| SPOTLIGHT |
In the latest turn in the split premises saga, a senior District Judge has taken the Gambling Commission’s common sense approach to the definition of premises under the Gambling Act 2005. Philip Kolvin QC explains the background.
In Harpers Leisure International Limited v Guildford Borough Council (Guildford Magistrates Court, 17 October 2010) the appellant ran a first floor nightclub, into the bar and outside terrace of which he wished to introduce two “adult gaming centres” in the form of glass kiosks, measuring 8 sq. m. and 17 sq. m. respectively, with door security at the front and an exit turnstile at the rear of each.
Guildford Borough Council refused adult gaming centre premises licences on the grounds that the kiosks did not amount to premises, and that in any event the location of the kiosks was not conducive to the protection of the vulnerable.
The Appellant appealed, arguing that the kiosks did amount to premises and that there was no evidence that the proposals would cause harm to anyone.
The matter came before District Judge Workman, who took the question of whether these were premises as a preliminary point.
Followers of the history of this debate will know that after a public consultation on the issue of split premises, the Gambling Commission amended its Guidance, urging a common sense approach to the question. It stated: “the crux of the matter is whether the proposed premises are genuinely separate premises that merit their own licence with, for example, the machine entitlements that brings and are not an artificially created part of what is readily identifiable as a single premises.”
The Appellant argued that the Guidance was wrong, that section 353 of the Act provides that “premises” includes any place, and that the meaning of “place” in licensing case law is anything that can be marked in metes and bounds. Its counsel argued against a common sense approach on the grounds that such an approach had to yield to the statutory definition.
For the Council it was argued that in the House of Lords case of Majorstake v Curtis [2008] 1 AC 287 it was held that “premises” is a chameleon word whose meaning takes its colour from its context, and must be purposively construed having regard to the objectives of the legislation. In the Gambling Act 2005, the purpose of licensing “premises” rather than space in general is to limit the proliferation of gaming machines, including high-stake machines in artificially created areas. Therefore, the Gambling Commission’s common sense approach was to be preferred. In this case, it was said, the “premises” were kiosks situated within the floor of the club, there was no separate rating and no separate facilities. They were part of the nightclub premises rather than premises in their own right.
District Judge Workman took the common sense approach. He said: “If one stood in the area that comprised the Casino Nightclub and observed the two proposed Adult Gaming Centres one would inevitably have reached the conclusion that they have formed part of the Casino Nightclub premises, just as the bar area or stage forms such a part.” In so saying he dismissed the appeal with costs.
While, of course, the learned District Judge’s decision does not bind other courts, it is consistent with findings by District Judges in other cases. For the time being at least, the Gambling Commission’s common sense guidance is holding.
Philip Kolvin QC is a barrister at 2-3 Gray’s Inn Square and appeared for Guildford Borough Council in the case.
