Local authorities have always exercised a significant licensing function, increasingly so with the transfer to them of the former music singing and dancing licences jurisdiction.

Their decisions are regularly challenged by way of appeal, but little is written on the procedures to be followed and on the peculiar problems encountered in the process.Local authority decisions, as with courts, are susceptible to review by challenge in the High Court in an application for one of the prerogative writs.

This was once the only avenue of appeal when local government functions, such as public health control, were carried out by justices of the peace.Now, with the evolution of local government and the magistracy and their clear separation of functions, the most significant manner in which the licensing decision of a local authority is challenged is by way of appeal to either the magistrates' court or, in fewer instances, directly to the Crown Court.Significance is here measured in numerical terms, although the High Court provides unique assistance in determining the manner in which aspects of the appeal process are to be undertaken.Which is the proper court of appeal?The statute which creates the right of appeal will also specify which court is the appeal court.

The picture is a confusing one.If a local authority decides to refuse the grant of a hackney carriage vehicle licence on grounds of controlling the overall number of licences in its area, appeal lies to the Crown Court.

If the applicant for such a licence is aggrieved by the imposition of a condition on grant, appeal lies to the magistrates' court.

If the holder of a pt IV Licensing Act justices' licence applied for, and was refused, a Gaming Act permit and a public entertainments licence by the one licensing committee sitting on the same day, appeal would lie to the Crown Court for the former and the magistrates' court for the latter! The statute creating the right of appeal will also specify the time by which the appeal must be entered.Rules of procedureAn appeal to the magistrates' court is initiated by laying a complaint for an order (r.34 of the Magistrates' Court Rules 1981).

Thus the rules apply in the same way as any proceedings so commenced in the magistrates' court and, in the words of the learned editors of Stones Justices' Manual, 'the effect of this rule is to secure that the procedure shall be uniform in every case of appeal' to that court.That is undoubtedly true, but it does not necessarily mean that the rules of procedure governing, say, an application for a bind-over, will ensure fairness between the parties in an appeal against the refusal to grant a public entertainments licence.Moreover, there are the complications of an appeal to a branch of the judiciary (sitting, as ever, in a fully judicial capacity) from a branch of the executive administering its decision-making process in a quasi-judicial manner.

To put it another way, justices are trained to act judicially, and do so in every matter coming before them.Councillors receive scant training and are expected to think in licensing matters in a way which their other council business scarcely prepares them.

Rules of procedure are of councillors' own making, whereas justices are constrained by rules of procedure laid down in statute.The council chamber is a very informal forum by comparison with the magistrates' court.

All the parties are present on an equal footing be they applicants, the police, council officers or objectors.

Each is heard in turn and it is difficult to discern who might be regarded as 'parties' in the action.

Proceedings in the magistrates' court convert the application (for that is what it is in the appeal) into adversarial proceedings, the parties now being complainant (the applicant) and defendant (the respondent council).

Objectors may now only appear if they are called as witnesses and are now subject to giving evidence and to cross-examination.The order in which the parties are heard is determined by the procedure governing hearings on complaint.

By r.14 of the Magistrates' Courts Rules 1981, the complainant shall present his case first.

This is quite acceptable where the appeal is against refusal to grant a licence, but what if it is against revocation of a hackney carriage driver's licence on the grounds of impropriety?There are two stages to the appeal: first, is the impropriety proved; and secondly, is it proper that the licence be revoked in these circumstances? To force the appellant to present his case first is akin to making a convicted person present his case first in an appeal against conviction.

How is the order of speeches to be reversed when the justices are faced with the mandatory provisions of r.14 by which the complainant shall call evidence first?Where both parties agree, an appeal can be made to the justices' inherent jurisdiction to govern the conduct of proceedings before them to do justice between the parties.

But if one of the parties does not agree, how bold would the justices be then to depart from rules couched in mandatory terms?Rules of evidenceIn the area of evidence, too, injustice can be caused if the rules governing admissibility of evidence in the magistrates' court is rigidly applied to appeals from local authority decisions.Just as there are no strict rules of procedure in local authority licensing hearings, there are no rules of evidence.

