news from 08.2010

10.08.2010

Sex Licensing and Gambling for Local Authorities
Tuesday, August 10, 2010

From April of this year, lap-dancing clubs and other sexual entertainment venues were removed from the same category as pubs and cafes, and re-classed as sex establishments allowing residents to oppose venues for being "inappropriate" to the area.

In his latest publication Sex Licensing, Philip Kolvin QC sets out to inform all involved in the licensing of the commercial sex industry how policy, the application process and the decision-making can all be geared to achieving a pattern and quantum of sex establishments that meets the local authority’s aspirations for its area. Published to coincide with the implementation of the new laws on lap-dancing and other sexual entertainment venues, Sex Licensing provides an examination of the definitions of sex establishment, the application process, the grounds for refusal and the use of conditions.

In Gambling for Local Authorities (2nd edition), Kolvin and his team chart the terrain of gambling law simply and succinctly. The book is written in a clear, accessible style and is an invaluable reference tool for anyone involved in the new legislation on gambling. This second edition of Gambling for Local Authorities includes important new material:

• Commentary on major issues, including split premises, skills with prize machines and house prize competitions
• New regulatory material, including up-dated regulations, Guidance and Licence Conditions and Codes of Practice
• New case law, including on provisional statements, appeals, costs and bias
• New text on Planning Policy Statement 4 and the Community Infrastructure Levy
• A new chapter on problem gambling by Professor Mark Griffiths
• New tables and figures to explain and simplify the law

Click here to order both copies taking advantage of a 10% discount from the Institute of Licensing

02.08.2010

Licensing Authority can demand answers
Monday, August 02, 2010

R (Murco Petroleum Limited) v Bristol City Council [2010] EWHC 1992 (Admin)

In a key judgment for licensing practitioners, Cranston J has held that it is open to a licensing authority to compel applicants for licences under the Licensing Act 2003 to answer its questions concerning the application, and defer consideration of the application until answers have been received.

The facts were that Murco Petroleum Limited applied for a premises licence to sell alcohol from its petrol station in Bristol. Residential objections included the link between sale of alcohol and drink driving. At the consequent hearing, the Licensing Sub-Committee decided to investigate whether the premises were excluded premises within the meaning of section 176 of the Act by virtue of being used primarily as a garage. The Claimant had submitted a pie chart showing a percentage split between those visiting for the purposes of buying petrol and other purposes. However, the Sub-Committee wanted also to see relative turnover figures. The Claimant resisted this on the grounds that turnover was irrelevant and that in any event it was up to an applicant to decide what information to present, and that the licensing authority had no right to compel the production of information: if it was dissatisfied with the material proffered, its solution was to refuse the licence and leave the applicant to its rights to appeal. This moved rapidly to a stand-off in which the Claimant refused to provide information and the Defendant refused to determine the application. Following the Claimant’s unsuccessful attempt to appeal to the Magistrates – who refused to entertain the appeal on the grounds that no decision had been made by the Defendant – the Claimant brought judicial review proceedings to compel the Defendant to determine its application.

Cranston J held that, contrary to the submission of the Claimant, relative fuel and non-fuel turnover was relevant to the analysis of whether the premises were primary a garage. He went on to hold that the Defendant Council had the right to seek the information, and was also entitled to adjourn the hearing of the application for a satisfactory answer. The learned Judge held:

Any other construction of the powers of a licensing authority would turn it into a cipher. It would be forced to make a decision on less information than necessary to promote the licensing objectives. A licensing authority must be able to pursue issues of public safety, the protection of children from harm and other objectives of the 2003 Act. The example proffered by Mr Kolvin QC, for the Council, is apposite:

“Imagine a rock festival. A temporary spectator stand is proposed. A question is raised whether it will be safe or a death trap. On the claimant’s showing, the applicant can simply refuse to tell the authority anything about the means of construction, the expertise of the designer or the safety certification process, defying the authority to refuse the application and risk having to respond to an appeal, with all the unnecessary cost and time that that would entail”.

The claimant’s interpretation of the provisions of the 2003 Act and attendant regulations would make a mockery of the standing of the Council as the licensing authority and its function as the primary decision-maker. It would also be inimical to the aim of the legislation to promote the licensing objectives. Perhaps as important it would frustrate the role which local residents have in making representations under the 2003 Act and would downgrade the role of democratically elected decision-makers.

While the case concerns garages, the judgment is of general application. In short, the licensing authority’s role is not merely adjudicatory: it can take a more inquisitorial stance and compel answers from the applicant, on pain of deferral should answers not be forthcoming. While plainly co-operation by the parties mean that deferral is likely to be a remedy of last resort, it is a useful reserve power which underlines that the licensing authority is the local regulator and not merely a staging post on the way to determination by the magistrates’ court.

Bristol City Council, was represented by Philip Kolvin QC

Murco Petroleum Limited was represented by Roy Light

Click here for the full judgment

01.08.2010

Morag Ellis QC recently acted in a Town and Village Green decision of HHJ Behrens sitting as a Deputy Judge of the Chancery Division. It concerns the issues of Neighbourhood and Locality under S.15 Commons Act 2006, although it was in fact tried as a S.14 Commons Act 1965 application.

Judge Behrens upheld the recommendation of Alun Alesbury, who had sat as a non statutory Inspector into the application to register land at Yeadon Banks in Leeds as a TVG, that it was possible to register land on the basis of evidence of user from 2 neighbourhoods, although he disagreed with Alun Alesbury on the question of whether or not the areas in question constituted a single neighbourhood. There was also discussion of the relationship of a claimed neighbourhood to a locality and the 'predominance' rule in relation to the evidence which applicants must produce to justify registration.

Morag Ellis QC represented the Council in the High Court proceedings who won with costs. Both the substantive and costs decisions are now subject to appeal to the Court of Appeal.