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cases and news from 06.2006

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Robertstown, Aberdare, Wales

David was instructed by the Environment Agency, Wales. This application was called in because the proposed development lies within the fluvial flood boundaries of the River Cynon and falls within Zone C2 as shown on the DAM accompanying Technical Advice Note 15 issued by the Welsh Assembly Government.

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Industry challenges a complete success!


Industry challenges a complete success!
Thursday, June 01, 2006


The action brought by the BBPA, together with the ALMR and the BII, was part of a larger strategy which sought to clarify the powers of local authorities under the new Act. From the publication of the original White Paper the concern of many licensees and industry leaders had been that the councils would tend towards over-regulation in respect of their businesses. This fear was well understood by the government which (in a phrase frequently repeated in the statutory Guidance) intended that their licensing should be handled with “a light touch”. In the absence of any objection each business should be registered with the minimum of regulation and interference. Where objections did arise, these should be focused upon the four “licensing objectives”, as set out in the legislation.


Addressing these concerns, in mid 2004 our industry clients set up a comprehensive system which attempted to review the initial draft policies published by each of the 376 local authorities in the country. This was no easy task, but it was one which they substantially achieved, finally reviewing and commenting upon the great majority of the published draft policies. Of these, some 30 policies gave ? and continue to give – rise to particular concerns. Three policies were finally selected to be the subject of judicial challenge: Doncaster, Gloucester and Canterbury. The first, Doncaster, accepted the industry?s concerns and agreed to amend its policy. Following a successful application to Mr Justice Collins, who presides over the Administrative Court, Gloucester too agreed to recommend to it?s councillors that the proposed amendments should be made. That left just Canterbury…


On 15th November 2004 Dr Martin Rawlings of the BBPA had written an eight page letter to Canterbury expressing his serious misgivings about aspects of its draft policy. That letter received only a formal acknowledgement. On 21st March 2005, as required by the pre-action protocol under the Civil Procedure Rules, a letter before action was written by the specialist licensing solicitors who were instructing us, Poppleston Allen. This time the letter received a more direct response, denying the substance of the complaint and asserting that the policy, now published following its adoption by the full committee in December 2004, accorded with the law. Proceedings were commenced!


The substance of the industries complaint was twofold:


That the Policy unlawfully prescribed what information should be included within an applicant?s Operating Schedule ? here the complaint was that the Policy repeatedly required applicants to include information within their applications, even though neither the primary legislation nor consequent regulation conferred any such duty upon applicants, or even any entitlement upon the licensing authority to make any such request. Examples of unlawful prescription included requirements for: evidence of measures to promote the licensing objectives, details of occupancy capacity and the adoption of numerous listed and so-called examples of ?best practice?.


Unlawful claims to powers to impose conditions or reject applications regardless of relevant representations if Operating Schedules were not completed in the prescribed manner.


The hearing before Mr Justice Richards occupied two days. We will leave it to the Defendant?s Counsel to set out the substance of the arguments which they endeavoured to advance before the court. Suffice it to say, that the reserved judgement of Richards J left the actual outcome beyond any doubt, accepting that the policy was over-prescriptive and failed to make clear that it was for applicants to determine the contents of their applications. Whilst Canterbury?s proposed addendum represented a substantial improvement, there was still a risk that applicants would not read it in the context of the document as a whole. The learned judge concluded that until the rest of the policy were recast the unlawful elements would “not be wholly cured”.


Why then did Mr Justice Richards not grant relief by quashing the policy, despite having found that the policy was unlawful? Principally because to quash the Policy in the critical period prior to 7th August 2005 could be “detrimental to good administration”. As regards a declaration, he felt that this would be unnecessary, it being sufficient that his judgment spoke for itself, “not just to the council but also to the other licensing authorities whose policies are under examination”.


So in the final analysis, was there a winner? From the industry?s point of view this ? and indeed all three ? actions were a complete success; the High Court has affirmed with the greatest clarity that the ?light touch? to which the government aspired, has indeed been carried through into the words of the legislation. It is to be hoped that local authorities throughout the land will take note.


The final word? Well, that can be left to the costs order of Richards J: “The defendant authority will be ordered to pay the claimant’s costs including the costs of the permission hearing. In reaching that decision I take into account the fact that the addendum was not in force or even proposed when the claim was brought. It is not even now in effect, and when it comes into effect it will not wholly cure the problems identified in my judgment.


The Council has not accepted that the policy was unlawful either before or after the addendum becomes part of it. The mere indication that the policy would be rewritten in due course is not, as it seems to me, a sufficient reason to have made it inappropriate for the claimants to proceed with this case and to establish the matters that they have established as set out in my judgment. They have, to my mind, achieved substantial success in the claim…


Of course, it is a misfortune for the defendant authority that it has been singled out as a test case and in that sense bears the burden of costs that might in an ideal world be distributed between the many authorities that may be affected by this matter. But there it is. They were the defendant, they fought the case and they lost”.


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