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31 JAN 2013

Taylor v (1) Manchester City Council and (2) TCG Bars Limited [2012] EWHC 3467 (Admin); (2013) PLLR 002

Licensing - section 35 Licensing Act 2003 - premises licence - application to vary - public access and egress - use of door - representations - amendment to application - appropriate way for licensing authority to proceed - article 8 European Convention on Human Rights

Although the Licensing Act 2003 did not make explicit provision for the amendment of an application to vary a licence, the possibility of amendment was implicit in the administrative role played by the licensing committee. A District Judge was correct in ruling that it was lawful for a licensing committee to determine an application to vary where the applicant had made an amendment following representations by residents.

7 December 2012

Administrative Court

Hickinbottom J

(1)        The appellant (T) challenged the decision of the first respondent (MCC) to allow a variation to a premises licence held by the second respondent (TCG). The application to vary had met with opposition from local residents, as a result of which TCG withdrew some elements of their proposals and altered others. T, a local resident who had objected to the original application, also made representations in respect of the modified application, on the basis that a little-used entrance to the premises would be much more heavily used. MCC approved the amended application.

(2)        T argued that MCC acted unlawfully in approving the application, as the Licensing Act 2003 did not allow for formal amendment to an application to vary a licence.

(3)        Hickinbottom J held that the Licensing Act 2003 (the 2003 Act) did not allow for amendment to an application to vary. This was not necessary, as the role of licensing authority was administrative, rather than judicial or quasi-judicial (R (Hope and Glory Public House Limited) v City of Westminster [2011] EWCA Civ 31 followed). The licensing authority was required to balance a number of considerations, including representations made by those living and working in the area and responsible authorities. However, it was clear from the statutory scheme that the main focus was to be the public interest, rather than solely the views of interested parties. It was only where an application had a potential impact on the public interest that the licensing authority's decision-making role came into play; where no such representations were received, the licence holder had a right to the variation applied for [70] - [73].

(4)        It was clear from the approaches open to a licensing authority under section 35(4) of the 2003 Act that an applicant could withdraw part of an application or to agree to modified licence conditions to appease those making representations. Such a change did not amount to a formal amendment but formed part of a dialogue between the applicant, the licensing authority, interested parties and responsible authorities. It would then be open to the licensing authority to grant variations on these terms so long as it considered that the rejection of the withdrawn elements and the modification of the conditions is necessary for the promotion of the licensing objectives. The licensing authority had a wide discretion, and the requirement to be fair related to an administrative, rather than judicial or quasi-judicial, function (Corporation of the Hall of Arts and Sciences v The Albert Court Residents' Association [2011] EWCA Civ 430 followed). If the interested parties were unhappy with the decision, they could appeal to the Magistrates' Court, seek judicial review of seek a review of the licence under section 51 of 2003 Act [79] - [85]. 

(5)        Although allowing an amendment to be made in this way meant that the licensing committee would not be required to hear representations which might be made against the amended application, the harm was minimised by the restricted course of action available to the licensing authority under section 35(4), which permits only the rejection of the application in whole or in part or the modification of if and to the extent that it considers such modification necessary to promote the licensing objectives. Thus the licensing authority could not extend the licence beyond its existing scope [90] - [93]. There had been no arguable breach of Article 8 of the European Convention on Human Rights [95].

(6)        It was clear that the original licence allowed for use of the door in question. It was immaterial that use of the door had thus far been infrequent or that the ground floor and basement of the premises had now been separated into two different venues, with the door in question now the main point of access to the basement venue. A change of intensity of use did not require a variation to the licence. Following amendment, the application for variation only proposed modifications to the interior layout of the premises, in respect of which no representations had been made. It was open to MCC to impose an additional condition in respect of queuing arrangements. Thus MCC had acted lawfully and the District Judge had been correct to rule as such [107] - [112].

Appeal Dismissed

Key paragraphs

[1] - [5] - Introduction

[6] - [39] - The Licensing Act 2003

[40] - [58] - The facts

[59] - [63] - The parties' contentions

[64] - [96] - Discussion

[97] - [111] - Application of the principles to this appeal

[112] - [113] - Conclusion

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