Revision to Guidance to Licensing
Authorities (provisional statements)
Responses document, August 2008
1
Introduction
1.1
In April 2008, The Gambling Commission (“the Commission”) issued a consultation paper
proposing revisions to the second edition of the Guidance to Licensing Authorities (“the
Guidance”). The consultation ended on 30 May 2008. This responses document explains
the key issues considered during that consultation and the changes made to the Guidance
as a result.
1.2
We received eight responses to the consultation, and we would like to thank those who
took part. A list of respondents can be seen at Annex A of this document, and copies of
the responses that were not marked as confidential will be available shortly on the
Commission’s website, www.gamblingcommission.gov.uk.
2
The issue
2.1
In the recent Judicial Review claim brought by Betting Shop Services Limited against
Southend-on-Sea Borough Council (The Queen (on the application of) Betting Shop
Services Limited –v- Southend-on-Sea Borough Council [2008] EWHC 105 (Admin)), the
Court made an order quashing the licensing authority’s original decision and remitted the
case to the licensing authority for reconsideration in accordance with the law, including the
Judgment of the Court in that case.
2.2
It was clear from the Judgment that paragraphs 7.55, 7.56 and 7.57 of the Commission’s
current Guidance were based on a misunderstanding of the legal position. The Court
declared that a premises licence may lawfully be granted in respect of premises that are
not ready to be used for gambling (for example, in respect of premises which are about to
be constructed or in the course of construction or alteration), provided that the applicant
has a right to occupy the premises and holds an operating licence authorising him to carry
on the activity in respect of which the premises licence is sought. We considered that we
needed to revise the Guidance to reflect the Court Judgment, and give guidance in
situations where an application for a premises licence is made in respect of premises which
are not yet ready to be used for gambling.
Victoria Square House
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3
Sections of the Guidance for revision
3.1
We reviewed all sections of the Guidance which look at the definition of premises, which
refer to provisional statements and which refer to the process for applying for either a
premises licence or a provisional statement. The Commission reviewed paragraphs 7.11,
7.12, 7.55 to 7.58, as well as 11.1 to 11.10, of its Guidance in the light of the judgment.
We consider that part 11 of the Guidance requires no further review because this part looks
at how licensing authorities consider an application for a provisional statement, but is silent
on whether an application for a provisional statement is appropriate.
We felt that paragraphs 7.11 and 7.12 accurately reflect the definition of a ‘premises’ as set
out in the Gambling Act 2005 (“the Act”) and we stated that we do not propose to make any
changes to them at this stage.
3.2
None of the respondents disagreed with our reasoning or suggested that further sections
needed review.
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Comments on the proposed revisions
4.1
Unlike other consultations we did not ask specific questions in the consultation paper. This
is because we are reviewing an existing document and suggesting changes for a limited
purpose i.e. to reflect the judgment in the Southend case.
4.2
The remainder of this section sets out the text on which we consulted, a summary of
respondents’ opinions, the Commission’s response and the final text which was imported
into the Guidance to Licensing Authorities on 22 August 2008.
Part 7: Premises licences.
Relationship between planning permission, building regulations and
granting of a premises licence [existing heading]
Text proposed in the consultation document
7.54
The licensing authority should not take into account irrelevant matters, ie those not related
to gambling and the licensing objectives. One example of an irrelevant matter would be the
likelihood of the applicant obtaining planning permission or building regulations approval for
their proposal.
Respondents’ comments and Commission views
One trade association noted that the judicial review works both ways ie licensing authorities
have a duty to take into consideration all relevant considerations and a duty not to take into
consideration all irrelevant considerations. They suggest that the meaning of irrelevant
considerations might not just be those which are not related to gambling or the licensing
objectives but will depend upon the individual facts. We agree with this point and have
amended the paragraph accordingly.
Final text
7.54
In determining applications the licensing authority has a duty to take into consideration all
relevant matters and not to take into consideration any irrelevant matters, ie those not
related to gambling and the licensing objectives. One example of an irrelevant matter would
be the likelihood of the applicant obtaining planning permission or building regulations
approval for their proposal. [revised paragraph which is paragraph 7.54 in the current
document]
2
Text proposed in the consultation document
7.55
Licensing authorities should bear in mind that a premises licence, once it comes into effect,
authorises premises to be used for gambling. Accordingly, a licence to use premises for
gambling should only be issued in relation to premises that the licensing authority can be
satisfied are going to be ready to be used for gambling in the reasonably near future,
consistent with the scale of building or alterations required before the premises are bought
into use. This is why the Act allows a potential operator to apply for a provisional statement
if construction of premises is not yet complete, or they need alteration, or he does not yet
have a right to occupy them. See Part 11 of this guidance for more information about
provisional statements.
