Murco Petroleum Ltd, R (on the application of) v Bristol City Council [2010] EWHC 1992 (Admin)

Case No CO/14774/2009[2010] EWHC 1992 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/07/2010
Before
MR JUSTICE CRANSTON
Between
R (on the application of) Murco Petroleum LimitedClaimantBristol City CouncilDefendant
Mr Roy Light (instructed by Hook and Partners) for ClaimantPhilip Kolvin QC (instructed by Bristol City Council Legal Services) for DefendantHearing Hearing date: 24 June 2010
Judgment

Introduction

[1]In this judicial review the claimant seeks permission to challenge the decision of the licensing (hearings) sub-committee of Bristol City Council (“the Council”). That decision was to decline to entertain its application for a premises licence under the Licensing Act 2003 (“the 2003 Act”) for premises known as Costcutter, Henleaze Service Station, Bristol so that it could sell alcohol. The claimant owns Henleaze Service Station. It operates a network of such petrol stations throughout the United Kingdom, most with convenience shops attached. Its experience is that the combination of petrol station with a supermarket or shop enhances the profitability of forecourt operations. Background[2]In January 2009 the claimant made an application for a premises licence to allow off-sales of alcohol from 6am to 11pm on each day of the week. The application form was in the standard format. In part “P” of the form the claimant set out the various measures it intended to take to promote the four licensing objectives such as an alarm system, CCTV, alcohol training for staff, and demanding proof of age by young people. Attached to the application was a pie chart for the period 1-15 December 2008, which showed that 16.8 percent of customers used the premises for fuel only, 16.9 percent for shop only and 66.3 percent for mixed shop and fuel.[3]Notices were given of the application pursuant to the statutory requirements. A number of representations were made. These included two representations from local residents, who referred to alcohol sales at a petrol station. The Gollop family, which live about a third of a mile away, wrote that “this is a petrol station and not a supermarket and should not be granted a licence to sell alcohol”. There was reference to another petrol station with a shop in the vicinity, where the licensing committee had given the applicant time to prove that it was a supermarket rather than a petrol station. That, said the Gallop family, should be done here. Mr and Mrs Malyckyj wrote:
“We feel that the granting of such a licence would encourage binge drinking, which is something the Government is trying to discourage and will contravene the rule “Don’t drink and drive!”
We therefore feel that the granting of such a licence is totally inappropriate on garage premises frequented by motorists and is not conducive to a residential area”.[4]On 12 March 2009, the matter was considered by the licensing (hearings) sub-committee (“the sub-committee”). In the course of the hearing the sub-committee inquired whether the premises were primarily used as a garage or formed part of premises which were primarily so used. The claimant argued that the sub-committee had no need to consider the primary use of the premises. The sub-committee rejected that and considered it had insufficient material to consider the issue properly. It decided to defer the matter. It issued a notice of adjournment until 28 May 2009. That stated that the sub-committee was dissatisfied with the information so far provided, and what further information it needed. In particular, the sub-committee sought “… more cogent evidence of transactions broken down identifying numbers of transactions made by:-• customers making fuel transactions only• customers making fuel and convenience store transactions only• customers making convenience store transactions only• customers using the car wash facilities• customers using the air and water facilities … … over a much longer period than two weeks – preferably over a six-month period to enable them to more accurately consider the matter.”• customers making fuel transactions only• customers making fuel and convenience store transactions only• customers making convenience store transactions only• customers using the car wash facilities• customers using the air and water facilities … … over a much longer period than two weeks – preferably over a six-month period to enable them to more accurately consider the matter.”