Remote control and other issues: licensing cases in 2009

The status of ‘remote hackneys’, the extent to which licensing authorities are tied to the contents of the operating schedule, and the question of whether a premises licence holder is automatically liable for breaches of the premises iicence were all considered by the courts in 2009. Roy Light rounds up the key licensing cases of the last 12 months.

Several licensing cases came before the High Court in 2009. Three are of particular interest to licensing authorities. In the first, decided in November 2008, R (on the application of Newcastle City Council) v Berwick-upon-Tweed Borough Council [76] LLR 33 the Claimant was concerned that many of its private hire licences had been surrendered by operators who then became licensed in Berwick-upon-Tweed but continued to work in the Newcastle area. (Berwick operated a more liberal licensing regime than Newcastle and levied lower fees.) The concern was that regulation would not be as effective for these ‘remote hackneys’.

The court decided that a licensing authority when considering an application for a licence under s.37 Town Clauses Act 1847 must have regard (a) to whether the applicant intends that the hackney carriage if licensed will be used to ply for hire within the area of that authority and (b) whether the applicant intends that the hackney carriage will be used (either entirely or predominantly) for private hire remotely from the area of that authority. The court considered that an authority may exercise its discretion to refuse a licence on the basis of such information.

This presents licensing authorities with a problem as Brentwood BC v Gladen [2004] EWCH 2500 (Admin) recognized the right of hackney carriages to take pre-booked work in areas outside that in which they were licensed. Licensing authorities will need to consider the extent of out of area working envisaged by an applicant when considering licence applications. This seems a balancing act that will inevitably be open to challenge should a licence be refused on this basis.

Secondly, R (on the application of Bristol City Council) v Bristol Magistrates’ Court [2009] EWCH 625 involved an application by Somerfield Stores Limited for a premises licence. Representations were received by the licensing authority, Bristol City Council, and the matter referred to the authority’s sub-committee for determination. The licence was granted subject to a number of conditions. Somerfield appealed successfully against the conditions to Bristol Magistrates’ Court which removed them from the licence. The City Council then judicially reviewed the decision of the magistrates.

This case is importance as it clarifies the status of the section of the operating schedule which deals with the steps the applicant proposes to take to promote the licensing objectives and considers whether conditions may be placed on a licence which duplicate responsibilities already placed on the operator of the premises under other legislation.

The Appellant was keen to establish what an authority is to do with an operating schedule expressed in unclear and/or ambiguous terms and how to translate such provisions into enforceable conditions on the licence. Also, what was an authority to do if other legislation covering an area such as noise (eg the Environmental Protection Act 1990) was not considered to afford sufficient protection for local residents?

The Administrative Court found (a) that a licensing authority is not tied slavishly to the contents of the operating schedule and that there is no obligation on a licensing authority to impose conditions “consistent with the operating schedule” unless these were necessary and proportionate for the promotion of the licensing objectives and (b) that licence conditions must not duplicate other legislation unless it can be shown in the particular case that such conditions are for some specific reason both necessary and proportionate.

Thirdly, Hall & Woodhouse Limited v The Borough and County of the Town of Poole [2009] EWHC 1587 (Admin) was an appeal by way of case stated against the conviction of the appellant at Bournemouth Magistrates’ Court on four charges of carrying on a licensable activity otherwise in accordance with a licence contrary to s.136(1)(a) of the Licensing Act 2003. The appellant, a brewery, had leased a public house to a tenant but retained the premises licence. Breaches of the premises licence occurred at the premises.

The respondent argued that the premises licence is at the heart of the system of licensing control and that the licence holder, while taking the advantages conferred by the licence, cannot divest itself of responsibility simply by leasing the premises to a third party. The premises licence holder is responsible for ensuring that the licensable activities are carried out in accordance with the licence. If breaches occur through no fault of the licence holder it can avail itself of the defence of due diligence. If the appellant was not carrying on the licensable activities at the premises he should not have held the licence which should have been held by the tenant.

The court found that whether a person could be held liable under s.136(1)(a) was a question of fact and that the holder of the premises licence was not automatically liable for breaches of the premises licence. The court also held that the wording of the requirement under s.16(1)(a) of the Act that to apply for a premises licence a person must be “a person who carries on or proposes to carry on a business which involves the use of the premises for the licensable activities to which the application relates” is different from the wording of s.136(1)(a) where a person will be liable “if he carries on or attempts to carry on a licensable activity otherwise than in accordance” with a premises licence.

This decision appears to place a premises licence holder, simply as premises licence holder, outside the ambit of criminal liability for breaches of a premises licence unless it can be shown that the premises licence holder was actually carrying on the licensable activities at the time of the breach. The court held that this would be a question of fact to be decided in the circumstances of each case. A narrow interpretation would limit the decision to situations such as that of Hall & Woodhouse where the premises were leased to a third party. In such cases enforcement authorities would need to make sure that the premises licence holder was aware of the breaches and bring a prosecution under s.136(1)(b) – “knowingly allows a licensable activity to be carried on”. Or, of course, a responsible authority/interested party may consider review proceedings.

Other cases of interest include R (on the application of Hope & Glory Public House Ltd) v City of Westminster Magistrates’ Court [2009] EWCH 1996 (Admin.) which considered the meaning of ‘public nuisance’ for the purposes of the Licensing Act 2003; R (on the application of Harpers Leisure International) v Chief Constable of Surrey [2009] EWCH 2160 (Admin.) where it was held that licensing authorities cannot consider abuse of process in review proceedings; and R (on the application of Bassetlaw District Council) v Worksop Magistrates’ Court [2009] 77LR 22 on whether suspension following review can be utilised as a punishment.

Roy Light is a specialist licensing barrister practising from St John's Chambers, Bristol and professor of law at Bristol Law School.