Respondents’ comments and Commission views
One trade association asked that the Commission offer a definition of ‘reasonably near
future’. We do not think this is necessary as the length of time for the preparation of a
building for gambling purposes will depend on the size and scale of each premises under
consideration and we consider that this is a matter for the licensing authority and the
operator. The reference is to “issue” not “grant” and, as they point out, the possibility of
issue with a delayed effective date where appropriate is dealt with at paragraph 7.57. This
paragraph therefore remains unchanged.
Final text
7.55
Licensing authorities should bear in mind that a premises licence, once it comes into effect,
authorises premises to be used for gambling. Accordingly, a licence to use premises for
gambling should only be issued in relation to premises that the licensing authority can be
satisfied are going to be ready to be used for gambling in the reasonably near future,
consistent with the scale of building or alterations required before the premises are bought
into use. This is why the Act allows a potential operator to apply for a provisional statement
if construction of premises is not yet complete, or they need alteration, or he does not yet
have a right to occupy them. See Part 11 of this guidance for more information about
provisional statements. [revised paragraph which is paragraph 7.55 in the current
document]
Text proposed in the consultation document
7.56
As the Court has held in a recent case, operators can apply for a premises licence in
respect of premises which have still to be constructed or altered, and licensing authorities
are required to determine any such applications as may be made on their merits. Such
cases should be considered as a two stage process; first, local authorities must decide
whether, as a matter of substance after applying the principles in section 153 of the Act, the
application ought to be successful; secondly, in deciding whether or not to grant such an
application a licensing authority will need to consider if appropriate conditions can be put in
place to cater for the situation that the premises are not yet in the state in which they ought
to be before gambling takes place. An authority is entitled to decide that it is appropriate to
grant a licence subject to conditions, but it is not obliged to grant such a licence.
Respondents’ comments and Commission views
One trade association suggested that this paragraph is confusing because it suggests that
an application which ought to succeed could nonetheless be refused. We have revised the
second section for greater clarity. One industry operator asked that the last sentence be
deleted referring to s164 of the Act, and the duty to issue a licence". A trade association
also suggested deletion of the last sentence suggesting that it invited uncertainty.
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Final text
7.56
As the Court has held in a recent case1, operators can apply for a premises licence in
respect of premises which have still to be constructed or altered, and licensing authorities
are required to determine any such applications as may be made on their merits. Such
cases should be considered as a two stage process; first, local authorities must decide
whether, as a matter of substance after applying the principles in section 153 of the Act, the
premises ought to be permitted to be used for gambling; secondly, in deciding whether or
not to grant the application a licensing authority will need to consider if appropriate
conditions can be put in place to cater for the situation that the premises are not yet in the
state in which they ought to be before gambling takes place. An authority is entitled to
decide that it is appropriate to grant a licence subject to conditions, but it is not obliged to
grant such a licence. [new paragraph]
Text proposed in the consultation document
7.57
For example, where the operator has still to undertake final fitting out of the premises but
can give a reasonably accurate statement as to when the necessary works will be
completed, it may be sufficient simply to issue the licence with a future effective date as is
possible under the Regulations. The application form allows the applicant to suggest a
commencement date and the notice of grant allows the licensing authority to insert a date
when the premises licence comes into effect. In other cases, it may be appropriate to issue
the licence subject to a condition that trading in reliance on it shall not commence until the
premises have been completed in all respects in accordance with the scale plans that
accompanied the licence application. See Part 9 of this guidance for more information
about licence conditions. If the original plans to the premises are changed in any material
respect, during the fitting out of the premises, then the applicant will be in breach of the
licence. If the applicant wishes to change the proposed plans then, in order to avoid
breaching the licence, it will be necessary for the applicant to either make a fresh
application under section 159 or seek a variation under section 187 of the Act. If there are
substantive changes to the plans then we consider it would be more appropriate for the
applicant to make a fresh application under section 159 to preserve the rights of interested
parties and responsible authorities to make representations in respect of the application.