[5]On 22 April 2009 the claimant wrote to demand that the application be determined. It included an advice by Mr Roy Light stating that no further evidence would be produced: the Council did not have power to consider primary use; and in any event, the evidence already provided was adequate. On 12 May 2009, the Council wrote to the claimant reiterating its request for further information, and pointing out that if the facts were as suggested in the pie chart it was in the claimant’s interests to provide the evidence. The claimant wrote again on 15 May 2009 to state that it was not willing to provide the information.[6]The claimant’s letter was placed before the sub-committee. It accepted that it could not require information relating to car maintenance. It was not attempting to impose onerous obligations on the claimant and wanted a resolution of the impasse. What it desired were details of till receipts or transactions for a specified 75 minute window for each day in the period of 1-15 December 2008, the dates of the original pie chart. The claimant declined to supply further information and in its letter of 22 May 2009 suggested that the Council proceed to a determination based on the pie chart which had been produced. There was a site visit on 28 May, immediately prior to the hearing that day. At the hearing the claimant requested that the sub-committee perform its statutory duty to determine the application. Because of the claimant’s refusal to provide the information requested the sub-committee to adjourn the hearing further. The Council sent a notice of adjournment. The adjournment was until the first available date following receipt of the information requested. The notice stated: “The Committee deliberated at length but were not satisfied that the evidence produced by the appellant was sufficient to enable them to assess, on the balance of probabilities, whether the premises are excluded premises within the meaning of the Act. Further, the Committee consider that the letter dated 20 May 2009 represented a reasonable compromise to enable them to make a decision. The Committee were very disappointed that the applicants were not willing to provide the documentary evidence used to support the pie chart. If the applicants are unable to provide the documentary evidence requested in the letter of 20 May 2009 for the period stipulated in that letter, then they should provide the equivalent information over an alternative period of two consecutive weeks”.[7]On 18 June 2009 the claimant emailed the Council to state that it was not prepared to provide the information sought on 20 May 2009. Instead, it provided the same kind of pie chart information as it had originally, but for the period 1-19 April 2009. It also stated the number of times a cash point machine had been used on the premises. It explained that it could not provide itemised information since this was overwritten on a rolling monthly basis. On 31 July 2009, the Council wrote that the matter would be re-listed on 17 August 2009. It stated that the claimant need not confine its evidence to the dates requested but could select any two-week period. The Council also asked the claimant’s managing director to attend the hearing to present the information requested and to answer any questions members might have.[8]At the 17 August meeting the claimant was represented by its counsel and a licensing consultant, who stated that no further information would be provided. Counsel submitted that the sub-committee had no right to determine the issue of the primary use of the premises. The sub-committee determined that it did have the power to make such a determination, for the reasons set out in its record of decision. In making its determination it took into account the Secretary of State’s guidance set out in paragraph 9, which it considered to be a correct statement of the law. “The licensing sub-committee does not accept that the applicants are unable to provide the information requested. The licensing sub-committee have been very flexible in terms of the information it has requested and the applicants have resisted each request … The members were unanimous that they were unable to determine what the primary use of the premises was due to the lack of transactional information covering the shop and fuel use. Therefore, the application could not be determined either way. The members did not consider that in these circumstances they could grant or reject the application as their decision could not in their opinion be an informed decision without the information that they had requested on a number of occasions. The members were also concerned as to why the applicants were so resistant to the supply of straightforward trading information, and believe that the probable answer is simply that the supply of information would not assist the applicant’s case, and indeed might lead to an immediate prosecution were a licence to be granted. However, in the members’ experience, it is far better for applicants to take a frank, co-operative approach to enable the authority to take an informed decision based on material co-operatively given rather than, as happened here, for an applicant to take a plainly selective approach based on partial information so as to persuade the licensing authority to grant the licence. The applicants’ approach to this matter is inimical to the partnership approach which underpins the new licensing legislation, and members wish to record their disappointment at the outwardly uncooperative stance taken by applicants here”.