Associated Provincial Picture Houses Ltd v Wednesbury Corporation

[1947] 1 All ER 498

Categories: LEISURE AND LICENSING; LOCAL GOVERNMENT

Court: KING’S BENCH DIVISION

Lord(s): HENN COLLINS J

Hearing Date(s): 27, 28 FEBRUARY 1947

Theatres and Places of Entertainment – Cinematograph – Sunday performance – Permission –

Condition – Prohibition of admission of child under 15 – Sunday Entertainments Act, 1932 (c
51), s 1.

It is not ultra vires a licensing authority, when allowing, under s 1(1) of the Sunday
Entertainments Act, 1932, cinematograph theatres in their area to be opened on Sundays, to
impose a condition that children under the age of 15 years, whether accompanied by an adult or
not, should be excluded. The authority, when imposing conditions, may take into consideration
matters which do not directly affect the premises or the nature of the performance, but which are
designed to effect a benefit to the community.

Harman v Butt ([1944] 1 All ER 558) followed.

Theatre de Luxe (Halifax) Ltd v Gledhill ([1915] 2 KB 49) distinguished.

Notes

As to Sunday Opening of Cinemas, see Halsbury, Hailsham Edn, Vol 32, pp 75–76, paras 96, 97;
and for Cases, see Digest, Vol 42, pp 920–922, Nos 160–175.

Cases referred to in judgment

Theatre de Luxe (Halifax) Ltd v Gledhill, [1915] 2 KB 49, 112 LT 519, 79 JP 238, 31 TLR 138,
24 Cox CC 614, sub nom Halifax Theatre de Luxe Ltd v Gledhill, 84 LJKB 649, 42 Digest 920,
921, 160.

Harman v Butt [1944] 1 All ER 558, [1944] KB 491, 114 LJKB 99, 170 LT 355, 108 JP 229, 60
TLR 341, Digest Supp.

Action
Action by licensees of a cinematograph theatre for a declaration that a condition attached to a
permission granted by the licensing authority for Sunday performances was ultra vires. The facts
appear in the judgment.

Gallop KC and Sidney H Lamb for the plaintiffs.

Fitzgerald KC and Vernon Gattie for the defendants.

Page 499 of [1947] 1 All ER 498

28 February 1947. The following judgment was delivered.

HENN COLLINS J. This is an action in which the plaintiffs, Associated Provincial Picture
Houses Ltd seek a declaration against the mayor, aldermen and burgesses of the borough of
Wednesbury to the effect that the limitation in a licence which the defendants granted in respect
of performances in cinematograph theatres on Sunday within their area was beyond the powers
of a local authority to impose, namely, that a child under the age of 15 years, whether
accompanied by an adult or not, was to be excluded from Sunday performances.

The Act under which the local authority acted was the Sunday Entertainments Act, 1932, s 1 of
which provides that the authority which has power in the area to grant cinematograph licences,
may, notwithstanding any enactment relating to Sunday observance, allow places in their area to
be opened on Sundays for the purpose of cinematograph entertainments, and these are the
significant words: “subject to such conditions as the authority think fit to impose.” The plaintiffs
say that, in acting under that section, the local authority must act reasonably, and, subject to a
proper understanding of that phrase, I think it is common ground that they must; but what is said
is that the test of reasonableness is what the court thinks reasonable rather than what the local
authority think reasonable. That is a strong contention and one which would require to be
supported by clear words in the section because the words in themselves are without limitation.

The chief support in favour of the plaintiffs’ argument is to be found in Theatre de Luxe
(Halifax) Ltd v Gledhill. In that case there was a difference of opinion in a court consisting of
three judges. The high-water mark on the other side is to be found in Harman v Butt, a decision
under the Act of 1932, and it is said that I have a free hand to decide as I think fit.

Let us first see whether there really is such a conflict as has been indicated. I have come to the
conclusion that there is not. Theatre de Luxe (Halifax) Ltd v Gledhill was not a decision under
the Act of 1932. It was a decision under the Cinematograph Act, 1909, and very different
considerations, it seems to me, are to be applied to an Act which abridges personal rights from
those which apply to one which tends to enlarge them. The approach is different. When an act
circumscribes private rights, this court, as has been pointed out very many times, is not astute to
find that the abridgment is greater than necessity requires. Before the passing of the
Cinematograph Act, 1909, anybody was free to give a cinematograph performance, all other
things being equal, by whatever means he liked. The Act of 1909 was an Act to make better
provision for securing safety at cinematograph and other exhibitions and introduced for that
purpose a system of licensing. It was not to be supposed, ex facie, at any rate, that the licence
which the Act contemplated was to go beyond the purposes for which the Act was expressed to
have been passed, and the view of the majority in that case was that the ambit of the discretion of
the licensing authority was circumscribed by the conditions visualised by the Act. The third
member of the court, Atkin J took the view that among the considerations which bore on that
question was the question whether what was proposed was in the public interest. That alone was
the line of difference between them. Whenever that case was cited in relation to the
Cinematograph Act, 1909, it was, I will not say, blown on, but at any rate, strictly cribbed,
cabined and confined within its particular circumstances, and it has never been taken, as I see it,
for a decision on the words which appeared in s 2(1) of the Act: “on such terms and conditions
and under such restrictions as … the council may by the respective licences determine,” or any
similar words, wherever they appear and in whatever correlation.

In Harman v Butt Atkinson J had to consider, not an Act abridging the rights of the subject, but
one which did exactly the opposite thing. Up to the passing of that Act it was unlawful to hold a
cinematograph exhibition on Sunday. The Act enabled performances to be given on Sunday,
which was an enlargement of the public right, and the same considerations did not obtain in that
case as obtained in the earlier case, and the difference of approach may account for the
difference between the two decisions. I think that that is the explanation. Atkinson J felt himself
in no difficulty in deciding under the Act of 1932 that it was not ultra vires the authority to
impose a condition that no child under the age of 16 years should be admitted, that is to say, it
was not beyond their powers to take into consideration matters which did not

Page 500 of [1947] 1 All ER 498

directly affect the premises or the nature of the performance, but which were designed to effect a
benefit to a section of the community.

Which of those two authorities should I follow? It was urged on me that I was untrammelled by
authority, but I do not take that view. Other things being equal, I would naturally accept as right,
and binding on me in that sense, the decision under the Act of 1932 of Atkinson J unless there is
something in the Divisional Court decision to constrict me to the other view. I have given my
reasons for thinking that the earlier decision is not really in pari materia with that which I have to
decide today, and without any hesitation, therefore, I follow the decision in Harman v Butt, I
hold that this limitation is not outside the powers of the defendant local authority, Wednesbury
Corporation, and I decline to make the declaration which the plaintiffs seek. Consequently, the
action is dismissed, with costs.

Judgment for defendants with costs.

Solicitors: Norman Hart & Mitchell (for the plaintiffs); Sharpe, Pritchard & Co agents for G F
Thompson, Wednesbury (for the defendants).