(1) The British Beer and Pub Association (2) The Association of Licensed Multiple Retailers (3) The British Institute of Innkeeping v Canterbury City Council [2005] EWHC 1318 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

[2005] EWHC 1318 (Admin)

Case No Case No: CO/2121/2005

Venue Royal Courts of Justice, Strand, London. WC2A 2LL

Between

(1) The British Beer and Pub Association (2) The Association of Licensed Multiple Retailers (3) The British Institute of InnkeepingClaimants

Canterbury City CouncilDefendant

Before

Mr Justice Richards

David Matthias and Jeremy Phillips (instructed by Poppleston Allen Solicitors) for the Claimants

Mark Lowe QC and Philip Kolvin (instructed by Canterbury City Council) for the Defendant

Hearing dates: 15-16 June 2005

Date 24 June 2005

[1]Mr Justice Richards: The claimants between them represent the interests of the great majority of the licensed retail sector in England and Wales. They seek to· challenge the statement of licensing policy published by Canterbury City Council under section 5 of the Licensing Act 2003 ("the Act"). They contend in essence that the policy(a) is over prescriptive with regard to the contents of an application for a licence and

(b) states or implies that the council has greater power than it does to assess applications and to impose conditions.

[2]All licensing authorities in England and Wales had until early January 2005 to publish their licensing policies under the Act. The claimants carried out a review of the published policies and identified over 30 that in their view were over-prescriptive and unlawful. They picked three examples for what they regarded as test cases, lodging judicial review claims against Doncaster Metropolitan Borough Council and Gloucester City Council in addition to the present claim against Canterbury. The issues in all three cases were very similar. Doncaster and Gloucester have subsequently amended or agreed to amend their policies in ways that are acceptable to the claimants. In consequence the claims against them have been or are expected to be withdrawn. It is only the claim against Canterbury that is actively pursued.

[3]As a result of orders made by Collins J, the remaining claim was listed before me as a hearing of the application for permission (to enable the court to consider an argument by the council on delay) with the substantive hearing to follow immediately if permission were granted. In the event I heard full argument. The claimants plainly have an arguable case, and I have decided that permission should not be refused on grounds of delay. I therefore grant permission and proceed to deal with the matter substantively. I give my reasons on the issue of delay towards the end of my judgment. The legislative framework

[4]The Act creates a new licensing regime, introducing a single integrated scheme for licensing premises which sell alcohol or provide regulated entertainment or provide late night refreshment. It replaces the previous separate regimes regulating liquor, public entertainment, cinema, theatre and late night refreshment licensing. It transfers primary responsibility to local authorities, with magistrates' courts exercising a purely appellate jurisdiction. It also introduces the concept of dual licences, one relating to the premises and authorising licensable activities on those premises (the premises licence), the other being held by the person responsible for the day-to-day operation of the premises (the personal licence).

[5]Section 4 of the Act provides:

"( I) A licensing authority must carry out its functions under this Act ('licensing functions') with a view to promoting the licensing objectives. (2) The licensing objectives are - (a) the prevention of crime and disorder; (b) public safety; (c) the prevention of public nuisance; and (d) the protection of children from harm. (3) In carrying out its licensing functions, a licensing authority must also have regard to - (a) its licensing statement published under section 5; and (b) any guidance issued by the Secretary of State under section 182."

[6]Section 5 concerns the statement of licensing policy. It provides:

"(1) Each licensing authority must in respect of each three year period - . (a) determine its policy with respect to the exercise of its licensing functions, and (b) publish a statement of that policy ('a licensing statement') before the beginning of the period. (2) In this section 'three year period' means - (a) the period of three years beginning with such day as the Secretary of State may by order appoint, and (b) every subsequent period of three years .... "

[7]The Secretary of State appointed 7 January 2005 as the day upon which the first period of three years would begin. Accordingly, each licensing authority was obliged to publish its statement of licensing policy before that date. Before determining its policy, each authority was required by section 5(3) to consult representatives of the police, the fire authority, holders of existing licences, registered clubs, holders of personal licences, and other businesses and residents.

[8]In July 2004 the Secretary of State issued guidance to which, pursuant to section 4(3), licensing authorities must have regard in carrying out their licensing functions, including the determination of their policy. I shall refer to this as "the Guidance". It is a very substantial document, almost 180 pages in length. It deals in section 3 with statements of licensing policy and in section 5 with premises licences.

[9]An application for a premises licence under the new regime is governed by section 17 of the Act:

"(1) An application for a premises licence must be made to the relevant licensing authority. (2) Subsection (1) is subject to regulations under – (a) section 54 (form etc. of applications etc.); (b) section 55 (fees to accompany applications etc.). (3) An application under this section must also be accompanied- (a) by an operating schedule ... (4) An 'operating schedule' is a document which is in the prescribed form and includes a statement of the following matters - (a) the relevant licensable activities, (b) the times during which it is proposed that the relevant licensable activities are to take place, (c) any other times during which it is proposed that the premises are to be open to the public, (d) where the applicant wishes the licence to have effect for a limited period, that period, (e) where the relevant licensable activities include the supply of alcohol, prescribed information in respect of the individual whom the applicant wishes to have specified in the premises licence as the premises supervisor, (f) where the relevant licensable activities include the supply of alcohol, whether the supplies are proposed to be for consumption on the premises or off the premises, or both, (g) the steps which it is proposed to take to promote the licensing objectives, (h) such other matters as may be prescribed .... "

[10]The regulations envisaged by section 17, relating to the prescribed form of application and operating schedule and other matters, are The Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005, which were made on 12 January 2005, were laid before Parliament on 13 January and came into force on 7 February. I shall refer to them as "the Regulations".

[11]The prescribed form on which to apply for a premises licence is at schedule 2 to the Regulations. Part 3 of schedule 2 relates to the operating schedule. It requires the applicant to state the number of people expected to attend the premises at one time if that number exceeds 5,000 (simply because this affects the fee payable). It asks for a general description of the premises and for details of the licensable activities that the applicant intends to carryon there. There is a request to highlight anything that might give rise to concern in respect of children. Details of opening hours are required. Finally, the applicant is asked to "describe the steps you intend to take to promote the four licensing objectives". Thus, the Regulations do not go significantly further than the Act itself as regards the required content of an application for a premises licence.

[12]Section 17(5) of the Act provides for the making of regulations requiring the advertisement of applications and the giving of notice to responsible authorities, and prescribing the period during which interested parties and responsible authorities may make representations to the licensing authority about the application. Those matters, too, are covered by the Regulations to which I have just referred.

[13]The determination of an application for a premises licence is governed by section 18:

"(1) This section applies where the relevant licensing authority- (a) receives an application for a premises licence made in accordance with section 17, and (b) is satisfied that the applicant has complied with any requirement imposed on him under subsection (5) of that section. (2) Subject to subsection (3), the authority must grant the licence in accordance with the application subject only to - (a) such conditions as are consistent with the operating schedule accompanying the application, and (b) any conditions which must under section 19, 20 or 21 be included in the licence. (3) Where relevant representations are made, the authority must- (a) hold a hearing to consider them, unless the authority, the applicant and each person who has made such representations agree that a hearing is unnecessary, and (b) having regard to the representations, take such of the steps mentioned in subsection (4) (if any) as it· considers necessary for the promotion of the licensing objectives. (4) The steps are - (a) to grant the licence subject to - (i) the conditions mentioned in subsection (2)(a) modified to such extent as the authority considers necessary for the promotion of the licensing objectives, and (ii) any conditions which must under section 19, 20 or 21 be included in the licence; (b) to exclude from the scope of the licence any of the licensable activities to which the application relates; (c) to refuse to specify a person in the licence as the premises supervisor; (d) to reject the application."