[9]Since the matter seemed to the claimant to have been brought to a conclusion, rather than adjourned, the claimant lodged an appeal on 17 September 2009. The Council maintained that no decision had been made in respect of the application and accordingly no right of appeal to the Magistrates’ Court arose. In early November the Magistrates’ Court declined to accept jurisdiction. It wrote:
“The Act does not allow a Magistrates’ Court to review whether the decision made by the relevant licensing authority is one which the Act permits to make”
. That approach was reiterated by the Magistrates’ Court in late November.[10]The claimant sent a letter before action in November 2009 and this judicial review was filed on 12 December 2009. It was considered on the papers in March this year by Ian Dove QC, a deputy high court judge, who decided that the case merited an oral hearing in relation to permission to apply for judicial review. Given the pressure on the lists in the Administrative Court, and with the agreement of the parties, I treated that hearing as a rolled-up hearing to consider both permission to apply for judicial review and the substantive issue itself. The legal framework[11]The 2003 Act rationalised the licensing regime to introduce a single scheme for licensing premises which sell alcohol or provide regulated entertainment or late night refreshment. For present purposes a key change was that it transferred primary responsibility for licensing from the justices to local authorities, with magistrates’ courts now exercising a purely appellate jurisdiction. Licensable activities are set out in section 1 of the Act and include the sale by retail of alcohol: s. 1(1)(a). Section 3 constitutes councils as licensing authorities and section 6 obliges each licensing authority to establish a licensing committee of at least 10 members. The licensing committee may arrange for the discharge of its functions of determining an application for a premises licence by a sub-committee: ss. 10(4)(a); 10(4)(a)(i). Appeals against the decisions of licensing authorities are to the magistrates’ court on questions of both law and fact: s. 181; Schedule 5. Section 4 of the Act provides that a licensing authority must carry out its licensing functions with a view to promoting the licensing objectives. These are listed in section 4(2) as(a) the prevention of crime and disorder;(b) public safety;(c) the prevention of public nuisance; and(d) the protection of children from harm.[12]A premises licence is a licence authorising the use of premises for one or more licensable activities: s. 11. Applications for a premises licence are governed by section 17 of the Act:
“(1) An application for a premises licence must be made to the relevant licensing authority.

(a) section 54 (form etc of applications etc)”

The relevant regulations are the Licensing Act 2003 (Premises Licenses and Club Premises Certificates) Regulations 2005, SI 2005/42 as amended. An application has to be accompanied by an operating schedule which as the name suggests sets out what is proposed to be done under the licence: s. 17(3)(4). Sub-section (5) provides that the Secretary of State must by regulations require an applicant to advertise the application so as to bring it to the attention of interested parties and to give notice to each responsible authority (e.g. the police; the environmental health department): s.17(5)(a)-(b). The regulations may prescribe the period during which interested parties and responsible authorities may make representations: s. 17(5)(c). Interested parties includes those living in the vicinity of the premises, that concept concerning a physical and geographical relationship: s. 13(3)(a); R (4 Wins Leisure Ltd) v Licensing Committee of Blackpool Council [2007] EWHC 2213 (Admin), [15]-[20].

(a) section 54 (form etc of applications etc)”

[13]Section 18 deals with the determination of an application for a premises licence. It reads, in part:
“18 Determination of application for premises licence (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.

