Licensing makes a fundamental contribution to how our communities develop, live, work and relax. With the right tools, councils can use licensing to significantly improve the chances of businesses and residents moving to an area, whether in the heart of London or in a more rural district.
In 2018 there were 212,800 premises licences in England and Wales. There is a broad spectrum of licenced premises, including off-licences, supermarkets and cafes as well as the pubs, bars and clubs that typically make up the night time economy. Research estimates that the alcohol industry contributes £46 billion a year to national income and is responsible for around 2.5 per cent of all UK employment. At a local level, a vibrant and mixed night time economy can encourage tourism, boost the local economy and contribute to shaping places where people want to live.
But, at the same time licenced premises in the night time economy, in particular, can create challenges as well as bringing benefits and the Local Government Association (LGA) has argued that councils need the right tools to manage these challenges locally. The pressures placed on police and health services as a result of intoxication and harmful alcohol consumption are well-known. Whilst reported instances of alcohol-related crime and disorder have been decreasing in recent years, alcohol remains a factor in 40 per cent of violent incidents.
The total cost to society of alcohol-related crime is estimated at £11 billion. In 2016 the Government published the Modern Crime Prevention Strategy which, amongst other things, set out a vision for how the Government planned to address alcohol related crime and disorder in the night time economy and, in particular, promotes the role that partnership working can play in addressing issues.
We are pleased that since the strategy was published we have seen some further steps towards encouraging more localised approaches in licensing, for example new powers under the Policing and Crime Act 2017 mark a positive step in terms of giving licensing authorities the power to make assessments at a local level about what interventions could be helpful.
However, there is still more that can be done locally to strengthen approaches to licensing and we hope this handbook will act as a helpful tool for licensing authorities in carrying out their functions under the Licensing Act.
Councillor Simon Blackburn
Chair of Safer Stronger Communities Board
The Licensing Act: an overview
The Licensing Act 2003 (the Act) replaced earlier controls of alcohol and introduced a more permissive, flexible regime. The Act consolidated a diverse system of licences that had been separately issued for late-night refreshment and regulated entertainment. Before the Act, alcohol licences had been issued in Magistrates’ courts through what was largely an administrative procedure, and licensees had to formally attend to get their licences renewed every three years.
The intention of the Act was to liberalise a previously rigid licensing system. The Act gave licensing authorities (district, unitary and metropolitan borough councils) new powers over licensed premises, as well as giving local people more of a say in licensing decisions. A fundamental, and at the time controversial, part of the new Act was the potential to extend licensing hours beyond the previous ‘permitted hours’, in the hope that this would bring about more of a ‘cafe culture’ in line with other European countries.
The Act was widely welcomed by local authorities, licensees and the police and in many respects, the Licensing Act remains a positive model for a licensing system. It has a clear set of objectives, it allows local decision-making, it has a clear appeals process and there are opportunities for everyone affected by the licence to make comments on it.
Since the Act came into force there has been some notable trends in terms of the way people consume alcohol, with consumption patterns showing a steady decline. In 2007, around 17 per cent of adults in England reported drinking alcohol on five or more days in the last week, which had fallen to 10 per cent by 2017. This has been driven by a fall in consumption among those aged under 45.
Alcohol-related crime has also decreased over this period, with the number of violent incidents involving alcohol falling by over half from approximately 999,000 in 2006/07 to 464,000 in 2016/17. While there has been a fall in the number of ‘alcohol-related’ violent crimes, latest statistics from 2016 show that in over half (53 per cent) of all violent incidents, the victim believed the perpetrator to be under the influence of alcohol.
Health harms related to alcohol remain high. The number of alcohol-related hospital admissions has increased from around 287,000 in 2006/07 to 337,000 in 2016/17 as have the incidences of certain alcohol-related health conditions. While alcohol consumption has fallen in recent years, clearly the harms associated with alcohol misuse remain high.
As well as changes in the level of consumption, there has also been a shift in where alcohol is being consumed with more than two thirds of all alcohol now sold through the off-trade for example in supermarkets or off-licences rather than through the on-trade in places like pubs or bars.
The Licensing Act 2003
Objectives of the Act
The objective of the Licensing Act 2003 (the Act) is to provide a clear, transparent framework for making decisions about applications by individuals or businesses wishing to sell or supply alcohol, or provide certain types of regulated entertainment and late night refreshment.
