Update: licensing

Licensing authority appeals

R (on the application of Hope and Glory Public House Limited) v City of Westminster Magistrates' Court [2011] EWCA Civ 31 (Solicitors Journal 155/6, 15 February 2011) has been expounded in two recent cases. Hope and Glory concerned the approach to be taken by magistrates' courts on appeals from licensing authority decisions; in particular, the apparent conflict between the appeal as a rehearing and the proposition that to allow an appeal the magistrates must decide that the decision taken by the licensing authority was wrong.

It has been suggested that Hope and Glory makes a licensing authority's decision effectively appeal proof, but this does not accord with the reasoning of Toulson LJ in Hope and Glory that the weight attached to a licensing authority's reasons may depend on a number of matters such as 'the nature of the issue, the nature and quality of the reasons given by the licensing authority and the nature and quality of the evidence on the appeal'.

Support for this approach is found in R (on the application of Townlink Limited) v Thames Magistrates' Court [2011] EWCH 898 Admin. Lindblom J held: 'What the district judge had to do was to consider the evidence before him with the relevant principles in mind. Those principles included the necessity that the licensing objectives be promoted, and proportionality. Bearing in mind the decision of the council's licensing sub-committee and the significance of that decision as the result of the democratically elected members having applied their minds to the issue, the district judge nevertheless had to adopt the approach approved by the court in Joffe, Sagnata and Hope and Glory. He had to do this by considering 'whether, because he [disagreed] with the decision below in the light of the evidence before him, it [was] therefore wrong'.'

Lindblom J distinguished a 'wrong' decision from an 'illegal' decision and held that 'what the [magistrates' court] had to do was to consider on the merits whether the decision of the licensing sub-committee ought to be upheld'.

The court also accepted that where what amounts to a statutory discretion has been exercised to attach conditions to the licence the court must consider whether the exercise of the discretion was wrong, based on the reasons given for the exercise of that discretion, rather than to exercise the discretion afresh on the hearing of the appeal.

The same approach was taken in R (on the application of Developing Retail Limited) v East Hampshire Magistrates' Court [2011] EWCH 618 Admin in which Clare Montgomery QC sitting as a deputy High Court judge considered that what 'the magistrates' court must do is consider whether, having taken the decision of the licensing authority into account, it is 'wrong on the basis of the evidence put before the magistrates' court''.

There is no need for Wednesbury unreasonableness as the appeal is a fresh evidential hearing rather than a judicial review of the licensing authority's decision. 'The magistrates therefore have power to review the decision on the grounds of error of law and also on its merits.'

Developing Retail Limited also re-enforced previous decisions on the need for conditions to be clear, precise and enforceable, so that a noise condition that referred to 'inaudibility' at 'noise sensitive premises' was quashed as vague, imprecise and unenforceable. This is a condition regularly found on licences. It will now be necessary to specify the premises covered by the condition as well as setting a measurable objective noise level.

The High Court decision in the Albert Hall case (Solicitors Journal 154/30, 3 August 2010) has been reversed by the Court of Appeal in R (on the application of (1) Albert Court Residents' Association et al v Westminster City Council [2011] EWCA Civ 430 which allowed the variation of the premises licence for the Albert Hall. The Court of Appeal held that the practice of Westminster City Council to write to those living in the vicinity of premises for which a licensing application had been made did not give rise to a legitimate expectation on the part of residents that they would be informed of any licence applications. There was nothing in the 2003 Act or the regulations that imposed such a duty on a licensing authority.

Rebalancing bill

In the five years since coming into force, the liberal pretensions of the Licensing Act 2003 have been subjected to a severe bout of legislative repentance. Successive Acts have 'toughened-up' enforcement powers and the Police Reform and Social Responsibility Bill continues this retreat from the 'café culture' aspirations of the white paper published in 2000.

The bill 'amends and supplements the Licensing Act 2003 with the intention of 'rebalancing' it in favour of local authorities, the police and local communities' (Parliament UK website). While a number of the more contentious reforms contained in the 2010 white paper, Rebalancing the Licensing Act, have not made it into the bill sufficient remain, when combined with other reforms, effectively to move licensing back to its pre-2003 Act position. (It is noteworthy that responsibility for alcohol licensing was transferred from the DCMS back to the Home Office in 2010. Is a move from licensing authorities back to magistrates' courts also a possibility?)

