Hemming (T/A Simply Pleasure Ltd) and Others, Regina (on The Application of) v Westminster City Council: SC 29 Apr 2015

The parties disputed the returnability of the fees paid on application for a sex establishment licence where the licence was refused. The fee was in part one for the application, and a second and greater element related to the costs of monitoring the system overall. The Counicl argued that their refusal was not a breach of the 2006 Directive.
Held: The court rejected the first way that the Council put its case. Article 13(2) is only concerned with authorisation procedures and formalities at the stage when a person is seeking permission to access or exercise a service activity. That is its natural meaning, read with the definition of ‘authorisation scheme’ in article 4. Article 13(2) is not concerned with fees which may be required to be paid (eg annually) for the possession, retention or renewal of a licence, once the authorisation stage is satisfactorily past. The ‘charges which the applicants may incur from their application’ to which article 13(2) refers cannot sensibly embrace fees of this nature payable by successful applicants for the licence or its retention or renewal after the authorisation stage.
However, the remaining questions did reuire reference to the European Court. They were: ‘(1) whether the requirement to pay a fee including the second refundable part means, as a matter of law and without more, that the respondents incurred a charge from their applications which was contrary to article 13(2) in so far as it exceeded any cost to Westminster City Council of processing the application, or
(2) whether a conclusion that such a requirement should be regarded as involving a charge – or, if it is so to be regarded, a charge exceeding the cost to Westminster City Council of processing the application – depends on the effect of further (and if so what) circumstances, for example: (a) any evidence establishing that the payment of the second refundable part involved or would be likely to involve an applicant in some cost or loss, (b) any saving in the costs to Westminster City Council of processing applications (and so in their non-refundable cost) that would result from requiring an up-front fee consisting of both parts to be paid by all applicants.’
Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Reed, Lord Toulson
[2015] UKSC 25, [2015] BLGR 753, [2015] PTSR 643, [2015] WLR(D) 193, [2015] AC 1600, [2015] 3 CMLR 9, [2015] LLR 564, [2015] 2 WLR 1271, UKSC 2013/0146
Bailii, Bailii Summary, WLRD, SC, SC Summary
Provision of Services Regulations 2009, Directive 2006/123/EC on Services in the Internal Market
England and Wales
Citing:
CitedRegina v Birmingham City Council ex parte Quietlynn Ltd 1985
The court held that on the failure of an application for a licence for a sex establishment, that part of the licence fee paid which related to the management of the supervisory regime rather than the cost of administering the application alone . .
CitedRegina v Westminster City Council, ex parte Hutton 1985
H challenged the fee set for applying for a livence to operate a sex shop. The administrative costs on which the fee was based in the year in question included a sum representing the supposed shortfall in fee income against administrative costs in . .
CitedRegina v Manchester City Council ex parte King QBD 1991
When setting licence fees for local traders, the authority had set them at a commercial rate. ‘the judgment of what was a reasonable fee ‘for the purpose of recouping in whole or in part the cots of operating the street trading scheme’ was for . .
At First InstanceHemming (T/A Simply Pleasure Ltd) and Others v Westminster City Council Admn 16-May-2012
The applicant had sought a license for a sex establishment. He paid the (substantial) fee, but complained that the Council had not as required, resolved to set the fee, and that in any event, the sum did not reflect the cost of administering the . .
Appeal fromHemming (T/A Simply Pleasure Ltd) and Others, Regina (on The Application of) v The Lord Mayor and Citizens of Westminster CA 24-May-2013
The claimant had submitted an application for a licence to operate a sex shop. On its failure it sought repayment of that part of the fee which related to the costs of supervising the system, rather than the costs of dealing with the application. It . .

Cited by:
At SC (1)Hemming (T/A Simply Pleasure) and Others, Regina (on The Application of) v Westminster City Council SC 19-Jul-2017
The claimant challenged fees which were charged to the respondents on applying to Westminster City Council for sex shop licences for the three years ended 31 January 2011, 2012 and 2013 and which included the council’s costs of enforcing the . .
ReferenceHemming and Others v Westminster City Council and Others ECJ 16-Nov-2016
Charges for processing application for licence
ECJ Judgment – Reference for a preliminary ruling – Freedom to provide services – Directive 2006/123/EC – Article 13(2) – Authorisation procedures – Concept of charges which may be incurred . .

These lists may be incomplete.
Updated: 24 February 2021; Ref: scu.546149