Update: licensing

The last six months have seen some noteworthy cases in the Administrative Court on interpretation of the Licensing Act 2003. In particular, the position of those making representations in respect of licensing applications has been clarified '“ whether their actions can amount to an abuse of process and an examination of their right to be represented at appeal hearings. Further, the knotty problem of the definition of 'public nuisance', which has increasingly occupied the attention of both licensing sub-committees and magistrates' courts on appeal, has finally received judicial attention in the higher courts.

In addition, the first comprehensive 2003 Act licensing statistics have been published, as well as a new edition of the leading work on licensing in the form of the 118th edition of Paterson's Licensing Acts.

Sub-committee powers

R (on the application of Harpers Leisure International) v Chief Constable of Surrey (1) Guildford Borough Council (2) [78] LLR 27 challenged review proceedings brought under section 51 of the 2003 Act by Surrey Police against the Drink/Voodoo Lounge in Guildford. It was claimed by the applicant that the police failed fully to consider alternatives to review, were in breach of the enforcement concordat and failed to fulfill a legitimate expectation that consultation would take place before review proceedings were commenced.

On this basis, the applicant argued at the review hearing before the licensing sub-committee that the proceedings should be stayed as an abuse of process. The sub-committee decided that it had no power to consider the abuse of process argument and refused to grant an adjournment to allow the applicant to apply for judicial review. The sub-committee proceeded to determine the review application and took a number of steps (removal of the designated premises supervisor and an upgrade of the CCTV equipment).

The applicant applied for permission to review the sub-committee and police on a number of grounds but was granted permission on the single point of whether the sub-committee had power to stay an application for review on the basis of abuse of process and so bring an end to the review application. The court answered the question in the negative holding that there needs to be either express or implied

statutory authority for an administrative tribunal to hold such a power. While accepting that section 9(3) of the 2003 Act gives a sub-committee power to regulate its own proceedings, it does not, the court held, confer a general power to strike out an application for abuse of process. In any event, section 51(4) of the Act confers a specific power to reject an application, while regulation 12 of the Licensing Act 2003 (Hearing Regulations) 2005 provides for such matters to be considered by the sub-committee as part of the 'discussion' which will inform the sub-committee's decision on the merits of the application. There is then, of course, a further appeal on the merits to the magistrates' court.

The case is an important reaffirmation of the strict statutory/regulatory framework that governs licensing authorities' responsibilities and powers and that the role of the sub-committee is to consider any application on its merits and to reach a decision as required by section 51(4) of the Act. While the enforcement concordat and the expectation of consultation/negotiation in the licensing process remain, non-compliance goes to the merits rather than the validity of the application.

The rights of interested parties and responsible authorities

R (on the application of the Chief Constable of Nottingham Police) v Nottingham Magistrates' Court [2009] EWHC 3182 (Admin) provides valuable guidance on whether interested parties/ responsible authorities can be joined as respondents to an appeal from a licensing sub-committee to the magistrates' court under the 2003 Act. The court decided that the makers of relevant representations who appeared before the sub-committee (interested parties/responsible authorities) have no right to appear as a respondent to an appeal to the magistrates' court.

However, in the absence of any right to be represented and call evidence, does the district judge or the magistrates have power to permit an interested party or responsible authority to appear, be represented and call evidence? The High Court decided that the magistrates' courts 'do have power to control and regulate their own procedure, so as to ensure the effective resolution and determination of those functions imposed upon them by the statute in play'. It was therefore a matter for the DJ or magistrates to decide whether to allow the interested party or responsible authority to be represented and present evidence at the appeal hearing '“ where the interests of justice and promotion of the licensing objectives require it.

This means that despite the absence of any right to appear as a respondent, an interested party or responsible authority may be allowed to appear should the magistrates' court so decide. This would clearly require a preliminary hearing to determine the question ahead of the substantive appeal hearing. And what of costs should the appeal succeed? Only a respondent is at risk of costs and, in most appeals, where interested parties or responsible authorities simply are called to give evidence by the licensing authority, only the authority would be at risk of costs '“ which can lead to difficulty where an authority wishes to settle an appeal but continues at the behest of the interested party or responsible authority (there is sometimes an agreement to share or contribute to costs made). As to costs, should the appeal fail the court held that, providing there is no duplication of argument, multiple costs may be awarded. However, the court (at paragraph 37) notes that 'there is no obligation upon the magistrates to order more than one set of costs'. Multiple costs would weigh heavily on an appellant as they could be faced with substantial sums following an unsuccessful appeal at which several parties were ranged against them.

Public nuisance

R (on the application of Hope & Glory Public House Ltd) v City of Westminster Magistrates' Court [2009] EWHC 1996 (Admin) concerned the meaning of 'public nuisance' in the 2003 Act. The DCMS Guidance adopts the common law definition but also states that public nuisance 'includes low-level risk perhaps affecting a few people living locally as well as a major disturbance affecting a whole community' (paragraph 2.33). Does this conflict with the definition of public nuisance in the leading cases of R v Rimmington [2005] UKHL 63 and Attorney General v PYA Quarries Ltd [1957] 2 QB 169 '“ 'a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one party to bring an action in respect of it'?

Some patrons from the Hope & Glory tended to gather outside to drink, causing noise and disturbance (the problem got worse after the implementation of the smoking ban). The licensing authority received some 75 complaints '“ all from one person who lived in a flat close to the premises (other complaints had been received in the past). A sound expert visited the flat and concluded that the noise was such as to prevent the normal residential use of the property '“ but did it amount to a public nuisance for the purposes of the 2003 Act? The court held that what amounted to a public nuisance was a question of fact in each case and that there was no need for the nuisance to be 'very widespread' or 'very indiscriminate' '“ the class of persons affected could be small, and, provided the nuisance amounted to more than a private nuisance, it could constitute a public nuisance.

The main beneficiaries of this decision are local residents for whom increased numbers congregating outside and in the gardens of licensed premises because of the smoking ban is a growing concern. However, for the licensed trade, struggling to accommodate patrons wishing still to smoke, it represents a further challenge (research by the British Beer & Pub Association published in July 2009 estimated that some 2,400 pubs and bars had closed in the preceding 12 months).

Two other important issues were considered. First, the court confirmed that the magistrates' court should take account of the decision of the licensing sub-committee and before departing from it must be satisfied that the judgment below was wrong; and, secondly, the appellant's argument that the district judge in the magistrates' court was wrong to require the appellant to put its case first in the appeal was rejected '“ this is a matter of discretion and case management for the court.