Legal advice: Conditions outlawed

The ruling against Canterbury City Council over restrictions on licensing have answered some, but not all, of the quandaries over the licensing act.

By Anna Mathias of thePublican.com's team of legal experts from London solicitors Joelson Wilson.​

The recent judgment of Mr Justice Richards in the High Court challenge of Canterbury City Council's statement of licensing policy has left licensing authorities reeling and Canterbury picking up the costs, which many believe to be well in excess of £50,000.

The three organisations representing the vast majority of the nation's pubs (the British Beer & Pub Association, the BII and the Association of Licensed Multiple Retailers) argued that the policy was overprescriptive and misleading.

Canterbury sought to impose all sorts of conditions on the operating schedule which it could not lawfully insist upon.

The policy misled applicants about what they had to do to be granted a licence and was peppered with phrases such as "will expect applicants to demonstrate", "must show" and "will require". Worse still, it wrongly gave the impression that the licensing authority's discretion to assess applications would be engaged in all cases, regardless of whether relevant representations had been made.

The effect, argued the trade, was to lure applicants into including far more detail. That detail would inevitably be translated into conditions on the premises licence, leading to licences being overburdened with restrictions and demands. The new legislation was designed to ensure more flexibility and freedom, not less, and the policy of Canterbury and councils like it ran counter to the statutory intent of "light touch bureaucracy".

Aimed to assist licensees​

In its defence, Canterbury claimed that the policy was aimed at assisting licensees in composing their operating schedules to ensure the smooth passage of their applications without representations being triggered. This was no more than "the language of expectation", suggestions of matters the council would like to see included. Further, the policy could not be read in isolation. If taken in the context of the legislation, it was clear that the licensing authority could only impose conditions where there had been relevant representations. Canterbury had prepared an addendum to the policy which made the position crystal clear, it argued.

The judge disagreed. The policy went too far. It was perfectly permissible for a policy to inform applicants about what they should consider: that was one of the purposes of having a policy. However, this policy purported to dictate to applicants what they should include. This was "the language of direction" and the policy ran counter to the intent behind the legislation: it was therefore unlawful.

Not only that, but the policy gave the impression that the council's ability to impose conditions arose in every case.

The addendum did not solve the problem. Applicants could not be expected to have read the legislation, neither could it be assumed that they would bear the addendum in mind. If anything, the addendum made matters worse in that it conflicted with the rest of the policy.

The judgment has confirmed advice previously given by trade organisations and specialist licensing solicitors to their members - namely to beware of policies which purport to dictate that certain matters are part of the operating schedule. Operators will welcome confirmation that licensing authorities are not allowed to require occupancy capacity figures and risk assessments and cannot reject applications on that basis.

Canterbury City Council made the point that the trade organisations' claim had been brought outside the time limit of three months from the date of publication of the policy and should be thrown out. In the judge's view the industry could be forgiven for the delay: it was dealing with the policies of 376 licensing authorities and had done well to react as quickly as it had.

However, the delay was reason enough for denying any remedy. Declaring Canterbury's policy void at this stage would do more harm than good. The judge did not accept that applicants had been misled. Canterbury would amend its policy. In the meantime, the existing policy would continue to apply.

Helpful though this judgment is, it is unsatisfactory in a number of respects. It is unclear how Canterbury is supposed to apply its policy in determining new applications as they come in. Presumably, it would do well to adjust its approach to take into account what was said in court. As for licensees whose applications have already been decided by Canterbury, if there are conditions on their licences as a result of them being misled into putting unnecessary detail in their operating schedules, they will have to apply to have those conditions changed.

Many licensing authorities are currently scrutinising their policies for possible amendments. Applicants who suspect that a policy is flawed would be wise to raise the matter with the licensing authority, quoting the Canterbury case.

Contested hearings unclarified​

Mr Justice Richards was invited to make a finding on whether, at a contested hearing, licensing committees were restricted in their deliberations to the licensing objectives raised in the representations.

This he declined to do, saying that this was peripheral to the case. Thus as licensing authorities battle to bring their policies into line (and some 35 others have been threatened with similar proceedings if they do not), applicants are likely to face the prospect of conditions being imposed which have nothing to do with the issues that triggered the hearing in the first place.