[14]The effect of the provisions governing the making and determining of applications is that if there are no representations from responsible authorities or interested parties, the licensing authority must grant the licence in accordance with the application, subject only to such conditions as are consistent with the operating schedule and conditions which are mandatory by virtue of sections 19 to 21. Where relevant representations are made, on the other hand, there must generally be a hearing and a discretionary decision must be made by the licensing authority. This difference between the two situations - where relevant representations are made and where they are not made - is fundamental to the concerns underlying the present challenge. The difference is spelled out in this way in the Guidance (with original emphasis):

"5.67 Where an application has been lawfully made and provided that no responsible authority (for example, the chief officer of police or an environmental health authority) makes a representation about an application and no interested party seeks to do so, then no hearing would be required and the application must be granted in the terms sought, subject only to conditions which are consistent with the operating schedule and the relevant mandatory conditions in the Act. This should be undertaken as a simple administrative process by the licensing authority's officials by whom the proposals contained in the operating schedule to promote the licensing objectives should be translated into clear and understandable conditions consistent with the proposals in the operating schedule. In these circumstances, it is expected and particularly important that licensing authorities do not attempt to second-guess the views of the professional and expert consultees, for example, those of the police, the fire authority and the environmental health authority. Accordingly, if operating schedules are prepared efficiently, often in consultation with responsible authorities, it is expected that the likelihood of hearings being necessary following relevant representations would be significantly reduced. 5.68 Where a representation concerning the licensing objectives is lodged by a responsible authority about a proposed operating schedule it is relevant and the licensing authority's discretion will be engaged. It will also be engaged if an interested party makes relevant representations to the licensing authority, i.e. those which are not frivolous or vexatious and which relate to the licensing objectives .... A hearing will be required for the licensing authority to consider the representations, at which the parties should be invited to comment upon the representations made and if necessary, to provide clarification of their own representations. The need for a hearing can only be dispensed with by the agreement of the licensing authority, the applicant and all of the parties who made relevant representations. The hearing process must meet the requirements of the regulations made by the Secretary of State .... As a matter of practice, licensing authorities should seek to focus the hearing on the steps needed to promote the particular licensing objective which has given rise to the specific representation and avoid straying into undisputed areas .... In determining the application with a view to promoting the licensing objectives in the overall interests of the local community, the licensing authority must give appropriate weight to: the representations (including supporting information) presented by all the parties; this Guidance; its own statement of licensing policy; and the. steps that are necessary to promote the licensing objectives."

[15]Similar provisions to those described above apply in relation to applications to vary licences, e.g. by way of a change in permitted opening hours. There is also a corresponding set of provisions in relation to club premises certificates.

[16]The Act makes provision, by section 200 and schedule 8, for a transitional period during which the old regime remains in force but applications can be made for licences under the new regime. The new licences will then come into force when the new regime replaces the old regime at the end of the transitional period. The transitional period begins with the "first appointed day", which was 7 February 2005, and ends with the "second appointed day", which is expected to be 24 November 2005, though the date has not yet been formally adopted.

[17]As part of the transitional arrangements, provision is made in schedule 8 to enable existing licences to be converted into premises licences under the new regime on the same conditions as are attached to the existing licences. An application for conversion must be made within the period of six months after the first appointed day, i.e. before 7 August 2005. Only the police can make representations against such a conversion, and then only on the limited ground that, because of a material change of circumstances since the existing licence was granted or renewed, conversion to a premises licence would undermine the crime prevention objective. Subject to that, conversion is effectively automatic. In June 2005 the Secretary of State published a guidance document which, in Part A, gives advice on the making of an application for conversion of an existing licence.

[18]An existing licensee can apply not just for the conversion of the existing licence but also for a variation, e.g. by way of extended opening hours. Where such an application is made, the normal procedure applies, representations can be made by responsible authorities or interested parties, and if such representations are made there will normally be a hearing. I am told that in the region of 90% of existing licensees are seeking a variation in addition to conversion. The guidance published by the Secretary of State in June 2005 includes, in Part B, advice on the making of an application to vary an existing licence.

[19]The claimants' concerns with regard to the council's policy are of no significance for applications for simple conversion of an existing licence, but are relevant to applications for new licences and for variations of existing licences. The council's statement of licensing policy

[20]The council's statement of licensing policy was adopted by resolution of the full council on 20 December 2004, following a period of consultation. Although there has been some confusion in the past about dates, I accept the council's evidence to the court that the policy was published in hard copy on 21 December 2004 and was available on the council's web-site on 6 January 2005.

[21]The published document contains a short section on key principles, followed by the statement of licensing policy itself. That statement consists of an introduction (section 1), a general section on licensing objectives (section 2), and sections on each of the four specific licensing objectives, namely prevention of crime and disorder (section 3), public safety (section 4), prevention of public nuisance (section 5) and protection of children from harm (section 6). There is then an "appendices prologue", followed by appendices on individual towns and on rural areas. The final sections of the document relate to licensing enforcement policy and delegation of functions.

[22]I will look at relevant parts of the text when setting out the claimants' detailed criticisms of the policy. It is convenient to mention here that parts of the policy are in bold type: paragraph 1.6 of the policy explains that the bold sections indicate the matters that the council is seeking to emphasise.

[23]In reaction to the judicial review challenge, the council has moved towards the adoption of an addendum for insertion at the front of the published policy. The addendum has been the subject of consultation and is expected to be approved 'by the council's executive on 23 June and to go before the full council for approval on 15 July. In adopting this course, the council does not accept that there is anything wrong with the existing policy, but it contends that the addendum makes the position crystal clear. I think it better to set out the text of the addendum, and to consider the one additional issue that arises in relation to it, after considering the claimants' case in relation to the policy in its existing form. The claimants' criticisms of the policy

[24]The claimants' criticisms start with the opening words of the policy, which are effectively a preface to the introduction:

"All applications will be considered on their merits, as well as against the relevant policy and statutory framework."

Those words, which would normally be welcomed in a public law context as indicating that a policy is not be treated as a rigid rule, are objected to here on the ground that they misrepresent the statutory scheme. The correct position is that applications will be considered "on their merits" only if relevant representations are made in respect of them. In the absence of representations they will be subject to a simple administrative process which will lead to their being granted in the terms sought, subject only to the imposition of conditions consistent with the operating schedule and the relevant mandatory conditions. The policy creates a false impression of the way the scheme operates. 25. The claimants submit that the same error affects numerous other passages in the policy which refer to the assessment of applications without indicating that such assessment will arise only if and to the extent that relevant representations are made and there is a hearing to consider them. Other examples from the introduction are in paragraphs 1.3, 1.6 and 1.9. Similarly it is submitted that there are numerous passages where the policy refers to the power to attach conditions to a licence without making clear that the power to attach conditions beyond those consistent with the proposals in the operating schedule arises only where a decision is made following relevant representations ~d a hearing. Paragraphs 1.12 and 1.13 of the introduction provide examples of that. It is submitted that the only part of the policy where the scheme is correctly stated is in paragraphs 1.15 to 1.24, a part which deals with the narrow area of "cumulative impact of a concentration of licensed premises". In particular, paragraph 1.19 is the only place where it is stated clearly that "[i]f no representation is received, it would remain the case that any application must be granted in terms that are consistent with the Operating Schedule submitted". The claimants highlight the contrast between that and the impression created by 'the generality of passages in the policy. 26. The first example of what is alleged to be an over-prescriptive provision is paragraph 1.8, which states:

"In respect of each of the four licensing objectives applicants will need to provide evidence to the council that suitable and sufficient measures, as detailed in their operating schedule, will be implemented and maintained, relevant to the individual style and characteristics of their premises and events. Reference will need to be made as to whether additional measures will be taken on a permanent basis or specific occasion such as when a special event or promotion planned, which is intended to, or likely to attract, larger audiences."

It is submitted that that paragraph gives the clear impression that applicants are required to detail sufficient and suitable measures in their operating schedule (the suitability and sufficiency of which will be assessed by the council), to produce evidence to the council that such measures will be implemented and maintained, and to include reference to whether additional measures will be taken on certain occasions. None of that is required by the Act or the Regulations, yet the paragraph reads as if it must be done in all applications and fails to make clear that assessment by the council, and the need to satisfy the council in the course of such an assessment, can arise only if and in so far as the matters are in issue at a contested hearing following the making of relevant representations.

[27]The claimants submit that similar problems run through section 2, the general section on licensing objectives. Paragraphs 2.1 and 2.2, which refer to the imposition of conditions and to the fact that the council's "intended outcome" in each section of the policy is defined in bold type, again fail to make clear that none of this can arise unless relevant representations are made in relation to the application. Each of the following paragraphs is then the subject of specific criticism.

