The four licensing priorities

Leo Charalambides considers the significance of a High Court judge's remarks on the administrative nature of licensing determinations and the promotion of the public interest.

In the case of Matthew Taylor v (1) Manchester City Council (2) TCG Bars Ltd [2012] EWHC 3467 (Admin) Mr Justice Hinkinbottom provides a broad and considered overview of the licensing regime (Taylor, paras 6 – 39, and 64 - 96) under the Licensing Act 2003 (as amended).

The ratio of the case concerns the determination of the question of when and to what extent, if at all, can an application to vary a premise licence under the Licensing Act 2003 be amended? It is however his discussion of the administrative nature of licensing determinations and in particular the promotion of public interest that is of concern in this paper.

The Licensing Objectives: 1, 2, 3, 4, and counting... 

It is taken for granted that the promotion of the four statutory licensing objectives, is of "paramount consideration at all times" (s 182 Guidance, para 1.4). In the latest edition of the s 182 Guidance (October 2012) we are reminded that: "The legislation provides a clear focus on the promotion of four statutory objectives which must be addressed when licensing functions are undertaken" (s 182 Guidance, para 1.2; see also Licensing Act 2003, s 4(1)). This has been consistently recognized by the courts, see, for example, R (Carmarthenshire County Council) v Llaneli Magistrates’ Court [2009] EWHC 3016 (Admin), where the licensing objectives were described as being of "fundamental importance" (para 4).

The licensing objectives are stated at s 4(2) of the Licensing Act 2003. The High Court in R (on the application of Blackpool Council) v Howitt [2008] EWHC 3300 (Admin) has held that the proper application of ‘crime and disorder’ is a disjunctive one. Thus for practical purposes the four licensing objectives might helpfully be presented as being:

[1.1] The prevention of crime;

[1.2] The prevention of disorder;

[2] Public safety;

[3] The prevention of public nuisance; and

[4] The protection of children from harm.

While the government has, thus far, rejected the Scottish model of a further licensing objective, that of protecting and improving public health (Licensing (Scotland) Act 2005, s 4), it is actively considering how such public health considerations might inform the regime under the 2003 Act. The Police Reform and Social Responsibility Act 2011 made provision for the inclusion of health bodies as responsible authorities (Licensing Act 2003, s 13(4)(ba); see also s 182 Guidance, para 9.20 – 9.21). Currently, local licensing authorities are advised that health-related statistics such as alcohol-related emergency attendances and hospital admissions may be evidence upon which a special policy of cumulative impact might be based (see: s 182 Guidance, para 13.23). It seems to me that the role of public health is increasingly being applied and developed as a further quasi-licensing objective.

In my experience there is considerable variation in the understanding and application of the four licensing objectives. The s 182 Guidance takes great pains to set out the extent and scope of the licensing objectives and how they might be promoted. A considered analysis of the licensing objectives and what is entailed in their promotion is provided by Colin Manchester, Alcohol and Entertainment Licensing, 3rd Edn., 2012, pages 120 – 140. It is my view that a careful consideration of the extent and scope of the licensing objectives in relation to the specific circumstances of an application, and in particular the specific location, ought to provide the basis for the discussion of an application before the licensing authority: public health.

Market considerations/commercial demand – a judicial intervention

A hitherto (see below) surprisingly neglected observation on the scope and extent of the licensing objectives is provided by the Court of Appeal in R (on the application of Hope & Glory Public House Ltd) v (1) City of Westminster Magistrates’ Court & Ors [2011] EWCA Civ 31.

In this case Toulson LJ states: "Licensing decisions often involve weighing a variety of competing considerations: the demand for licensed establishments, the economic benefit to the proprietor and to the locality by drawing in visitors and stimulating the demand, the effect on law and order, the impact on the lives of those who live and work in the vicinity, and so on. Sometimes a licensing decision may involve narrower questions, such as whether noise, noxious smells or litter coming from premises amount to a public nuisance. Although such questions are in a sense questions of fact, they are not questions of the 'heads or tails' variety. They involve an evaluation of what is to be regarded as reasonably acceptable in the particular location. In any case, deciding what (if any) conditions should be attached to a licence as necessary and proportionate to the promotion of the statutory licensing objectives is essentially a matter of judgment rather than a matter of pure fact."

In this judgment the Court of Appeal weighs in the balance certain “market considerations” / “commercial demand”: the demand for licensed establishments, the economic benefit to the proprietor and to the locality by drawing in visitors and stimulating the demand. While these might be the practical consequences of the operation of the licensing regime they do not sit comfortably with the four licensing objectives.