Many councils observe the rules of natural justice by hearing objectors only if they are present at committee.

The High Court has reinforced this rule by requiring notice of the substance of the objection to be notified to the app licant within a reasonable time before the hearing (R v Huntingdon District Council ex p.

Cowan, [1984] 1 All ER 58).

But once the objector is present there are no rules of evidence which would disallow part of the submission.An environmental health officer can relay complaints of noise disturbance received without those comments being rendered inadmissible as hearsay.

If the same evidence was to be put before justices in civil proceedings (which is what r.34 has caused appeals to become) it would be disallowed, thus placing councils at a relative disadvantage in the appeal court.The anomaly has now been removed by the case of Westminster City Council v Zestfair Ltd (1989) 88 LGR 288, which held that a magistrates' court is not bound by the normal rules of evidence applicable in civil proceedings.

It could admit the same evidence which was considered by the council members even where that evidence would otherwise be hearsay.The determining factor is not admissibility but weight.

Evidence may not be relied upon where it is little supported by the witnesses who are present.

Any person appearing before councillors would do well to remind them that that should be the way they approach evidence too.An unfettered discretion?It is settled law that an appeal is a rehearing of the application and that evidence can be put before the justices that was not put before the councillors.

The justices must then decide the on the evidence and arguments put before them.Sometimes the statute will stipulate that they are unable to vary a decision of the council in a way which places the appellant in a worse position than if there had been no appeal.If the council has declared a policy for the grant of amusement with prizes machines the appeal court is bound by that policy, too (para 12 of sched 9 to the Gaming Act 1968).

Where the statute is silent, do justices have an unfettered discretion? The answer is an emphatic 'no'.'There is given here a right of appeal, and if there is an unrestricted right of appeal, it is for the court of appeal, in this case the metropolitan magistrate, to substitute its opinion for the opinion of the borough council.

That does not mean to say that the Court of Appeal ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter and ought not lightly to reverse their opinion.

It is constantly said (although I am not sure that it is sufficiently remembered) that the function of a court of appeal is to exercise its powers where it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right.'So said Lord Goddard CJ in Stepney Borough Council v Joffe [1949] 1 All ER 256.

This position was re-inforced in Sagnata Investments v Norwich Corporation [1971] 2 QB 614 in which it was said that the appeal court was obliged 'to act on the totality of the material placed before [it], balancing that called for the applicant against that presented by the local authority and paying due regard to the existing decision being appealed from,' per Edmund Davies LJ at p.637.CostsAt a hearing commenced by complaint, the Magistrates' Courts Act 1980 also governs the power to award costs, so that on allowing the appeal the justices have power 'in [their] discretion to make such order as to costs...

to be paid by the defendant to the complainant,' or on dismissing the appeal to be paid by the complainant to the defendant.In the Crown Court, the court 'may make such order for costs as it thinks j ust' (r.12(3) of the Crown Court Rules 1982), although it is not empowered to make an order for costs in the council hearing since the council itself has no power to award costs there (ibid r.13).ConclusionAny appeal to a court against a local authority decision in licensing matters draws instant comparison between the two jurisdictions.

Justices and judges are entirely neutral so that any interest held must be declared and that person may have no further part in the proceedings.Councillors, on the other hand, very often have vested interests, something inherent in being a councillor.

Premises seeking a licence may be situated in the ward of a councillor sitting on the committee which determines the application and representations may have been made to that councillor as part of the democratic lobbying process.

Councillors are elected by the will of the people and so licensing decisions may (consciously or not) be guided by the wish to be re-elected, or to follow the party line.The appeal process is a natural safeguard but the rules of procedure in the magistrates' court do not always favour appellants.

The initial predisposition of the court towards the decision of the tribunal below, and the likelihood that costs will follow the event of an unsuccessful appeal, will cause practitioners to advise caution before embarking on the appeal process.In the light of all this, the regularly mooted transfer of liquor licensing from justices to councillors must be regarded with circumspection.