Greene King Brewing And Retailing Ltd & Anor v The Gambling Commission (Rev 1)

Under the Gambling Act 2005, the Gambling Commission’s duty to have regard to the licensing objectives when deciding an operating-licence application is freestanding from its duty to assess the applicant’s suitability. The Commission may assess the proposed operating model, including the premises and environment in which non-remote gambling will occur, and refuse an operating licence if the model is not reasonably consistent with the licensing objectives. The separate premises-licensing regime does not create procedural exclusivity or prevent overlapping consideration. Section 84 limits conditions attached to a granted operating licence; it does not remove the Commission’s power to decide whether to grant one. A novel operating model may be assessed on its merits without prior consultation on a general policy.

Greene King applied under Part 5 of the Gambling Act 2005 for operating licences to offer full commercial bingo and higher-level gaming machines in up to eight pubs. The Commission’s Panel accepted Greene King’s suitability and competence but refused the applications because the proposed operating model might jeopardise the licensing objectives. The First-tier Tribunal allowed Greene King’s appeal. The Upper Tribunal allowed the Commission’s appeal and remitted the matter for redetermination, in a decision cited as [2016] UKUT 50 (AAC). The central issue before the Court of Appeal was whether the Commission’s role was confined to applicant suitability, leaving premises and operating environment exclusively to local licensing authorities.

1. The appeal was dismissed. Hickinbottom LJ gave the judgment, with Simon LJ and Arden LJ agreeing.
2. Section 70(1)(a) of the Gambling Act 2005 imposes a freestanding requirement to have regard to the licensing objectives. It is distinct from section 70(1)(b), which requires the Commission to form and have regard to an opinion of the applicant’s suitability. The Commission was therefore entitled to assess Greene King’s suitability and then separately assess whether its proposed operating model was consistent with the licensing objectives.
3. The Commission has a wide, though limited, discretion as national gambling regulator. For non-remote gambling, the premises form part of the operating environment. Premises may therefore be relevant both to an operating-licence application and to a later premises-licence application. The functions of the Commission and local licensing authorities are discrete but may overlap. The authority required to decide first may take account of material factors relevant to its own statutory function, even if its decision makes the later decision unnecessary.
4. Section 84(1) concerns conditions attached to an operating licence after it has been granted. Its prohibition on conditions controlling the place where licensed activities are carried on did not prevent the Commission from considering the proposed premises when deciding whether to grant a licence. Section 72 illustrated that, where Parliament intended to exclude a matter from consideration, it did so expressly.
5. Refusing the operating licences to protect the licensing objectives was not an improper circumvention of the premises-licensing regime. Preventing a premises-licence application was a consequence of the refusal, not its purpose. The Commission was also not required to devise or consult upon a general policy before determining a novel operating model. It had to consider the application on its merits. The First-tier Tribunal remained responsible for determining the merits on remittal, and the Court expressed no final view on them.

• Court of Appeal (Civil Division): dismissed Greene King’s appeal from the Upper Tribunal: [2017] EWCA Civ 372.
• Upper Tribunal (Administrative Appeals Chamber): allowed the Gambling Commission’s appeal from the First-tier Tribunal and remitted the matter for redetermination: [2016] UKUT 50 (AAC).
• First-tier Tribunal (General Regulatory Chamber): allowed Greene King’s appeal against the Commission’s refusal, quashed the decision and directed that the applications be granted.
• Gambling Commission Regulatory Panel: accepted Greene King’s suitability and competence but refused the operating-licence applications because the proposed operating model was not reasonably consistent with the licensing objectives.