ALL THINGS LICENSING
having the right of appeal to a Magistrates’ Court.
So, therefore can conditions relating to policy requirements be challenged in this way, i.e. can the policy of a council
There is no doubt that whilst the pandemic was an exceptional circumstance, in and of itself it was not capable of justifying an exception to the council’s policy. What was required was justification by reference to the impact of the pandemic on the particular licence holder, and this required each to adduce evidence of that impact in their case.
In that context the financial impact of the pandemic on the appellants was not likely to be relevant: it was “not immediately obvious” how that would go to the purpose of the policy, and might be likely to undermine those purposes if used as a reason to depart from the policy.
Summarising the above, the case emphasises that public bodies, such as a council acting in its capacity as a licensing authority, should always be prepared to consider each application on its merits and to allow exceptions to their general policy where this is justified by the circumstances. The same is true of the Magistrates’ Court upon appeal.
However, consideration must be given to the reason for the policy and whether, if an exception were made, it aims would still be met. The burden of showing that an exception should be made lies on the person who seeks it and it is necessary to consider whether the object of the policy would be damaged or undermined by exception.
such an What about appealing conditions?
As set out earlier, council’s may impose conditions which are reasonably necessary, with any person aggrieved by any conditions attached to a licence
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FEBRUARY 2025 PHTM
be reviewed by appealing the conditions which underpin it?
In short, no. Again, there is case law, and a case with which I am very familiar. The case involves a Guildford licence holder trying to challenge the council’s livery policy for hackney carriages by appealing the condition relating to livery attached to their licence and trying to argue that the policy and associated conditions were not reasonably necessary.
This case went all the way to the Court of Appeal and confirmed the position that licensing policies cannot be challenged ‘by the back door’ by appealing conditions relating to policy on a licence.
There is a strict mechanism whereby a policy can only be challenged by way of judicial review within the time limits permitted.
Legal challenges and case law are subjects which are hugely relevant to
the
licensed trade and are matters which come up regularly in the Institute of Licensing publications and events.
I would therefore again encourage members of the trade to join the Institute of Licensing to keep on top of all the latest developments.
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