Coming to the fore
Legislative changes have led to confusion over whether the sale of alcohol at premises used primarily as a garage is a licence application or an enforcement issue, says Roy Light.
Prior to 2005, alcohol licensing in England and Wales was regulated by the Licensing Act 1964. The 1964 Act was amended by the Licensing Act 1988, which introduced various provisions including s.9(4) which disqualified certain premises for receiving a justices’ licence. The premises were motorway service areas and ‘premises used primarily as a garage’.
The first of these, motorway service areas, was more or less an absolute prohibition but the second depended on how the premises were used and interpretation of the terms ‘primary use’ and ‘garage use’ (the Act specified four categories of garage use – the retailing of petrol or derv or the sale or maintenance of motor vehicles).
An application for a justices’ licence for premises which carried on all or any of the four categories of garage use would generally present ‘footfall figures’ to the licensing justices to demonstrate the primary use of the premises was other than garage use. (Following R v Liverpool Crown Court, ex parte Kevin John Goodwin (17 December 1998) QBD (Divisional Court.))
The Licensing Act 2003 introduced a new system of licensing consisting of premises licences and personal licences. A premises licence is required for any ‘licensable activities’ which take place at the premises including the sale of alcohol.
Section 176 of the 2003 Act contains similar provisions to s.9(4) of the 1964 Act in relation to ‘excluded premises’ – motorway service areas and premises used primarily as a garage. However, the wording differs in crucial respects, raising the question of whether s.176 may operate as a mechanism to disqualify excluded premises for receiving a premises licence (and as such is a matter to be addressed at the premises licence application stage as was the case under the 1964 Act) or whether its effect is to remove authority for the sale of alcohol under a premises licence where the premises are used primarily as a garage thus becoming excluded premises (and as such does not need to be addressed at the application stage but is an enforcement issue). Not surprisingly opinions differ among licensing authorities.
The statutory provisions
First, s.176 is headed ‘Prohibition of alcohol sales at service areas, garages, etc’ and differs from the wording of s.9 of the 1964 Act which read ‘Persons and premises disqualified for holding or receiving justices’ licence’.
Secondly, Section 176(1) provides that ‘No premises licence, club premises certificate or temporary event notice has effect to authorise the sale by retail or supply of alcohol on or from excluded premises’ and differs from the wording of s.9(4)(A) of the 1964 Act which provides that ‘Premises shall be disqualified for receiving a justices’ licence if they are primarily used as a garage or form part of premises which are primarily so used’.
It can be argued that the wording of s.176(1) presupposes the existence of a premises licence, but provides that such a licence will not authorise the sale or supply of alcohol if the premises are used primarily as a garage. This interpretation also allows for the fact that the primary use of premises may change over time.
Paterson’s Licensing Acts 2009 supports this contention (fn1 to s.176 LA 2003): “Whereas it was incumbent on the Licensing Justices to undertake a detailed consideration of whether, on the evidence, garage premises were entitled to be granted a Justices Licence at the time of the application, it can be argued that under the new regime such an approach is less important since any such licence granted will be null and void if the premises are – or become – technically ‘excluded’”’.
This view has been adopted by at least one District Judge in an appeal against a decision by Stockton-on-Tees Borough Council on 28 July 2009, with the authority represented by counsel. The DJ held that the question of primary use was not one for the authority to decide at the application stage and allowed the appeal.
The DCMS Guidance
Some confusion has been caused by paragraphs 5.23 to 5.25 of the DCMS Guidance which deals with ‘Garages’. Despite stating that “the 2003 Act prohibits the sale or supply of alcohol from premises that are primarily used as a garage …” (para.5.3) it goes on to state that “The licensing authority must decide whether or not any premises is used primarily as a garage …” (para.5.24) and “where there is insufficient evidence to establish primary use, it is for the licensing authority to decide whether to grant the licence …” (para.5.25).
However, when or in what circumstances the licensing authority must make this decision is not stated. The guidance clearly moves away from prohibited sales (for which the Act provides) to disqualification (for which the Act does not provide). (The reference to deferment also conflicts with both the 2003 Act and the regulations, which appear to allow for no such deferment.)
The application process
Where a licensing authority receives an application for a premises licence, it must initially determine whether the application has been properly made in accordance with s.17 of the Act and the Licensing Act 2003 (Premises Licence and Club Premises Certificates) Regulations 2005. An incomplete application or one that has not satisfied the notice requirements is invalid and will be returned to the applicant.
There is no requirement in the legislation or regulations that an applicant for a premises licence must prove the primary use of the premises. An application valid in all other respects cannot, it seems, be refused simply if no evidence as to primary use is presented.
In any event, it is the case that, as Richards J (as he then was) put it in R (on the application of the British Beer and Pub Association) v. Canterbury City Council [2005] EWHC 1318 (Admin) (at para 85), “The scheme of the legislation is to leave it to applicants to determine what to include in their applications, subject to the requirements of Section 17 and the Regulations as to the prescribed form and the inclusion of a statement on specified matters in the operating schedule”.
Professor Roy Light is a barrister at St John's Chambers in Bristol.