The Act is administered by licensing authorities which are district, unitary and metropolitan borough councils. Under the Act, the licensing authority’s responsibilities are delegated to the authority’s licensing (or regulatory) committee. The licensing committee is responsible for considering and proposing the authority’s statement of licensing policy, and for taking decisions on specific licence applications or issues.
There are four licensing objectives which underpin the Act and which need to be taken into account and promoted throughout the licensing process. Each of these objectives is of equal weight.
The licensing objectives are:
- the prevention of crime and disorder
- public safety
- the prevention of public nuisance
- the protection of children from harm.
Licensing authorities must issue a licence, providing it is consistent with the licensing objectives and there have been no comments on the application or objections to it, which are known as representations. As noted earlier, the Act enables scrutiny of applications both by experts, local residents and businesses who all have the opportunity to comment on an application.
There are some organisations, known as responsible authorities (RAs), which need to be notified of every application for a new premises licence, or variation of an existing licence. RAs can make representations to the council about applications where they feel there will be a negative impact on the promotion of the licensing objectives if the application were to be approved. RAs include the police, fire authority, trading standards, health and safety and environmental health.
Anyone who may be affected by an application for a new licence or variation to an existing licence can make a representation. However, in order for a representation to be deemed ‘relevant’ it needs to relate to the likely effect of the application on the promotion of the licensing objectives.
What activities are licensed?
There are a number of different activities that were brought together under the Act which are referred to in legislation as ‘licensable activities’.
Licensable activities are:
- the sale of alcohol by retail
- the supply of alcohol in qualifying members’ clubs
- the provision of regulated entertainment
- the provision of hot food and hot drink (‘late night refreshment’) to the public between 11.00 pm and 5.00 am.
The distinction between the sale and supply of alcohol is made in recognition of the fact that at a member’s club there is technically no sale taking place as members of the club already own the assets of the club, including the alcohol.
Regulated entertainment is arguably a less well known part of councils’ licensing responsibilities. To count as regulated entertainment, the activity must be provided in front of an audience for the purpose of entertaining them and must fit into one of the following categories:
- it is provided for members of the public (anybody can buy a ticket or come to the event)
- it is exclusively for members of a (private) qualifying club and their guests
- it is arranged by someone who is trying to make a profit.
There are certain forms of entertainment that are always regulated, for example entertainment provided to over 500 people (or over 1000 people for indoors sporting events), entertainment provided between 11.00 pm and 5.00 am and boxing and wrestling.
Regulated entertainment is defined as (subject to exemptions):
- live amplified and unamplified music
- recorded music
- exhibition of film
- performances of plays
- indoor sports
- boxing and wrestling.
There are however a number of activities that are exempt under the Act from needing a licence, such as the sale of alcohol in an aircraft. Reforms since the Act originally came into force in 2005 mean that a number of activities no longer need to be licensed in particular circumstances, for example the performance of live music to a limited audience. A list of exemptions can be found in the Section 182 Guidance.
Types of licence and permission
Carrying out licensable activities requires a licence or other type of permission. The four types of ‘authorisation’ under the Act are summarised below, and are explored in more detail later on.
|Premises licence||A premises licence allows licensable activities to be provided ‘at any place’ either indefinitely or for a fixed duration.|
|Personal licence||Each sale must be authorised by a personal licence holder. A personal licence is needed by an individual to act as a Designated Premises Supervisor where there is a premises licence to sell or authorise the sale of alcohol.|
|Temporary event notice||Allows licensable activities to be provided by any person at any place for up to seven days at a time on no more than 21 days a year, for no more than 499 people at a time.|
|Club premises certificate||Qualifying members’ clubs (eg the Royal British Legion, working men’s clubs and sports clubs) planning to sell or supply alcohol may need to apply for a club premises certificate.|
Strengths and weaknesses of the current system
In many respects, the Licensing Act is a positive model for a licensing system. It has a clear set of objectives, it allows local decision-making, it has a clear appeals process and there are opportunities for everyone affected by a licence to make comments on it.
Used creatively, licensing can be a tool to shape the places that communities live, work and socialise in and can help manage our concerns.
However, the LGA has raised concerns about some weaknesses in the Act. Firstly, that the implementation of the Act has been consistently undermined by a lack of resourcing due to the centrally-set fee system. Secondly that the Act’s objectives have not been updated to reflect the return of public health responsibilities to local government.
Licensing fees, which are set nationally have remained unchanged since 2005. The LGA has consistently argued that these fees underestimate the costs councils incur in overseeing the Act, and should be set locally. There have been various reviews and consultations around the localisation of fees over the last 10 years, and in 2015, the Government asked the LGA to work with it to develop an evidence base on the costs to councils of overseeing the Act.
