More than a staging post

The High Court has recently considered whether licensing authorities can force applicants for licences to answer their questions on the application. Philip Kolvin QC, who appeared in the case, analyses a key judgement for licensing practitioners.

In R (Murco Petroleum Limited) v Bristol City Council [2010] EWHC 1992 (Admin), Cranston J has held that it is open to a licensing authority to compel applicants for licences under the Licensing Act 2003 to answer its questions concerning the application, and defer consideration of the application until answers have been received.

The facts were that Murco Petroleum Limited applied for a premises licence to sell alcohol from its petrol station in Bristol. Residential objections included the link between sale of alcohol and drink driving. At the consequent hearing, the licensing sub-committee decided to investigate whether the premises were excluded premises within the meaning of section 176 of the Act by virtue of being used primarily as a garage.

The claimant had submitted a pie chart showing a percentage split between those visiting for the purposes of buying petrol and other purposes. However, the sub-committee wanted also to see relative turnover figures. The claimant resisted this on the grounds that turnover was irrelevant and that in any event it was up to an applicant to decide what information to present, and that the licensing authority had no right to compel the production of information: if it was dissatisfied with the material proffered, its solution was to refuse the licence and leave the applicant to its rights to appeal.

This moved rapidly to a stand-off in which the claimant refused to provide information and the defendant refused to determine the application. Following the claimant’s unsuccessful attempt to appeal to the Magistrates – who refused to entertain the appeal on the grounds that no decision had been made by the defendant – the claimant brought judicial review proceedings to compel the defendant to determine its application.

Cranston J held that, contrary to the submission of the claimant, relative fuel and non-fuel turnover was relevant to the analysis of whether the premises were primary a garage. He went on to hold that the defendant council had the right to seek the information, and was also entitled to adjourn the hearing of the application for a satisfactory answer.

The judge held: “Any other construction of the powers of a licensing authority would turn it into a cipher. It would be forced to make a decision on less information than necessary to promote the licensing objectives. A licensing authority must be able to pursue issues of public safety, the protection of children from harm and other objectives of the 2003 Act. The example proffered by Mr Kolvin QC, for the Council, is apposite:

“Imagine a rock festival. A temporary spectator stand is proposed. A question is raised whether it will be safe or a death trap. On the claimant’s showing, the applicant can simply refuse to tell the authority anything about the means of construction, the expertise of the designer or the safety certification process, defying the authority to refuse the application and risk having to respond to an appeal, with all the unnecessary cost and time that that would entail”.

The claimant’s interpretation of the provisions of the 2003 Act and attendant regulations would make a mockery of the standing of the council as the licensing authority and its function as the primary decision-maker. It would also be inimical to the aim of the legislation to promote the licensing objectives. Perhaps as important it would frustrate the role which local residents have in making representations under the 2003 Act and would downgrade the role of democratically elected decision-makers.

While the case concerns garages, the judgment is of general application. In short, the licensing authority’s role is not merely adjudicatory: it can take a more inquisitorial stance and compel answers from the applicant, on pain of deferral should answers not be forthcoming. While plainly co-operation by the parties mean that deferral is likely to be a remedy of last resort, it is a useful reserve power which underlines that the licensing authority is the local regulator and not merely a staging post on the way to determination by the magistrates’ court.

Philip Kolvin QC is a barrister at 2-3 Gray’s Inn Square. He represented Bristol City Council.