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Garage Forecourt argues discrimination under EU Law – and Wins

Shell UK awarded alcohol licence with novel argument on EU Law grounds

‘Readers of previous e-news may remember the case of Hemming which confirmed the application of the Provision of Services Regulations 2009 to the sex licensing regime.

Whilst the implications of Hemming are still being digested not least in respect of annual fees and the multiplier, the Provision of Services Regulations have recently impacted on a wholly different area of alcohol licensing, namely that of garage premises.

A typical garage forecourt site has an additional burden to overcome if it wants to sell alcohol, embodied in s176 of the Licensing Act 2003. This states that no premises licence has effect to authorise the sale of alcohol from premises primarily used as a garage. The big oil companies and smaller operators have therefore been required to prove (by way of footfall, or turnover of non-alcohol sales etc) that they are not a garage in order to sell alcohol. Results around the country have been mixed. However, the position may now have changed due to the impact of the POSR.

On 22nd January 2013, South Hams District Council heard the application for a premises licence at Shell Carew on the A38 South Brent. The point about whether the premises was primarily a garage was heard as a preliminary one, and Counsel for Shell argued three main points. Firstly, that to even consider the issue of s176 and whether Shell was a garage was discriminatory and contrary to Regulation 14 of the POSR, as it required a garage forecourt operator to address an additional regulatory burden when compared to other applications for premises licences, namely proving that they were not a ‘garage’. Secondly, given that there was no reliable evidence that the sale of alcohol at garage forecourts created any additional risk when compared to other alcohol licence applications there was no overriding public interest reason to impose this additional burden (another condition under Regulation 14). Thirdly, the substantive hearing which necessarily followed the preliminary hearing was a less restrictive but adequate forum in which to consider any concerns raised (the third condition of Regulation 14).

In light of these submissions, the Licensing Sub-Committee decided that the provisions of s176 were incompatible with the Provisions of Services Regulations and did not even consider the issue of s176. They went on to grant the premises licence.

This line of argument on behalf of the operators of garage forecourts could represent a sea change in the approach by licensing sub-committees to the issue of selling alcohol at garages.

With thanks to Leo Charalambides, Barrister of Francis Taylor Building, who represented Shell UK Oil Products Limited.’

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