Gurgur v London Borough of Enfield

On a rehearing of an appeal from a licensing decision, the magistrates’ court considers the application afresh on the totality of the evidence and decides whether the licensing authority’s decision was wrong. The court is not confined to the policy or guidance in force when the licensing authority made its decision. It may consider the most up-to-date policy and guidance available at the rehearing, provided the parties can address the changes. An appeal may be academic where the licensing decision was independently determined by factual findings that are not challenged. In licensing appeals, the applicant bears the burden of showing that the licensing authority should not have exercised its discretion as it did.

The appellant appealed by way of case stated against the dismissal by the magistrates’ court of his appeal from the respondent licensing authority’s refusal to extend the hours for off-sales of alcohol at a premises in Enfield. The magistrates’ court heard the matter de novo and relied on guidance issued in April 2012 and a cumulative impact policy adopted after the licensing authority’s decision. It found that extending the hours would increase existing noise, disturbance and anti-social behaviour and undermine the licensing objectives. The central issues were whether the appeal was academic in light of those factual findings and, if not, which guidance and policy applied on the rehearing.

1. Disposition. The appeal was dismissed. The challenge to the applicable guidance and cumulative impact policy was academic because the Deputy District Judge’s unchallenged factual findings independently established that extending the licensing hours would harm the licensing objectives. The concerns could not adequately be addressed by conditions.
2. The appeal before the magistrates’ court was a rehearing de novo. It had to decide the matter on the totality of the evidence and determine whether the licensing sub-committee’s decision was wrong, even if the decision had not been wrong when originally made. The burden lay on the appellant to show that the sub-committee should not have exercised its discretion as it did.
3. The court briefly considered the alternative issue. A rehearing should not be artificially confined to the policy and guidance in force when the licensing sub-committee decided the application. The magistrates’ court should consider the policy and guidance current when the application was before it. Parties could address changes through evidence and submissions, just as factual evidence could be updated on appeal.
4. This approach was consistent with R (on the application of Hope and Glory Public House) v City of Westminster Magistrates Court [2011] (EWCA) Civ 31 and R (on the application of Khan) v Coventry Magistrates Court [2011] EWCA Civ 751. The court would have answered both stated questions affirmatively: the April 2012 Secretary of State’s guidance and Enfield’s 1 April 2012 cumulative impact policy were applicable.
5. The application was dismissed. Submissions on the final order and costs were invited.

• High Court (Administrative Court): The appeal by way of case stated from the Enfield magistrates’ court was dismissed. The court held that the challenge was academic in light of the unchallenged factual findings and stated that, if necessary, both questions concerning the applicable guidance and policy would have been answered affirmatively.
• Enfield magistrates’ court: The court dismissed the appellant’s appeal from the licensing authority’s refusal of the variation application after conducting a rehearing de novo.
• London Borough of Enfield Licensing Authority: The authority refused the application to extend the hours for the supply of alcohol for consumption off the premises.