The LGA’s view is that locally set fees would re-dress the imbalance in fee incomes and whilst locally set fees might increase fees in some places, in others there may be decreases. Local fees could also benefit businesses, for example if there was a reduced annual fee.
Government has indicated that fees may be re-considered at some point in the future.
LGA/CIPFA survey into licensing fees
- The LGA worked with CIPFA to undertake the 2015 survey. The survey indicated that some councils are in surplus from the Act, but others are losing a lot and overall local government is in deficit by around £10-12 million per year.
- A small majority (52 per cent) of councils reported running a deficit, however analysis shows that the sum of net deficit is greater than that of the net surplus making the overall picture that of a deficit. For those that responded to the survey, there is an average surplus/deficit of -£29,520 for each local authority.
- There was extensive variation across councils. The largest deficit of -£1.358 million was in a London borough, whilst the largest surplus of £265,000 was in an English unitary authority. Different council types also has an impact on whether an authority is in deficit/surplus with London boroughs, metropolitan districts and district councils operating a deficit whilst unitary authorities (English and Welsh) are running a surplus.
- There was also extensive variation in results for different fee categories. While councils experienced losses in some categories, conversely in others they operate at a surplus with annual fees for premises licences generating the largest surplus of £5.9 million. Temporary event notices (TENs) showed the biggest shortfall at -£3.2 million. This reflects feedback from councils that the process is extremely resource intensive, and not being used for what it was intended. Councils report that they are managing the shortfall by cutting back on enforcement activity.
Lobbying for a health objective in the Licensing Act is long standing LGA policy. Whilst public health can contribute against any of the four existing licensing objectives, in practice it can be difficult for them to be heard; a specific ‘health’ objective could resolve that and allow a much more straightforward contribution. There is also strong support for a health objective among public health directors, Public Health England (PHE) and among some in Parliament.
There has been a lot of work to build the evidence base for how this could work and PHE have piloted a health objective with eight advanced areas including Cornwall, Leeds and Wigan, which all developed practical ways to make using health data in licensing work.
Building on this work PHE have developed an online resource’ which brings together nationally available data and materials with local information to support councils to access a range of databases and tools. Local teams can input their own data to create interactive maps and reports to help them in their role as a responsible authority.
Whilst there is no indication that the Government is going to take this forward, at least in the near future they continue to highlight the important role that public health plays in the licensing system as a responsible authority under the Act. This includes promoting the use of PHE’s analytical support package, providing public health teams with new tools to help effectively present relevant health data and supporting the Information Sharing to Tackle Violence programme to encourage A&E departments to share their data with community safety partnerships.
Overview of the role of councils in licensing
Introduction to the role of the council
The Act moved the responsibility for administering alcohol licensing from Magistrates and licensing justices to local authorities, bringing democratic accountability to decision making.
District councils and unitary councils are designated as licensing authorities. Each licensing authority is responsible for developing a local policy, processing applications and convening hearings to consider any representations concerning applications or existing licences. To deliver their responsibilities licensing authorities’ core functions can be summarised as:
- setting the local framework through a statement of licensing policy
- considering applications with a view to promoting the licensing objectives
- undertaking inspection and enforcement activities to ensure conditions of licences are being met
- maintaining a register of licensed premises, activities and individuals
- providing bi-annual statistics to government as part of the National Statistics collection.
Licensing authorities are responsible for administering the Act and this function is delegated to the council’s licensing committee. The licensing committee is responsible for considering and proposing the authority’s licensing policy through developing a statement of licensing policy prior to its approval by the licensing authority (full council), and for taking decisions on specific licence applications or issues.
Statutory guidance for licensing authorities is issued by the Secretary of State under Section 182 of the Act, often referred to as ‘Section 182 guidance’. Licensing authorities have a duty to have regard to this guidance and it should be followed unless there is good reason to depart from it. The Section 182 guidance is a comprehensive and useful tool for councils around the discharge of functions under the Act, including processes for hearings. It is updated from time to time, the latest version can be found on the gov.uk website.
Fees under the Licensing Act have been fixed in regulations since 2005. Premises and club premises licence fees are based on the rateable value of the premises. Premises with higher rateable values that are primarily being used for alcohol sales pay additional premiums as do premises with particularly large capacities (in excess of 5000 people). Fees are also set for a range of other administrative processes under the Act, such as:
- varying a licence
- transferring a licence from one individual to another
- varying the Designated Premises Supervisor (the person named on the premises licence as the individual designated to supervise the premises)
- issuing a temporary event notice (TEN).
