The Gambling Act 2005 has introduced a completely new regime for the regulation of gambling, including casino gaming. The new Act also restricts the numbers of new casino licences, at least initially, to eight small, eight large and one ‘super’ or regional casino. The proposal for the introduction of a super casino and the choice of
These restrictions galvanised a number of current and aspiring casino operators into making applications for new casino licences under the old Act, the Gaming Act 1968, under the transitional provisions which filled the gap between the passing and the full implementation of the new Act.
For some 40 years, consideration of demand has been a key feature of applications for casino licences under the 1968 Act. Indeed, the Royal Commission on Gambling referred to the principle of satisfying unstimulated demand as “the connecting thread which runs through the whole fabric of gaming control”. The principle was not, however, retained in the Gambling Act 2005 and, amid the flurry of recent applications, the relevance of demand has been questioned.
Under the 1968 Act a licensing authority has the discretion to refuse to grant a casino licence if it is not shown to its satisfaction that there is an existing unmet demand for gaming facilities of the kind proposed.
In a recent application before the Court of Appeal (on the application of TC Projects v Newcastle Licensing Justices [2008]), TC Projects (part of the Noble Group) and Clermont Leisure sought to argue that, on the assumption that no unsatisfied demand had been shown by an applicant, this discretion could only be exercised if it could be shown that refusal of the licence was required in the public interest without reference to the demand position.
The Court of Appeal affirmed that the absence of unmet demand was itself a reason for refusing to grant a new casino licence, and could and should be taken into account in the exercise of the discretion as a consideration telling in favour of refusal.
Lord Justice Richards observed that the 1968 Act was intended not only to enable existing demand to be met but also to inhibit the stimulation of fresh demand by the provision of additional facilities or by other means. That was not a surprising conclusion given that the 1968 Act was itself implemented as a reaction to the unexpected explosion in unregulated gambling under the preceding 1960 legislation. It also accords with the approach suggested in R v
At first sight, the Court of Appeal’s decision in TC Projects affirms the approach taken by licensing justices and Crown Courts for most of the lifetime of the 1968 Act. But there are a number of outstanding applications under the 1968 Act and, where unmet demand is not established, whether there are reasons in the public interest why a licence should nonetheless be granted as a matter of discretion is an area where the parties are likely to give close scrutiny to the basis of the Court of Appeal’s decision.
There is likely to be a difference of opinion between the incumbent and intending casino operators as to which other considerations may legitimately be considered by the court to justify the grant of a licence.
The principle (accepted by the Court of Appeal — and indeed relied on by the applicants — in TC Projects) is that statutory powers are to be exercised to promote the purpose for which they have been conferred and on relevant grounds of public interest.
The difference of opinion is likely to focus on what is capable of amounting to a ‘relevant’ consideration in this context. It will be in the interests of applicants to introduce as wide a range of factors as possible — matters wholly unrelated to gaming, such as the planning gain for a local area, have sometimes been relied upon in past cases.
The Court of Appeal accepted that a reason in favour of the grant of a licence might lie in the competition created by additional facilities, provided it is shown that competition might be expected to have beneficial effects rather than being harmful or merely neutral in its impact.
It is regrettable that the formulation of the issues for consideration by the Court of Appeal in TC Projects, which was dealing with the proper effect of the discretion for the first time in the lifetime of the 1968 Act (and after its repeal!), meant this important practical aspect of the power was not directly addressed by the Court. It will have to be worked out in subsequent cases.
Christopher
