Guided reading

In the second of two articles Roy Light continues his examination of the amended guidance under the Licensing Act 2003 Part 2.

Premises licence applications

Significant amendments to Chapter 8 include guidance on the new bodies added to the list of responsible authorities (8.6). First, ‘the relevant licensing authority’ which, if it is to avoid challenge to the fairness of hearings, must ensure effective separation of functions between those instigating the representations and those called upon to determine the matter. Secondly, ‘Primary Care Trusts (PCTs) and Local Health Boards (in Wales)’ for which, in the absence of a promotion of public health licensing objective, it will be interesting to see where they position any representations that are made. The Guidance, somewhat controversially, appears to be attempting to add a health promotion licensing objective in the form of A&E data linked to premises under the guise of the public safety licensing objective (9.21).

Interested parties subject to the ‘vicinity test’ disappear to be replaced by ‘other persons’ (8.12-8.13) and the role of local councillors is rewritten and dealt with much more briefly (8.14, reduced from six to one paragraph); as are various other parts of the chapter, mainly by excluding examples. The section on ‘application forms’ mentions a local authority’s responsibility under The Provision of Services Regulations 2009 to ensure ‘easily completed, at a distance and by electronic means’ procedures (8.20) and directs readers to guidance on completing application forms (8.32). The guidance on ‘steps to promote the licensing objectives’ (8.34-8.44) has been considerably modified and enlarged. There is not room here to consider this fully but licensing authorities and responsible authorities ‘are expected to publish information about what is meant by promotion of the licensing objectives’ (8.34) and applicants are to make enquiries and gather information to present the steps they propose to take to promote the licensing objectives in the particular circumstances of the area in which the premises are located. This, presumably, as well as being aimed towards the localism agenda is intended to ensure individualised rather than generic applications. Applicants will be pleased to note that the steps to be taken are now ‘realistic, proportionate and within the control of the applicant …’ (8.43) – ‘proportionate’ being added.

‘Variations’ are subject to some rewording and minor variations are no longer ‘small variations’ but simply ‘variations’ (8.49). The factors to consider when deliberating changes in licensing hours have been reworded (8.63) and some removed (one probably on the basis of the Thwaites decision). There is a new section on the licensing authority’s duty to place a notice on their website with details of applications (8.78) and that licensing authorities in Wales should publish key information in Welsh. But the paragraph stating that it is ‘open to licensing authorities to notify residents living in the vicinity’ of applications has been removed - no doubt because ‘vicinity’ has gone (see also the Albert Hall case). The sections on provisional statements, interim authorities and freeholders remain unaltered save for some pruning.

Determining applications

The chapter now has no need for a section on ‘vicinity’. Removal of the vicinity test raises the importance of the section on ‘relevant, vexatious and frivolous representations’. The section is partly rewritten and trimmed; while ‘frivolous representations’ are – ‘essentially categorised by a lack of seriousness … [concerning] issues which, at most, are minor and in relation to which no remedial steps would be warranted or proportionate’ (9.6). Representations rejected on this basis may use the ‘authority’s corporate complaints procedure’ in addition to a challenge by way of judicial review (9.7).

A significant addition is the much discussed guidance on representations from the police. After referring to the ‘key role’ of the police in managing the nighttime economy, noting the police as ‘the main source of advice’ on the crime and disorder licensing objective and having a role in making representations on other licensing objectives (if they have the evidence) the Guidance states:

“The licensing authority should accept all reasonable and proportionate representations made by the police unless the authority has evidence that to do so would not be appropriate for the promotion of the licensing objectives. However, it remains incumbent on the police to ensure that their representations can withstand the scrutiny to which they would be subject at a hearing.” (9.12)

Is this radically different from the previous position? While police evidence has always carried significant weight the persuasive effect is, and will remain, dependent on its quality, relevance and presentation. There is also guidance on the position of licensing authorities (9.13-9.19) and health bodies (9.20-21) as responsible authorities. Licensing authorities are seen as acting as a means of ‘early intervention … without having to wait for representations from other responsible authorities’ (9.16). However, care is cautioned and guidance given on the problematic issue of achieving a separation of functions within the authority (9.17-9.18).

The section on hearings is rewritten in places with ‘interested parties’ replaced by ‘persons’ and ‘necessary’ with ‘appropriate’. The only new material is an underlining of the need for a division of functions between responsible authority and decision maker (9.32). A new section, ‘Determining actions that are appropriate for promotion of the licensing objectives’, tells us that licensing authorities ‘are best placed’ to determine what is ‘appropriate’, that this should be considered on a case-by-case basis (9.38) and be ‘evidence-based’ (9.39). The rather thorny issue of the meaning of ‘appropriate’ is then addressed and as a definition we are offered the actions or steps considered ‘suitable’ to promote the licensing objectives. Licence holders will be pleased to hear that ‘the authority should aim to consider the potential burden that the condition would impose on the premises licence holder’ but the guidance then appears to contradict itself by stating that ‘it is imperative that the authority ensures that the factors which form the basis of its determination are limited to consideration of the promotion of the licensing objectives and nothing outside those parameters’ (9.40).

