R BETTING SHOP SERVICES Ltd v SOUTHEND-on-SEA BOROUGH COUNCIL DONE BROTHERS (CASH BETTING) Ltd CORAL RACING Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 14 January 2008 |
| Neutral Citation | [2008] EWHC 105 (Admin),[2007] EWHC 105 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9266/2007 |
| Date | 14 January 2008 |
[2007] EWHC 105 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London
WC2A 2LL
Andrew Nicol Qc
(Sitting as a Deputy High Court Judge)
CO/9266/2007
Mr Gerald Gouriet QC (instructed by Eversheds) appeared on behalf of the Claimant
Mr Matthew Butt (instructed by Southend-on-Sea Borough Council) appeared on behalf of the Defendant
THE DEPUTY JUDGE: This is an application for judicial review that is brought by Betting Shop Services Limited against Southend-on-Sea Borough Council. Permission to apply for judicial review was granted by Sullivan J on 30 November 2007.
The claimant owns premises at Unit G3, Victoria Place, 35 Southchurch Road, Southend-on-Sea. It applied to the Southend-on-Sea Borough Council (“the Council”) for a “Premises Licence” to use their premises for gambling. On 25 September 2007, Licensing Sub-Committee B at the Council made this decision:
“We have before us today an application from Betting Shop Services Limited for the grant of a Betting Premises Licence.
As a result of representations received on this application we have been asked to decide on a preliminary issue:
'Whether the premises are finished to an extent that they can be considered for a Premises Licence rather than a Provisional Statement.'
We have listened to submissions and read all the documentation as they related to the preliminary issue.
We have had regard to the Gambling Act 2005 and the Gambling Commission's Guidance Notes and the Licensing Authority's Statement of Gambling Licensing Policy.
We have decided that we are unable to consider the application primarily because of the Guidance given by paragraph 7.55 and 7.57 in the Guidance Notes.
In our opinion, to consider the application for a Betting Premises Licence would not be in accordance with the guidance issued by the Gambling Commission.”
The claimant seeks to quash that decision, to have the matter remitted to the Council for a determination of its application for a Premises Licence, and for that application to be granted or refused. The defendant Council is prepared to consent to the quashing of the decision, and is neutral as to what declaratory relief the court should make as to the approach it is required to take on such a remittal.
The application for a Premises Licence was opposed by two companies which themselves run other betting shops. Although notice of the claim was given to both of those interested parties, that is Done Brothers (Cash Betting) Limited (t/a as Betfred) and Coral Racing, neither of them contest the claim. Neither of the interested parties therefore have appeared today. The Gambling Commission was invited by the court to submit observations and has done so in written form. I have taken those into account. They are dated 17 December 2007.
The application made to the Council by the claimant was, as I have said, for a Premises Licence under the Gambling Act 2005. Section 159 of the Act is headed “Making of application” (an application for a Premises Licence). It says this:
“(1) A person may apply to a licensing authority for a premises licence to be issued to him authorising the use of premises to carry on an activity listed in section 37(1).
(2) An application must be made to a licensing authority in whose area the premises are wholly or partly situated.
(3) An application may be made only by a person who—
(a) holds an operating licence which authorises him to carry on the activity in respect of which the premises licence is sought, or
(b) has made an application, which has not yet been determined, for an operating licence which authorises him to carry on the activity in respect of which the premises licence is sought.
(4) But subsection (3) does not apply to an application for a premises licence which authorises a track to be used for accepting bets (and which does not also, otherwise than by virtue of section 172, authorise it to be used for another purpose).
(5) An application may be made only by a person who has a right to occupy the premises to which the application relates.
(6) An application must—
(a) be made in the prescribed form and manner,
(b) contain or be accompanied by the prescribed information or documents, and
(c) be accompanied by the prescribed fee.
(7) Regulations prescribing a matter for the purposes of this section may, in particular, make different provision for—
(a) applications in respect of different classes of activity, or
(b) different circumstances.
(8) In this section 'prescribed' means—
(a) in relation to applications to authorities in England and Wales, prescribed by regulations made by the Secretary of State, and
(b) in relation to applications to authorities in Scotland, prescribed by regulations made by the Scottish Ministers.”
In this case, the claimant did hold an operating licence and did have a right to occupy the premises to which the application related. Regulations have been made under section 159(6) concerning the prescribed form, manner, information, documents and fee, but it has not been suggested that the application made by the claimant was in any way deficient when measured against those regulations.
The decision of the Committee was, as I have indicated, made by reference to the Gambling Commission's guidance to licensing authorities. The guidance in question was issued in June 2007 and the passages to which the Council's Committee referred are under a sub-heading which says “Relationship between planning permission, building regulations and granting of a premises licence”. 7.55 within that section and following say this:
“7.55 An applicant cannot obtain a premises licence until the premises in which it is Proposed to offer the gambling are constructed. The intention behind part 8 of the Act is that the references to 'the premises' are to the premises in which gambling may now take place. Thus a licence to use premises for gambling should only be issued in relation to premises that are ready to be used for gambling. This is why the Act allows an operator to apply for a provisional statement if the building is not yet complete, needs alteration, or he does not yet have a right to occupy it. See Part 11 of this guidance for more information about provisional statements.
7.56 It is a question of fact and degree whether premises are finished to a degree that they can be considered for a premises licence. For example, the fact that a wall needed painting would not stop a full assessment of the premises as gambling premises, and in such circumstances it would probably be wrong to insist that the applicant applied for a provisional statement rather than a premises licence.
7.57 Once an operator has a completed building, the licensing authority will be able to consider a premises licence application for it. Requiring the building to be complete ensures that the authority could, if necessary, inspect it fully, as could other responsible authorities with inspection rights under part 15 of the Act. Inspection will allow authorities to check that gambling facilities comply with all necessary legal requirements. For example, category C and D machines in a licensed family entertainment centre must be situated so that people under 18 do not have access to the category C machines. The physical location of the machines will be an important part of this, and inspection will allow the authority to check that the layout complies with the operator's proposals and the legal requirements.”
The Gambling Commission there refers to a provisional statement as the appropriate authorisation which should be sought by a person who does not yet have premises that are completed and ready to be used for the gambling for which licensing is wanted. The reference to a provisional statement is a reference to section 204 and following of the Gambling Act 2005. Section 204 says this under the heading “Application”:
“(1) A person may make an application for a provisional statement in respect of premises—
(a) that he expects to be constructed,
(b) that he expects to be altered, or
(c) that he expects to acquire a right to occupy.
(2) The provisions of this Part shall apply in relation to an application for a provisional statement as they apply in relation to an application for a premises licence—
(a) subject to the provisions of this section and section 205, and
(b) with any other necessary modifications.
(3) An application for a provisional statement shall include such plans and other information in relation to the construction, alteration or acquisition as may be prescribed.
(4) Sections 152(1)(b) and 159(3) and (5) shall not apply in relation to an application for a provisional statement.”
If a provisional statement is made, it has the effect set out in section 205 of the Gambling Act 2005. That says this:
“(1) This section applies where—
(a) a licensing authority issue a provisional statement in respect of premises, and
(b) an application is made under section 159 for a premises licence in respect of the premises.
(2) The licensing authority shall disregard any representations made in relation to the application for the premises licence unless they think that the representations—
(a) address matters that could not have been addressed in representations in relation to the application for the provisional statement, or
(b) reflect a change in the applicant's circumstances.
(3) The licensing...
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...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......