Respondents’ comments and Commission views
One trade association asked for a definition of ‘material’, we do not consider that this is
necessary as it will depend on the size and scale of the premises. Another trade
association stated that the final sentence of this paragraph also introduces a further
condition not present in the Act. They said that it appeared to be the Commission’s own
opinion rather than anything driven by the Act. We disagree with this view and note that in
a number of areas licensing authorities take a practical approach in respect of licensing.
One operator rightly said, there must be room for sensible negotiation over detail of the
plans between application and grant. The need for any such change may depend on how
detailed the plans were to start with. We agree there is merit in adding to the Guidance
something about fairness requiring pre grant changes to be drawn to the attention of those
who had notice of the application. The operator also makes the point that one could not, on
a variation under s187, change the plans to such an extent that the premises in effect
become different premises. We have changed the paragraph accordingly. Due to the
length of the paragraph we have split it in two for clarity.
1
The Queen (on the application of) Betting Shop Services Limited –v- Southend-on-Sea Borough Council [2008] EWHC
105 (Admin)
4
Final text
7.57
For example, where the operator has still to undertake final fitting out of the premises but
can give a reasonably accurate statement as to when the necessary works will be
completed, it may be sufficient simply to issue the licence with a future effective date as is
possible under the Regulations2. The application form allows the applicant to suggest a
commencement date and the notice of grant allows the licensing authority to insert a date
when the premises licence comes into effect. In other cases, it may be appropriate to issue
the licence subject to a condition that trading in reliance on it shall not commence until the
premises have been completed in all respects in accordance with the scale plans that
accompanied the licence application. See Part 9 of this guidance for more information
about licence conditions. [new paragraph]
7.58
If the plans as submitted at the time of the application for a premises licence are changed in
any material respect, during the fitting out of the premises after the grant of the licence,
then the applicant will be in breach of the licence. If the applicant wishes to change the
proposed plans after grant then, in order to avoid breaching the licence, it will be necessary
for the applicant to either make a fresh application under section 159 or seek an
amendment to a detail of the licence under section 187 of the Act. If there are substantive
changes to the plans then this may render the premises different premises to those for
which the licence was granted.
In such a case variation of the licence under section 187 is not possible. But in any event,
and whilst this is a matter of judgement for the licensing authority, we consider it would be
more appropriate in the case of any material post grant change, for the applicant to make a
fresh application under section 159 to preserve the rights of interested parties and
responsible authorities to make representations in respect of the application. [new
paragraph]
Text proposed in the consultation document
7.58
The local authority will need to be satisfied in any individual case that the completed works
comply with the original, or changed, plan attached to the premises licence. Depending
upon circumstances, we consider that this could be achieved either through physical
inspection of the premises or written confirmation from the applicant or surveyor that the
condition has been satisfied.
Respondents’ comments and Commission views
No comments were received on this section so no changes have been made
Final text
7.59
The local authority will need to be satisfied in any individual case that the completed works
comply with the original, or changed, plan attached to the premises licence. Depending
upon circumstances, we consider that this could be achieved either through physical
inspection of the premises or written confirmation from the applicant or surveyor that the
condition has been satisfied. [new paragraph]
Text proposed in the consultation document
7.59
2
Requiring the building to be complete before trading commences would ensure that the
authority could, if considered necessary, inspect it fully, as could other responsible
authorities with inspection rights under part 15 of the Act. Inspection will allow authorities to
check that gambling facilities comply with all necessary legal requirements. For example,
category C and D machines in a licensed family entertainment centre must be situated so
that people under 18 do not have access to the category C machines. The physical location
of the machines will be an important part of this, and inspection will allow the authority to
check that the layout complies with the operator’s proposals and the legal requirements.
SI 2007/459 Premises Licensing and Provisional Statements Regulations
5
7.60
If faced with an application in respect of uncompleted premises which it appears are not
going to be ready to be used for gaming for a considerable period of time, a licensing
authority ought to consider whether a provisional statement application would be more
appropriate. For example, that would be the case if there was significant potential for
circumstances to change before the premises open for business. In such cases, the
provisional statement route would ensure that the limited rights of responsible authorities
and interested parties to make representations about matters arising from such changes of
circumstance are protected. Licensing authorities may choose to discuss with individual
applicants which route was appropriate, to avoid them paying a fee for, say, an application
that the authority did not think was grantable, when it seems likely at an early stage that a
provisional statement might be.