As discussed earlier, whilst fees were intended to provide full cost-recovery, in practice many licensing authorities will incur a deficit. The LGA has consistently argued that the Government has underestimated the costs councils incur in administering the Licensing Act, and should be set locally. At the very least, the Government should commit to a flat-rate increase to the 2005 fee levels.
Developing a statement of licensing policy
What is a licensing policy
Under the Act, licensing authorities are required to prepare a statement of licensing policy (SLP) which sets out how licensable activities will be regulated and how licensing functions will be exercised in their areas, as well as expectations of licence holders and operators. They can be used to identify areas where the risk of harm may be greater due to the characteristics of a particular area, and how these risks can be mitigated.
The SLP is an opportunity to take a strategic look across all of the licensable activities within your area and set out a vision for them. The decisions made can enhance an area’s economy, public health, safety and cultural appeal to tourists and visitors from surrounding areas.
Getting the statement of licensing policy right is important as this will guide the local authority’s decision making. Authorities must have regard to their SLP when carrying out their licensing functions and the policy acts as a starting point for a decision. Whilst licensing authorities can depart from their policy when considering applications, there will need to be good reasons for doing so.
The SLP should set out how licensees can contribute to creating the evening and night time economy that the council envisages, for example encouraging certain types of applications in certain areas, for example food led businesses. It is also an opportunity to set out the context in terms of specific local issues that licensees should consider for example areas of saturation in a town centre, and how they can contribute towards positively addressing them.
An active place-shaping approach in your licensing policy and practice can also help design out problems before they occur and promote safe and sustainable communities. Diversifying the evening and night time offer for example can encourage a wider range of people to engage in it and increase the perception of safety. Thought should be given to how the licensing policy can help to attract entertainment that is not alcohol led, for example restaurants, venues or cinemas which will bring more people into the night time economy and can help to manage levels of alcohol related crime and disorder. On a smaller scale staggering closing times can also be helpful.
In shaping a policy, the licensing authority will need to have regard to the Section 182 guidance as well as giving appropriate weight to the views of the local community. Whilst there is a certain amount of flexibility around setting an approach to making licensing decisions this cannot be inconsistent with the provisions in the Act. The statement cannot create new requirements for applicants outside of the Act, or override the right of anyone to make an application under the Act, make representations or seek a review of a licence.
The SLP takes on additional significance in the event that an applicant challenges or appeals the sub-committee’s decision. At this point the Magistrates court will adopt the licensing authority’s policy as if it were its’ own.
The SLP must be formally adopted by the licensing authority (full council) normally after a recommendation from the licensing committee. Councils with cabinet governance arrangements may also seek the cabinet’s views too. A SLP runs for a maximum period of five years. There is nothing to prevent an authority from updating its statement more frequently if it wishes to, but the five yearly review cycle must still be followed.
There is no need for a SLP to re-state the requirements of the Act or the statutory guidance, although the guidance does suggest topics that ought to be acknowledged in the SLP – for example, an obligation for licensing authorities to help promote cultural activities within their areas by not imposing excessively burdensome conditions, or an acknowledgment that licence-holders cannot be held responsible for their customers’ actions once they leave the vicinity of their premises.
Possible headings within an SLP could include:
- council aspirations and vision for the place
- partnership working
- the licensing objectives
- other legislative responsibilities (such as those under the Human Rights Act 1998, Crime and Disorder Act 1998, Equalities Act 2010 and the statutory Regulators’ Code)
- reference to any cumulative impact assessments
- policies for specific circumstances
- approach to setting conditions including whether there is a pool of model conditions
- dealing with representations (including petitions and ‘round-robin’ letters)
- delegation of functions
- a statement of where the SLP departs from the statutory guidance (if relevant)
- enforcement protocol (usually agreed with the other responsible authorities)
- the use of other legislation alongside the Licensing Act.
Development of the SLP must involve engagement with the community. Consultation is a key part of making sure licensing work is transparent; there should be opportunity for open discussion so that communities have an input into what they want their area to look like.
There are a number of statutory consultees who will need to be involved, including representatives of local businesses, residents and licence-holders as well as the responsible authorities. Both Lambeth and Watford case studies are useful examples of how authorities can engage with stakeholders through consultation events.
