JD Wetherspoon Plc, R (on the application of) v Guildford Borough Council

A cumulative impact policy may lawfully apply to an application to extend the permitted hours of an existing licensed premises. The Licensing Act 2003 does not itself preclude that approach. Nor does Secretary of State guidance, which must be read as a whole and may contain policy considerations pointing in different directions.

The relevant question is whether the proposed variation is directly relevant to the reasons for the special policy. An application may be a material variation where extending late-night drinking at a large drink-led premises would add to crime and disorder in an area already affected by a concentration of licensed premises. A rebuttable presumption does not unlawfully fetter discretion if the applicant may demonstrate that the proposal would not add to the cumulative impact.

The claimant sought judicial review of the defendant licensing authority’s refusal to extend the permitted alcohol-sale hours at its Lloyds No 1 public house in Guildford from 11 pm to 2 am. Surrey Police made relevant representations concerning crime and disorder in an area covered by the authority’s cumulative impact policy.

The licensing sub-committee treated the proposal as a material variation, applied the policy’s rebuttable presumption, and concluded that the claimant had not shown that the extended hours would not add to the cumulative impact. The central issue was whether an application merely seeking longer trading hours could fall within the policy.

1. Statutory scheme. The Licensing Act 2003 did not directly preclude reliance on a cumulative impact policy when determining an application to extend permitted hours. The Act itself neither promoted nor prohibited longer hours. Licensing authorities nevertheless had to have regard to the Secretary of State’s guidance and their own licensing policy.
2. Guidance. The guidance recognised the general desirability of longer hours to facilitate gradual dispersal, but also recognised that the combined behaviour of customers from concentrated premises might create a greater impact. Those policy considerations could pull in different directions and were not resolved by the guidance in favour of the applicant.
3. The guidance expressly excluded or limited particular uses of cumulative impact policies, including revocation of existing licences, unjustified rejection of variations, terminal-hour provisions and quotas. It did not exclude applications seeking only longer hours. Reading such an exclusion into the guidance would add a further limitation not stated by its terms.
4. Material variation and discretion. The words “material variation” were capable of including an extension of hours directly relevant to the cumulative impact policy. Applying a rebuttable presumption did not unlawfully fetter discretion because the applicant remained able to demonstrate that its proposal would not add to the impact, and the sub-committee considered the claimant’s evidence and submissions.
5. The sub-committee was entitled to regard the proposed three-hour nightly extension at a drink-led premises with capacity for about 850 people as directly relevant to the special policy. The evidence concerning the effect on staggered closing times and the attraction of additional late-night drinking made that conclusion reasonably open to it. Since the claimant did not challenge the sub-committee’s assessment that the presumption had not been rebutted, the substantive challenge failed.
6. The alternative-remedy objection did not need to be determined. Had the substantive challenge succeeded, the court would not have refused relief solely because the claimant had withdrawn its appeal to the Magistrates’ Court, since the issue required uniformity in understanding the scope of cumulative impact policies nationally.

The claim was dismissed.

First-instance judicial review proceedings. The claimant had lodged, and subsequently withdrawn, an appeal to the Magistrates’ Court under Schedule 5 to the Licensing Act 2003.