(d) to reject the application”

. Relevant representations are dealt with in section 18(6)-(9). In British Beer and Pub Association v Canterbury City Council [2005] EWHC 1318 (Admin); (2005) 169 JP 521; [2006] BLGR 596, Richards J said that 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 conditions. Where relevant representations are made, there must generally be a hearing and a discretionary decision must be made by the licensing authority: [14]. (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. (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. (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. (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 condition which must under section 19, 20 or 21 be included in the licence;[14]As with earlier legislation the policy of the 2003 Act is that alcohol should not be sold at service areas, garages and the like. It seems that when originally adopted the policy was directed at removing the temptation to drink and drive, although now this would be expressed as engaging the crime and disorder licensing objective. Section 176 of the Act reads, in part, as follows:
“Prohibition of alcohol sales at service areas, garages etc (1) No premises licence, club premises certificate or temporary event notice has effect to authorise the sale by retail or supply of alcohol on or from excluded premises. (2) In this section “excluded premises” means … (b) premises used primarily as a garage or which form part of premises which are primarily so used. … (4) For the purposes of this section – … (c) premises are used as a garage if they are used for one or more of the following – (i) the retailing of petrol, (ii) the retailing of derv, (iii) the sale of motor vehicles, (iv) the maintenance of motor vehicles”
. The predecessor provision, section 9 (4A) of the Licensing Acct 1964 as amended, provided for the exclusion of garage premises from receiving a licence depending on primary use. “(4A) Premises shall be disqualified for receiving a justices’ licence if they are primarily used as a garage or form part of premises which are primarily to be used”. The editors of Paterson’s Licensing Acts 2010 describe section 176 of the 2003 Act as a “better arrangement” over section 9 (4A) in situations where premises “qualified” for sale of alcohol at the time of the original licence application, but subsequently ceased to qualify because, for example, fuel sales increased. Under section 9(4A) such a development meant that the licence could only be removed upon renewal, or by revocation. Under section 176 the licence would simply cease to provide a valid authority for sales (p. 519). … (b) premises used primarily as a garage or which form part of premises which are primarily so used. … … (c) premises are used as a garage if they are used for one or more of the following – (i) the retailing of petrol, (ii) the retailing of derv, (iii) the sale of motor vehicles, (iv) the maintenance of motor vehicles”.[15]The concept of premises being primarily used as a garage under section 176 of the 2003 Act (and section 9 (4A) of the 1964 Act) has been considered by the courts on at least two occasions. The first was in Green v Justices for Inner London Area CO/487/93, unreported, 13 June 1994, a decision of the Divisional Court. There the justices had concluded that the primary use of the garage/shop premises was as a garage. The evidence from the applicant was that during the sample dates there were twice as many customers using the shop as compared with the petrol and petrol and shop customers. As the case came to an end the justices asked for figures about turnover and on that basis they reached their decision. The Divisional Court held that they had applied the wrong test because they had compared the gross figure for petrol sales and compared it with the figure net of VAT in connection with the shop. However, it is clear from the judgment of MacPherson J (with whom Butler-Sloss LJ agreed) that there was nothing improper in the magistrates examining turnover figures to determine primary use.[16]In R v Liverpool Crown Court ex p Goodwin CO/2639/97, 17 December 1998, the justices rejected the application for an off-licence because they held that the primary use of the premises was as a garage. The matter went to the Crown Court, which dismissed the appeal. The Crown Court said that the issue was how the premises were used: it “is a garage, it is known as a garage and having viewed the photographs we take the view that it is a garage”. Laws J referred to Green and then said:
“In the present case the fact is that quite apart from anything else that may be said, the Crown Court have regarded the appearance of the premises and how it is known in the locality as material to the question of primary use. That seems to me to be an erroneous approach. The question must be, what is the intensity of use by customers at the premises? So that evidence such as that of customer lists, to take an example, might be highly material”
. Thus Laws J quashed the Crown Court decision on the basis of irrelevant considerations.[17]Mr Light, who appeared for the claimant, informed me that, as a result of Goodwin, evidence on primary use before licensing authorities typically takes the form of what could be described as numbers rather than turnover. In other words, the intensity of use is measured by the number of customers using the garage as opposed to the number using the garage and shop or the shop alone.[18]In my view it is a matter for each licensing authority to decide whether it will decide primary use on the basis of numbers or evidence of turnover. It will be recalled that in Green the justices had been presented with evidence of numbers but asked for evidence of turnover. The Divisional Court did not question that. There is nothing in Laws J’s judgment to suggest that intensity of use – the phrase used – cannot be calculated by reference to the turnover figures.[19]The Licensing Act 2003 (Hearing) Regulations 2005, SI 2005 No. 44 (“the Hearing Regulations”) governs the conduct of hearings by licensing authorities. A notice of hearing must be given and by regulation 7(1) must be accompanied by information regarding “(d) any particular points on which the authority considers that it will want clarification at the hearing from a party.”[20]There is a power to adjourn a hearing “to a specified date” where the authority considers this may be necessary for its consideration of any representations or notice made by a party: reg.

