R (JD Wetherspoon Plc) v Guildford Borough Council

JurisdictionEngland & Wales
JudgeMr Justice Beatson,MR JUSTICE BEATSON
Judgment Date11 April 2006
Neutral Citation[2006] EWHC 815 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/8028/2005
Date11 April 2006

[2006] EWHC 815 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before:

The Honourable Mr Justice Beatson

Case No: CO/8028/2005

Between:
The Queen on the Application of Jd Wetherspoon Plc
Claimant
and
Guildford Borough Council
Defendant

Sir Richard Beckett QC and Stephen Walsh (instructed by McLellans) for the Claimant

Philip Kolvin (instructed by Guildford Borough Council) for the Defendant

Mr Justice Beatson

Mr Justice Beatson :

1

Introduction

1

In this application the claimant challenges the refusal by the defendant to grant its application under the Licensing Act 2003 for a variation of the permitted hours of its Lloyds No 1 Public House located in Bridge Street, Guildford. The Licensing Act 2003 introduced a new regime for licensed premises. The Act required licence holders to apply for the conversion of their licences. Paragraph 7 of Schedule 8 (dealing with transitional provisions) enabled licence holders to apply under section 34 for the variation of an existing licence at the same time as they applied for its conversion. In this judgment, unless otherwise stated, references to statutory provisions are to the Licensing Act 2003.

2

On 1 July 2005 the claimant applied to the defendant for the conversion and variation of the premises licence of its Lloyds No 1 Public House in Bridge Street. In particular it sought an extension of the permitted hours by 3 hours a day from 11 pm to 2 am. On 5 July 2005 the Surrey Police objected to the application. The matter came before the defendant's licensing sub-committee on 30 August 2005. The sub-committee decided not to grant this extension in the light of a cumulative impact policy the defendant adopted as part of the policy the Act required it to put in place. The claimant, which operates a large number of pubs throughout the country, challenges the defendant's application of the cumulative impact policy to the proposed variation. Sir Richard Beckett QC, on its behalf, submitted that the application raises a question of general importance to the licensed trade and to those involved in the implementation of the Licensing Act 2003. This is because it raises for the first time the inter-relationship between special cumulative impact policies and the general policy of the Act. It is not, however, the first occasion on which the new statutory and regulatory regime has come before the courts: see R (British Beer and Pub Association and others) v Canterbury City Council [2005] EWHC 1318 (Admin) Mr Kolvin argued on behalf of the defendant that the case in fact turns on the local application of a local policy by the duly elected licensing authority. The Chief Constable of the Surrey Police is named as an interested party but took no part in the hearing before me.

2

The statutory and regulatory regime

3

The new licensing regime contains three layers; the statutory provisions in the 2003 Act, guidance approved by each House of Parliament and issued by the Secretary of State, and the policies made and published by individual licensing authorities.

2.1

The Licensing Act 2003 and the Hearings Regulations

4

In R (British Beer and Pub Association and others) v Canterbury City Council [2005] EWHC 1318 at paragraph 4 Richards J, as he then was, stated:

"The Act created a new licensing scheme, introducing a single integrated scheme for licensing premises which sell alcohol or provide regulated entertainment or provide late night refreshment. It replaces the previous separate regimes regulating liquor, public entertainment, cinema, theatre and late night refreshment licensing. It transfers primary responsibility to local authorities, with magistrates' courts exercising a purely appellate jurisdiction. It also introduces the concept of dual licences, one relating to the premises and authorising licensable activities on those premises (the premises licence), the other being held by the person responsible for the day-to-day operation of the premises (the personal licence)."

5

The Act provides that licensing authorities must carry out their functions with a view to promoting the four licensing objectives set out in section 4(2). These objectives, which are central to the legislation, are; the prevention of crime and disorder, public safety, the prevention of public nuisance, and the protection of children from harm.

6

Sections 16 to 25 deal with applications for premises licences and sections 34 to 41 with applications to vary a premises licence. The material parts of sections 34 to 36 are set out in paragraph 8 of this judgment. Broadly speaking a licensing authority must grant an application for a licence or to vary a licence where it does not receive relevant representations about the application: sections 18(2) and 35(2). It may impose conditions consistent with the applicant's operating schedule and the mandatory conditions concerning the supply of alcohol, exhibition of films and door supervision for which provision is made in the statute: sections 18(2)(a) and (b), 19 to 21, and 35(2). Where relevant representations are made, the authority must hold a hearing (unless those who have made representations agree this is unnecessary) and having regard to the representations, take such of the steps mentioned in section 18 (4) (if any), as it considers necessary for the promotion of the licensing objectives. The steps include granting the licence subject to conditions, excluding any of the licensable activities to which the application relates, refusing to specify a person in the licence as the premises supervisor, and rejecting the application.

7

Provision for the second layer of the regime is made by section 182. This requires the Secretary of State to issue guidance to licensing authorities on the discharge of their functions. The Secretary of State may not issue the guidance unless a draft of it has been laid before, and approved by resolution of, each House of Parliament. Provision for the third layer is made by section 5. This requires each licensing authority to determine and publish its policy with respect to the exercise of its licensing functions in respect of each three year period. Before doing so the authority must consult the persons listed in section 5(3), including the police, the fire authority, and representatives of the holders of licenses, businesses and residents in its area. In carrying out its licensing functions, a licensing authority must have regard to its statement of licensing policy (section 4(3)(a)) and to the Secretary of State's guidance (section 4(3)(b)).

8

The application that has given rise to these proceedings is an application to vary a premises licence and thus governed by sections 34 to 41 of the Act. It is only necessary to set out extracts from sections 34 to 36.

"34 Application to vary premises licence

(1) The holder of a premises licence may apply to the relevant licensing authority for variation of the licence….

35 Determination of application under section 34

(1) This section applies where the relevant licensing authority -

(a) receives an application, made in accordance with section 34, to vary a premises licence, and

(b) is satisfied that the applicant has complied with any requirement imposed on him by virtue of subsection (5) of that section [which concerns the form and manner the applicant must advertise the application].

(2) Subject to subsection (3) and section 36(6)[which prohibits variations to extend the period for which the licence has effect or to vary substantially the premises to which it relates], the authority must grant the application.

(3) Where relevant representations are made, the authority must -

(a) hold a hearing to consider them, unless the authority, the applicant and each person who has made such representations agree that a hearing is unnecessary, and

(b) having regard to the representations, take such of the steps mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives.

(4) The steps are -

(a) to modify the conditions of the licence;

(b) to reject the whole or part of the application;

and for this purpose the conditions of the licence are modified if any of them is altered or omitted or any new condition is added.

(5) In this section "relevant representations" means representations which —

(a) are about the likely effect of the grant of the application on the promotion of the licensing objectives, and

(b) meet the requirements of subsection (6).

(6) The requirements are -

(a) that the representations are made by an interested party or responsible authority within [the prescribed period],

(b) that they have not been withdrawn, and

(c) in the case of representations made by an interested party (who is not also a responsible authority), that they are not, in the opinion of the relevant licensing authority, frivolous or vexatious.

36 Supplementary provision about determinations under section 35

(1) Where an application (or any part of an application) is granted under section 35, the relevant licensing authority must forthwith give a notice to that effect to —

(a) the applicant,

(b) any person who made relevant representations in respect of the application, and

(c) the chief officer of police for the police area (or each police area) in which the premises are situated.

(2) Where relevant representations were made in respect of the application, the notice under subsection (1) must state the authority's reasons for its decision as to the steps (if any) to take under section 35(3)(b).

(4) Where an application (or any part of an application) is rejected under section 35, the relevant licensing authority...

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