Premises licensing — Variation of licence — Extension of opening hours — Refusal — Cumulative impact policy — Whether policy applicable to extensions of hours — Claim dismissed
The claimant applied to the defendant council, under section 34 of the Licensing Act 2003, to vary its premises licence for a pub in Guildford. It sought to extend the opening hours for an additional three hours a day, from 11pm to 2am. The local police force submitted an objection, amounting to a “relevant representation” within section 35, in which it expressed concern as to the possible increase in crime and disorder in an already demanding area. The effect of a relevant representation was to prevent the otherwise automatic grant of the variation and to give rise to a requirement for a hearing to determine the application.
At the hearing, the police expressed the view that granting the application would disrupt the staggered closing times in the area and narrow the range of terminal hours, by removing the only 11pm closing time. The defendants refused the application as being contrary to their cumulative impact policy, contained in their licensing policy that had been adopted pursuant to section 5 of the Act. The effect of cumulative impact policies, as envisaged in government guidance issued under section 182, was to create a rebuttable presumption that applications for new licences or material variations would be refused wherever relevant representations were received about cumulative impact upon the licensing objectives enshrined in the Act.
The claimant brought judicial review proceedings to challenge the refusal of its application. It contended, inter alia, that the cumulative impact policy, with its focus upon new licences and “material” variations, could not apply to an application for a variation that merely sought to increase the permitted hours of an activity that was authorised under an existing licence. It submitted that the philosophy of the Act was such that licensing should be liberalised, and that longer licensing hours were important in avoiding problems arising from large numbers of customers leaving premises at the same time, so that an increase in hours could not, of itself, be regarded as increasing the cumulative impact. The defendants argued that the claim should be dismissed because the claimant had an alternative remedy by way of appeal to the magistrates’ court, pursuant to Schedule 5 to the Act.
Held: The claim was dismissed.
(1) Nothing in the Act, the guidance issued under it or the defendants’ policy precluded reliance upon a cumulative impact policy in the case of applications for extended hours. The Act neither promoted nor prohibited longer hours. Although one element of its policy was that a general lengthening of licensing hours would reduce problems of nuisance and disorder by allowing a more gradual dispersal of customers from licensed premises, that policy was not unqualified. The guidance issued under the Act was not to be interpreted in a legalistic manner, and reflected other policy considerations under the Act besides the desirability of longer licensing hours. It recognised that the aim of longer hours had to be balanced against the needs of an area with a particular concentration of licensed premises. The guidance did not state how any conflict between those policy elements should be resolved; that was a matter for the local licensing authority: R v Rochdale Metropolitan Borough Council, ex parte Milne (No 2) (2001) 81 P&CR 27 applied. Nor was it appropriate, in the absence of any express provision, to imply a prohibition on the application of cumulative impact policies to applications for extended hours: Cranage Parish Council v First Secretary of State [2004] EWHC 2949 (Admin); [2005] 2 P&CR 23 considered. To do so would take a common class of applications out of the scope of such policies and significantly reduce their efficacy.
(2) The defendants were entitled to have a policy provided that they were prepared, as they were, to make an exception to it in a given case. The words “material variation” could include a variation of hours if such variation were directly relevant to the cumulative impact policy. The defendants had been entitled to conclude that the claimant’s application was directly relevant. It was not unreasonable to take into account the fact that granting an application would narrow the range of terminal hours in an area that was subject to a cumulative impact policy.
(3) Although the existence of an alternative remedy could constitute a ground for refusing a judicial review claim, it would not have sufficed to justify refusal in the instant case, which raised an issue upon which a need for uniformity was required in the understanding of licensing authorities as to the scope of their cumulative impact policies in the light of government guidance.
Sir Richard Beckett QC (instructed by the legal department of JD Wetherspoon plc) appeared for the claimant; Philip Kolvin (instructed by the legal department of Guildford Borough Council) appeared for the defendants.
Sally Dobson, barrister
