2010 in review
An interesting mix of licensing cases came before the High Court in 2010. Roy Light takes a look at the key decisions.
In R (on the application of Somerfield Stores Limited) v Hinckley Magistrates’ Court (Defendant) and Blaby District Council (Interested Party) Admin. LR 84, 15 four matters fell to be addressed: the correct procedure where magistrates fail to issue a certificate of refusal to state a case; the validity of a condition on a premises licence that future breaches will result in revocation; the effect of such a condition on subsequent reviews; and partial quashing/severance in the event of illegal conditions.
In January 2009 a premises licence held by Somerfield Stores was reviewed on the grounds of underage sales. A number of conditions were placed on the licence, including a condition that "any further underage sales will result in revocation". A further review was held in September 2009 on the basis of a failed test purchase. Conditions were placed on the licence and were appealed by Somerfield to the magistrates’ court which upheld three of the conditions. Somerfield sought to challenge two of the conditions in the High Court. The conditions were that "any further underage sales will result in revocation" and that alcohol sales must cease at 4pm on Fridays and Saturdays.
The magistrates refused to state a case and failed (at least initially) to issue a certificate of refusal. Rather than apply for judicial review to compel the issue of a certificate Somerfield chose to judicially review the appeal decision as a simpler and more effective way of dealing with the matter. Permission was refused on the papers on the basis that the judicial review should have been sought to request the magistrates to issue a certificate. Somerfield argued successfully at an oral hearing before Mr Justice Beatson that the court had a discretion and that permission should be granted.
The ‘revocation condition’ was accepted by the Interested Party to be illegal but an attempt was made to uphold the condition restricting alcohol sales to 4pm on Fridays and Saturdays. However, it was eventually conceded that due to the ‘revocation condition’ imposed at the first review the magistrates appeal was tainted and had started from the wrong position. A partial quashing order by way of consent severing the offending conditions from the premises licence was approved and signed by Mr Justice Foskett on 3 December 2010.
Most people will be familiar with Miss Behavin’ Ltd v Belfast City Council [2007] UKHL 19 which concerned an unsuccessful application for a sex establishment licence. The House held that there was no bar on the licensing authority allowing objections received outside the period for lodging objections and that it had a discretion to consider late objections. However, provided that discretion was properly exercised, the objector could not complain if the authority decided not to take the objection into account. This decision has been distinguished in R (on the application of Albert Court Residents Association & others) v Westminster City Council [2010] [81] LR 22 as, unlike the statute in the Miss Behavin’ case, the Licensing Act 2003 has clear statutory provisions relating to the time for making representations. If no relevant representations are received at the authority by the statutory cut-off date the licence must be granted. However, the decision to grant the variation application was quashed as the Court held that the authority had not properly carried out the procedure it had adopted (purely voluntarily) of contacting local residents to inform them of applications (see paras.50-55).
In R (Murco Petroleum Ltd) v Bristol City Council [2010] EWHC 1992 (Admin) the claimant applied for a premises licence for a forecourt site. The question of mixing alcohol sales with driving was raised by way of representation by an interested party. The Court held that this raised the issue of ‘primary use’ in relation to the application, stating that the original policy behind the legislation was to remove the temptation to drink and drive, although this would now be expressed as engaging the crime and disorder licensing objective. For if a licence were to be granted to premises primarily used as a garage and those premises started to sell alcohol a criminal offence would be committed. The claimant had produced evidence of primary use but the licensing committee asked for additional evidence which was not forthcoming and the application was adjourned. The Court held that the committee can ask a question under regulation 17 of the hearings regulations and could adjourn the matter under regulation 12 but that the hearing must be adjourned to a specific date rather than generally.
R (in the Pink) v Leeds Magistrates’ Court [2010] LLR 140 concerned a review of premises following a ‘glassing’ incident. Magistrates made an order which was badly worded and while judicial review proceedings were pending the magistrates’ court clerk wrote a letter explaining what the magistrates had intended to do. The appellants argued that the error could not be treated as merely typographical and could not be remedied by the post-hearing letter. However, the Court held that it was better that the clerk had remedied the defect and that there was nothing to be gained from rehearing the matter.
R (on the application of the Chief Constable of Nottingham Police) v Nottingham Magistrates' Court [2009] EWHC 3182(Admin) provides valuable guidance on whether interested parties/responsible authorities can be joined as respondents to an appeal from a licensing sub-committee to the magistrates’ court. The Court decided that the makers of relevant representations who appeared before the sub-committee (interested parties/responsible authorities) have no right to appear as a respondent to an appeal to themagistrates’ court.
However, in the absence of any right to be represented and call evidence do the district judge or the magistrates have power to permit an interested party or responsible authority to appear, be represented and call evidence? The High Court decided that the magistrates’ court "do have power to control and regulate their own procedure, so as to ensure the effective resolution and determination of those functions imposed upon them by the statute in play". It was therefore a matter for the DJ or magistrates to decide whether to allow the interested party or responsible authority to be represented and present evidence at the appeal hearing – where the interests of justice and promotion of the licensing objectives require it.
This means that despite the absence of any right to appear as a respondent an interested party or responsible authority may be allowed to appear should the magistrates’ court so decide. This would clearly require a preliminary hearing to determine the question ahead of the substantive appeal hearing. And what of costs should the appeal succeed? Only a respondent is at risk of costs and in most appeals, where interested parties or responsible authorities simply are called to give evidence by the licensing authority, only the authority would be at risk of costs – which can lead to difficulty where an authority wishes to settle an appeal but continues at the behest of the interested party or responsible authority (there is sometimes an agreement made to share or contribute to costs). As to costs should the appeal fail the court held that providing there is no duplication of argument multiple costs may be awarded. However the Court (at para.37) notes that "there is no obligation upon the magistrates to order more than one set of costs." Multiple costs would weigh heavily on an appellant as they could be faced with substantial sums following an unsuccessful appeal at which several parties were ranged against them.
Two taxi cases are also worthy of note. In Saltax Limited v Salford City Council [2009] EXCH 3798 (Admin) the Court held that it was not necessary for an authority to commission an ‘unmet need survey’ before deciding to remove its cap on the number of hackneys to be licensed. Secondly, in R (on the application of Lionel Morris) v Newport City Council [2009] EWCH 3051 (Admin) the Court quashed the decision of the Council to introduce an age restriction on taxis finding the consultation procedure defective. The case contains a useful summary of the elements of an effective consultation process.
Prof Roy Light is a specialist licensing barrister practising from St John's Chambers, Bristol.
