Breadth Of Discretion In Respect Of Applications For Minor Variations Under S.41a And B Licensing Act 2003 Considered And Confirmed

01 Jan 2018


Star Oyster Ltd and The Casino Ltd -v- Guildford Borough Council

The proper approach to minor variations to premises licences under section 41A and 41B of the Licensing Act 2003 was the subject of a decision by Jay J in the Administrative Court on Thursday 10 April 2014. An application for a minor variation may only be granted if it ‘could not adversely affect any of the licensing objectives’ (s.41B).

The Facts
C was the freehold owner of nightclub premises in Guildford, and the holder of a ‘shadow’ licence because its tenant, L, held a premises licence and operated the premises. A condition requiring the provider of doorstaff to have Approved Contractor status had been imposed on the licence prior to leasing the venue to L, following a series of assaults on customers by doorstaff, and on a police-led review. L successfully applied by way of minor variation to have a variant of that condition substituted in respect of its licence, having obtained police approval for its named contractor (who did not have, but was seeking, Approved Contractor status).The new condition required the contractor to be using ‘best endeavours’ to achieve such status. C then applied, praying in aid the decision in respect of L, to have the same variation to its licence granted as a minor variation. Guildford refused to deal with the application as a minor variation.

The challenge
C argued:

(1) That the decision to treat L’s application and its own application differently was irrational and inconsistent;

(2) That the decision to treat a ‘best endeavours’ condition as likely to give rise to adverse impact on the licensing objectives per se was irrational; and

(3) Insufficient reasons were given for the difference in approach

The decision and implications
Jay J held that there was no irrationality in the differential approach. Guildford had adequately shown that the applications in respect of L and C were materially different: L had obtained police approval, did not have the adverse history that C had, and had named its contractor; C had not.

Nor was it irrational, in light of the broad range of outcomes permitted by the statutory test (from the ‘definitely will adversely affect’ to the ‘just conceivably might adversely affect’) for Guildford to have concluded that the ‘best endeavours’ condition was unenforceable and therefore could adversely affect the licensing objectives. It had said as much in its reasons and there was no additional requirement to explain why it had, exceptionally, taken a different view on the facts of L’s application. In any event that different view was justified on the facts.

A further attempt to challenge by amendment the decision by an attack on the scheme of delegations was ruled out as being too late and academic in any event.

The decision is useful for local authorities (and those that deal with them) in understanding the breadth of the test that must be applied under s.41B in respect of minor variations. Given that the range of permissible outcomes is so wide, and the consequences of failure (which would mean having to make a ‘full’ variation application) relatively light, a local authority is likely to have broad discretion within which its decisions on the question of potential impact on the licensing objectives are unlikely to be challengeable. The same is true of the standard of reasons required. The claim was dismissed with costs.

Josef Cannon acted for Guildford Borough Council.