A Canterbury tale

The trade forced local authorities to back down when it recently won a landmark High Court victory over Canterbury's over-zealous interpretation of the Licensing Act. Representing the trade, Jeremy Phillips and David Matthias explain the implications of the result but their opposite numbers, Philip Kolvin and Mark Lowe, say they still beg to differ. Both legal teams are from the same chambers, 2-3 Grays Inn Square, London

We won, says council

Mark Lowe QC and Philip Kolvin explain

Let's start with what Canterbury is not about. It is not about curbing the powers of over-zealous councils. Nor is it about stress or cumulative impact policies. It's not even about the ability of councils to include strong presumptions against particular activities or later trading hours in their policies. No, Canterbury concerns only the tone of language that councils may use when advising applicants how to complete their operating schedules. As such, its practical impact will be modest.

There are three stages in the licensing process. The first is when the applicant completes the operating schedule. The second is when council officers process the application. The third is when the licensing sub-committee makes a decision on an application following receipt of relevant representations. Let's see what Canterbury has to say about each stage in that process.

Operating schedule is compiled

At stage one, an applicant sits down with a large whisky, a full Biro and a blank operating schedule, which asks him to state the steps (or, in the case of variation applications, the additional steps) which he proposes to promote the licensing objectives. He might propose no steps at all. That is his choice. Provided that he completes the form he is entitled to have it processed. But may the policy set out what steps the council would like him to propose? Of course. The Secretary of State's Guidance says that in preparing an operating schedule, applicants should be aware of the expectations of the council and other statutory authorities about the steps that are necessary for the promotion of the licensing objectives. So, if the council feels strongly about toughened glass, door supervision or noise insulation, or anything else, it may state that it expects to see this reflected in proposed conditions in the operating schedule. In Canterbury, the British Beer & Pub Association (BBPA) accepted only that the policy could 'advise or 'strongly recommend the steps to be proposed, but the judge had no problem with policies stating the council's expectations.

The parties agreed that if a council goes further and positively misleads applicants into thinking that a particular step is mandatory or, worse, that the application would automatically be kicked out if the step is not included, the council goes too far.

In the final reckoning, you couldn't really get a Rizzla between the cases of the respective parties on this point. The only real question was whether the Canterbury policy crossed the line. On that question, the judge held that the BBPA's case was 'substantially overstated. He said that, with the inclusion of some clarifying text in the prologue, the policy was 'unlikely seriously to mislead applicants and there was no evidence that any applicants had actually been misled.

The judge did however find the policy to be over-prescriptive in parts. But, given the delay in bringing the proceedings and the chaos that would be caused by quashing the policy at this delicate stage in the transitional period, he refused to quash the policy or give any form of relief to the BBPA. Instead, he expected the council to review its policy to carry the sentiments in the prologue through to the rest of the text.

No objections means approval

At stage two, the council must process the application. If there are no objections, the council must grant it. If there are representations it must refer the case for a hearing by the licensing sub- committee. Canterbury does not change the law regarding stage two. No-one suggested that the council might actually refuse an application or attach further conditions even where there had been no objections. Of course, the policy must not say that the council will interfere with an operating schedule in the absence of objections. That again was common ground.

When an application is referred

Stage three is where there have been relevant representations so that an application is referred for a hearing. At the hearing, the licensing sub-committee is obliged to have regard to its policy. The previous law, arising from the case of R v Middlesex Crown Court ex parte Westminster City Council, is that authorities are entitled to adopt policies with strong presumptions, provided that they give consideration to the merits of the individual case. In Westminster, that has in-volved a strict approach to new or later operations in the West End. But it is not confined to stress areas: there could be strict policies on drug or noise control or prevention of crime and disorder. The law is unchanged by Canterbury: it is still open to a council to adopt a strong policy where it considers it necessary to promote the licensing objectives. So, when it comes to the exercise of discretion by the council in its decision-making capacity, again Canterbury changes nothing.

The buzz-word in the Secretary of State's Guidance is partnership. The benefit of policies is that they represent a partnership view, after consultation with the trade, the public and the regulatory authorities as to how best the licensing objectives may be promoted locally. Clearly, it is an advantage to operators to know that if their operating schedule does not conform to the policy, there are likely to be objections. While the BBPA complained that the mere existence of the policy might cause objections to come forward, the judge saw nothing wrong with that. The purpose of the policy is to bring certainty and clarity, so that if an operator wants to avoid objections the policy gives him a clear guide as to how to go about it. Canterbury therefore reaffirms that a clear policy is not an undesirable deterrent to good operations, but a promoter of proper standards, a guide for the operator and a touchstone by which applications may be judged.

Canterbury changes very little

So, now the hurly-burly's done, Canterbury changes very little, and the BBPA's counsel was probably right to say that the case concerned the form and not the substance of policies. Nevertheless, it is important that councils get these things right, and if the decision causes council policies to reflect more exactly the councils' powers at stages one, two and three of the process, it is very welcome.

Finally, lurking in the shadows of the case was a far more pressing issue. May a council refuse an application or attach conditions for reasons which go beyond the representations that have been made? The BBPA said it couldn't. Canterbury said it could. The Secretary of State's Guidance says only that the hearing should focus 'as a matter of practice on the representations made. The judge refused to decide. When history comes to make its judgments, Canterbury may be seen as a bit of limbering-up for the real battle to come.

It reaffirms a clear policy isn't an undesirable deterrent to good operations

No we did, says BBPA

Jeremy Phillips and David Matthias state their case

The action brought by the British Beer & Pub Association (BBPA), together with the Association of Licensed Multiple Retailers (ALMR) and the BII, was part of a larger strategy that 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 re