On 8 December 2014, the First-Tier Tribunal gave judgment on Greene King’s appeal against the Gambling Commission’s refusal to grant it bingo operating licences. Judge NJ Warren allowed the appeal and remitted the applications to the Gambling Commission (“the Commission”) with a direction that the applications be allowed.
The Commission had refused the applications on grounds including that the Gambling Act 2005 (“the Act”) established an “escalating regulatory regime” in which an operator of premises must “decide what the primary purpose of their premises was; whether they were operating a pub or bingo premises”. In the Tribunal, the Commission argued that the Act reflected Parliament’s intention to limit “ambient gambling” and that it was entitled, as the gambling regulator, to have regard to the precedential effects of its decisions and respond to new developments in the industry. It argued that the Act did not foresee the provision of commercial gambling in pubs and that it fell to it to decide, as a matter of policy, whether or not such gambling should be permitted.
The Tribunal noted that the grant of an operating licence would not permit Greene King to provide full commercial bingo but would allow it to apply for premises licences. It is the grant of a premises licence that would free Greene King from the restrictions in sections 279 of the Act. The Tribunal accepted Greene King’s argument that the Commission had refused the applications in order to prevent it applying for premises licences, which was illegitimate because (a) the Act grants the power to decide premises licences to licensing authorities, rather than the Commission and (b) section 84(1) of the Act expressly prohibits the Commission from making it a condition of an operating licence that the operator not provide the licensed activities “at a specified place or class of place”, emphasising the division of powers between the Commission and licensing authorities.
The Tribunal agreed with Greene King that once the Commission accepted that it was suitable and competent to offer the proposed gambling activities in a busy pub environment as it did (applying the test in section 70 of the Act), it could not lawfully refuse the applications for operating licences because of its concerns as to whether Greene King should be granted premises licences. The Tribunal made clear that, assuming that Greene King makes such applications, the Commission cannot lawfully use section 159(3) of the Act to give itself “an effective right of veto” and so “usurp the role of decision maker”; the Commission’s role is limited to providing guidance, making submissions and, if necessary, appealing the decision of the licensing authority.
The Tribunal’s judgment (here) is notable for its rejection of the policy arguments put forward by the Commission in favour of a detailed analysis of the provisions of the Act.
Greene King was represented by Susanna Fitzgerald QC and Owain Draper, instructed by Fraser Brown.