Part 12: Rights of appeal and judicial review

Back To TopIntroduction

12.1 This part deals with appeals relating to premises licensing and other decisions by licensing authorities. Licensing authority decisions may also be subject to judicial review.

Back To TopGiving reasons for decisions

12.2 It is a requirement of the Act that a licensing authority gives reasons for a rejection of an application (for example, Schedule 8 of The Gambling Act 2005 (Premises Licences and Provisional Statements) Regulations 2007 prescribes the form of notice that must be given when an application is rejected, which includes the reasons for rejection) but it is good practice for reasons to be given in relation to all decisions.

12.3 A failure to give reasons may result in an appeal of the decision or the suggestion that the licensing authority did not have regard to all the relevant information when making its decision, in line with its obligation under s.153 of the Act. It is particularly important that reasons should reflect the extent to which the decision has been made with regard to the licensing authority’s statement of policy and this guidance. Reasons for decisions should be made available to all of the parties of any process.

Premises licences

12.4 Details relating to appeals against decisions by a licensing authority are set out in s.206-209of the Act. These relate to decisions made under Part 8 of the Act, namely:

• applications for a premises licence
• applications to vary or transfer a premises licence
• applications for provisional statements
• reviews of premises licences, either at the licensing authority’s instigation or following an application.

Who can appeal

12.5 The table below identifies who can appeal different types of premises licence decisions.

Type of decision	Section of Act	Who may appeal
Decision to reject an application for a premises licence or to vary a premises licence, or an application for a provisional statement	s.165, s.187 and s.188	The applicant
Decision to grant an application for a premises licence or to vary a premises licence, or an application for a provisional statement	s.164, s.187 and s.188	The applicant* Any person who made representations on the application
Decision to take action or to take no action following a review	s.202	The applicant Any person who made representations on the application The person, if any, who applied for the review The Commission
A decision to take action or make a determination in relation to a transfer application	s.188(4) or (5)	The licensee The applicant for transfer

* The applicant may appeal, even though the application was granted, for example, because they consider that conditions attached to the licence are too onerous.

Who to appeal to

12.6 An appeal against a decision of a licensing authority in England and Wales has to be made to the Magistrates’ Court for the local justice area in which the premises concerned are situated. In Scotland, the appeal is made to the local Sheriff court in the Sheriffdom in which the premises are situated.

12.7 There is a further right of appeal from the Magistrates’ Court to the High Court in England and Wales and from the Sheriff to the Court of Session in Scotland.

How to appeal

12.8 To begin an appeal, the appellant must give notice of their appeal within 21 days of their having received notice of the relevant decision. During that period, and until any appeal that has been brought has been finally determined, a determination or other action by the licensing authority will not have effect unless the licensing authority so directs.

12.9 If the licence holder or the person who made the application appeals, the licensing authority will be the respondent. If the appeal is made by someone else, then the licence holder/applicant will be a respondent to the appeal along with the licensing authority.

Determination and outcome of appeals

12.10 In considering an appeal, the Magistrates’ Court or Sheriff may review the merits of the decision on the facts and consider points of law, in conjunction with the evidence. In making their decision they will have regard to the licensing authority’s statement of policy, this guidance and relevant codes of practice, Licence conditions and codes of practice (LCCP) issued by the Commission and the licensing objectives.

12.11 In deciding the appeal, they may:

• dismiss the appeal
• substitute the decision with any other decision that could have been made by the licensing authority
• remit the case back to the licensing authority to deal with the appeal in accordance with the direction of the Court/Sheriff.

12.12 The Court or Sheriff may also make such order for costs, but will consider guidance and legislation about the awarding of costs against a public body.

Implementing the appeal decision

12.13 As soon as the appeal decision has been notified to all parties, licensing authorities should not delay its implementation. Standing orders should, therefore, be put in place that necessary action is taken immediately on receipt of the decision, unless ordered by the Court/Sheriff or a higher court to suspend such action, for example as a result of a judicial review.

