Extreme Oyster (1st Claimant) Star Oyster Ltd (2nd Claimant) v Guildford Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 22 July 2013 |
| Neutral Citation | [2013] EWHC 2174 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 July 2013 |
| Docket Number | Case No: CO/10284/2012 |
[2013] EWHC 2174 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Turner
Case No: CO/10284/2012
James Rankin for the 1 st and 2 nd Claimants
James Findlay QC (instructed by Bridget Peplow of Guildford BC) for the Defendant
Introduction
The second claimant, Star Oyster Ltd (" Star"), is the freehold owner of two nightclub premises in Guildford: the "Casino and Players Lounge" and "Bar Mambo". Both premises are covered by licences granted in respect of "licensable activities" under the Licensing Act 2003. The tenant of the clubs, and holder of these licences, is Luminar Leisure Limited ("Luminar"). The two club premises, although presently run as distinct undertakings, are housed within the same building.
The first claimant, Extreme Oyster Ltd ("Extreme") is the trading company of Star. Extreme ran Bar Mambo prior to Luminar taking over on 13 th May 201Extreme continues to be an active trading company employing staff and receiving income from the rental of the premises from Star. It pays all of Star's running costs and expenses.
On 2 May 2012, the claimants applied to the defendant, Guildford Borough Council ("Guildford") for "shadow" licences in respect of these two premises and areas within them. The term shadow licence is not defined in either statute or regulations but is a convenient shorthand way of describing a licence which has been obtained by one party in respect of premises in relation to which another licence (to which I propose to refer as the "primary licence") has already been granted to someone else. In short, the claimants wished, for commercial reasons, to have the benefit of licences operating in parallel to those held by Luminar.
Guildford refused the claimant's applications on the basis that they had failed to satisfy the terms of Section 16 of the 2003 Act compliance with which is a pre-condition of the consideration of any application for a premises licence. The claimants now seek to challenge the legality of this decision by way of judicial review.
The disputes
Guildford accepts that circumstances may arise in which a shadow licence can lawfully be granted but contends that such circumstances do not arise on the facts of this case. Of more generic importance is the question as to just how wide is the category of applicants which the law permits to apply for such a licence. The claimants advocate a broad approach; Guildford a narrow one.
Further issues fall to be addressed. The first pertains to the lawfulness of the process by which Guildford purported to reject the application. The decision had been purportedly delegated to Mr Curtis-Botting, the defendant's Licensing Services Manager. The claimants contend that this delegation was unlawful and that any decision should have been taken by the licensing sub-committee. The second issue relates to Guildford's refusal to return to the claimants the fees which they had paid in respect of the failed applications.
An unhappy aspect of this case is what could be described, perhaps euphemistically, as a lack of empathy between Mr Michael Harper, the owner of Star, and Mr Curtis-Botting. This case is not, however, about personalities and, although I have read with care the evidence relating to the background history, I must remind myself that there are no express allegations of bias, in the legal sense, against Mr Curtis-Botting and that his decisions must stand or fall on their own merits.
Shadow licences — the legal background
Under betting legislation, it was (and still is) only ever permissible for there to one licence at any one time in respect of any given set of premises. Section 152(1)(b) of the Gambling Act 2005 provides:
"152 (1) A premises licence—
… (b) may not be issued in respect of premises if a premises licence already has effect in relation to the premises…"
The position under the Licensing Act 2003 is, however, less strict and allows for the existence of more than one licence in respect of the same premises. Section 2 of the Act provides:
" Authorisation for licensable activities and qualifying club activities E+W This section has no associated Explanatory Notes
(1)A licensable activity may be carried on—
(a) under and in accordance with a premises licence (see Part 3), or
(b) in circumstances where the activity is a permitted temporary activity by virtue of Part 5.
(2)A qualifying club activity may be carried on under and in accordance with a club premises certificate (see Part 4).
(3)Nothing in this Act prevents two or more authorisations having effect concurrently in respect of the whole or a part of the same premises or in respect of the same person."
