The long-awaited ruling of the Supreme Court in the Hemmings case has now been handed down.
The Court has allowed Westminster City Council’s appeal in part, but on the critical question of whether it was lawful to require payment of a larger refundable amount, this has been referred to the Court of Justice in Luxembourg.
The Local Government Miscellaneous Provisions Act 1982 enables Authorities to impose on an Applicant a fee for the grant or renewal of a Licence which covers the running and enforcement costs of the Licensing scheme to be payable either:
- at the time when the Licence is granted or
- on a refundable basis at the time when the application is lodged.
From the Hemmings decision type (a) schemes are clearly permissible as they permit a Licensing Authority to charge a successful applicant with a proportionate part of the cost of administering and enforcing the Licensing regime as a whole.
With regard to type (b) schemes, a reference has been to the Court of Justice as to whether they are consistent with article 13 (2).
Philip Kolvin QC who acted for the Claimants in the case has stated that what has been established is that fees must be determined by a Committee or Officer with delegated authority to do so, but they must be kept under review, that both surpluses and deficits are to be carried forward and that Authorities must ring-fence the fees and may not make a profit from the system.
He has stated that the decision in the High Court and the Court of Appeal established that renewal fees could include monitoring and compliance costs.
The main issue in the Supreme Court was a narrow one of whether an Applicant could be charged the costs of prosecuting those without a Licence. Whilst the High Court and a unanimous Court of Appeal said no, the Supreme Court has said maybe, subject to proportionality, a test upon which it has declined to give any guidance.
He advises that the Hemmings Claimants were lawful operators who were paying £29,000.00 each year for their Licences, £27,000.00 of which was levied to fund the Council’s campaign to hound unlicensed criminals from the Borough.
For further information, please contact our Alcohol & Entertainment Licensing team on 01332 340 211.