Respondents’ comments and Commission views
One trade association and one operator stated that the Guidance cannot fetter applicants'
right to take whichever course they wish. While this is correct, it follows from the judicial
review judgment that there is no absolute obligation on licensing authorities to grant
licences where premises are incomplete and, for example, they see difficulties in framing
appropriate conditions. Therefore we have made an alteration to the paragraph to reflect
this.
Final text
7.60
Requiring the building to be complete before trading commences would ensure that the
authority could, if considered necessary, inspect it fully, as could other responsible
authorities with inspection rights under part 15 of the Act. Inspection will allow authorities to
check that gambling facilities comply with all necessary legal requirements. For example,
category C and D machines in a licensed family entertainment centre must be situated so
that people under 18 do not have access to the category C machines. The physical
location of higher stake gaming machines in premises to which children have access will be
an important part of this, and inspection will allow the authority to check that the layout
complies with the operator’s proposals and the legal requirements. [new paragraph]
7.61
If faced with an application in respect of uncompleted premises which it appears are not
going to be ready to be used for gaming for a considerable period of time, a licensing
authority ought to consider whether, applying the two stage approach advocated in
paragraph 7.56 above, it should grant a licence or whether the circumstances are more
appropriate to a provisional statement application. For example, the latter would be the
case if there was significant potential for circumstances to change before the premises
open for business. In such cases, the provisional statement route would ensure that the
limited rights of responsible authorities and interested parties to make representations
about matters arising from such changes of circumstance are protected. Licensing
authorities may choose to discuss with individual applicants which route was appropriate, to
avoid them paying a fee for, say, an application that the authority did not think was
grantable, when it seems likely at an early stage that a provisional statement might be.
[new paragraph]
Text proposed in the consultation document
7.61
When dealing with a premises licence application for finished buildings, the licensing
authority should not take into account whether those buildings have or comply with the
necessary planning or buildings consents. Those matters should be dealt with under
relevant planning control and building regulation powers, and must not form part of the
consideration for the premises licence. Section 210 of the 2005 Act prevents licensing
authorities taking into account the likelihood of the proposal by the applicant obtaining
planning or building consent when considering a premises licence application. Equally, the
grant of a gambling premises licence does not prejudice or prevent any action that may be
appropriate under the law relating to planning or building.
6
Respondents’ comments and Commission views
One trade association stated that it would be helpful to include other matters such as health
and safety and fire. We agree with this and have made the changes.
Final Text
7.62
When dealing with a premises licence application for finished buildings, the licensing
authority should not take into account whether those buildings have or comply with the
necessary planning or buildings consents. Nor should fire or health and safety risks be
taken into account. Those matters should be dealt with under relevant planning control,
building and other regulations, and must not form part of the consideration for the premises
licence. Section 210 of the Act prevents licensing authorities taking into account the
likelihood of the proposal by the applicant obtaining planning or building consent when
considering a premises licence application. Equally, the grant of a gambling premises
licence does not prejudice or prevent any action that may be appropriate under the law
relating to planning or building. [revised paragraph which is paragraph 7.58 in the
current document]
[The rest of the document remains unchanged]
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Bringing the changes into effect
8.1
The Guidance has been updated to reflect the changes outlined in this paper. The
Guidance comes into effect immediately and the revised document is available on the
Commission’s website.
Gambling Commission August 2008
The Gambling Commission regulates gambling in the public interest. It does so by keeping crime
out of gambling, by ensuring that gambling is conducted fairly and openly, and by protecting
children and vulnerable people from being harmed or exploited by gambling. The Commission also
provides independent advice to government on gambling in Britain.
For further information or to register your interest in the Commission please visit our website at:
www.gamblingcommission.gov.uk
Copies of this document are available in alternative formats on request.
Gambling Commission
Victoria Square House
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CON08/R6
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Annex A: Non- confidential respondents to the consultation
Association of British Bookmakers (ABB)
Association of Chief Police Officers in Scotland (ACPOS)
Bingo Association
British Amusement and Catering Trades Association (BACTA)
Local Authority Co-ordinators of Regulatory Services (LACORS)
The Noble Organisation
The Rank Group
South Tyneside District Council
8
Trade Association
Regulatory Authority
Trade Association
Trade Association
Regulatory Authority
Industry operator
Industry operator
Local government