A victory for common sense in licensing process

The question arose on an appeal by resident Matthew Taylor, who made a written representation when TCG Bars applied to the Manchester licensing authority to vary the premises licence for Via, a pub in the city’s Canal Street.

The licence holders wanted to create a new self-contained basement bar with a dedicated entrance from the street and needed to make a variation application to do so.

The environmental health department objected to the new dedicated entrance and so the company withdrew that part of the application, relying instead on another door
from Canal Street as the new main entrance to the basement.

Mr Taylor had a problem with this as the Canal Street door was next to the entrance to his flat, adding 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 themselves have objected to the application if they had known.
Mr Taylor’s barrister argued that where more than a minimal change to an application was proposed the applicant was bound to start afresh, resubmitting the application, with consequent new obligations for advertising the application and new rights for authorities and residents to make representations. The plan for the Canal Street door to be the main entrance to the new club was, he argued, such a change.

Thankfully, Mr Justice Hickinbottom did not agree with this argument. These types of changes, he held, did not amount to a formal amendment of the application and it was perfectly appropriate for a licensing authority to liaise with the applicant, the responsible authorities and other parties to see whether a compromise could be reached.  

Manchester City Council had, therefore, acted lawfully in allowing the applicant to remove the proposed doorway from its application and there was no requirement to make any formal application in respect of the alternative Canal Street door. Any consequent problems arising from the use of that door could be dealt with by way of a review.
This was a victory for common sense (something you might often feel is lacking in the licensing process), but had it gone the other way it could have wreaked havoc on the licensing system. On its face, the new and variation application procedure is very rigid and doesn’t allow for changes to be made once an application has been submitted.

However, with the best will in the world — and with as much pre-application consultation as you can stomach — no applicant is going to be able to frame an application to the exact requirements of any potential objectors every time.

If, for example, the environmental health officer objected to your proposals to move your smoking area 10 yards to the right, what interest would be served in having to start the whole application process again, (together with the fees) as opposed to simply lodging a slightly revised plan with the smoking area only five yards to the right?

Or, if to obtain the consent of the police, you need to delete certain proposed conditions in your application and replace them with other, slightly different ones, why should you have to start the whole process again? Thankfully, this common-sense approach of licensing authorities to allow for minor amendments to applications during the consultation process has existed since the Licensing Act came into force. This decision simply reaffirms it.
But there is a wider and more encouraging aspect to this case. What Mr Taylor’s barrister was essentially arguing was a “black letter” interpretation of the law, and no doubt it suited his client’s purposes to do so. This approach is occasionally reflected by officials either in the police, the licensing authority or environmental health (what I would call the “clipboard and anorak” approach).

However, in the main, such a strict interpretation of the law is not shared by the higher courts, whose be-wigged occupants often display a common-sense attitude to the interpretation of statute that belies their slightly pompous reputations.

I hope you never have to go through the pain and expense of a High Court hearing, but if you do, remember you are quite likely to face a judge who is interested in getting to the heart of the problem rather than indulging in wordplay.  

■ With thanks to Sarah Clover, of Kings Chambers, Birmingham, for her helpful case report.​