R (on the application of Daniel Thwaites plc) v Wirral Borough Magistrates’ Court [2008] EWHC 838 (Admin), [2008] All ER (D) 61 (May)
Queen’s Bench Division,
Administrative Court
Black J
6 May 2008
A licensing authority is required to have regard to guidance issued by the secretary of state as to the discharge of its functions; it is not required to work slavishly through the guidance, but must give full reasons for its decisions and in particular full reasons where it departs from the guidance.
David Pickup (instructed by Naphens plc) for the claimant. The defendant did not appear and was not represented.
David Flood (instructed by Kirwans) for the first interested party, the Saughall Massie Conservation Society.
Matthew Copeland (instructed by Wirral Metropolitan Borough Council) for the second interested party, Wirral Metropolitan Borough Council.
The claimant owned a hotel in which it operated licensed premises. It originally held a licence under the Licensing Act 1964. In June 2005, it commenced an application to the relevant licensing authority for the existing licence to be converted to a premises licence under the Licensing Act 2003 (LA 2003).
It sought permission for music and dancing to 11pm and alcohol sales until midnight on all nights except Friday and Saturday, on which nights those activities would be permitted until 1pm, with the doors closing one hour after the last alcohol sale every night. There was opposition to the proposals at the hearing from the local conservation society (the first interested party) and other local residents, but no objection from the police. The licence was granted and the interested parties appealed.
The justices granted the appeal, imposing shorter hours than those requested for the supply of alcohol and for entertainment even though they accepted that there had been no reported complaint in regard to public nuisance and that the extended hours had operated without any incidents. Their concern was that, because of the concept of migration, public nuisance and crime and disorder would be an inevitable consequence
of leaving the hours as granted by the licensing authority.
The claimant applied for judicial review. It contended that the decision was not in line with the philosophy of LA 2003. In so far as the court imposed conditions as to the time at which the premises had to close, it was submitted that that was not a matter which could be regulated under LA 2003.
MRS JUSTICE BLACK:
The first interested party submitted that the guidance issued by the secretary of state under LA 2003 simply served to provide information for the magistrates and provided that they had had regard to it, that was sufficient. There was no doubt that regard had to be had to the guidance by the magistrates but that its force was less than that of a statute. That was common ground between the parties.
The guidance contained advice of varying degrees of specificity. Any individual licensing decision might give rise to a need to balance conflicting factors which were included in the guidance and in resolving that conflict, a licensing authority might justifiably give less weight to some parts of the guidance and more to others. As the guidance itself said, it might also depart from the guidance if particular features of the individual case required that. What a licensing authority or magistrates’ court was not entitled to do was simply to ignore the guidance or fail to give it any weight, whether because it did not agree with the government’s policy or its methods of regulating licensable activities or for any other reason.
Furthermore, when a magistrates’ court was entitled to depart from the guidance and justifiably did so, it had to give proper reasons for so doing. The justices did not need to work slavishly through the guidance in articulating their decision but they did need to give full reasons for their decision overall and full reasons for departing from the guidance if they considered it proper so to do.
Account of change
Her ladyship turned to the facts of the instant case. The justices had not taken proper account of the changed approach to licensing introduced by LA 2003. A proper approach would have involved a greater reluctance to impose regulation and would have looked for real evidence that it was required in the circumstances. Their conclusion that it was so required on the basis of a risk of migration from other premises in the vicinity was not one to which a properly directed bench could have come. Her ladyship further held that the hours of opening could be regulated as part of the licensing of premises as opposed to the hours during which licensable activities took place.
There was power to regulate the time by which people had to leave the premises. Clearly keeping premises open (as opposed to providing entertainment or supplying alcohol there) was not a licensable activity as such.
However, the operating schedule which had to be supplied with an application for a premises licence had to include a statement of the matters set out in LA 2003, s 17(4) which included not only the times when it was proposed that the licensable activities were to take place but also “any other times during which it is proposed that the premises are to be open to the public”. On a new grant of a premises licence, where there were no representations, the licensing authority had to grant the application subject only to such conditions as were consistent with the operating schedule.
If it was necessary to promote the licensing objectives, those conditions should include a provision requiring the premises to be shut by the time that was specified in the operating schedule.
The role of the licensing authority and, on appeal, the court had two dimensions: the fundamental task was to license activities which required a licence and the associated task was to consider what, if any, conditions were imposed on the applicant to ensure the promotion of the licensing objectives.
A requirement that the premises close at a particular time was a condition just like any other.
