Legal advice: High court redresses pub rights

THE HIGH Court judgment decided in favour of Daniel Thwaites on March 10 is an important victory, not just for the claimant, but for licensees countrywide. It could have an effect on what licensing authorities - and magistrates' courts - are obliged to take into account when determining variation applications and appeals.

There is little doubt that the Licensing Act 2003 has handed more power to residents when it comes to objecting to applications. However, what is sometimes forgotten is that the intention of the Act was also to allow pubs to offer greater choice and flexibility to their customers.

During the transitional period from the Licensing Act 1964 to the new Act, Thwaites applied in relation to the Saughall Hotel in Saughall, Merseyside, for a simultaneous conversion and variation to extend its hours for licensable activities. The licensing authority granted the application but objecting residents appealed to the magistrates court and were successful.

Thwaites then successfully applied for judicial review to the High Court. The key element of the claimant's argument was that the magistrates court refused its application for extended hours on the basis of speculation rather than evidence. Indeed, following the initial grant of the conversion and variation by the licensing authority, the pub had been trading with extended hours until the appeal hearing and had received no complaints.

The residents claimed that they had concerns that problems would be caused by the later opening in the summer and magistrates reasoned that later hours for the premises would result in customers from other pubs 'migrating' to the Saughall Hotel.

The High Court judgment supports guidance, however, in that a "light touch bureaucracy" is to be used when determining variation applications and that applications should only be refused, or conditions attached to a licence, when there is evidence that the later hours will undermine the licensing objectives.

In view of the magistrates' acceptance that no adverse incidents had occurred and that they stated they had attached "little or no weight" to residents' witness statements, the High Court concluded the magistrates had failed to give sufficient reasons for their refusal of the application.

So, what does this judgment really mean for the pub trade? Firstly, it resolves the question of prevention versus cure in light of the Act. It is clearly impossible to predict whether later hours at a premises will result in public nuisance or crime and disorder or whether, as the guidance broadly suggests, flexible hours at licensed premises will generally promote the licensing objectives.

Representatives of pub operators have long argued that there are sufficient measures in the Act, such as reviews and closure orders, for those who find themselves adversely affected to instigate proceedings against pubs that cause problems in the community. However, it is only right that this should be based on clear evidence and not on mere conjecture as to what might happen.

In the Thwaites case, it was also key that the police authority had withdrawn its representation to the application. The High Court ruled that magistrates had, in effect, ignored the fact that the police were satisfied with the longer hours. This highlights the importance of licensees consulting responsible authorities in advance to ensure they are willing to support an application.

In practical terms, the judgment should serve to encourage enforcement measures against troublesome premises and should allow those pubs which operate responsibly to extend their hours to satisfy customer demand.