R (Murco Petroleum Ltd) v Bristol City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 30 July 2010 |
| Neutral Citation | [2010] EWHC 1992 (Admin) |
| Docket Number | Case No: CO/14774/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 July 2010 |
[2010] EWHC 1992 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Cranston
Case No: CO/14774/2009
Mr Roy Light (instructed by Hook and Partners) for the Claimant
Philip Kolvin QC (instructed by Bristol City Council Legal Services) for the Defendant
Hearing date: 24 June 2010
Mr Justice Cranston:
Introduction
In this judicial review the claimant seeks permission to challenge the decision of the licensing (hearings) sub-committee of Bristol City Council (“the Council”). That decision was to decline to entertain its application for a premises licence under the Licensing Act 2003 (“the 2003 Act”) for premises known as Costcutter, Henleaze Service Station, Bristol so that it could sell alcohol. The claimant owns Henleaze Service Station. It operates a network of such petrol stations throughout the United Kingdom, most with convenience shops attached. Its experience is that the combination of petrol station with a supermarket or shop enhances the profitability of forecourt operations.
Background
In January 2009 the claimant made an application for a premises licence to allow off-sales of alcohol from 6am to 11pm on each day of the week. The application form was in the standard format. In part “P” of the form the claimant set out the various measures it intended to take to promote the four licensing objectives such as an alarm system, CCTV, alcohol training for staff, and demanding proof of age by young people. Attached to the application was a pie chart for the period 1–15 December 2008, which showed that 16.8 percent of customers used the premises for fuel only, 16.9 percent for shop only and 66.3 percent for mixed shop and fuel.
Notices were given of the application pursuant to the statutory requirements. A number of representations were made. These included two representations from local residents, who referred to alcohol sales at a petrol station. The Gollop family, which live about a third of a mile away, wrote that “this is a petrol station and not a supermarket and should not be granted a licence to sell alcohol”. There was reference to another petrol station with a shop in the vicinity, where the licensing committee had given the applicant time to prove that it was a supermarket rather than a petrol station. That, said the Gallop family, should be done here. Mr and Mrs Malyckyj wrote:
“We feel that the granting of such a licence would encourage binge drinking, which is something the Government is trying to discourage and will contravene the rule “Don't drink and drive!” We therefore feel that the granting of such a licence is totally inappropriate on garage premises frequented by motorists and is not conducive to a residential area”.
On 12 March 2009, the matter was considered by the licensing (hearings) sub-committee (“the sub-committee”). In the course of the hearing the sub-committee inquired whether the premises were primarily used as a garage or formed part of premises which were primarily so used. The claimant argued that the sub-committee had no need to consider the primary use of the premises. The sub-committee rejected that and considered it had insufficient material to consider the issue properly. It decided to defer the matter. It issued a notice of adjournment until 28 May 2009. That stated that the sub-committee was dissatisfied with the information so far provided, and what further information it needed. In particular, the sub-committee sought
“… more cogent evidence of transactions broken down identifying numbers of transactions made by:—
• customers making fuel transactions only
• customers making fuel and convenience store transactions only
• customers making convenience store transactions only
• customers using the car wash facilities
• customers using the air and water facilities …
… over a much longer period than two weeks – preferably over a six-month period to enable them to more accurately consider the matter.”
On 22 April 2009 the claimant wrote to demand that the application be determined. It included an advice by Mr Roy Light stating that no further evidence would be produced: the Council did not have power to consider primary use; and in any event, the evidence already provided was adequate. On 12 May 2009, the Council wrote to the claimant reiterating its request for further information, and pointing out that if the facts were as suggested in the pie chart it was in the claimant's interests to provide the evidence. The claimant wrote again on 15 May 2009 to state that it was not willing to provide the information.
The claimant's letter was placed before the sub-committee. It accepted that it could not require information relating to car maintenance. It was not attempting to impose onerous obligations on the claimant and wanted a resolution of the impasse. What it desired were details of till receipts or transactions for a specified 75 minute window for each day in the period of 1–15 December 2008, the dates of the original pie chart. The claimant declined to supply further information and in its letter of 22 May 2009 suggested that the Council proceed to a determination based on the pie chart which had been produced. There was a site visit on 28 May, immediately prior to the hearing that day. At the hearing the claimant requested that the sub-committee perform its statutory duty to determine the application. Because of the claimant's refusal to provide the information requested the sub-committee to adjourn the hearing further. The Council sent a notice of adjournment. The adjournment was until the first available date following receipt of the information requested. The notice stated:
“The Committee deliberated at length but were not satisfied that the evidence produced by the appellant was sufficient to enable them to assess, on the balance of probabilities, whether the premises are excluded premises within the meaning of the Act. Further, the Committee consider that the letter dated 20 May 2009 represented a reasonable compromise to enable them to make a decision. The Committee were very disappointed that the applicants were not willing to provide the documentary evidence used to support the pie chart.
If the applicants are unable to provide the documentary evidence requested in the letter of 20 May 2009 for the period stipulated in that letter, then they should provide the equivalent information over an alternative period of two consecutive weeks”.
On 18 June 2009 the claimant emailed the Council to state that it was not prepared to provide the information sought on 20 May 2009. Instead, it provided the same kind of pie chart information as it had originally, but for the period 1–19 April 2009. It also stated the number of times a cash point machine had been used on the premises. It explained that it could not provide itemised information since this was overwritten on a rolling monthly basis. On 31 July 2009, the Council wrote that the matter would be re-listed on 17 August 2009. It stated that the claimant need not confine its evidence to the dates requested but could select any two-week period. The Council also asked the claimant's managing director to attend the hearing to present the information requested and to answer any questions members might have.
At the 17 August meeting the claimant was represented by its counsel and a licensing consultant, who stated that no further information would be provided. Counsel submitted that the sub-committee had no right to determine the issue of the primary use of the premises. The sub-committee determined that it did have the power to make such a determination, for the reasons set out in its record of decision. In making its determination it took into account the Secretary of State's guidance set out in paragraph 9, which it considered to be a correct statement of the law.
“The licensing sub-committee does not accept that the applicants are unable to provide the information requested. The licensing sub-committee have been very flexible in terms of the information it has requested and the applicants have resisted each request …
The members were unanimous that they were unable to determine what the primary use of the premises was due to the lack of transactional information covering the shop and fuel use. Therefore, the application could not be determined either way. The members did not consider that in these circumstances they could grant or reject the application as their decision could not in their opinion be an informed decision without the information that they had requested on a number of occasions.
The members were also concerned as to why the applicants were so resistant to the supply of straightforward trading information, and believe that the probable answer is simply that the supply of information would not assist the applicant's case, and indeed might lead to an immediate prosecution were a licence to be granted. However, in the members’ experience, it is far better for applicants to take a frank, co-operative approach to enable the authority to take an informed decision based on material co-operatively given rather than, as happened here, for an applicant to take a plainly selective approach based on partial information so as to persuade the licensing authority to grant the licence. The applicants’ approach to this matter is inimical to the partnership approach which underpins the new licensing legislation, and members wish to record their disappointment at the outwardly...
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