[28]Paragraphs 2.3 to 2.6 state: "2.3 Further, in each section a list of possible control measures is provided to be of assistance to applicants, but again is not intended to be an exhaustive list. Many control measures achieve more than one objective but have not necessarily been listed under each objective. Applicants will not be required to mention a control measure more than once in their Operating Schedule. 2.4 The council will expect the selection of control measures referred to in 2.3 above to be based upon a risk assessment of the premises, events, activities and the customers expected to attend (e.g. their age, number, etc.). Whilst the council may not require such risk assessments to be documented (other than where required by other legislation) it considers such documentation to be good practice and a useful tool in the instruction and training of staff. It is also a sound basis for review by the licence holder, in the event of an application for variation or a response to changing circumstances/conditions at the premises being required. 2.5 Additional measures may be necessary on a specific basis such as when a special event (e.g. popular live band) or promotion (e.g. during major sporting occasions) is planned, which is intended to, or likely to attract larger audiences or audiences of a different nature and which can have a significant impact on the achievement of the Licensing Objectives. Reference must be made in an applicant's Operating Schedule, where applicable, to such occasions and the additional measures that are planned in order to achieve the Licensing Objectives. 2.6 The council considers the effective and responsible management of the premises, instruction, training and supervision of staff and the adoption of best practice to be amongst the most essential control measures for the achievement of all the Licensing Objectives. For this reason, the council will expect these elements to be specifically considered and addressed within an applicant's Operating Schedule. " 29. As to paragraph 2.3, the point is made by the claimants that there can be no requirement to list control measures at all: it is not for the council to dictate to applicants how to draft their applications. Yet the paragraph creates the impression that such a requirement is being laid down. Similarly, it is said that the "expectation" in paragraph 2.4 would be understood in context as a requirement that a risk assessment be drawn up or would at least put pressure on an applicant to draw one up. Risk assessments are commonly done, but it should be for the applicant to decide whether to do one. So too the final sentence of paragraph 2.5 dictates what "must" be put in an applicant's operating schedule. What the council "will expect" in paragraph 2.6 would likewise be read in context as a requirement that the matters be addressed in the operating schedule.

[30]Paragraphs 2.7 to 2.9 are concerned with occupancy capacity. They read:

"2.7 In addition, the occupancy capacity for premises (which includes performers and staff) and events as appropriate is also considered to be an essential factor in the achievement of the four Licensing Objectives (except in respect of premises licensed for the consumption of food and/or alcohol off the premises). Subject to the requirements of paragraph 4.2 below the council will expect the issue of occupancy capacity to be considered and addressed within an applicant's Operating Schedule and, in most instances, will agree a maximum occupancy capacity based on the applicant's assessment within their Operating Schedule. 2.8 The design and layout of premises are important in determining capacity, as is the availability and size of exits within recommended travel distances. Other factors should also be considered when considering the appropriate capacity for premises or events. These might include .... 2.9 The agreement to a capacity for premises or events should not be interpreted as a requirement to also provide permanent monitoring arrangements such as door staff, persons operating mechanical attendance clickers or maintenance of attendance records. The council recognises that a person in charge at the premises can often readily assess the capacity of premises without resort to such measures. However, where the capacity is likely to be reached (such as on known busy evenings) and particularly where a special event or promotion is planned, the applicant will be expected to be able to give details of the additional arrangements that will be put in place to ensure that the capacity of the premises is not exceeded. "

[31]The claimants point out that there is no requirement in the Act or the Regulations to give details of occupancy capacity in the operating schedule (save for information, related to the fee payable, where the expected capacity exceeds 5,000) and no power for the council to "agree" an occupancy capacity. Yet these paragraphs would be read as imposing such a requirement and would induce applicants to address occupancy capacity in the operating schedule when they might not otherwise have done so; with the consequence that the licence will become subject to a condition that might not otherwise have been imposed. Moreover paragraph 2.9 extends beyond the occupancy capacity itself to additional arrangements to ensure that it is not exceeded.

[32]In section 3, which concerns the prevention of crime and disorder, the claimants take issue first with paragraphs 3.3 to 3.5:

" 3.3 The promotion of the Licensing Objective, to prevent crime and disorder, places a responsibility on licence holders to become key partners in achieving this objective. Applicants will be expected to demonstrate in their Operating Schedule that suitable and sufficient measures have been identified which will be implemented and maintained to reduce or prevent crime and disorder on and in the vicinity of their premises, relevant to the individual style and characteristics of their premises and events. 3.4 When addressing the issue of crime and disorder, the applicant must demonstrate that those factors that impact on crime and disorder have been considered. These might include 3.5 The following examples of control measures are given to assist applicants and are considered to be amongst the most essential that applicants should take account of in their Operating Schedule, having regard to their particular type or premises or activities .... Accordingly the council would strongly recommend to applicants that they consider including in their Operating Schedule a commitment to ending the supply of alcohol to patrons at a fixed period of time before the end of the music and dancing, a reduction in the volume of that music and the removal of the heavy base beat .... "

[33]The claimants point to the language of "must demonstrate" in paragraph 3.4 and submit that "will be expected to demonstrate" in paragraph 3.3 and "should take account of' in paragraph 3.5 are to be read in the same way. In each of these paragraphs, it is submitted, the policy suggests the existence of an obligation to which applicants are not in fact subject, and that applications will all be subject to scrutiny by the licensing authority when in fact that will not arise unless representations are made and there is a hearing. The policy thereby draws applicants in to including measures that they would not otherwise have included in their operating schedules.

[34]A similar point is made in relation to paragraph 3.6, which concerns the "Designated Premises Supervisor" or "DPS" in premises from which alcohol will be sold. Section 17 of the Act requires the operating schedule to include certain information about the DPS. But paragraph 3.6 goes further, in stating that the council "will normally expect the DPS to have additional training and experience commensurate with the nature and style of the operation of the premises".

[33]Section 4, on public safety, contains much the same kind of language as paragraphs 3.3 to 3.5 and is subject to much the same criticism. Paragraphs 4.1 to 4.3 read:

" 4.1 The council is committed to ensuring that the safety of any person visiting or working in licensed premises is not compromised. To this end, applicants will be expected to demonstrate in their Operating Schedule that suitable and sufficient measures have been identified and will be implemented and maintained to ensure public safety, relevant to the individual style and characteristics of their premises and events. 4.2 When addressing the issue of public safety, it is expected that an applicant will demonstrate that those factors that impact on the standards of public safety have been considered. These may include .... The council will set capacity limits in consultation with the Fire Authority for the following premises .... 4.3 The following examples of control measures are given to assist applicants and are considered by the council to be amongst the most essential that applicants should take account of in their operating Operating Schedule, having regard to their particular type of premises and/or activities .... "

[36]In addition to the general complaint about the prescriptive nature of the language, specific criticism is made of the statement in paragraph 4.2 that the council "will set capacity limits". It is submitted that the council has no power to set capacity limits, save in those situations where it is entitled to impose conditions. The point on capacity limits links with the complaint about paragraphs 2.7 to 2.9, considered above.

[37]As regards section 5, on the prevention of public nuisance, the claimants complain first about paragraphs 5.3 and 5.4, which are said to give the impression that the council has the power to impose conditions of its own volition (and not just where representations are made and a hearing takes place):

" 5.3 Applicants need to clearly understand that the council will pay particular attention whether or not to impose stricter conditions, including controls on licensing hours, where licensed premises are in residential areas with a view to protecting the quality of life of residential occupiers. 5.4 In the case of shops, stores and supermarkets and garages selling alcohol, the council will normally permit the hours during which alcohol is sold to match the normal trading hours during which other sales take place, unless there are exceptional reasons relating to disturbance or disorder."

[38]Paragraphs 5.5 to 5.7 contain language mirroring that in sections 3 and 4 and are subject to the same criticisms:

"5.5 Applicants will be expected to demonstrate in their Operating Schedule that suitable and sufficient measures have been identified and will be implemented and maintained to prevent public nuisance, relevant to the individual style and characteristics of their premises and events. 5.6 When addressing the issue of prevention of public nuisance, the applicant must demonstrate that those factors that impact on the likelihood of public nuisance have been considered. These may include .... 5.7 The following examples of control measures are given to assist applicants and are considered to be amongst the most essential that applicants should take account of in their Operating Schedule, having regard to their particular· type of premises and/or activities."

