Do the Merits matter Any More?

“Application to be considered on its merits” is an expression so often used in licensing circles that it has become something of a cliché.

What does it actually mean and does it still have the same significance now as it used to?

The phrase is not in the Licensing Act but does appear in the Guidance and in the majority of local authority licensing policies which I have read.  It means, I suppose, that each application must be considered according to its own special circumstances and that, to put it crudely it should not be refused because an almost identical application for the Dog and Duck 100 metres away has recently been refused also; the facts of one case differ from another.

However, I am not sure of the continuing relevance of the “merits” of an application in certain areas.  Recently, particularly in areas of Central London licensing policies have become more prescriptive in terms of more areas having cumulative impact, preferred limited trading hours for different locations and preferred “model” conditions which will apply to most applications.  If my application is in a cumulative impact area then there is a presumption of refusal which the Applicant must rebut.  A licensing committee may very well like the operator but if it decides to make a “policy” decision then any “merits” of the good operator over and above the average will be trumped by policy considerations.  In other words in a straight fight between the good operators and the policy the policy will win.

Finally, “blanket conditions”; it has for some time been a myth that there are no such things as “blanket” conditions and the Guidance speaks against this.  The reality in many areas is that they have been around for several years and that an application will now attract as a minimum, CCTV, Incident Log, Challenge 25 (now more prevalent than Challenge 21) and a number of others.  It is clear that these representations made by the Responsible Authorities have nothing to do with the merits of the application and indeed are suggested even without a site visit or a proper appreciation of what the application is.  It is in my experience increasingly difficult to challenge the imposition of these conditions before Licensing Committees.

Licensing is, I fear, becoming in some areas more of a policy driven process whereby local authorities realise that the policy is specifically designed as a powerful tool for them to influence the number, style and type of licensed premises in each area in their boroughs.  They may pay lip service to the idea of the “merits” argument because in reality political and policy led considerations are becoming of greater importance in making licensing decisions than the merits of each individual case.