High Court refuses permission to bring judicial review in premises licence transfer case

Under the Licensing Act 2003, a premises licence transfer is applied for by the incoming premises licence holder but the application ought to be accompanied by the signed consent of the current premises licence holder.

However, a licensing authority must exempt the applicant from the requirement to obtain the premises licence holder’s consent if the applicant shows to the authority’s satisfaction that he/she has taken all reasonable steps to obtain that consent and would be in a position to use the premises during the application period for licensable activities (generally taken to be that the applicant has a proprietary interest in the premises).

In a recent case, Westminster City Council processed a premises licence transfer application despite the fact that the premises licence holder did not provide consent - and in fact positively refused to do so. The former premises licence holder sought permission to judicially review that decision but that permission was refused in the High Court - see link to full Judgement here.

As stated by Mathew Gullick QC(sitting as a Deputy High Court Judge):

"The central question raised by this Claim is really, in my view, that identified in the final sentence of paragraph 22 of the Defendant’s Summary Grounds of Defence: i.e. whether section 44(6)(a) simply has no application in circumstances where consent to transfer of the premises licence has been positively refused, and thus whether a premises licence holder who has refused a request to have their licence transferred in effect has a veto on any transfer to a person who fulfils the second criterion in section 44(6)(b). In my view, it is clear that if Parliament had intended this to be the case then it would have said so expressly. The language of “all reasonable steps” used in the statute is in my view clearly apt to include both circumstances where the proposed transferee has been unable to obtain any decision from the holder of the licence and also where the holder of the licence has (as in the present case) positively refused to transfer the licence."

Clearly, this is the correct outcome otherwise a malicious tenant in whose name the licence is in and who has vacated a premises and not paid rent for some time could block a landlord from taking back a premises licence