The facts of Pump and Boneyard, whose licence was finally buried by District Judge Angus Hamilton on 3rd February, read like a licensing exam paper.
The venue was formerly a typical petrol station, with pumps covered by a canopy and a small convenience store with an off-licence to sell alcohol until 11 p.m. and late night refreshment all night. The site is off the southern edge of the Shoreditch Triangle cumulative impact area designated in Hackney's policy. To the east lies a further CIA designated by Tower Hamlets.
An entrepreneur, Robert Newmark, of Beach Blanket Babylon renown, had twice tried and failed to secure variations to turn the venue into a bar/restaurant, utilising the existing building and covered forecourt. So he set out to do it anyway in a manner which, so claimed he and his lawyers, required no licence variation at all.
He built fourteen food stalls and installed seating and tables in the former forecourt, trading only until 11 p.m. so as to avoid the need for a premises licence for late night refreshment. Inside the convenience store, he took out all the shelving units, replacing them, shelf for shelf, and in the same position, with tables and seating. This was to consume food cooked in the former store, and with the benefit of the licence for late night refreshment. Of course alcohol sold in the former store could not be consumed there, because it was an off-licence, so customers were asked to take their drinks outside, to drink them on the forecourt. And he remove the glass front of the store and built an extension to it, strictly (as he said) off the premises, so that alcohol could be sold directly from the store to customers standing in (and consuming from) the new extension.
Hackney's Licensing Sub-Committee was not impressed. It revoked the licence, chiefly because this represented a total transformation of the premises without consent, in an area already suffering from significant stress, albeit not in the cumulative impact area.
Before the Magistrates' Court on appeal, the Appellant argued that the business was trading strictly within the existing licence, that the premises was causing no direct, demonstrable harm or at least none that could not be controlled by conditions, and that in any case section 182 guidance (paragraph 13.37) prevented revocations on review on grounds of cumulative impact. This raised a number of issues of principle, and wider interest.
(1) Was the transformation of the premises lawful?
As every student of licensing law knows, consumption is not a licensable activity. This means that, at least in theory, every supermarket could get a premises licence for its building and then turn its car park into a large outdoor bar every night. What is to stop that happening? This exercised the minds of DCMS officials when the Licensing Act 2003 (Premises Licences) Regulations 2005 were being formulated, with the consequence that the prescribed application form contains this note for guidance
Describe the premises, for example the type of premises, its general situation and layout and any other information which could be relevant to the licensing objectives. Where your application includes off-supplies of alcohol and you intend to provide a place for consumption of these off-supplies, you must include a description of where the place will be and its proximity to the premises.
If the applicant refers to an adjacent drinking area, it is always open to the licensing authority to impose conditions regulating its use. If the applicant doesn't refer to the adjacent area, then nothing in licensing law prevents its subsequent use. However, in such a case, the licensee should not be surprised to receive an application for review if there is harm to the licensing objectives.
In this case, however, the Council contended that the premises was in breach of its licence. This gave rise to some further arguments about whether a licensee was entitled to alter features on the licence plan which the regulations do not require to be shown on the plan in the first place. In Licensed Premises: Law, Practice and Policy, it is contended that the plan is the plan and cannot be changed without a variation, whether the features being changed needed to be shown in the first place or not. The features on the plan, be they snooker tables in a club, shelving in a supermarket or seating in a restaurant, all give assurance to the licensing authority that the premises will be used in a particular way, rather than the licence attaching to a large blank space which could be used, say, for vertical drinking. As such, variations to the layout cannot be made without variation to the licence.
In this case, it was not necessary for the District Judge to resolve that argument because there were variations which quite clearly did require variations to the licence, e.g. the installation of a wholly new kitchen, removal of the perimeter glazing, installation of a new bar etc.
(2) What relevance were criminal breaches?
The Council argued that much of what had occurred was criminal, e.g. the breaches of licence conditions, breach of smoking legislation, playing of live music in the former court etc. It argued that, on the authority of R (Blackpool Council) v Howitt 2008 EWHC 3300 (Admin) criminal acts of whatever sort engaged thee licensing objective of the prevention of crime and disorder, even if they were not disorderly. The District Judge accepted that the principle applied here.
(3) Could planning be taken into account?
It is well known that national guidance advises that the systems of planning and licensing should be kept separate that control should not be duplicated. Nevertheless, in this case, Hackney's long-standing and unchallenged licensing policy stated that normally planning consent should be obtained first. Here, it had not been. It was therefore argued that since the Court stands in the shoes of the licensing authority for the purpose of applying its policy, the absence of planning permission was a material consideration. Further, the Council argued that the failure to secure planning permission (which had been refused twice), demonstrated a cavalier approach to regulation which could be taken into account on that ground alone. In the event, the lack of planning was taken into account by the District Judge.
(4) Could cumulative impact be taken into account?
The Council acknowledged that national guidance sets its face against the culling of licensed premises based on cumulative impact and that it is wrong to call in individual licences for review when the issue is cumulative. Nevertheless, the District Judge found "compelling" the Council's argument that it was entirely legitimate to take cumulative impact into account in the case of a misbehaving licensee. The rationale is that one should not be able to attain through unlawful action that which would never have been (and was not) granted through applications for variation, and that the consequences of such unlawful behaviour are more serious in cumulative impact areas than in areas not suffering from stress. This is an important conclusion, giving further teeth to licensing authorities where regulatory breaches take place in cumulative impact areas.
In the result, District Judge Hamilton dismissed the appeal and awarded costs of £25,416 to Hackney Council.
The judgment can be read here.
Philip Kolvin QC of Cornerstone Barristers represented Hackney Council, instructed by Butta Singh