(a) Regulation 12(2) reads:

“Where an authority has adjourned a hearing to a specific date it must forthwith notify the parties of the date, time and place to which the hearing has been adjourned”
. Members of the authority may ask any question of any party or other person appearing at the hearing: reg. 17. A licensing authority must make a decision within five working days from the day of the hearing: reg. 26(2).[21]Section 4(3)(b) of the 2003 Act provides that in carrying out its functions a licensing authority must have regard to guidance issued by the Secretary of State under section 182. The Current Guidance was issued by the Secretary of State for Culture, Media and Sport in March 2010 and laid before Parliament, although the passages cited below have remained unaltered from earlier versions. As the Guidance itself explains nothing in it should be taken as indicating that any requirement of licensing law or any other law may be overridden. That part of the Guidance relating to garages is as follows: “Garages 5.23 Section 176 of the 2003 Act prohibits the sale or supply of alcohol from premises that are used primarily as a garage, or are part of premises used primarily as a garage. Premises are used as a garage if they are used for one or more of the following:• the retailing of petrol• the retailing of derv,• the sale of motor vehicles• the maintenance of motor vehicles 5.24 The licensing authority must decide whether or not any premises is used primarily as a garage. The approach endorsed so far by the courts is based on intensity of use to establish primary use. For example, if a garage shop in any rural area is used more intensely by customers purchasing other products than by customers purchasing the products or services listed above, it may be eligible to seek authority to sell or supply alcohol. 5.25 Where there is insufficient evidence to establish primary use, it is for the licensing authority to decide whether to grant the licence and deal with any issues through enforcement action or to defer granting the licence until the primary use issue can be resolved to their satisfaction”.• the retailing of petrol• the retailing of derv,• the sale of motor vehicles• the maintenance of motor vehicles The claimant’s case[22]The claimant’s case is premised on the Licensing Act 2003 being far more prescriptive than the previous legislation. Strict time limits apply at all stages of the procedure and the powers and duties of the licensing authority are strictly controlled. Gone is the unfettered discretion of the licensing justices, contained in the Licensing Act 1964. In its place are what Paterson’s Licensing Act 2010 describes as the tramlines of section 18 from which no licensing authority may depart (p. 62).[23]In Mr Light’s submission an applicant is required by s.17(2)(b) to complete a comprehensive application form to apply for the grant of a premises licence, which contains no reference to garage premises or primary use. Upon receipt of the application the licensing authority must consider whether it is a valid application, complying with section 17 of the Act. Here the council accepted the claimant’s application as valid and did not raise the issue of primary use. In fact the claimant attached the pie chart about use to the application form. Only one valid representation from an interested party referred to garages and alcohol, but it did not explicitly raise the issue of primary use. The Council properly referred the matter to a hearing. The notice of hearing did not request any clarification on primary use under regulation 7(1)(d). It was the Councillor chairing the hearing on 12 March 2009, who raised the issue of primary use, along with a number of other matters which the Council subsequently accepted were irrelevant.[24]In the claimant’s submission the duty of the Council under section 18 is clear. It must grant the licence or refuse the licence. There is no power to refuse to determine an application. If the Council was not satisfied by the evidence on primary use it should have refused to grant the licence. The claimant could then have appealed to the Magistrates’ Court. Instead the Council has repeatedly refused to do that and now claims that for a number of reasons it can depart from the clear duties laid down in section 18. The sub-committee has purported to adjourn the hearing, when there is no power to do this. The suggestion in paragraph 5.25 of the Guidance, that a licensing authority can defer matters, is wrong, for it would have the effect that the licensing authority could defer an application indefinitely, thus not only denying an applicant a licence but also precluding the opportunity to advance its case by way of appeal to the magistrates’ court. There is no legal basis for deferment referred to in the Guidance and none contained in the Act. It would be quite wrong to utilise the general powers conferred by section 111 of the Local Government Act 1972 as it would not facilitate the objectives of the 2003 Act. Instead, deferment would defeat the force of section 18 and effectively remove the right of appeal. Moreover, the adjournment was not to consider any representation or notice made by a party, nor was it to a specified date with the parties notified of the date, time and place to which it had been adjourned as required by regulation 12 of the Hearing Regulations. To allow repeated adjournments under regulation 12 would have the effect of defeating the wording of section 18 and effectively removing the right of appeal.