Agenda and minutes

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It was confirmed that all items were Part I and would be considered in public.

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At the commencement of the hearing, the Chairman requested that the Legal Advisor provide an introduction to section 176 of the Licensing Act 2003. The Legal Advisor provided the requested overview as follows:

Statement by the Legal Advisor:

Section 176 of the Licensing Act 2003 prohibited the sale or supply of alcohol from premises used primarily as a garage, with premises defined as 'used as a garage' if they were selling petrol or diesel.  Although the applicant had confirmed that the premises would sell petrol and diesel, the premises would include a convenience store. 

The word 'primarily' had not been defined in the Act.  However, the concept of a premises being primarily used as a garage had been before the Courts.  Arguments had concerned whether primary use was an enforcement, rather than an eligibility, issue when deciding upon an application for a premises licence.  It had been made clear that the Sub-Committee had representations before it that questioned the sale of alcohol from what might become a garage for the purposes of section 176. 

The premises were currently under construction and therefore the applicant was unable to advise whether the garage or the convenience store would be the primary use, although the applicant believed that it would be the convenience store.  There were two main methods of establishing primary use: number of transactions (i.e., how many sales for fuel and how many sales for goods within the convenience store) or the transactional value of these transactions.  There had been debate over which of the two methods was most appropriate and this matter had been before the courts:

·         Green v Justices for Inner London Area (1993): If the transactional values of transactions were used, then duty and VAT must be stripped out of all sales.

·         Liverpool Crown Court ex parte Goodwin (1998): The question had to be 'what was the intensity of use by customers?'

·         R (Murco Petroleum Ltd) v Bristol City Council (2010): It was a matter for each Licensing Authority to decide whether it would decide primary use on the basis of numbers of transactions or evidence of turnover.  The case further confirmed that, where there was insufficient information about primary use, the Authority may defer the matter to another date until the question was resolved to its satisfaction.

The approach generally adopted by the courts since Murco 2010 seemed to have been a focus on the numbers and whether the premises were used more intensely by customers for sales of fuel than for the sale of other products such as food. 

The Legal Advisor noted that Members had the following options:

1.    Refuse to grant the premises licence;

2.    Defer the hearing to another date until the applicant was able to provide information that confirmed primary use;

3.    Insert a condition to the premise licence that related to section 176; or

4.    Decide the primary use was an enforcement rather than an eligibility issue and grant the premises licence without a condition relating to section 176.

Members were  ...  view the full minutes text for item 5.