Furthermore, these market considerations are contrary to the advice given in the s 182 Guidance: [13.18] "There can be confusion about the difference between the 'need' for premises and the 'cumulative impact' of premises on the licensing objectives, for example, on crime and disorder. 'Need' concerns the commercial demand for another pub or restaurant or hotel and is a matter for the planning authority and for the market. This is not a matter for a licensing authority in discharging its licensing functions or for its statement of licensing policy."[1]

It is commonly perceived that local councilors are keenly aware of the market implications of their determinations and that these are frequently taken into account. It seems to me to be a matter of time before this discussion as to the relevance of market considerations is further considered by the courts. The s 182 Guidance states that "it is imperative that the authority ensures that the factors which form the basis of its determination are limited to consideration of the promotion of the licensing objectives and nothing outside these parameters." (s 182 Guidance, para 9.40).

Vitally important key aims and purposes

This prima facie conflict between the Court of Appeal and the s 182 Guidance might be resolved by a proper understanding of the other key aims and purposes supported by the Licensing Act 2003. These other key aims and purposes are set out at paragraph 1.5 of the s 182 Guidance, they are described as "vitally important and should be principal aims for everyone involved in licensing work".

The current edition of the s 182 Guidance states that these other keys aims and purposes (which reflect the “rebalancing” exercise) these ‘include’:[2]

• Protecting the public and local residents from crime, anti-social behavior and noise nuisance caused by irresponsible licensed premises;
• Giving the police and licensing authorities the powers they need to effectively manage and police the night-time economy and take action against those premises that are causing problems;
• Recognising the important role which pubs and other licensed premises play in our local communities by minimizing the regulatory burden on business, encouraging innovation and supporting responsible premises;
• Providing a regulatory framework for alcohol which reflects the needs of local communities and empowers local authorities to make and enforce decisions about the most appropriate licensing strategies for their local area; and
• Encouraging greater community involvement in licensing decisions and giving local residents the opportunity to have their say regarding licensing decisions that may impact upon them.

These key legislative aims and objectives provide an important – and undervalued – tool through which to determine the extent and scope of the statutory licensing objectives (see: Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997 HL where it was held that statutory discretion should not be used to frustrate the policy and objects of an Act). Thus market considerations / commercial demand might be reflective of the assessment of the (licensing ?) needs of local communities and in the development of licensing strategies (see s 182 Guidance, para 1.5).

It seems to me that we have yet to fully grapple with the implications of the key aims and purposes (cf. policy and object, see Padfield) of the legislative regime (as amended) set out in the Licensing Act 2003 and how these inform the interpretation and application of the licensing objectives.

In my opinion it is of great importance that operators, responsible authorities and civil society are made aware of the scope and extent of the licensing objectives within their local authority; of the aims and purposes supported by the operation of the licensing regime and the priorities of the local licensing authority. The 2003 Act provides a mechanism for this discussion – the statement of licensing policy (“SLP”) (Licensing Act 2003, s 5). It seems to me that a consequence of the early case of R (on the application of the British Beer and Pub Association) v Canterbury City Council [2005] EWHC 1318 (Admin) has been to undermine the benefit of the local SLP. Typically I find that the SLP does no more than paraphrase the s 182 Guidance. In my view this is a missed opportunity. The local SLP could be used to set out in a general way the aims and purposes of the local licensing authority and its priorities.

All licensing objectives are equal, but some are more equal than others

The s 182 Guidance further states that: "Each [licensing] objective is of equal importance" (s 182 Guidance, para 1.5). In the recent case of Matthew Taylor v (1) Manchester City Council (2) TCG Bars Ltd [2012] EWHC 3467 (Admin) Mr Justice Hinkinbottom was much impressed and occupied with what he described as the "illuminative" judgment of Toulson LJ in Hope & Glory’ (Taylor, para 72) and in particular with paragraphs 41 and 42 of the Court of Appeals judgment.

Hinkinbottom J describes the administrative determination of the local licensing authority as an "evaluative judgment" [3] (see: Taylor, para 73). The learned judge opines: [92] … … … “Promoting the licensing objectives” … requires the balancing of various strands of public interest; and in performing that balance, it is possible, of [sic] not inevitable that one of the objectives may be demoted in order to benefit another."

It follows that subject to the particular circumstances and specific locality of an application one or more of the licensing objectives might be of greater importance. I was involved in a case where Brighton & Hove City Council refused an application for a premises licence (a rather smart off licence incorporating confectionary and convenience store items) within an area of cumulative impact as the premises was situated next door to a drug and alcohol rehabilitation center for children, teenagers and young persons. This scenario provides an example of where one of the licensing objectives – the protection of children from harm – would clearly trump and demote if not displace, the other licensing objectives.