[39]The same pattern applies to section 6, on the protection of children from harm, where again the language is said to be over-prescriptive and also to convey a false impression as to the circumstances in which the council can assess applications:

"6.1 Applicants will be expected to demonstrate in their Operating Schedule that suitable and sufficient measures have been identified and will be implemented and maintained to protect children from harm, relevant to the individual style and characteristics of their premises and events .... 6.2 The protection of children from harm is an important issue. It is hoped that family friendly premises will thrive, but the risk of harm to children remains a paramount consideration when determining applications. 6.5 ... When addressing the issue of protecting children from harm, the applicant must demonstrate that those factors that impact on harm to children have been considered These may include .... 6.6 The following examples of control measures are given to assist applicants and are considered to be amongst the most essential that applicants should take account of in their Operating Schedule, having regard to their particular type of premises and/or activities .... 6.8 Where regulated entertainment is provided the council will require the presence of an adequate number of adult staff to control the access and egress of children and to protect them from harm whilst on the premises. Where children are present as performers, the council will require an adequate number of adult staff to be responsible for the child performers .... 6.9 The council will rarely impose complete bans on access to children. In exceptional circumstances conditions restricting access or excluding children completely may be considered necessary. Those conditions may restrict children from entering all or part of licensed premises .... 6.10 Examples of premises where these conditions may be considered include .... "

[40]There are a number of passages in the "appendices prologue" of which complaint is made. The first one appears under the heading "Transport" and states:

"Conditions may be imposed to meet (street) Lighting and CCTV coverage for individual· premises. The incorporation of measures for ensuring the safe and swift dispersal of patrons away from premises and events without causing nuisance or public safety concerns to local residents is vital in seeking approval for an Operating Schedule by the council."

The point made by the claimants in relation to the first sentence is that this does not convey a proper impression of the limited circumstances in which the council has power to impose conditions. The second sentence is criticised as being ovet prescriptive and as implying the existence of a power of approval of an operating schedule that the council does not possess.

[41]In relation to a passage under the heading "Pedestrian Movements", where it is stated that "particular consideration will be given" to the impact on certain proposals on residential amenity, the claimants' point is once more that the question of giving consideration can arise only if relevant representations are received and a hearing is held.

[42]A number of concerns are expressed about a passage under the heading "Crime & Disorder and Public Nuisance and Safety":

"Door and Floor Supervisors licensed by the Security Industry Authority will be required to be employed at all late night premises (based upon the Licensee's risk assessment) to ensure compliance with the four licensing objectives. The numbers and employment of Door/Floor Supervisors will be expected to be detailed according to the specification set out in the Operating Schedule. It will be expected that Operating Schedules will incorporate a commitment by businesses, owners, designated premises supervisors and others to enter into partnership with appropriate organisations to successfully reduce problems of crime and disorder on or emanating from their premises."

[43]The claimants submit that there is no requirement in the Act or Regulations as to the employment of door and floor supervisors at late night premises and no requirement on an applicant to set out in the operating schedule a specification detailing their proposed numbers and employment; and it is unlawful for the council to purport to impose such requirements. Similarly it is submitted that the "expectation" that operating schedules will incorporate a commitment to enter into partnerships with other organisations is to be read in context as a requirement, which again it is unlawful for the council to purport to impose.

[44]That last criticism is also raised in relation to the language of expectation in the final· passage in issue, under the heading "Managing the Impact":

"Applicants for new or variations to late night licences will need to consider the dispersal of customers and possible impact on crime and disorder issues. This· may include the provision of, or contribution towards affordable transport to take patrons directly away at closing times. The council will seek to encourage the controlled dispersal of customers, plans for which the council will expect to be outlined in the Operating Schedules for licences."

The claimants' criticisms of the proposed addendum

[45]The addendum proposed to be adopted by the council is in these terms:

" How this policy applies All applications for new premises licences or variations need to be supported by an operating schedule. The schedule must specify (among other things) the steps which the applicant proposes to promote each of the licensing objectives. If no responsible authority or interested person lodges an objection (known as 'relevant representation') to the application, the licensing authority must grant the application as set out in the operating schedule, subject only to mandatory conditions under the Licensing Act 2003. The steps proposed by the applicant will become licence conditions. The licensing authority will have no discretion to refuse the application or to alter or add to the conditions arising from the operating schedule. Where, however, there are relevant representations, then a hearing before a licensing sub-committee will normally follow. After the hearing, the sub-committee has full discretion to take such steps as it considers necessary to promote the licensing objectives. These may include refusing the application, or adding to or modifying the conditions proposed in the operating schedule. In exercising its discretion, the licensing sub-committee will have regard (amongst other things) to this licensing policy. Therefore, in drawing up their operating schedule, applicants would be well advised to read this policy carefully. Where an operating schedule complies with this policy, it is generally less likely that an interested party or responsible authority will object to it, or that any objection will succeed. Therefore, compliance with this policy is likely to assist the applicant to avoid the delay and expense of a contested hearing, and the risk of a refusal or the addition of unwanted licence conditions. This is not to say that an application that complies with the policy will necessarily be granted or that an application that does not comply with it will necessarily be refused. Where there have been relevant representations, the licensing authority will always consider the merits of the case, and interfere with the operating schedule only when, and to the extent, necessary to promote the licensing objectives. Nor will blanket or standard conditions be applied without regard to the merits of the individual case. So, for example, the licensing authority will not interfere with an operating schedule which does not comply with this policy where the steps proposed are sufficient to meet the licensing objectives in the individual circumstances of the case. However, the policy represents the licensing authority's view of the best means of securing the licensing objectives in most normal cases. It has been drawn up in consultation with other expert bodies and responsible authorities, together with community stakeholders. While the contents of the operating schedule are a matter for the applicant, where there is objection to a schedule which departs from the policy, the licensing sub committee will normally expect to be given a good reason for the departure if it is to be asked to make an exception to the policy. In this policy, there are a number of references to the licensing authority's requirements of applicants. As explained above, the policy is only engaged where the licensing authority has a discretion following the receipt of objections. In such cases, the licensing authority will not apply the policy rigidly, but will always have regard to the merits of the case with a view to promoting the licensing objectives. Further, the policy will be used when dealing with a number of other matters. For example, during the transitional period, applicants may apply to convert their existing licences into premises licences. Only the police may object to conversion, and then only on crime prevention grounds. Where this occurs, their objection will be considered by the licensing sub committee, who will have regard to the terms of this policy in making its decision .... "

[46]Subject to an issue about the reference to "full discretion" in the third paragraph, the claimants accept the addendum as an accurate and unobjectionable statement of the law. They contend, however, that it does not overcome the objections they have to the main text of the policy. The likelihood is that an applicant filling in an operating schedule would look only at the parts of the policy dealing specifically with the part he was filling in. In any event, anybody reading the addendum and then reading the detail would not be left with a clear understanding of the true position. It would not be clear, for example, that there is no obligation to provide evidence (paragraph 1.8), that the council has no power to agree a maximum occupancy capacity (paragraph 2.7), that an applicant does not have to demonstrate certain matters (paragraph 3.4), or that the claimant does not have power to approve an operating schedule (the appendices prologue). It would not be understood that the applicant is free to determine the contents of the operating schedule and that the council's powers arise only in the event of relevant representations and a hearing to consider them. The claimants' legal submissions

[47]I have thought it right to set out the key passages around which the case has been fought, since the detailed wording of them is necessary to a proper understanding of the claimants' case. I must now turn, however, to a more structured exposition of that case.

[48]Mr Matthias submits that one of the aims of the legislation is to allow licensing authorities to provide a "light touch bureaucracy" (an expression used at paragraph 5.99 of the Guidance), with greater freedom and flexibility for businesses and the avoidance of disproportionate standard conditions. That is supported by the Secretary of State's foreword to the Guidance. It is therefore left to applicants to determine what to include in their applications, and in particular in the operating schedule, subject to the basic requirements laid down in the Act and the Regulations. If an application does not give rise to relevant representations, a licence must be granted on conditions consistent with the operating schedule (together with the mandatory conditions). If there are relevant representations, there is a hearing to consider those representations, but not to consider undisputed matters. So the minimum amount of bureaucracy is imposed at the application stage. There are further lines of defence, in the form of powers of review and closure orders, if problems subsequently arise in relation to premises for which licences have been granted.

[49]An overly prescriptive statement of licensing policy runs counter to the intended lighter touch. In particular, it has the effect of dictating the contents of the operating schedule, whereas that decision should be left to the applicant; or at least it leads the applicant into including more in the operating schedule than he would otherwise have included. Because, in the absence of relevant representations, the contents of the operating licence are translated into a set of conditions, this will result in turn in the loading of licence with more conditions than would otherwise be imposed. Indeed, the claimants' concern is that it will lead to the imposition of conditions far in excess of those experienced by public houses under the old regime, thus resulting in a heavier touch rather than a light touch.