[25]Mr Light submitted that regulation 17, enabling members of the authority to ask any question of any party or other person appearing at the hearing, does not give an implied right to an answer if that is not forthcoming. A licensing authority cannot adjourn a matter indefinitely while it waits for an answer. The proper course for a licensing authority, faced with what it perceives as an uncooperative, unreasonable or dishonest applicant, is to refuse the application. There is then the possibility of an appeal to the magistrates’ court. If the authority’s decision is upheld it is protected in costs. To allow a licensing authority the power to ask for whatever information it wishes, and to fail to make a determination if that evidence is not forthcoming, or is considered insufficient, takes away the fundamental right of appeal against the decisions of licensing authorities. Discussion and conclusion[26]In this case the claimant made an application for a premises licence to enable it to sell alcohol from a shop attached to one of its petrol stations. The application triggered “relevant representations” under section 18(6) of the 2003 Act, including from at least one “interested party” as defined in section 13(3)(a). That was the letter from Mr and Mrs Malyckyj. The Gallop family also wrote, although the claimant contends that they are not an interested party because they do not live in the vicinity of the premises. There is no need for me to determine that issue, since it is accepted that the Malyckyjs qualify as interested parties.[27]There was then a hearing before the sub-committee. The claimant accepted that it was proper to hold that hearing pursuant to section 18(3)(a). Under sections 4 and 18(3)(b) the sub-committee was under a duty in deciding on the application to act in such a way as was necessary to promote the licensing objectives and in accordance with the overarching duty to carry out its licensing functions with that end in view. To put it in the terms of the legislation, the Malyckyj’s letter engaged the crime and disorder and public safety licensing objectives. If the premises were primarily a garage and so were excluded premises under section 176, their use for the sale of alcohol would be unlawful, thus also engaging the crime prevention objective. The issue of the juxtaposition of petrol sales and alcohol was thus firmly before the licensing sub-committee. In my view it was bound to consider it given the Parliamentary policy on sales of alcohol at petrol stations. In reality the issue became the extent to which the sub-committee was entitled to pursue it.[28]The first issue is whether the sub-committee was entitled to ask the claimant for trading information. It will be recalled that the sub-committee was not satisfied with the information it had received, which amounted to the pie chart of use over a two week period some months earlier. In my view it had the legal power to ask for further information. At one point Mr Light seemed to suggest that the Malyckyjs’ representation was insufficient to enable the sub-committee to ask a question concerning the use of the garage, and that nothing less than a specific reference by them to the terms of section 176 would have done. If so, I reject such a technical interpretation. It is far removed from the administrative system with democratic participation by local residents contemplated by the 2003 Act. The Malyckyjs’ representation raised squarely the issue of sale of alcohol from garages. The licensing authority set out to ascertain whether this was excluded premises within the meaning of the legislation.[29]Moreover, the fact that clarification was not asked for on a particular point in the notices of hearing sent out under regulations 6 and 7 in no way limits the pursuit of the point at a hearing. Otherwise a resident who had made a perfectly sensible representation would be debarred from pursuing it, not by his or her own actions but by what a licensing authority had or had not requested of the other party by way of clarification. I reject any suggestion that if a point is not mentioned in a notice of hearing this prevents any party, or the sub-committee itself, from raising questions on material matters. Notices of hearing as pro forma documents cannot limit the ability of sub-committees to investigate issues so as to promote the licensing objectives through their decision-making.