Keep it simple! The court’s message to licensing authorities

Predeterminiation iStock 000016468646Small 146x219Tim Briton, LLG's Deputy Lead Officer for Litigation and Licensing, sets out the key lessons from the Bridgerow case for local government lawyers specialising in licensing.

The decision of Stuart-Smith J in R (Bridgerow Limited) v. Cheshire West and Chester Borough Council and another [2014] EWHC 1187 (Admin) reinforces the message to local government lawyers about the importance of understanding the strict legal requirements of the licensing regime, and ensuring that councils stick to them.

In this instance, the refusal to renew a sexual entertainment venue licence was overturned not because the reasoning behind the decision was flawed, but because the decision had been taken by the wrong number of members sitting as a Licensing Panel. That decision must now be made again, by the correct number of members as specified by the council’s constitution.

The Licensing Act 2003 is prescriptive in terms of the number of members that form each authority’s Licensing Committee, and how many of those members may sit as a sub-committee. However the Local Government (Miscellaneous Provisions) Acts of 1976 and 1982 which govern the decision making for other types of licence such as Hackney Carriages and their drivers, Private Hire Vehicles, drivers and operators, sexual entertainment venues and street traders are much less prescriptive in this respect, so it is left to individual councils to determine how they delegate their authority to make those decisions; and this will be set out in each council’s constitution.

Local government lawyers advising on licensing matters need to be as familiar with their council’s constitution as they are with licensing legislation.

Stuart-Smith J’s decision is a timely reminder to councils that where either legislation or a council’s own constitution sets out that a decision should be made by a particular person or body, that must be followed or any decision made without proper authority will not have effect.

Councils are still feeling their way through the implementation of the new licensing regime created by the Scrap Metal Dealers Act 2013, and it is important that they are alive to the change brought about by the new Act which means that decision making is no longer a non-executive function. Many councils have resolved the issue (at least on an interim basis) by amending their schemes of delegation to allow decision making to be carried out by an individual officer or by a committee of the council’s Executive; but those councils whose Licensing Committees have made decisions in a non-executive capacity may be asked to revisit their constitutions to ensure that their powers have been exercised appropriately.

The Local Government Association confirmed this week that they are still seeking clarification from the Home Office as to whether and if so when the anomaly of decision making under the Scrap Metal Dealers Act 2013 being an executive function is likely to be addressed. If it is made a non-executive function through Regulations in the near future, councils will again need to revisit their schemes of delegation to return the powers to Licensing Committees who, it has to be said, are ideally placed to decide such matters given their role in similar licensing regimes.

The message to councils from the Bridgerow case is that serious procedural irregularities will be fatal to otherwise well-reasoned decisions, and that councils are expected to get their delegations right.

Tim Briton is a solicitor at Gateshead Council, and Deputy Lead Officer for Litigation & Licensing, Lawyers in Local Government. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

See also: Whose decision is it anyway? Nicholas Dobson's analysis of the constitutional and other issues that arose in the Bridgerow case.