Luminar Leisure Ltd v Norwich Crown Court

For a special hours certificate under the Licensing Act 1964, the licensee’s purpose, assessed over the permitted hours as a whole, must be that the sale of intoxicating liquor is ancillary to the provision of music and dancing and substantial refreshment. It is insufficient that liquor is ancillary only for customers who use those facilities. Facilities need not be used by every customer, and music, dancing and refreshment need not all be available continuously. The statutory test nevertheless prevents premises operating in substance as a late-night public house. The adequacy of dancing facilities is assessed by reference to demand from the persons for whose reception provision is made. A decision based only on the customers who use the facilities is an error of law.

A licensee appealed successfully to the Crown Court against the refusal by licensing justices of a special hours certificate for a Norwich café-bar. The Crown Court found that the premises were structurally adapted and intended to provide music, dancing and substantial refreshment, but also found that most customers after 8 pm would be drinkers and that little eating or dancing would occur during the additional hour.

The Crown Court granted the certificate, treating the statutory preconditions as satisfied because liquor would be ancillary for customers using the relevant facilities. The objector sought judicial review, contending that the statutory test had to be applied to all persons resorting to the premises and to the permitted hours as a whole.

The claim succeeded. The Crown Court’s decision was quashed and the licensee’s appeal was remitted for rehearing.

1. Construction of section 77. The statutory test applies to the permitted hours as a whole. The provision of music, dancing and substantial refreshment need not continue throughout those hours, as shown by section 76(2)(a), but the licensee’s purpose must remain that the supply of liquor is ancillary to those facilities.
2. Meaning of ancillary. Liquor is not ancillary if, viewed over the permitted hours, the licensee’s purpose is that a majority of customers should purchase liquor without using the facilities. Nor is liquor ancillary merely because it is ancillary for a small minority of customers. Otherwise a public house could obtain an SHC by providing facilities for a small minority in part of the premises.
3. Relevance of customer use. Customers’ intentions are not directly determinative under section 77, which concerns the licensee’s purpose. However, the use of other similar premises operated by the same proprietor may be relevant evidence of the purpose for which the premises under consideration are intended to be used.
4. Section 81. The revocation provisions support this construction. It would be highly anomalous to grant a certificate where, consistently with the licensee’s purpose, an immediate revocation application would be expected because customers resorted principally to obtain liquor. The Crown Court placed excessive weight on the discretionary nature of revocation.
5. Dancing facilities. Adequacy is assessed by reference to the demand of the persons for whose reception provision is made. A small number of dancers may therefore be sufficient, but that does not answer the separate question whether liquor is ancillary for customers generally.
6. The authorities, including Richards v Bloxham (Binks), Young v O’Connell, R (Shipley) v Stafford Crown Court and Northern Leisure Plc v Schofield and Baxter, supported the distinction between provision of facilities and their actual use, while preserving the requirement that drinking remain ancillary overall.

The Crown Court allowed the licensee’s appeal against the licensing justices’ refusal of a special hours certificate. The Administrative Court quashed that decision and remitted the appeal for a fresh hearing.