Pump and Boneyard, Shoreditch - appeal

Philip Kolvin QC (Cornerstone Barristers) has kindly alerted us to this interesting case on which he was involved. The facts of the case read a bit like a best-selling novel but the decision before the magistrates last week on appeal was also revealing in that it determined in summary:

• Changes to layout - the plan deposited with an application is the plan and cannot normally be changed without a variation, whether the features being changed needed to be shown in the first place or not. The features on the plan, be they snooker tables in a club, shelving in a supermarket or seating in a restaurant, all give assurance to the licensing authority that the premises will be used in a particular way, rather than the licence attaching to a large blank space which could be used, say, for vertical drinking.  As such, variations to the layout cannot be made without variation to the licence.
• The relevance of ‘criminal breaches’ – Hackney Council argued that much of what had occurred was criminal. It argued that, on the authority of R (Blackpool Council) v Howitt 2008 EWHC 3300 (Admin), criminal acts of whatever sort engaged the licensing objective of the prevention of crime and disorder, even if they were not disorderly. The District Judge accepted that the principle applied to this case.
• Planning be taken into account - National guidance advises that the systems of planning and licensing should be kept separate that control should not be duplicated. Nevertheless, in this case, Hackney’s long-standing and unchallenged licensing policy stated that normally planning consent should be obtained first. Here, it had not been. It was therefore argued that since the Court stands in the shoes of the licensing authority for the purpose of applying its policy, the absence of planning permission was a material consideration. Further, the Council argued that the failure to secure planning permission (which had been refused twice), demonstrated a cavalier approach to regulation which could be taken into account on that ground alone. In the event, the lack of planning was taken into account by the District Judge.
• Cumulative impact be taken into account - The Council acknowledged that national guidance sets its face against the culling of licensed premises based on cumulative impact and that it is wrong to call in individual licences for review when the issue is cumulative. Nevertheless, the District Judge found “compelling” the Council’s argument that it was entirely legitimate to take cumulative impact into account in the case of a misbehaving licensee. The rationale is that one should not be able to attain through unlawful action that which would never have been (and was not) granted through applications for variation, and that the consequences of such unlawful behaviour are more serious in cumulative impact areas than in areas not suffering from stress. This is an important conclusion, giving further teeth to licensing authorities where regulatory breaches take place in cumulative impact areas.

The full judgment can be found here.

Source: Philip Kolvin QC