[50]Mr Matthias submits that, in the various passages identified above, the council's policy is repeatedly over-prescriptive in just that way and with that potential effect. He points out that the imposition of conditions places a heavy burden on those operating licensed premises. Observance of conditions means less managerial flexibility to deal with changing circumstances, and breach of conditions creates a risk of criminal sanctions, review of the licence and possibly its revocation.

[51]He further submits that the effect on applicants is reinforced by the passages that imply that the council will assess or scrutinise all applications and will have the power to impose conditions of its own volition. Those passages again lead applicants to think that they must comply in their applications with the prescriptive elements of the policy. Applicants are not told that, unless relevant representations are received, there will be a simple administrative process for the grant of the licence and the attachment of conditions consistent with the operating schedule; and that the council's power to scrutinise applications and impose additional conditions is limited to cases where relevant representations have been made and have been considered at a hearing.

[52]Mr Matthias contrasts the council's policy with the tone of the Secretary of State's guidance on the making of applications to vary existing licences, which emphasises the freedom of choice by the applicant and that the content of the operating schedule is likely to be translated into a condition of the licence: "You should consider carefully whether, because of your proposed variation, you need to take any additional steps to meet the licensing objectives set out in these sections [of the form]. Don't forget that you should already be abiding by relevant legislation in other areas and may have conditions already attached to your licence. Your starting point should be compliance with these requirements. If you feel there is nothing further to do, then it is probably better to say that than leave these sections blank. If you feel there is nothing more to add then you might wish to write 'N/ A' or something like 'nothing beyond existing Health and Safety/Fire Safety etc requirements'. This shows you have considered the objectives and come to a decision that you have nothing additional to do and not that you have forgotten to write anything in this section. Of course, if a responsible authority for one of the licensing objectives considers that you need to do more than the existing regimes, they will be able to make representations. If you have concerns, you may find it useful to talk to the relevant responsible authority before completing the form .... If you do intend to take additional measures, you should consider carefully what to include. Anything you put down here is likely to become a condition of your licence. Failure to meet those conditions would mean committing an offence under the Act. You should therefore think carefully about adding conditions to ensure that they are achievable, realistic, necessary, appropriate, proportionate and within your control. Base your response on a proper, common sense consideration of the risks and what you can realistically do to mitigate them" (original emphasis).

[53]It is submitted that the council's policy runs counter to the policy and objects of the Act (see Padfield v. Minister of Agriculture, Fisheries and Food

[1968] AC 997

, per Lord Reid at 1030B-D), in that the legislation aims for a light touch and confers on an applicant freedom of choice on how to complete the application form and how he proposes to meet the licensing objectives.

[54]Mr Matthias submits further that it is no answer to say that the passages criticised should not be taken literally but need to be read in the context of the policy as a whole, the legislation and the Guidance. He relies on a decision of Jack Beatson QC (as he then was) sitting as a deputy judge of the High Court in R v. Westminster City Council, ex parte Chorion PLC

[2001] EWHC Admin 754

. That case concerned a licensing policy which had been challenged and then amended in a way that met the claimant's concerns, so that the remaining issue was only one of costs; but that issue called for a decision on whether the challenge had been well founded. The deputy judge held that the policy had the meaning contended for by the claimant, even though that had not been the meaning intended by the defendant council. He further stated:

"25. I also accept Mr Hunter's [counsel for the claimant] submission that publishing a policy that meant something other than what was intended rendered that policy susceptible to judicial review. Policies are a means of promoting consistency while not fettering the discretion of a public body (see e.g. HTV v. Price Commission [1976] ICR 170, 185) and are meant to afford guidance to those affected by them as to how public authorities will exercise their powers. In British Oxygen Co Ltd v. Ministry of Technology [1971] AC 610 Viscount Dilhorne stated ... that it was reasonable and right for a public authority to make known to those interested the policy it was going to follow: '[b]y doing so fruitless applications involving expense and expenditure of time might be avoided'. If a policy is not to be applied in accordance with its meaning, as would have been the case on the original wording of section 6.1 of the licensing policy, there can be no such guidance."

[55]It is further submitted that the harm done by the policy in this case goes beyond its immediate effect on applicants. The terms of the policy will prompt representations that would not otherwise have been made, so that applications that would otherwise have been granted administratively will be subject to hearings and discretionary decisions by the licensing authority .. Passages in the evidence filed on behalf of the council show that responsible authorities and interested parties will in practice look at the terms of the policy when considering whether to make representations.

[56]Further, if representations are made, the sub-committee of the council considering those representations at a hearing will have the policy before it and will be guided by its excessively prescriptive terms in determining what should have been in the operating schedule and what additional conditions ought to be imposed. So too on an appeal to the magistrates' court, the justices will stand in the shoes of the sub committee and will be guided in the same way by the policy.

[57]Accordingly, the claimants' case is that the unlawful policy informs and affects every stage of the procedure and that the court should order the deletion of the offending passages. The council's submissions

[58]For the council, Mr Lowe QC submits that the legislative scheme is an entire scheme, which starts with a statutory duty on a licensing authority to carry out its functions with a view to promoting the licensing objectives and having regard to its statement of licensing policy. As the Secretary of State states in the foreword to the Guidance, "the legislation is fundamentally based on local decision-making informed by local knowledge and local people". The policy itself is intended to inform all licensing activity within an authority's area, including but not limited to the way in which applicants apply for licences. For example, paragraph 3.45 of the Guidance contains a recommendation that "statements of policy should provide clear indications of how the licensing authority will secure the proper integration of its licensing policy with local crime prevention, planning, transport, tourism, race equality schemes, and cultural strategies and any other plans introduced for the management of town, centres and the night-time economy". Policy is intended to set out at a local level how the licensing objectives are best met in the area. The intention is to promote consultation and discussion, and clarity and consistency, and so to reduce the number of hearings that need to be held.

[59]Mr Lowe lays stress on paragraph 5.47 of the Guidance, which states:

"In preparing an operating schedule, the Secretary of State recommends that applicants should be aware of the expectations of the licensing authority and the responsible authorities about the steps that are necessary for the promotion of the licensing objectives. This does not mean that applicants must check their operating schedule with responsible authorities before submitting them, but when uncertain, the responsible authorities can provide expert advice on matters relating to the licensing objectives. For example, the best source of advice on crime prevention is the local police. In preparing operating schedules, applicants should have regard to statements of licensing policy published by the licensing authority for their area. All parties are expected to work together in partnership to ensure that the licensing objectives are promoted collectively. Licensing authorities and responsible authorities are therefore expected so far as possible to publish material about the promotion of the licensing objectives and to ensure that applicants can readily access advice about these matters. To minimise the burden on licensing authorities and applicants, it may be sensible for applicants to seek the views of the key responsible authorities before formally submitting applications and having completed drafts of their own operating schedules (after considering the effect on the four licensing objectives). For example, on matters relating to crime and disorder, the police and local community safety officers, and local community groups, might be consulted and on matters relating to noise, local environmental health officers might be consulted. Such co-operative effort should minimise the number of disputes which arise in respect of operating schedules. Where there are no disputes, the steps that applicants propose to take to promote the licensing objectives that they have set out in the operating schedule will very often translate directly into conditions that will be attached to premises licences with the minimum of fuss."

[60]All of this, it is submitted, shows the importance of communicating the licensing authority's expectations clearly through the licensing policy, so that applicants know how best to avoid disputes. The policy informs the applicant at the stage of completing his application and also indicates the approach that the council will adopt in the event of a contested hearing, as well as being relevant to the council's other licensing functions such as its enforcement powers. It is stressed that the policy informs applicants of the council's expectations - the language of expectation is to be found in numerous passages - but makes clear that each case will be considered on its own merits and that the council does not have a closed mind. These characteristics, it is submitted, are the hallmarks of a lawful policy. There is nothing wrong with a policy having mandatory elements provided that the decision maker is prepared to consider each case on its merits. The council does not say that it has the power to coerce an applicant into compliance with the policy. The policy sets out expectations, in firm language, but leaves it to the applicant to make his own decision as to what to include in an application.

[61]Mr Lowe submits further that the policy must be read in the context of the legislative framework and must be read fairly and as a whole (see e.g. R v. Rochdale Borough Council, ex parte Milne [2001] Env LR 22 , paras 50-51). It should not be impugned simply because each element does not spell out that it only applies in certain circumstances, e.g. in the event of a contested hearing. The proposed addendum will make clear the role of policy in the decision making process of the licensing authority and the occasions when it can be implemented by the authority in the context of licensing applications.

