The First-Tier Tribunal has allowed the appeal of Greene King against the decision of the Gambling Commission to refuse applications for bingo operating licences.
Following a two day hearing in October the decision of the Judge was published on 2nd December 2014.
In 2012 applications for bingo operating licences were made on behalf of two companies within the Greene King group with the intention of developing bingo in pubs which they own.
There followed a long process during which Commission officials tested the effectiveness of the Greene King proposals in detail. This culminated in a decision by a regulatory panel of the Commission refusing the applications on 12th March 2014.
Greene King appealed to the Tribunal against the refusal.
Commission officials were concerned about the “new and potentially contentious premises environment”. They identified other issues which justified a referral to the regulatory panel.
By the time of the substantive hearing the officials’ concerns had been addressed to the extent that the panel was satisfied as to the suitability and competence of Greene King to offer the proposed licensed gambling activities.
The panel accepted that the Gambling Act 2005 does not exclude pubs from the operating and premises licence regime.
Notwithstanding Greene King’s suitability and competence, the panel were concerned about the development of commercial bingo (and its accompanying gaming machines) in pubs and whether this had a “potential to impact adversely on the licensing objectives”. The panel stated that one of its core principles was to adopt “a precautionary approach”. They concluded that the provision of high stake bingo and higher category gaming machines in a pub environment had “the potential to jeopardise the second and third objectives” and refused the application.
The Tribunal decided that the panel’s decision must be set aside because of a fundamental error.
Having accepted that Greene King was suitable and competent to offer the proposed gambling activities in a busy pub environment the Tribunal decided that the applications were refused on the basis of the Commission’s concern about premises and, in doing so, the Commission were trespassing on territory which the Gambling Act assigns to licensing authorities.
The Tribunal accepted that the Commission’s purpose in refusing the applications, and the only justification for doing so, was to prevent Greene King from applying for a premises licence.
The effect of the arguments put forward on behalf of the Commission would be to impose a condition on the operating licence to the effect that the activity should not be carried out in pubs or in buildings whose primary purpose is that of a pub. Such a view would be contrary to Section 84(1) of the Gambling Act which prohibits a condition being attached to an operating licence which prevents the licensed activities from being carried on at a specified place or class of place.
The Tribunal sees Section 84(1) as an example of the structure for decision making created by Parliament in the Gambling Act which provides that questions about premises should be determined locally, having regard to national guidance and local criteria.
The Tribunal decided that the Commission could not use the provisions of the Gambling Act to give them an effective right of veto on an application for a premises licence. The Commission’s role in respect of premises licences is to give guidance, make representations and where necessary, appeal against the licensing authority’s decision – but not to usurp the role of decision maker.
Greene King was represented by Susanna Fitzgerald QC and Owain Draper of One Essex Court who were instructed by David Lucas of Fraser Brown Solicitors.