The key licensing cases of 2011

The Licensing Act 2003 continued to keep the higher courts busy in 2011. Roy Light reviews the key judgments.

An eclectic mix of cases on the Licensing Act 2003 found their way to the higher courts during 2011. Some of the more interesting for licensing authorities are reviewed here. Perhaps the most significant is R (Hope and Glory Public House Limited) v City of Westminster Magistrates’ Court [2011] EWCA Civ 31. Its importance lies not in the substance of the appeal, noise caused by customers drinking outside a public house, but rather in the reaffirmation of the nature of an appeal from a licensing body to the courts.

Over the years practitioners have, with varying degrees of enthusiasm, raised the proposition that to allow an appeal the magistrates must decide that the decision taken by the licensing authority was wrong (Stepney BC v Joffe [1949] 2QB614 and Sagnata Investments v Norwich Corporation [1971] 1KB599). This was usually met with the argument that as the appeal is a rehearing to do so would make the appeal a sham.

The Court of Appeal approved the decision in Stepney and confirmed the appeal as a rehearing. It squared these two apparently conflicting principles by exposing the conflict as more apparent than real. The Court held there were many variables that fall to be considered by the magistrates such as "the nature of the issue, the nature and quality of the reasons given by the licensing authority and the nature and quality of the evidence on the appeal" (paragraph 40). The Court held, in "very general terms", that "the magistrates’ court should pay careful attention to the reasons given by the licensing authority" (paragraph 45) but that the weight attached to the reasons depended on the variables mentioned above.

While this is good news for licensing authorities, it does not make their decisions appeal proof. The weight given to the licensing authority’s decision will depend on the quality of the reasons given. So reasons should be fully formulated, evidence properly weighed, findings of fact made and clear conclusions reached. Also, as the nature and quality of the evidence is relevant to the weight accorded to the reasons, authorities may wish to ensure the opportunity for the testing of evidence at a hearing; lest it be undermined by cross-examination in the more judicial forum of the magistrates’ court.

Useful guidance on what makes for a good set of reasons was provided by Rafferty J in Marathon Restaurant v London Borough of Camden [2011] EWHC 1339 (QB): "The reasons given for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal controversial issues’, disclosing how the issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision."

Subsequent High Court cases have considered the application of Hope & Glory. In R (on the application of Townlink Limited) v Thames Magistrates’ Court [2011] EWCH 898 Admin Lindblom J held that what the District Judge had to do was to consider the evidence before him with the relevant principles in mind. Those principles included the necessity that the licensing objectives be promoted, and proportionality. Bearing in mind the decision of the Council’s licensing sub-committee and the significance of that decision as the result of the democratically elected members having applied their minds to the issue, the District Judge nevertheless had to adopt the approach approved by the court in Joffe, Sagnata and Hope and Glory. He had to do this by considering “whether, because he [disagreed] with the decision below in the light of the evidence before him, it [was] therefore wrong”’ (paragraph 36).

Lindblom J distinguished a ‘wrong’ decision from an ‘illegal’ decision and held that "what the [magistrates’ court] had to do was to consider on the merits whether the decision of the licensing sub-committee ought to be upheld" (paragraph 37). The court also accepted that where what amounts to a statutory discretion has been exercised to attach conditions to the licence the court must consider whether the exercise of the discretion was wrong, based on the reasons given for the exercise of that discretion, rather than to exercise the discretion afresh on the hearing of the appeal.

In R (on the application of Developing Retail Limited) v East Hampshire Magistrates’ Court [2011] EWCH 618 Admin it was held that the magistrates’ court must "consider whether, having taken the decision of the licensing authority into account, it is 'wrong on the basis of the evidence put before the magistrates’ court'” (paragraph 29). There is no need for Wednesbury unreasonableness as the appeal is a fresh evidential hearing rather than a judicial review of the licensing authority’s decision. "The magistrates therefore have power to review the decision on the grounds of error of law and also on its merits"(paragraph 30).

Developing Retail Limited also reinforced the principle that conditions put on licences should be clear, precise and enforceable, so finding that a common condition referring to ‘inaudibility’ at ‘noise sensitive premises’ should be quashed as vague, imprecise and unenforceable. Improved wording would specify the premises covered by the condition as well as setting a measurable objective noise level.

Another helpful judgment for licensing authorities is the Court of Appeal decision in the Albert Hall case. While the High Court ruling on late representations was not challenged, the decision in the case has been reversed (R (on the application of (1) Albert Court Residents’ Association et al v Westminster City Council [2011] EWCA Civ 430). Allowing the variation of the premises licence for the Albert Hall, the Court held that Westminster City Council’s practice of writing to those living in the vicinity of premises applying for a licence did not give rise to a legitimate expectation on the part of residents that they would be informed of any licence applications. There was nothing in the 2003 Act, or the regulations, that imposed such a duty on a licensing authority.

R on the application of A3D2 Limited (t/a Novus Leisure) v (1) Westminster Magistrates’ Court (2) Westminster City Council [2011] EWHC 1045 (Admin) addresses whether premises licences can be traded between premises in a cumulative impact or stress area. While it can be argued that a change of style of operation, sufficient to necessitate a new premises licence application, at premises in a cumulative impact area may not trigger the cumulative impact policy what of the transfer of a premises licence to different premises within the area? Cranston J held that a licence was firmly linked to the premises to which it had been granted, had no intrinsic value and that "the surrender of a premises licence in these circumstances cannot, under the Act, promote the licensing objectives with regard to an application for a new premises licence in respect of other premises situated elsewhere" (para.60).

Finally, an excellent review of the powers of delegation for licensing authorities under the Licensing Act 2003 was provided in R on the application of Anthony Raphael (trading as Orleans) v (1) Highbury Corner Magistrates’ Court (2) the London Borough of Islington [2011] EWCA Civ 462. The Court of Appeal considered, in particular, whether the Respondent’s licensing sub-committee had the delegated authority to amend the Appellant’s licence at a review and whether the licensing officer had delegated authority to decide that a representation from an interested party was not frivolous or vexatious. The Court decided on the facts of the case that both the sub-committee and licensing officer were seized with the necessary delegated authority under the Act.

Professor Roy Light is a licensing barrister practising from St John's Chambers, Bristol. He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it..