[62]It is pointed out that the applicant will have the benefit not just of the policy but also of the notes on the standard form, the Guidance and the claimants' own advice to their members. As to the last point, the first and third claimants have produced detailed guides for licensees which include advice on how to approach the making of licence applications under the Act. One of those guides, dated May 2005, contains a specific warning to those applying for a variation together with conversion of their existing licence:

"REMEMBER don't be misled by 'requirements' contained in some local licensing policies. It is for you, the applicant, to decide how to best address the licensing objectives and what necessary measures, if any, should be included to address those licensing objectives that are relevant to your application for particular variations to your licence .... "

[63]Reliance is also placed on the empirical evidence of applications already received by the council, none of which, in the council's submission, supports the case that unwary applicants are being misled into including more in their applications than is considered necessary on a premises specific assessment. Nor have the claimants produced any witness to say that he has in fact been misled by the policy into including an unnecessary description of matters in his application.

[64]In relation to paragraph 1.8 of the policy, Mr Lowe points to the statements in paragraph 5.46 of the Guidance that an operating schedule "should include information which is necessary to enable any responsible authority or interested party to assess whether the steps to be taken to promote licensing objectives are satisfactory" and that certain information "is essential so that responsible authorities and interested parties can form a proper view as to what measures may be necessary to ensure public safety and prevent public nuisance.". He submits that the provision of such information is what the policy means by "evidence" in paragraph 1.8. The policy puts the applicant on notice of the matters he must consider and deal with in the application form if he is to meet the council's expectations in the event of the council assessing the application at a hearing following the receipt of representations. A very wide variety of premises and activities is covered by the policy, and it is entirely appropriate for the council to emphasise the need to consider measures specific to and suitable for the individual premises. Moreover there could be no complaint if the text were prefaced by the words "in appropriate cases" or if the language used were that of recommendation. The difference between that and the actual language used is not a sufficient reason to impugn the policy.

[65]In relation to paragraphs 2.1 and 2.2, Mr Lowe submits that it is clear enough, when the policy is read as a whole and in the context of the legislative framework, that it is referring to the position when relevant representations have been made. The Guidance contains passages that commit the same or a similar "sin" of referring to applications being considered on their individual merits without stating expressly that this will arise only where relevant representations are made. (e.g. paragraphs 3.9, 3.29); but the position is clear enough when the document is looked at as a whole and in context. The objection advanced by the claimants is contrived ..

[66]In paragraph 2.3 Mr Lowe points to the use of the language "possible" control measures. This is' simply a prompt in respect of matters that it is relevant for applicants to consider in the context of promoting licensing objectives. The guidance does not state that an applicant must mention any control measures in his application. It gives common sense advice, predicated on his having identified and mentioned a control measure, that he need not mention it more than once.

[67]Paragraph 2.4, in employing the language of expectation, is said to be on all fours with the Guidance (see above). There should be no objection to the reference to risk assessments, which are a basic health and safety requirement for all premises (documentation being required only when there are more than five employees). The policy speaks to employers in language they should readily understand. It places the burden on them to assess their own risks, as part of the light touch. A similar assumption about the carrying out of a risk assessment is a recurring theme in the Guidance. For example, paragraph 7.4 of the Guidance states:

"The conditions that are necessary for the promotion of the licensing objectives should emerge initially from a prospective licensee's or certificate holder's risk assessment which should be undertaken by applicants or clubs before making their application for a premises licence or club premises certificate."

The policy does riot suggest that the council has power to direct the carrying out of a risk assessment. But it is perfectly permissible, and consistent with national policy, to say that applicants are expected to carry one out.

[68]As to paragraph 2.5, the language used is that additional measures "may" be necessary and that reference must be made to them "where applicable". So reference need only be made where the scale or type of event makes it sensible. The applicant is. again directed, as a lawful requirement of policy, to the need to make a premises-specific judgment.

[69]Matters such as staff training, which are dealt with in paragraph 2.6 of the policy, are included among the core issues in the Guidance (see e.g. paragraph 2.25 and Annex J), and it must be lawful for the council to set out in its policy an expectation that they will be considered and addressed.

[70]Occupancy capacity, which is dealt with in paragraphs 2.7 to 2.9 and paragraph 4.2, is another important issue, as again is clear from the Guidance (see e.g. what is said in paragraphs 7.27 and 7.34 and Annexes D and E about the need for capacity conditions in certain circumstances). The ability to evacuate a building at speed and in conditions of relative safety is always relevant where people congregate in numbers. It is within the council's lawful discretion to accord it this degree of priority. The statement in paragraph 2.7 that the council "will agree" a maximum capacity based on the applicant's assessment in the operating schedule refers to the possibility of prior consultation: the council is indicating that it will be prepared to agree if invited to do so. In any event all this applies only to cases where capacity is considered to be an issue. It is always open to an applicant to judge that it is unnecessary to deal with it in relation to particular premises.

[71]As regards paragraph 3.3, Mr Lowe submits that it is an entirely legitimate policy aspiration. The plain objective is to ensure that the applicant demonstrates that he will adopt effective means of addressing this important licensing objective. The Guidance supports the view that applicants should consider this matter, and that it is not just something that may arise in response to relevant representations (see e.g. paragraphs 3.46 and 7.20 to 7.30). As to the statement in the policy that applicants will be expected to "demonstrate" that suitable and sufficient measures have been identified, Mr Lowe refers again to what is said in paragraph 5.46 of the Guidance (quoted above) to the effect that the operating schedule should include information necessary to enable responsible authorities and interested parties to assess whether the steps taken are satisfactory.

[72]It is submitted that paragraph 3.4 does no more than identify to the applicant the factors that the council expects him to consider. The requirement to "demonstrate" emphasises the weight that the council attaches to this issue; and weight is a matter for the council. Paragraph 3.5 does no more than helpfully list examples to guide applicants. It also contains the language of strong recommendation, to which no objection is taken; but there is no real difference between this and the language about which the claimants complain.

[73]Paragraph 3.6, concerning the training and experience of the Designated Premises Supervisor, is another legitimate consideration which accords with the Guidance; and it is obvious that such training and experience should be "commensurate" with the nature and style of operation of the premises. If the council can have regard to this matter when relevant representations are made and a hearing is held, it must also be permissible for the policy to address it at the outset, since it will inform the completion of the operating schedule.

[74]The points made by Mr Lowe on section 4 of the policy are very much the same as those on the corresponding language in section 3. He submits that they are concerned with the elementary promotion of the objective of public safety. An operating schedule is of no value if an applicant has not undertaken an analysis of factors impacting on public safety, and it must be lawful for the council to entertain the expectations referred to. The statement in paragraph 4.2 that the council "will set" capacity limits is a reference to the imposition of a condition where the power to impose such a condition arises.

[75]Mr Lowe also makes similar points in relation to sections 5 and 6 which, as already stated, repeat the pattern of the earlier sections. He submits again that the council is entitled to set these matters out as policy expectations. He points to various relevant passages in the Guidance, including passages which focus on what applicants should consider and include in their applications in relation to the protection of children from harm. For example, it is stated in Annex H:

"Applicants wishing to allow access for children to premises where these [potentially harmful] associations may be relevant, when preparing operating schedules or club operating schedules or variations of those schedules for the purposes of obtaining or varying a premises licence or club premises certificate should ... explain their reasons; and ... outline in detail the steps that they intend to take to protect children from harm on such premises."

[76]It is submitted that the relevant passages of the appendices prologue, e.g. about lighting and CCTV and about door supervisors, also accord with the importance attached to such matters in the Guidance.

[77]As to the proposed addendum, Mr Lowe submits that it is not required as a matter of law since the policy can be seen to be lawful in any event when read as a whole and within the legislative framework. The addendum should, however, remove the claimants' concerns as to what are alleged to be misleading features of the policy.

[78]In relation to Mr Matthias's submission that even the addendum is unlawful in one respect, in saying that the council has "full discretion" at a hearing, Mr Lowe accepts that the hearing will normally, as a matter of practice, focus on matters raised by the representations, but submits that as a matter of law the council has power to go wider. He cites Quietlynn v. Plymouth City Council [1988] I QB 114, in which the Divisional Court agreed with observations of Woolf J in an earlier Quietlynn case that a licensing authority had a discretion, subject to the requirements of procedural fairness, to take account of information which came into its possession even though it was not from a statutory objector or was included in a late objection (see 132-133C). Conclusions on the substantive issues

[79]I take as my starting point the uncontroversial proposition that the council is not just entitled to have a licensing policy but is required by section 5(1) of the Act to have one. The policy has to be "with respect to the exercise of its licensing functions". A key part of those licensing functions is the making of decisions under section 18(3) where relevant representations have been made in respect of applications for premises licences. In such cases the council must take such of the steps mentioned in section 18(4), if any, as it considers necessary for the promotion of the licensing objectives. Those steps are the grant of the licence subject to conditions; exclusion of licensable activities; refusal to specify a person as the premises supervisor; and rejection of the application. Decisions under section 18(3) therefore involve the exercise of a wide discretionary judgment.