This view is not novel, the s 182 Guidance has consistently advised that "[t]here is certain type of criminal activity that may arise in connection with licensed premises which should be treated particularly seriously" (s 182 Guidance, para 11.27). The re-balanced licensing regime has a clear focus upon crime, anti-social behavior and noise nuisance. The status and role of the police is also very clearly elevated within the re-balanced regime: "The licensing authority should accept all reasonable and proportionate representations made by the police unless the authority has evidence that to do so would not be appropriate for the promotion of the licensing objectives." (s 182 Guidance, para 9.12).

Determination of the licensing applications

The practical promoting of the licensing objectives is "a complex balancing exercise" (see Taylor, para 9). This balancing exercise / evaluative judgment is recognised in the process of ‘assessment’ that is undertaken by a local licensing authority: "Determination of whether an action or step is appropriate for the promotion of the licensing objectives requires an assessment of what action or step would be suitable to achieve that end." (my emphasis) (s 182 Guidance, para 9.40).

Paraphrasing and expanding upon Hope & Glory (para 42) Hinkinbottom J states: [73] "Once triggered, it requires the making of an evaluative judgment, involving … the weighing of a variety of competing public policy considerations, such as the demand for licensed establishments, the economic benefit to the proprietor and to the locality by drawing in visitors and stimulating the demand, the effect on law and order, and including the impact generally on the lives of those who live and work in the vicinity. It inherently involves an evaluation of what is to be regarded as reasonably acceptable in the particular location, and of what is necessary and proportionate to the promotion of the statutory licensing objectives in terms of scope of the licence and conditions in a local context."

A licensing authority is often faced with competing and conflicting interests. The s 182 Guidance has long contained the advice that where reviews arise in connection with crime: "The licensing authority’s duty is to take steps with a view to promotion of the licensing objectives in the interest of the wider community and not of the individual licence holder (para 11.26)". Taking the views of the wider community has been described as a "formidable submission" (see: London Borough of Tower Hamlets v Ashburn Estates Ltd (t/a the Troxy) [2011] EWHC 3504 (Admin), para 13). Arguably the rebalancing exercise further emboldens this formidable submission and gives greater volume to the voice of civil society.

Clearly the views and priorities of civil society and of the police will weight heavily with licensing authorities especially where these concern irresponsible licensed premises. This is less clear in circumstances involving responsible premises.

Hinkinbottom J considers this scenario, in his judgment he opines: [39] "Such an application [for review of the premises licence] would be appropriate where a licence holder performs licensable activities, within the scope and in accordance with the terms and conditions of his licence, but nevertheless those activities impact adversely on local residents, by causing unanticipated disorder or a public nuisance. It might be prompted by, e.g., a change in the manner in which the business is conducted (albeit within the scope and conditions of the licence), or merely busier trade."

Assessing the impact of premises by their types (see: s 182 Guidance paras 13.20, 13.24) and the "track record of the business" (see s 182 Guidance para 9.40) are established considerations. It would seem from Taylor that the efforts of a responsible premises will weigh little in the balance against valid (evidence-based) relevant representations of crime, anti-social behavior and noise nuisance identified by civil society and the responsible authorities.

Preliminary conclusions

Taken together it seems to me that fundamental to the promotion of the licensing objectives it is necessary – both generally in the development of policy and specifically in answer to an application – to consider licensing priorities. A number of priorities can be preliminarily stated:

[1] All the licensing objectives are of equal importance but the circumstances of an application and in particular its specific location may influence the weight to be attached to the promotion of one/some of the objectives over others.

[2] Additional to the four licensing objectives there are the further quasi-objectives of (a) public health and (b) market considerations / commercial demand.

[3] The extent and scope of the licensing objectives can be helpfully determined through the prism of the key aims and purposes of the legislative scheme and the local priorities that obtain. In particular crime, anti-social behavior and noise nuisance.

[4] Where there are conflicting interests the concerns of civil society (the wider community) and the police responsible authority are to take precedence; even over the interests of a responsible premises operator

[5] Responsible premises are to be favoured over irresponsible premises.

In conclusion it seems to me that courts are encouraging an evaluative exercise that ought to be informed by a clear set of priorities. These priorities will operate on four levels:

(i) the national framework of the legislative scheme (Padfield);

(ii) the current priorities of central government as set out, principally, in its s 182 Guidance but also in related policy initiatives;

(iii) the current priorities of the local licensing authority as set out in is s 5 statement of licensing policy; and

(iv) the specific priorities raised by the circumstances of the particular application within its specific location.

I suggest that these might be called the "Four Licensing Priorities".

Leo Charalambides is a barrister at Francis Taylor Building.