Which policy?

A recent case involving an application for a 24-hour licence for a supermarket raised the question of whether later or earlier versions of national guidance and council policy should apply. Philip Kolvin explains the ruling.

As national licensing guidance evolves apace, with statements of licensing principles sometimes struggling to keep up, the question often arises which version should be applied. In an interesting judgment, District Judge Wiles has turned his mind to the question in a case involving an application for a 24-hour licence for a supermarket.

In Gurgur v London Borough of Enfield (Haringey Magistrates Court, 23 Nov 2012) a supermarket applied for a variation of the premises licence to permit 24-hour sale at the end of 2011. The application was heard and refused in February 2012 and the appeal was heard in November 2012.

At the time of the original determination, the current national guidance was that issued in October 2010. By the time of the appeal, two further versions had been issued – April 2012 and October 2012, the latter stating that it was not intended to have retrospective effect.

The importance was that the more liberal approach to off-sales in the earlier guidance had, by degrees, evolved into a tougher stance. In argument, the appellant referred to academic opinion and informal correspondence with the Home Office, said to point towards an interpretation that the applicable guidance was that appertaining at the date of the application.

In similar vein, after the determination but before the appeal, Enfield adopted a cumulative impact policy which applied to supermarkets. Did this policy apply, or did the former policy, which had no cumulative impact element, hold sway?

District Judge Wiles ruld that he had to apply the guidance and policy applicable as at the date of the appeal. He said:

"The Appellant sought a ruling at the commencement of the appeal as to which was the applicable guidance issued by the Secretary of State. The Secretary of State issues guidance to licensing authorities from time to time in accordance with s.182 of the Licensing Act 2003. The background here was that guidance had been issued in October 2010, April 2012 and October 2012. Each had been a revision of the former. The Appellant contended that as the original application for the Premises Licence had been made in June 2011 the applicable guidance was that issued in October 2010 (i.e. that considered by the Sub-Committee). The Respondent’s contention was that the guidance issued in April 2012 was applicable now.

I heard argument and submissions from both Mr Dadds for the Appellant and Mr Kolvin QC for the Respondents. My attention was drawn to ss.4 and 182 Licensing Act 2003, together with the revisions in the guidance issued on the two occasions. Various authorities were cited namely:

• Hope & Glory v City of Westminster Magistrates’ Court 2011
• Khan v Coventry Magistrate’s Court 2011
• Jefferson v National Assembly for Wales 2007
• R (Westminster City Council) v Middx Crown Court 2002
• R (Portsmouth City Council) v 3D Entertainment Group 2011

The submissions established various principles:

1. This appeal was a hearing “de novo” - Jefferson
2. s.4(3) Licensing Act 2003 states that the licensing authority (and therefore this court) must have regard to: (a) its licensing statement (generally referred to as a policy); (b) any guidance issued by the Secretary of State under s.182.
3. The Westminster City Council case at para.21 states “it (the court) must accept the policy and apply it as if it was standing in the shoes of the council considering the application”
4. Any guidance issued by the Secretary of State comes into force on the date it is laid before Parliament.
5. The revised guidance issued October 2012 by the Secretary of State makes clear that it does not have retrospective effect, in that it only applies to applications made on or after the date of the revised guidance, and therefore would not apply to this appeal. The Guidance issued from time to time prior to October 2012 contained no such assertion.
6. My ruling therefore following these submissions was that the Guidance applicable to the hearing of this appeal was that which came into force in April 2012. In my judgement the direction contained in the October 2012 guidance was referring to itself. No mention was made of its applicability to any Guidance issued previously. If that had been the intention of the Secretary of State it would have been necessary for the Guidance to have stated that intention clearly and unambiguously.
7. My ruling also meant that the Cumulative Impact Policy issued by Enfield Borough Council on 1 April 2012 would apply to this appeal."

In any case, the Learned District Judge determined that the licensing objectives would be undermined by granting the variation sought, and so held that appellant had failed to discharge the burden of satisfying him that the council’s decision was wrong. Accordingly he dismissed the appeal.

Philip Kolvin QC is a barrister at Cornerstone Barristers and represented the respondent in this case. He was instructed by Catriona Mcfarlane of the London Borough of Enfield.