[80]It is plainly permissible, if not essential, for the policy to set out how the council will approach the making of such decisions, indicating what the council considers to be important, what control measures it will be looking for, and so forth. For a policy to indicate a decision-maker's general expectations is acceptable in principle and, in this particular context, is also in accordance with the Guidance. It is' of course vital that the policy does not turn into a rule that is applied inflexibly and fetters the exercise of discretion. There must be a willingness to consider individual applications on their particular merits.

[81]In so far as the council's policy applies to the decision-making stage under section 18(3), there is little to object to in it. All the matters dealt with are relevant and legitimate considerations, as is supported by the passages in the Guidance to which Mr Lowe took me. The council's decision-making can properly be guided by the policy, provided that there is a willingness to consider individual applications on their merits, which the~ policy emphasises will be done. (I deal below with the issue raised concerning the statement in the proposed addendum that the council has "full discretion" in decisions under section 18(3).)

[82]A policy relating to the decision-making stage under section 18(3) not only guides the decision-maker but also serves to inform an applicant about what he should consider in preparing his application. Far from being objectionable, that is one of the purposes of having such a policy. As the Secretary of State recommends at paragraph 5.47 of the Guidance, in preparing an operating schedule "applicants should be aware of the expectations of the licensing authority ... about the steps that are necessary for the promotion of the licensing objectives". An application that takes account of the matters set out in the policy, for example by including what is referred to in the policy or by giving a reasoned justification for not doing so, is less likely to give rise to relevant representations and more likely to be granted without additional conditions, whether under the administrative procedure in the absence of relevant representations or on a decision by the council under section 18(3) in the event of relevant representations.

[83]It is true that the very fact that an application does not take account of matters referred to in the policy may give rise to relevant representations. I do not see that, however, as a ground for objection. In practice the policy is the product of an extensive consultation process and reflects the concerns of responsible authorities as well as of the council itself, so it would be unsurprising if an applicant's failure to take account of matters referred to in the policy were to prompt representations. But in any event the council is entitled to indicate in the policy its own expectations with regard to the promotion of the licensing objectives; and I do not think that an applicant can legitimately complain if a failure to take account of those expectations gives rise to representations.

[84]All of that relates to the policy in so far as it applies to the decision-making stage under section 18(3). The claimants' complaint, however, is that the policy does not limit itself in that way but purports to prescribe or dictate the contents of an application and gives the impression that the council will assess, and exercise substantive discretionary powers in relation to, all applications and not just those that come through for a decision under section 18(3).

[85]I accept the claimants' contention that a statement of licensing policy is unlawful if and in so far as it has those features. The scheme of the legislation is to leave it to applicants to determine what to include in their applications, subject to the requirements of section 17 and the Regulations as to the prescribed form and the inclusion of a statement of specified matters in the operating schedule. An applicant who makes the right judgment, so that the application gives rise to no relevant representations, is entitled to the grant of a licence without the imposition of conditions beyond those consistent with the content of the operating schedule and any mandatory conditions. The licensing authority has no power at all to lay down the contents of an application and has no power to assess an application, or to exercise substantive discretionary powers in relation to it, unless there are relevant representations and the decision-making function under section 18(3) is engaged. If a policy creates a different impression, and in particular if it misleads an applicant into believing that he must meet certain requirements in relation to his application and that he lacks the freedom accorded to him by the Act and Regulations, the policy is contrary to the legislative scheme and is unlawful on Padfield grounds (Padfield v. Minister of Agriculture, Fisheries and Food

[1968] AC 997

[86]I also accept that a policy with that effect may be detrimental to the interests of applicants, in that it may cause them to include more in their applications than they would otherwise have done, which is liable to lead in turn to the imposition of conditions that would not otherwise have been imposed. I take the view, however, that the claimants' concerns on this issue are substantially overstated. It seems to me that, if the substance of the policy remains the same in each case, a policy that is lawfully expressed is likely in practice to have a very similar effect to one that is unlawfully over-prescriptive in its expression. That is because an applicant with freedom to determine for himself the contents of his application will realise that an application that fails to take account of the expectations lawfully expressed in the policy is likely to give rise in practice to relevant representations and thereby to engage the decision-making function of the licensing authority under section 18(3); and the authority, whilst assessing the application on its individual merits, will be guided by the matters set out in the policy in reaching its decision. An applicant who does not tailor his application to the policy therefore faces an uphill struggle.

[87]I turn to consider the council's policy itself. I accept Mr Lowe's submission that it should be read as a whole, against the background of the legislation and Guidance. At the same time I bear in mind that applicants reading it are going to vary in sophistication and there is a limit to how far they can reasonably be expected to read in qualifications expressed elsewhere in the document or to be derived from an understanding of the statutory scheme. The meaning and effect of individual passages must be judged in a common sense way. I also see much force in what was said in R v. Westminster City Council, ex parte Chorion PLC

[2001] EWHC Admin 754

to the effect that a policy cannot fulfil its purpose of providing guidance if its intended meaning is different from the actual meaning of the words used.

[88]I accept the thrust of the claimants' criticisms of the council's policy in its unamended form. The policy does seem to me to be over-prescriptive in a number of places, suggesting the existence of requirements that cannot lawfully be imposed on applicants. That applies not just to passages where the language of obligation is expressly used, such as paragraphs 1.8,2.3,2.5 and 3.4, but to the overall impression conveyed in the passages to which objection is taken. That impression is reinforced by the failure of the policy to observe the distinction between the different stages in the procedure. It fails in particular to make clear that it is for applicants to determine the contents of their applications, subject to compliance with the Act and Regulations, and that what is said about requirements and expectations and about powers of assessment, approval, etc., applies only if and in so far relevant representations are made and the council's decision-making powers under section 18(3) are engaged. I should add that Mr Lowe's valiant attempts to explain and justify individual passages served in my view to highlight rather than to resolve some of the difficulties inherent in the policy. Accordingly, I accept the claimants' case that the policy in its unamended form is unlawful.

[89]The proposed addendum, on the other hand, represents a substantial improvement in the policy. It sets out clearly the different stages in the procedure and explains at what point the matters covered in the policy can bite on applications. If the rest of the document is read in the light of the addendum, a careful reader may understand that the prescriptive language of, or impression conveyed by, later passages is not to be taken at face value. But even with the addendum the policy is far from ideal. The objectionable passages remain in place, and there is at the very least a marked tension between them and the addendum. There is a risk that applicants will focus on particular parts of the policy without taking the time to read the document as a whole and without understanding how the objectionable passages are to be read subject to the addendum.

[90]As to the particular point made by the claimants concerning the reference in the addendum to a "full discretion" at the section 18(3) stage, I accept that section 18(3) puts the focus on consideration of the relevant representations duly received, but I think it better to leave open the question whether the licensing authority's discretion extends beyond the issues raised in the representations and whether it can take account of information received otherwise than through relevant representations duly received (the Queitlynn point). It may well be that the reference to "full discretion" overstates the extent of the council's discretion, but even if that were right I would not regard it as a particularly important issue in the context of this case as a whole.

[91]I come back to my observation that even with the addendum the policy is far from ideal. It would obviously be better if the rest of the policy were recast so as to reflect the correct approach set out in the addendum. I am prepared to go so far as to state that without such recasting the unlawfulness that I have previously identified will not be wholly cured.

[92]Nevertheless I have come to the view that I should not grant the claimants the relief they seek. My reasons for that decision are best set out after considering the issue of delay. Delay

[93]The council contends that the claim form was not filed "promptly and in any event not later than 3 months after the grounds to make the claim first arose", as required by CPR 54.5, and that the court should decline to exercise its discretion time because(i) the claimants did not move as quickly as they could and should have done, and

(ii) the delay has caused serious prejudice to the council. The claimants, for their part, contend that the claim was lodged in time, alternatively that the court should extend time.