The licensing provisions are contained in clauses 104-141 of the bill. Licensing authorities and care trusts/local health boards are to be made responsible authorities (the former raising questions over article 6 compliant hearings and sources of evidence and the latter the absence of a health promotion licensing objective); the 'vicinity test' is to be removed (with the possibility of opening proceedings to all and thus the prospect of many more hearings '“ subject, of course, to exclusion of representations deemed to be vexatious or frivolous); 'necessary' is to be replaced with 'appropriate' as the basis for licensing authority action (Home Office guidance is expected to add that if 'suitable' in the particular circumstances action will be 'appropriate' '“ seemingly compounding difficulties of definition); and procedural changes to temporary event notices are introduced (providing increased flexibility and control).

Further clauses provide increased penalties for 'persistently selling alcohol to children' (although it seems that the maximum penalty that is currently available has never been utilised); the power to introduce 'early morning restriction orders' from midnight to 6am (a return to permitted hours?); the suspension of a premises licence for non-payment of fees (which may present operational difficulties); 'relevant offences' for personal licences to include attempts/conspiracy; and the requirement for licensing authority policy statements to be reviewed every five rather than three years.

Two reforms offer the opportunity for increased revenue collection. The first is the introduction of a 'late night levy' (LNLs). Premises which supply alcohol between midnight and 6am may be required to pay a levy in addition to their licence fee. This scheme broadly replaces 'alcohol disorder zones' (ADZs) which were introduced by the Violent Crime Reduction Act 2006. Because of the complexities around adoption of ADZs and other concerns over their operation, not a single ADZ has been introduced. Similar concerns surround LNLs in terms of complexity (see clauses 126-140 of the bill) and the distribution of the income generated between licensing authorities and the police.

The second revenue-related reform is the power for licensing authorities to set the level of fees. An amendment introduced by the government at the commons report stage of the bill at the end of March proposes to allow licensing authorities to set fees locally on the basis of full cost recovery. Authorities have experience of setting fees in this way under the Gambling Act 2005. However, there will be a consultation on fees and the minister has indicated that the new fee structure is unlikely to fully take effect until 2013.

Books

Licensing practitioners are fortunate in the variety of resources available to assist negotiation of the often labyrinthine complexities of licensing law and procedure. Three books recently published explore particular aspects of licensing. Two are published by the Institute of Licensing. Gambling for Local Authorities (P Kolvin, 2010), while aimed at local authorities also provides an excellent account of the Gambling Act 2005 for practitioners. It builds on and expands the first edition of the book which was published in 2005, and, as the Act came into force in 2007, this volume has the significant advantage of several years' experience of the Act in practice. As the editor makes clear, the book does not set out to rival Smith & Monckom or Paterson's but achieves admirably its aim 'to provide a clear and succinct explanation of the law concerning the licensing andplanning of gambling'.

Sex Licensing (P Kolvin, Wildy Simmonds & Hill, 2010) is about the licensing of sex establishments which, under the Local Government (Miscellaneous Provisions) Act 1982, are classified as sexual entertainment venues, sex cinemas and sex shops. The proliferation of lap dancing clubs and their ability to be licensed under the general entertainment provisions of the Licensing Act 2003 led to calls for local communities to be able to exercise more controls over such premises. The result was the enactment of new sexual entertainment provisions which came into force in 2010. Kolvin's book is a welcome examination of the licensing regime for sex establishments. It is presented in a clear and readable style which is laid out in logical order; progressing from definitions and the application process to appeals and enforcement.

Club Law Manual (K Barker and H Stevens, 2011) is the second edition of this useful book on club law. The authors take over from Ken Paine whose first edition was published in 2005. As the authors make clear, this is not a legal tome but an accessible account of the legal management of members clubs. Aimed at 'the interested club member or official and their legal adviser' the book is not limited to licensing but in 174 pages of text deals also with a variety of other matters '“ ranging from fund raising and internal regulation to health and food safety. It also contains some helpful appendices. As the title states, it is a manual outlining club law and as such is sufficient for the needs of club officials.

For practitioners its use is to alert them to relevant issues which can be further researched in the legal literature. As such it is a valuable resource which is well written and neatly laid out.