The Department of Culture Media and Sport ("DCMS") is required by section 182 of the 2003 Act to publish guidance indicating how the Act will be administered by the licensing sub-committees of the local authorities who now exercise the relevant jurisdiction over the grant, refusal, variation and review of licences for premises that offer regulated entertainment and licensable activities.
Section 4 (3) of the 2003 Act provides:
"4 General duties of licensing authorities E+W This section has no associated Explanatory Notes
(3) In carrying out its licensing functions, a licensing authority must also have regard to
… (b) any guidance issued by the Secretary of State under section 182."
The applicable DCMS guidance provides at paragraph 8.19:
"…There is nothing in the 2003 Act which prevents an application being made for a premises licence at premises where a premises licence is already held".
Nevertheless, an applicant for a licence must qualify under one or more of the gateway criteria imposed by section 16 of the 2003 Act (of which there are ten). Only the first of these is directly material to this application:
"16 Applicant for premises licence
(1)The following persons may apply for a premises licence—
(a) 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…"
The explanatory notes refer to this as the "principal category" in this section. However, they provide no further guidance as to its interpretation.
Paterson's Licensing Acts provides the following commentary on section 16 at paragraph 1.321:
"Who may apply?
Whereas a justices' licence could be granted to any person whom the justices thought fit and proper, under the new legislation section 16 specifies a restricted list of persons who may apply for a premises licence. The most common applicant will be 'a person who carries on, or proposes to carry on, a business which involves the use of the premises for the licensable activities …' It is suggested that the use of the term 'involves' might denote a broad range of businesses including that of a landlord receiving a rent from a premises being used for such a purpose (this interpretation cited and approved by the district judge and subsequently Richards L.J. at para 24 of his judgment in Hall & Woodhouse Ltd v Poole Borough Council) as well as an owner of such a business, a local authority, the holder of a franchise or a tenant…"
And at paragraph 1.3515 footnote 3:
"…Quaere whether e.g. a developer of a site who intends to construct premises to be used for the sale of alcohol would be able to apply. It could be argued the business involvement in the use of the licensed premises is too remote. This could be an issue for developers who have historically put licences in place at an early stage in a project, albeit often only on an outline basis under s 6(5) of the Licensing Act 1964. For those persons the procedure afforded by the Licensing Act 2003 (which also presents difficulties) might be the more appropriate route. For a case which raised similar issues arising under the Gambling Act 2005 see Betting Shop Services Ltd v Southend-on-Sea Borough Council [2007] EWHC 105 (Admin)… In that instance it was held that Guidance published by the Gambling Commission dealing with the point was inconsistent with the true construction of the Act. Where the applicant fulfilled the other statutory criteria, an application for a premises licence might be granted in respect of premises not yet ready for gambling (in that they had not been fully constructed or were to be altered). The claimant had met the relevant statutory criteria for its application and the authority was therefore obliged to consider it."
The case of Hall, to which Paterson refers, involved a criminal prosecution under section 136(1)(a) of the 2003 Act. The appellant, Hall & Woodhouse Limited ("Hall"), was the owner of the Stepping Stones public house in Poole. It let the premises to one Cartlidge under a tenancy agreement. He, in turn, employed one Ferguson to be the manager and designated premises supervisor. Hall had obtained the relevant premises licence.
In the early months of 2007, it became clear that those responsible for running the Stepping Stones were ignoring the terms of the licence in a number of respects. In particular, they were serving drinks after hours and failing to maintain adequate protection against the risk of fire.
Charges were brought against Cartlidge and Ferguson under section 136 (1) of the 2003 Act alleging that they had knowingly allowed a licensable activity to be carried on at the public house otherwise than under and in accordance with an...
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R Star Oyster Ltd and the Casino Ltd v Guildford Borough Council
...to refuse the transfer to Casino made on 3 January 2013 cannot stand in view of the judgment of this court in R(Extreme Oyster and Star Oyster Limited) v Guildford Borough Council [2013] EWHC 2174 Admin (Turner J). Star have recently informed Guildford that it no wishes the transfer applica......