[94]The first question is when the grounds for the claim first arose. The council's case is that they arose when the policy was adopted by the council at a public meeting on 20 December 2004 or when it was published on 21 December by sending hard copies to the local district offices, police and fire safety services, and local libraries, and having hard copies available for members of the public on request. The claimants suggest three different dates, which in reverse chronological order are as follows: i) 7 February 2005, when the first transitional period commenced and applications for licences could be made for licences under the new regime. It is said that only then did the policy take effect, and indeed that paragraph 1.29 of the policy itself states in bold that it took effect on that date. The claimants seek to rely by analogy on the reasoning in R (Burkett) v. Hammersmith and Fulham LBC

[2002] 1 WLR 1593

, in which the House of Lords held that in the case of a planning permission time runs only from the actual grant of permission and not from the time of the earlier (revocable) decision to grant it. ii) 13 January 2005, when the Regulations were laid before Parliament. The Regulations prescribe the form of an application, including the operating schedule, and the claimants contend that it was only on publication of the Regulations by laying them before Parliament that they were able to compare the council's policy with what was lawfully required under the legislation. iii) 6 January 2005, which was both the day when the council's policy was placed on its web-site and the last day on which the policy was required to be published by section 5(1)(b) of the Act.

[95]I cannot accept any of the dates suggested by the claimants. The policy was determined and published pursuant to section 5(1) of the Act. Its publication constituted a discharge of the council's statutory duty under that section, and the policy was then "in force" even though no applications for licences could be made until the commencement of the first transitional period on 7 February 2005. Having published the policy, the council was not then free simply to withdraw it. There was power under section 5(4) to revise the policy, but for that purpose the council had to act in accordance with the statute and comply with the procedural obligations laid down by section 5(5)-(6). The situation was therefore very different from that in Burkett. If anything, publication of the policy was analogous to the actual grant of planning permission rather than to the decision to grant it. So I reject the date of 7 February 2005.

[96]As to the argument based on the laying of the Regulations before Parliament, I have difficulty with the proposition that the validity of a policy that was published as required before 7 January 2005 could be affected by the content of Regulations that were published only at a later date. In any event, the claimants felt able to make representations concerning the draft policy during the consultation period in the absence of the Regulations, and they could in my view have challenged the policy without waiting for the Regulations. I do not accept that time began to run only when the Regulations were first put into the public domain by being laid before Parliament.

[97]In my judgment time began to run from the date of publication of the policy itself. I consider that date to have been 21 December 2004, when hard copies were sent out and were available to the public, rather than 6 January 2005, when the policy became available on the council's web-site. The claimants are not in my view assisted by the fact that they were unaware that hard copies were available at an earlier date or by the fact that they were in practice monitoring the web-sites of those councils that had them. The fact that 6 January was the last date for compliance with the time-limit laid down by section 5(2)(a) of the Act is also in my view irrelevant.

[98]The claim form was not lodged until 6 April 2005. That was more than three months after the date of 21 December 2004 when in my judgment time began to run. It follows that the claim was out of time.

[99]The next question is whether the court should exercise its discretion to extend time. There are three principal matters relevant to that question: the reasons for the delay, the importance of the matters raised by the claimants, and the prejudice caused to the council by the delay.

[100]The reason for the delay was the massive burden undertaken by the claimants in seeking during this period to obtain copies of, and to scrutinise for lawfulness, the policies of376 different licensing authorities, all of which were published at much the same time in late December 2004 or early January 2005. It was a self-imposed burden, but a perfectly reasonable one to undertake on behalf of their members. The claimants had responded to all or most of the draft policies at the consultation stage, but it was still necessary to review the final versions in order to see to what extent the representations had been accepted. Having identified over 30 final versions that still caused concern, they had to decide which ones to select as test cases. It is not in the least bit surprising that this took a lot of time. It seems to me that the claimants are to be commended for having completed the task sufficiently quickly to be able to serve their claim form in draft on the council, as they did, on 21 March 2005, though it is unfortunate that they did not intimate in broad terms at an earlier date that they were minded to bring a claim. I bear in mind that had the claimants actually issued proceedings on 21 March instead of serving a draft, there would no doubt have been a complaint from the council about the lack of warning but the claim would have been within the three month time limit.

[101]As to the importance of the issues raised, I have held that there is substance to the claimants' case; and since the issues are said to affect the lawfulness of the policies of 30 or more other licensing authorities there does seem to me to be a real public interest in securing a ruling on them sooner rather than later. It is not easy to see how else they can be raised, at least in the short term, if the present claim is rejected on grounds of delay.

[102]On the other hand, a factor militating against the grant of an extension of time is that a successful challenge leading to the quashing of parts of the policy at this stage would cause real prejudice to the council. Applications for existing licensees to be converted into new premises licences under the new regime have to be made by 7 August 2005. As yet only about 10% of existing licensees have applied for conversion. Although the matter is not free from doubt, since the trade has not responded as expected, it seems likely that a very large number will apply before the closing date. Once an application for variation is made, it must be determined within two months or there is a deemed refusal with a right of appeal to the magistrates' court. The next few months are therefore a very important time for the council. It would be most unfortunate if the council did not have a complete statement of policy in place during that period. If, however, parts of the existing policy were quashed, it would take a substantial length of time to put in place a substitute policy through the review process in section 5(4) (6). It would be necessary to redraft the policy, to put it out for consultation, and then to have the final version approved by the executive, adopted by the full council and published. It has taken, or will have taken, over 2 months to put in place the addendum; and although Mr Matthias submits that the consultation could be completed within 2 weeks in circumstances where the revisions were being made to give effect to a judgment of the court, a more realistic period would in my view be one at least as long as, and possibly longer than, that required for the addendum. The experience of Doncaster and Gloucester gives some additional support for that view.

[103]Were it not for that issue of prejudice, there would be a strong case for an extension of time. In my judgment the issue of prejudice weakens the case but does not tilt the balance against an extension, in particular because the council's concerns can be met sufficiently by the court's discretion with regard to remedies. Section 31 (6) of the Supreme Court Act 1981 provides that where there has been undue delay in making an application for judicial review, the court may refuse to grant(a) leave for the making of an application or

(b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good, administration. The fact that, as I have held, the claimants' application was outside the three month time limit means that there has been undue delay in this case. Even if time is extended, the statutory discretion with regard to relief will remain and will serve to reinforce the broad discretion that the court enjoys in any event in the matter of remedies.

[104]In all the circumstances I have reached the view that the application should not be defeated by the argument as to delay. The application was made out of time, but I consider on balance that a proper case for an extension of time has been made out. Relief

[105]I have already indicated that, although I have found that the council's policy is unlawful, I do not propose to grant any relief in this case. My reasons are as follows.

[106]There is a sufficiently strong assurance that the proposed addendum will be adopted as to make it unnecessary and inappropriate to grant any relief in respect of the policy in its present form.

[107]The addendum will mitigate the problems but will not remedy them completely. Nevertheless the policy as amended by inclusion of the addendum is in my view unlikely seriously to mislead applicants. There is no evidence that any have been misled to date even by the policy in its unamended form. The claimants' own guidance to licensees helps to ensure that applicants understand the true position.

[108]If those considerations stood alone, they might not be a sufficient reason for withholding relief. I also take the view, however, that to quash parts of the policy at this stage would do more harm than good. The problems that such a course would cause to the council are discussed above in the context of the issue of delay. I have also referred in that context to the court's power under section 31(6) of the Supreme Court Act 1981 to refuse relief where there has been undue delay. The difficulties faced by the council if parts of the policy were now quashed can perhaps be described more appropriately as detriment to good administration than as prejudice to the council. But whichever way they are categorised, they amount in my judgment to a strong reason for declining to exercise my discretion to make a quashing order.

[109]The possibility of granting a declaration was raised at the hearing. In my view a declaration is unnecessary. It is sufficient that my judgment speaks for itself, not just to the council but also to the other licensing authorities whose policies are under examination.

[110]The withholding of relief does not mean that the council can rest on its laurels after the adoption of the addendum. It will be obliged to carry out a further review of the policy with a view to putting in place a version that carries the sentiments in the addendum through to the rest of the text. Pending the completion of that review, however, the policy as amended by the addendum will remain in force.

(1) The British Beer and Pub Association (2) The Association of Licensed Multiple Retailers (3) The British Institute of Innkeeping v Canterbury City Council [2005] EWHC 1318 (Admin)

Cited in 5 later judgments