Varying a variation

A significant High Court decision has confirmed the common approach taken in relation to variation applications. Chris Grunert analyses the ruling.

In the case of Matthew Taylor v (1)  Manchester City Council (2)  TCG Bars Limited [2012] EWHC 3467 (Admin) Mr Justice Hickinbottom handed down an important judgment clarifying the position regarding to what extent, in any, an applicant can amend their variation application mid-flow. In effect, it was decided that they can.

The question arose out of an appeal by a resident, Matthew Taylor, who made a representation opposing an application by TCG Bars to vary their premises licence for Via, a Club in Canal Street, Manchester. The Applicant wanted to rearrange their premises to create a new self-contained basement bar, with a dedicated entrance from the street.

Following representations made by the Environmental Health Department regarding the new dedicated entrance, the Applicant withdrew that part of the application, and relied instead on another door from Canal Street as the new main entrance to the basement (a door which already existed).

Mr Taylor objected to this, as the Canal Street door was next to the entrance to his flat. He also complained that other residents who might be affected would not have realised that this was to be the alternative main entrance for the new basement bar and might have wanted to object to that if they had known.

In answering the posed question "When and to what extent, if at all, can an application to vary a licence under the Licensing Act 2003 be amended?" the judge preferred the argument advanced by Sarah Clover of Kings Chambers, Birmingham, on behalf of her client, Manchester City Council.

The Judge confirmed that the nature of the administrative decision-making process meant that the public interest generally would be taken into account by the Committee.

The Committee's powers are limited by the specific terms of the Act. In the case of a variation application, the Committee are required to consider whether, for the promotion of the licensing objectives, it is necessary to reject the application, in whole or in part, and/or to modify the conditions of the licence, which can involve changing conditions already on the licence, or adding new ones.

The Applicant's changing wishes or intentions in the course of an application might be taken into account, if an Applicant indicated that he no longer wished to pursue part of an application, or if he were willing to agree to a modification to the licence conditions to cater for any concerns expressed during consultation.

These types of changes, in the view of the Judge, did not amount to a formal amendment to the application, and it was perfectly appropriate for an Authority to liaise with the Applicant, and the Responsible Authorities and other parties, to see whether a compromise could be reached.

The importance of this decision is that it clarifies and confirms the common practice adopted across England & Wales. To agree with Mr Taylor's arguments would have entirely changed the way in which variation applications are dealt with, in our opinion, for the worse.

Chris Grunert is an Associate at John Gaunt & Partners.