Which policy?

01 Jan 2018

Licensing, Public Law and Judicial Review

Philip Kolvin QC

A High Court Judge has ruled as to which licensing policy applies if a new policy is issued after the date when the application is made but before the date of the hearing by the Licensing Sub-Committee or the Magistrates’ Court on appeal.

In Gurgur v London Borough of Enfield (6.12.13), the appellant ran an off-licence which was allowed to sell alcohol until 1 a.m. on 7 days per week. He applied to vary the licence to permit sale for 24 hours per day, but before the application was heard the Council introduced a cumulative impact policy. The application was refused, and Mr. Gurgur appealed to the Magistrates’ Court, where his appeal was dismissed.

The District Judge ruled as a preliminary issue that the new policy applied and went on to dismiss the appeal on the merits. Mr. Gurgur appealed by way of case stated. Amongst other arguments, it was submitted on his behalf that the applicant has to complete an operating schedule which should deal with any cumulative impact policy applying to the application, so that it would be artificial and unfair if he was to be affected by a policy mid-stream.

In the event, Mrs. Justice Patterson found that the appeal was academic because the District Judge had dismissed the appeal since he was clearly satisfied that to grant the extension would harm the licensing objectives. In those circumstances, it was irrelevant whether the burden lay on the authority to justify its decision or, by virtue of the cumulative impact policy, on the appellant to demonstrate that there would be no harm.

However, the Learned Judge went on to discuss whether applications and appeals fell to be judged according to the policy at the date of hearing or at the date of application. She was satisfied that it was the former. The line of authorities culminating in R (Khan) v Coventry Magistrates’ Court [2011] EWCA Civ 751 made it clear that the factual position at the date of the hearing had to be examined, and the same applied to the policy position. To decide otherwise would “place an entirely artificial constraint” upon the hearing. The applicant, of course, could submit evidence to deal with any changes in the policy position since the application was lodged.

That being the position for policy, she reached the same conclusion in relation to new guidance, stating: “Just as factual evidence may be adjusted on any appeal and the parties are able to deal with that I can see no reason why the policy or guidance position cannot be adjusted similarly.”

While this was not covered in the judgment, it goes without saying that policy or guidance might itself set a date from which it is to operate, or state that it only applies to applications made after a certain date, in which case, of course, that self-imposed start date would apply.

The appeal was dismissed with costs.

Philip Kolvin QC of Cornerstone Barristers appeared for the London Borough of Enfield, instructed by Catriona Mcfarlane.

Click here to see the full judgement.