Garage forecourts, premises licences and the Services Directive

A licensing authority has accepted that section 176 of the Licensing Act 2003 is incompatible with the EU Services Directive. Leo Charalambides sets out why.

On 22 January 2013 Shell UK Oil Products Limited applied to the South Hams District Council for a new premises licence at Shell Carew, a garage forecourt site, on the A38 South Brent. Six local councillors and the South Brent Parish Council made representations objecting to the application. The representations included concerns about "the sale of alcohol at a petrol station on a major road".’

Section 176 of the Licensing Act 2003 provides that no premises licence ‘has effect to authorise’ the sale of alcohol from premises primarily used as a garage (i.e. the sale of fuel). Within the notice of hearing the licensing authority asked the applicant to provide evidence of the primary use of the site. The report to the sub-committee also advised that the determination of the primary use of the site was going to be considered first and only then should the sub-committee proceed to determine the application; further, the full determination of the application was to proceed only in the event that the sub-committee were satisfied that the primary use of the site was not as a garage.

At the hearing, Shell made a preliminary application on the basis that s. 176 of the 2003 Act was incompatible with the EU Services Directive. It was argued that Reg 14 of the transposing Provision of Services Regulations 2009 imposed an ongoing duty on the licensing authority to ensure that any ‘authorisation scheme’ was not discriminatory, justified by an overriding reason relating to the public interest and that the objective could not be achieved by a less restrictive means. Furthermore s. 176 failed to meet the criteria set out in Reg 15 that of (a) non-discriminatory, (b) justified by an overriding reason realting to the public interest, (c) proportionate to that public interest, (d) clear and unambiguous, (e) objective, (f) made public in advance and (g) transparent and accessible.

It was noted that the legislative history of the so-called garage exclusion was based on an acceptance that "there is no evidence that … the possession by those [garage] suppliers of a licence had led to any drunken driving" (Hansard (Commons) 27 April, 1988, 478. The Minister responsible stated that "whatever the evidence might prove, we are probably dealing with perceptions".

The sub-committee retired to consider the submissions; on return they stated that they agreed with counsel for Shell that the provisions of s. 176 were incompatible with the EUSD. Consequently the sub-committee considered the substantial application for a premises licence pursuant to s. 18 unencumbered by any consideration of s. 176 and granted the premises licence.

Leo Charalambides is a barrister at Francis Taylor Building. He represented Shell UK Oil Products Ltd before the licensing authority.