Betting Shop Services Ltd, R (on the application of) v Southend-On-Sea Borough Council & Ors

A licensing authority must consider and determine a compliant application for a premises licence under the Gambling Act 2005. The statutory eligibility requirements cannot be enlarged by guidance issued by the Gambling Commission. An applicant with a right to occupy premises may apply for a premises licence even if the premises are being constructed or altered; a provisional statement is an available alternative, not an exclusive route. The authority may grant a licence subject to appropriate conditions addressing the state of the premises before gambling begins, but it remains free to refuse the application on its merits.

The claimant sought judicial review of the Council’s refusal even to consider its application for a betting premises licence. The Council relied on paragraphs 7.55 to 7.57 of the Gambling Commission’s Guidance to Licensing Authorities, which stated that premises should be constructed and complete before a premises licence could be considered. The claimant had a right to occupy the premises, held or had applied for the necessary operating licence, and had complied with the prescribed application requirements. The central issue was whether the Gambling Act 2005 permitted an application for a premises licence concerning premises that were incomplete or undergoing construction or alteration.

1. The Council’s decision of 25 September 2007 was quashed. The application was remitted to the Council to hear and determine according to law.
2. Under sections 159, 162 and 163 of the Gambling Act 2005, where an application for a premises licence complies with the statutory requirements, the licensing authority must consider it and, where applicable, hold a hearing. On considering the application, it must grant or reject it. The Council therefore had no power simply to decline to consider the application because the premises were incomplete.
3. Section 159 prescribes the minimum conditions for an application. It requires, among other matters, a right to occupy the premises, the relevant operating licence or a pending application for one, and compliance with prescribed form, information, documents and fee requirements. The Act does not impose a further requirement that the premises already be constructed or complete.
4. Sections 204 and 205 provide a separate provisional-statement procedure for premises expected to be constructed, altered or occupied. That procedure gives an applicant protection against later representations, but it does not prevent a person satisfying section 159 from applying for a premises licence, whether instead of or as well as seeking a provisional statement.
5. The Commission’s guidance could not alter the statutory minimum requirements. Although a licensing authority must have regard to guidance under section 25 and must aim to permit gambling in accordance with relevant guidance under section 153, the interpretation of the Act remains a matter for the court. The Council was therefore obliged to consider the application notwithstanding paragraphs 7.55 to 7.57 of the guidance.
6. The Council could grant a licence subject to appropriate conditions under sections 167 to 169 to address the condition of the premises before gambling began. It was not obliged to grant a licence, with or without conditions; the merits and suitability of any conditions remained matters for the Council on remittal.