Back To TopPermits

12.14 The process for appealing a decision in relation to a permit is set out in the relevant Schedules of the Act, as detailed below. In each case, the appeal should be made to the local Magistrates’ court in England and Wales or to the Sheriff court in Scotland, and must be made within 21 days of receipt of notice of the decision.

12.15 In considering the appeal, the court or Sheriff will take into account whether the licensing authority had regard to its statement of policy, this guidance and codes of practice published by the Commission, and the licensing objectives.

Schedule 10 – family entertainment centre (FEC) gaming machine permits

12.16 Schedule 10, paragraph 22 sets out the processes for appeals for FEC gaming machine permits. The applicant or holder of a permit may appeal if the licensing authority has:

• rejected an application for a permit or renewal of a permit
• given notice that the premises are not being used as an FEC
• stated that the holder is incapable of carrying out an FEC business by reason of mental or physical incapacity.

12.17 The Magistrates’ court or Sheriff may dismiss the appeal, substitute any decision that the licensing authority could have made or restore a permit. They may also remit the matter back to the licensing authority to decide in accordance with any determination they make, in which case the same rights of appeal will apply, as for the original decision. The court or Sheriff may also make an order for costs.

Schedule 11 (Parts 4 and 5) – small society lotteries

12.18 Schedule 11, paragraph 51 sets out the processes for appeals for small society lotteries. In England and Wales, the Act states that local authorities register societies to run lotteries rather than licensing authorities, and in Scotland such decisions are made by the licensing board. A society may appeal if their application for registration is refused or their registered status is revoked.

12.19 In considering an appeal, the Magistrates’ court or Sheriff may uphold the licensing authority’s decision, reverse it, or make any other order. If remitting the decision back to the authority, the same rights of appeal will apply as for the original decision.

Schedule 12 – club gaming permits and club machine permits

12.20 Schedule 12, paragraph 25 sets out the process of appeal for club gaming permits and club machine permits. If the authority rejects an application for the issue or renewal of a permit, the applicant may appeal. If the authority cancels a permit, the holder of the permit may appeal. A person who made an objection to the grant of the permit, or made representations in relation to the cancellation of a permit, may appeal against a grant or refusal to cancel respectively.

12.21 The authority may only refuse an application on one or more of the following grounds:

• a) (i) for a club gaming permit: the applicant is not a members’ club or miners’ welfare institute, (ii) for a club machine permit: the applicant is not a members’ club, miners’ welfare institute or commercial club
• b) premises are used by children or young persons
• c) an offence or a breach of a condition of the permit has been committed by an applicant
• d) a permit held by an applicant has been cancelled during the last ten years
• e) an objection has been made by the Commission or local chief officer of police.

12.22 The authority may only cancel a permit on one of the following grounds:

• a) the premises are used wholly or mainly by children or young persons
• b) an offence or breach of condition of the permit has been committed in the course of gaming activities.

12.23 In considering an appeal, the court will determine whether any of these statutory grounds applied in the circumstances. In addition, the court will take into account any objections made by the Commission or local police chief and the considerations at paragraph 12.15.

12.24 In England and Wales only, there is a fast-track application procedure (set out in Schedule 12(10)) for holders of a club premises certificate that is issued under s.72 of the Licensing Act 2003. In these circumstances, the Commission and police do not have to be consulted and therefore the authority will not receive any objections. The permit must be granted unless:

• the applicant is established or conducted wholly or mainly for the purposes of the provision of facilities for gaming, other than gaming of a prescribed kind
• the applicant is established or conducted wholly or mainly for the purposes of the provision of facilities for gaming of a prescribed kind and also provides facilities for gaming of another kind
• a club gaming permit or club machine permit issued to the applicant has been cancelled during the period of ten years ending with the date of the application.

There is no equivalent provision for clubs in Scotland under the Licensing (Scotland) Act 2005.

