop without a licence issued by the local authority. The Council had earlier resolved that the appropriate number of sex-shops in the relevant locality was “nil”. When Company A applied for a licence, seventy objections were lodged, sixty-nine of them after the statutory 28-day objection period.

The Council’s Health and Environmental Services Committee recommended refusal, principally because the locality’s appropriate number of sex-shops was considered to be nil and, in the alternative, because of concerns personal to the applicant (previous unlawful trading and the involvement of an individual with relevant convictions). The full Council adopted that recommendation.

Company A sought judicial review. Judge Weatherup dismissed the claim. The Court of Appeal (majority) quashed the Council’s decision, holding that (i) late objections were wrongly considered and (ii) the Council had failed properly to address rights under Article 10 ECHR and Article 1 of Protocol 1. The Council appealed to the House of Lords, which delivered the present opinion.

Legal Issues Presented

1. Whether the Council was entitled to take into account objections received outside the 28-day period prescribed by paragraph 10(15) of Schedule 2 to the 1985 Order.
2. Whether refusal of the licence on the ground that the appropriate number of sex-shops in the locality was nil violated Company A’s rights to freedom of expression (Article 10 ECHR) and peaceful enjoyment of possessions (Article 1, Protocol 1).
3. Whether a decision is unlawful merely because the decision-maker did not expressly articulate consideration of Convention rights, even if the outcome is substantively compatible with those rights.

Arguments of the Parties

Appellant’s Arguments (The Council)

• Paragraph 10 does not preclude consideration of late objections; the Council may receive all relevant material provided overall fairness is maintained.
• The nil determination falls squarely within the discretionary judgment conferred by paragraph 12(3)(c); granting a licence would be irrational where the Council has judged zero to be the appropriate number.
• Any interference with Article 10 or Protocol 1 rights is minimal and proportionate; the licensing scheme itself is lawful, and the refusal accords with legitimate aims of protecting health, morals and the rights of others.
• Convention compatibility is assessed substantively by the court; the Council is not required to recite “formulaic incantations” of human-rights analysis.

Respondent’s Arguments (Company A)

• Late objections were considered without the Committee first deciding to exercise a discretion to admit them, rendering the process unlawful.
• Refusal of a licence disproportionately interfered with Company A’s freedom of expression and its use of the premises, contrary to Article 10 and Article 1 of Protocol 1.
• The Council failed to demonstrate awareness of, or to balance, the engaged Convention rights; that procedural failing should invalidate the decision unless the same outcome was inevitable.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Late objections. Paragraph 10(18) obliges the Council to consider in-time objections but does not bar consideration of other relevant material. General administrative-law principles permit admission of late objections where fairness is preserved. Here the applicant had full notice, no disruption arose, and no tactical delay was shown. Even if the Committee had expressly addressed the point, admission was inevitable.

2. Convention rights. Assuming Article 10 and Protocol 1 are engaged, the rights operate at a “very low level” in relation to pornography retailing. Both rights are qualified; licensing seeks legitimate aims of protecting health, morals and the rights of others. The correct question is substantive proportionality, not whether councillors recited human-rights terminology. Following Judge Hoffmann’s reasoning in Denbigh, a decision compatible in substance cannot be invalidated for lack of formulaic analysis.

3. Proportionality assessment. The nil determination was rational, given the concentration of schools, places of worship and child-focused shops in the locality. Citizens retained alternative means of accessing the material (mail order, online, or other districts). Additional personal factors (prior unlawful trading, involvement of a convicted individual, and corporate restructuring) independently justified refusal. Consequently the interference, if any, was proportionate.

4. Protocol 1 claim. Control of land-use licences falls within the State’s wide margin of appreciation. Refusal of a first licence, particularly for pornography retailing, does not amount to deprivation or disproportionate control of possessions.

Holding and Implications

HELD: The appeal is ALLOWED; the order of Judge Weatherup dismissing the application for judicial review is restored.

Immediate Effect: Company A’s application for a sex-shop licence remains refused, and the Council’s decision stands.

Broader Implications: The judgment clarifies that (i) local authorities may, subject to fairness, consider late objections under the 1985 Order; (ii) courts assess the substantive proportionality of administrative decisions in human-rights cases, without requiring decision-makers to recite Convention rights; and (iii) refusals of sex-shop licences will rarely breach Articles 10 or Protocol 1, reflecting the broad discretion afforded to local authorities in matters of public morality and land-use control.