A short paragraph at the end of Chapter 9 on the relationship between licensing and planning where ‘applications are made simultaneously’ advises licensing and planning to liaise ‘with the aim of agreeing mutually acceptable operating hours and scheme design’ (9.41). This must be read in conjunction with the guidance at paragraphs 13.57-13.58 which refers to licensing and planning as separate regimes which ‘involve consideration of different (albeit related) matters’ (13.57).

Conditions

Chapter 10 is given a revamp with some rewording and pruning (including the deletion of a number of examples). The ‘pools of conditions’ previously contained in Annex D disappear completely along with paragraph 10.5 which offered guidance on their use. Interestingly, the paragraph used the term ‘where necessary and appropriate’.

The section on ‘people with disabilities’ (replacing the less acceptable term ‘disabled people’) is rewritten to take account of the duties imposed by the Equality Act 2010 (10.24-10.29) and a section is added on ‘equality issues’ which outlines ‘protected characteristics’ and reminds public authorities of their duty under the Act to have regard to the elimination of discrimination and advancement of equality (10.30-10.31). The section on mandatory conditions, ‘prizes and rewards’, sees one of the few additions of examples ‘to include ‘buy one get one free’ type promotions.

Reviews

This chapter receives amendment to cover the inclusion of licensing authorities as responsible authorities. The possibility of early intervention by the licensing authority is mentioned but authorities are cautioned that review applications should not be submitted on behalf of others such as local residents who are entitled to apply for a review in their own right. Similarly, if the concerns relate to crime and disorder the police should be expected to intervene and if to public nuisance environmental health may be expected to make the application for review (11.5). It is clearly not envisaged that the authority should take over the task of ‘policing’ licensed premises but should act only where the authority perceives a problem which no other responsible authority or other person is able or willing to address.

The need to ensure a separation of responsibilities and functions between licensing authority and responsible authority ‘to ensure procedural fairness and eliminate conflicts of interest’ is again stressed and the reader referred to paragraphs 9.13-9.19 of the Guidance (11.6). A new paragraph refers to the possibility of an authority receiving ‘a geographic cluster of complaints’. In such cases the Guidance advises that the authority should consider ‘whether it would be appropriate to include a special policy relating to cumulative impact within its licensing policy statement’ (11.9). A tougher stance is also illustrated by the addition of: “But where premises are found to be trading irresponsibly, the licensing authority should not hesitate, where appropriate to do so, to take tough action to tackle the problems at the premises and, where other measures are deemed insufficient, to revoke the licence.” (11.24)

In response no doubt to recent reviews that have involved the employment of persons not lawfully in the UK the section on ‘reviews arising in connection with crime’ has added ‘knowingly employing’ such a person to the list of relevant criminal activity (11.29). Also added is a paragraph on ‘persistent sales of alcohol to children’. In such cases the guidance is that revocation of the licence should be considered and that review of the licence should be ‘routine in such circumstances’ (11.33) – which it already is.

Appeals and statements of licensing policy

The section on appeals is unaltered (the Home Office presumably content to leave the matter to the courts, the Hope & Glory decisions and subsequent case law) but there are significant alterations to Chapter 13 on statements of licensing policy.

The Guidance omits paragraph 13.17 from the previous guidance which made it clear that the ‘direct impact’ of incidents in the vicinity of the premises were ‘the prime focus’ for decision making. Now persons away from the vicinity of the premises can make representations about incidents occurring away from the vicinity of the premises. However, problems linking those incidents to the premises may increase with their distance from the premises and, in any event, the guidance that licensing law is not the primary mechanism for controlling problems caused by people away from the premises is retained (13.13).

The section on cumulative impact has had a major rewrite. There is not space to consider it fully here but paragraph 13.33 of the old guidance suggesting that off-licences generally fall outside such policies has been rewritten (in line with a number of recent decisions and the rather inelegantly termed issue of ‘pre-loading’).

There is a new section on ‘designated public places orders’ (13.39-13.41) and the section on hours is completely rewritten. The previous paragraphs have largely been moved to the chapter on conditions, for example, that shops should be free to trade to their opening hours unless there are good reasons why they should not (10.22). Two new paragraphs demonstrate a move away from the liberalised notion of staggered hours to the suggestion that hours are a matter for local authorities applying local knowledge (13.42-13.43) but caution is advised against ‘predetermined licensing hours’ (see also 10.20).

There is some rewriting of the sections relating to children (13.45-13.55); removal of the sections on ‘crime prevention’, ‘cultural strategies’, ‘transport’ and ‘tourism’; and removal of all annexes and the index. Two new chapters are added - Chapter 14 on suspension for non-payment of fees and Chapter 15 on live music and regulated entertainment.

Prof Roy Light is a licensing barrister practising from St John's Chambers, Bristol. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..

The first article can be downloaded here.