12.25 The Commission is aware that this fast-track procedure has been used inappropriately by applicants to avoid full scrutiny of applications and licensing authorities should pay particular attention to such applications.

12.26 On an appeal, the court or Sheriff may dismiss the appeal, substitute any decision that the licensing authority could have made, restore a permit, or remit it back to the authority to decide in accordance with a determination of the court, where the same rights of appeal will apply as for the original decision. They can also make an order for costs.

Schedule 13 – licensed premises gaming machine permits

12.27 Schedule 13, paragraph 21 sets out the appeal process for licensed premises gaming machine permits, which only apply to England and Wales. The Scottish Government has set regulations (SSI no. 505: The Licensed Premises Gaming Machine Permits (Scotland) Regulations 2007) on permits for alcohol-licensed premises in Scotland. An applicant for a permit may appeal if the application is rejected. The holder of a permit may appeal if he is permitted fewer or a different category of machines than applied for, or if the licensing authority gives a notice which cancels or varies the entitlements of the permit.

12.28 On an appeal, the Magistrates’ court can dismiss the appeal, substitute any decision that the licensing authority could have made, restore a permit, or remit it back to the authority to decide in accordance with a decision of the court, where the same rights of appeal will apply as for the original decision. An order for costs can be made.

Schedule 14 – prize gaming permits

12.29 Schedule 14, paragraph 22 sets out the appeal process for prize gaming permits. If the licensing authority rejects an application for the issue or renewal of a permit, the applicant may appeal.

12.30 On an appeal, the Magistrates’ court or Sheriff may dismiss the appeal, substitute any decision that the licensing authority could have made, or remit it back to the authority to decide in accordance with a determination of the court, where the same rights of appeal will apply as for the original decision. They can also make an order for costs.

Back To TopTemporary use notices

12.31 Appeals in relation to temporary use notices are dealt with in s.226 of the Act, which gives both the applicant and any person entitled to receive a copy of the notice (that is the Commission, local chief of police and HM Revenue & Customs), the right of appeal to the Magistrates’ court or Sheriff. Appeals must be made within 21 days of receiving notice of the licensing authority’s decision. If the appeal is against the decision of the authority not to issue a counter-notice, then the person giving notice must be joined with the licensing authority as a respondent in the case.

12.32 The Magistrates’ court or Sheriff may dismiss the appeal, direct the authority to take specified action, remit it back to the authority to decide in accordance with a decision of the court, with the same rights of appeal as applied to the original decision, and may make an order for costs.

12.33 There is no stay of proceedings in relation to temporary use notices, as there is in relation to applications under Part 8 of the Act. However, the Commission would expect an appeal to be heard before the temporary use notice would otherwise take effect.

Back To TopJudicial review

12.34 Any party to a decision may apply for judicial review if they believe that the decision taken by the licensing authority is:

• illegal – that is beyond the powers available to the licensing authority
• subject to procedural impropriety or unfairness – which is a failure in the process of reaching the decision, such as not observing the rules of natural justice
• irrational – where a decision is so unreasonable that no sensible person could have reached it (in effect, ‘perverse’ or ‘Wednesbury’ unreasonable).

12.35 For an application to succeed, the application must show that:

• the applicant has sufficient standing to make that claim
• the actions of the reviewed licensing authority give grounds for review.

However the remedy is a discretionary one and the Court may decline judicial review if, for example, it considers that the applicant has an alternative remedy which is more appropriate to pursue, such as a right of appeal, or has a private law claim against the defendant.

12.36 The applicant can ask the Court to grant a number of orders. A mandatory order compels the reviewed body to do something; a prohibitory order compels it to refrain from doing something; a ‘declaration’ sets out the court’s view on the legality of a particular course of action; and a quashing order nullifies a decision and remits it for reconsideration. In addition, the applicant can seek an injunction (interdict in Scotland) which is, in practice, similar to a mandatory or a prohibitory order.