Aiming at the target

July 22, 2012

The issue of clusters of betting shops appearing on high streets has risen up the licensing agenda. Gerald Gouriet QC sets out a possible way forward.

Paddy Whur’s provocative article Is There a Better Way? highlights the frustration of local authorities who do not want clusters of betting shops on their high streets. I think the answer to the question is “Yes. There is a better way. But no-one seems to have taken it yet.”

Section 153 of the Gambling Act 2005 is certainly permissive - the licensing authority ”shall aim to permit the use of premises for gambling…” – but it falls far short of requiring the grant of a licence whenever an applicant jumps the statutory hurdles set out in the section - namely, being in accordance with the relevant Gambling Commission code of practice and Guidance, being reasonably consistent with the licensing objectives and being in accordance with the authority’s own Policy Statement. If a grant were mandatory in those circumstances, it would have been easy for the section to have said so. But it doesn’t. It says that the authority should aim to permit, not that the authority must permit. “Aim to permit” is merely a steer, albeit a strong one, to look favourably on an application, all other things being equal.

The fact that the section leaves room to refuse, even when what I have called the “statutory hurdles” are overcome, is illustrated by section 153(2), which reads –“In determining whether to grant a premises licence a licensing authority may not have regard to the expected demand for the facilities which it is proposed to provide.” That subsection can only be necessary if a licensing authority is entitled to refuse notwithstanding the steer of section 153(1). If it were otherwise, and a refusal was bound to follow when the statutory requirements (the four “hurdles”) of section 153(1) were satisfied, then section 153(2) would be wholly redundant.

The same can be said of section 210(1), which reads – “In making a decision in respect of an application under this Part a licensing authority shall not have regard to whether or not a proposal by the applicant is likely to be permitted in accordance with the law relating to planning or building.”

If section 153(1) created an obligation to grant, rather than a steer to look favourably on an application, then section 201, as well as 153(2), would have no purpose. It is unlikely that a High Court would interpret the Gambling Act in such a way as to render two of its important sections purposeless and unnecessary: the sections have a function; and that function illustrates that there is a discretion to refuse a betting premises licence, notwithstanding the steer in section 153.

In plain English, there is a self-evident gap between “shall aim to permit” and “shall permit”. The Statute is unhelpfully silent on what circumstances might legitimately pull the aim away from the target. But that indicates a broad, rather than a narrow, discretion. Only two matters are ruled out of consideration: likely demand, and likely planning permission. The remaining discretion, it would seem, lies in the well-known territory between the good sense of the licensing authority and Wednesbury unreasonableness.

The variety of circumstances in which there may be a lawful refusal cannot be drawn up in a pre-defined list. But an authority aiming with the best will in the world to permit the use of premises as (yet another) betting office, may well find that police and residents’ complaints of intimidating street drinkers loitering outside the existing betting offices, disorder (fighting) amongst disgruntled punters, the vandalising of gaming machines - not to mention the small matter of “a number of armed robberies” - swing the committee’s gun-sights irresistibly towards a perfectly legitimate refusal.

Gerald Gouriet is a barrister at Francis Taylor Building.