Garages - Is s176 Licensing Act 2003 incompatible with the EU Services Directive?

Section 176 Licensing Act 2003 provides that "No premises licence... has effect to authorise the sale by retail or supply of alcohol on or from... premises used primarily as a garage" (‘garage' being defined as premises selling petrol or derv (diesel oil for road vehicles) or selling or maintaining motor vehicles).

This provision has often prompted Licensing Authorities to require applicants to first prove that the premises in question will not primarily operate as a garage / petrol station before considering whether to grant the application.

Such a situation arose in relation to a premises licence application made by Shell UK Oil Products Limited to South Hams District Council. In the notice of hearing, the Licensing Authority requested that the applicant provide evidence of primary use and that the application would not be determined until it was satisfied the primary use of the premises was not a ‘garage'.

What is notable about this particular matter is that the applicant made a preliminary point arguing that s 176 Licensing Act 2003 is incompatible with the EU Services Directive (‘EUSD'), as transposed by the Provision of Services Regulations 2009 (‘PoSR'), principally because (to put it as simply as possible) the extra regulatory burden imposed by s176 is unjustifiably discriminatory.

As a result of the applicant's submission, the licensing sub-committee determined that s176 is incompatible with the EUSD and therefore continued to consider the application as normal without further reference to s176, resulting in the premises licence being granted.

Only time will tell whether other Licensing Authorities will adopt the same approach.

We are grateful to Leo Charalambides of Francis Taylor Building (who represented Shell UK Oil Products Limited) for providing us with the details of this matter.