Business premises – Hotel – Licence – Licensing Act 2003 introducing more flexible system – Secretary of state issuing guidance on discharge of functions – Local authority granting licence for longer opening hours – Justices allowing objectors’ appeal and imposing conditions – Whether conditions promoting licensing objectives – Whether magistrates’ decision lawful having regard to guidance – Application granted
The claimant owned an hotel and it operated as licensed premises. It originally held a licence under the Licensing Act 1964 but, in 2005, it applied for the existing licence to be converted to a premises licence under the Licensing Act 2003 in order to conduct business for longer hours. The police withdrew their objections to the initial proposal when the terms were modified.
The licence was granted in the modified terms requested together with an additional hour for licensable activities and an extra 30 minutes for public opening at weekends or bank holidays. The licensing authority imposed new conditions aimed at controlling noise, namely that: (i) the area outside had to be cleared by 11pm; (ii) the premises should promote the use of taxi firms using a call-back system; (iii) all doors and windows should be kept closed when regulated entertainment was provided; and (iv) prominent notices should be displayed requiring customers to leave quietly.
The first interested party and others appealed against the licensing decision on the ground that it had not been made with a view to promotion of and in accordance with the licensing objectives pursuant to section 4 of Part 2 of the 2003 Act. The justices allowed the appeal and imposed new hours of operation. The new licence had come into effect on 24 November 2005, so that the new arrangements had been running for several months without any formal or recorded complaints by the time of the hearing before the magistrates’ court.
The claimant applied for judicial review of that decision, arguing that: (i) it was not in line with the philosophy of the 2003 Act and imposed restrictions on the claimant’s operation that were unnecessary to promote its licensing objectives; (ii) it was based upon speculation rather than evidence; (iiI) it took into account irrelevant matters rather than relevant considerations; and (iv) it was a decision that no properly directed magistrates’ court could have reached. Moreover, conditions as to closing times could not be regulated under the 2003 Act and the magistrates had failed to give adequate reasons.
Held: The application was granted.
The magistrates had correctly identified the relevant licensing objectives. Although they did not articulate that the curtailment of the hours sought was “necessary” to promote those objectives, it was implied in their decision and could also be inferred from their comment that because of the concept of migration, public nuisance, crime and disorder would be “an inevitable consequence” of leaving the hours as granted by the local authority. However, their approach as to what was “necessary” had been coloured by a failure to take proper account of the changed approach to licensing in the 2003 Act.
Had they had proper regard to the 2003 Act and the guidance issued thereto, they would have approached the matter with a greater reluctance to impose regulation and looked for real evidence that it was required in the circumstances of the case. They had proceeded without proper evidence and had been their own views excessive weight. Their resulting decision limited the hours of operation of the premises without it having been established that it was necessary to promote the licensing objectives. In all the circumstances, their decision was unlawful and had to be quashed.
On a new grant of a premises licence, if it was necessary to promote the licensing objectives, there was no reason why a provision should not be included requiring the premises to be shut by the time specified in the operating schedule. It was important to keep in mind that the role of the licensing authority and, in case of an appeal, the court, had two dimensions: (i) the fundamental task was to license activities that required a licence; and (ii) 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 closed at a particular time was a condition like any other, such as keeping doors and windows closed to prevent noise.
David MW Pickup (instructed by Napthens LLP, of Blackburn) appeared for the claimant; the defendant did not appear and was not represented; David Flood (instructed by Kirwans Solicitors, of Moreton) appeared for the first interested party; Matthew Copeland (instructed by the legal department of Wirral Metropolitan Borough Council) appeared for the second interested party.
Eileen O’Grady, barrister