[30]Regulation 17 of the Hearings Regulations clearly permits the authority to ask any question of any party. Moreover, in my judgment section 111 of the Local Government Act 1972 confers an incidental or implied power on the sub-committee to ask a question of a party, where the question is calculated to elicit an answer which will facilitate the function of considering and adjudicating upon the relevant question, in this case responding to the Malychyj’s representations so as to promote the licensing objectives: see Chief Constable of Nottinghamshire Police v Nottingham Magistrates Court [2009] EWHC 3182 (Admin), [35]. I note in passing that whereas Schedules 6 and 7 of the 2003 Act amend and repeal other sections of the Local Government Act 1972, they do not touch section 111.[31]Thus the question arises, about what information was the sub-committee able to inquire? I have already said that the authorities recognise that trading information is relevant to the issue of “excluded premises” under section 176 of the 2003 Act. In my view there can be no question but that the sub-committee could ask about that information. There is no need for me to draw the parameters to the information the sub-committee could ask about. Relevance and materiality are obviously central considerations. The sub-committee requested further information regarding the operation of the garage, such as car wash figures, but now concedes that it had no right to do that.[32]Once the claimant failed to respond to the question on turnover, the next issue is whether the sub-committee was entitled to adjourn the hearing for a satisfactory answer. In my view it could do so, since regulation 12 confers a specific power to adjourn where necessary for the consideration of a representation made by a party. It is not a limited power to adjourn, for example, because a person falls ill, as Mr Light at one point suggested. In my view the Guidance is correct when it advises that where there is insufficient information about primary use the authority may defer the matter until the question is resolved to their satisfaction. Here, the Malychyj representation had specifically concerned the juxtaposition of alcohol and petrol sales. No answer was forthcoming and the sub-committee adjourned. However, an adjournment must be to a “specified date” under the Hearing Regulations. On 17 August the sub-committee, in effect, adjourned the matter generally. What in my judgment it should have done was to adjourn the matter to a later, specified date, albeit that it appeared a stalemate had been reached and the matter might have to be adjourned yet again.[33]Thus in my view the sub-committee was entitled to adopt the approach it did to the refusal by the claimant to answer the question about trading figures. The answer lay wholly within the claimant’s own knowledge and was relevant and material to a consideration of the representation and the promotion of the licensing objectives. As a matter of law trading figures can be used to determine the issue of primary use under section 176: Green v Justices for Inner London. The sub-committee was entitled to adjourn the matter until the information, lawfully required, was provided.[34]Any other construction of the powers of a licensing authority would turn it into a cipher. It would be forced to make a decision on less information than necessary to promote the licensing objectives. A licensing authority must be able to pursue issues of public safety, the protection of children from harm and other objectives of the 2003 Act. The example proffered by Mr Kolvin QC, for the Council, is apposite:
“Imagine a rock festival. A temporary spectator stand is proposed. A question is raised whether it will be safe or a death trap. On the claimant’s showing, the applicant can simply refuse to tell the authority anything about the means of construction, the expertise of the designer or the safety certification process, defying the authority to refuse the application and risk having to respond to an appeal, with all the unnecessary cost and time that that would entail”
. The claimant’s interpretation of the provisions of the 2003 Act and attendant regulations would make a mockery of the standing of the Council as the licensing authority and its function as the primary decision-maker. It would also be inimical to the aim of the legislation to promote the licensing objectives. Perhaps as important it would frustrate the role which local residents have in making representations under the 2003 Act and would downgrade the role of democratically elected decision-makers.[35]I dismiss the claim.