In Cheshire and Merseyside, public health, licensing, environmental health, trading standards and the police have worked together to develop a toolkit to support anyone who would like to have a say on how alcohol impacts their community. The toolkit explains how the licensing process works and provides some practical tips to help people who want to get involved.
Watford Council wanted to regenerate its town centre through a cultural arts programme to remove its reliance on a mono-alcohol economy of late-night clubs and bars. A pop-up shop was opened in the town centre for two weeks to explain proposals and to get views on proposed changes to the public realm and to planning policy, as well as significant changes to the SLP which encouraged the growth of food-led and entertainment businesses through the offer of later hours at the expense of more restrictive hours for alcohol-led premises
Following the adoption of Lambeth Council’s new Licensing Policy in January 2014, six area-based Licensing Transformation coproduction workshops were held across the borough. These aimed to bring together a select and focused group of businesses, local residents, ward councillors and statutory partners to help shape local guidance and also offered an opportunity to discuss licensing in practice.
Organised jointly with business improvement districts (BIDs), the council’s Neighbourhood Regeneration team and the Cross River Partnership, local police, Neighbourhood Watch co-ordinators and Safer Neighbourhood Panel chairs, as well as residents’ representatives were invited to attend the workshops. Council staff from Legal Services and Community Safeguarding were also in attendance.
Key issues for consideration in the statement of licensing policy
Area specific expectations
At the most local level, licensing authorities’ decisions will shape individual neighbourhoods, establishing some as vibrant, active areas late into the night, while other areas may become a centre for restaurants. Similarly, a pub in a smaller community may not attract large numbers from outside the area, but can nonetheless act as a hub for the community.
There may be some neighbourhoods that have particular challenges and require a more detailed and targeted approach.
The SLP can guide applicants towards particular concerns the authority has relating to a locality. In addition to tackling specific problems, it can be used to help shape the local economy, such as by setting out preferred opening hours, which can encourage applications from particular types of premises.
The relationship between licensing and planning systems came under intense scrutiny in the House of Lords Select Committee post-legislative review of the Licensing Act in 2017. The committee’s key recommendation was that the two systems should be merged and licensing committees should be scrapped with responsibility shifted to planning committees. The Government rejected this recommendation but accepted that improvements could be made by focusing on improving how the two regimes communicate and interact at local level.
The licensing and planning systems operate independently with the planning and licensing regimes involving consideration of different, albeit related, matters. Planning is the regime that is directed at development of land and the use of premises upon it. Licensing is the regime that is directed at licensable activities and responsible management of said premises upon that land. Licensing committees are not bound by decisions made by a planning committee, and vice versa. For example, a premises licence or club premises certificate cannot be refused on the grounds that they do not have planning permission. Licensing authorities are also able to specify different opening hours on the licence from those specified under planning permission. This is somewhat incongruous, but the two schemes take different matters into account when determining hours, and the more restrictive set of hours always applies.
Nevertheless, where applicants have indicated that they have also applied for planning permission or that they intend to do so, licensing committees and officers should consider discussion with their planning service prior to determination with the aim of agreeing mutually acceptable operating hours and scheme designs. It is also important to note that any decision of the licensing authority on an application for a premises licence does not relieve the premises user of any requirements under planning law for appropriate planning permission where it is required. Premises operating in breach of their planning permission would be liable to prosecution under planning law.
Planning is an important consideration when thinking about what you want your licensing policy to achieve. Your licensing policy should reflect your Local Plan policies core planning documents, and likewise the Local Plan policies planning documents should reflect what you want to achieve with your licensed premises. Whilst there is a clear distinction and separation between licensing and planning in terms of their remit, councillors have a key role in ensuring that these two different services are fully joined-up and aligned.
Where this doesn’t happen councils can struggle to shape their areas as they would like them to be. It can be helpful to include your expectation that any premises for which a licence is required should normally have the appropriate authorised use under town planning legislation, in the SLP.
The development of new housing, often under permitted development rights, can have the potential to cause tension within communities where there are already established licensed premises, particularly those that promote live music. These venues can provide an important cultural contribution to an area, as well as promoting the next generation of musicians. In 2018 the Government updated the National Planning Policy Framework to include detailed reference to the ‘Agent of Change’ principle. Agent of change means those bringing about a change take responsibility for its impact. This means that developers will be responsible for identifying and solving any sound problems, if granted permission to build housing, to help avoid music venues, community and sports clubs and even churches running into expensive issues as a result of complaints from new neighbours.
Protecting children from being harmed in licensed premises is one of the four licensing objectives and includes harms from consumption of alcohol as well as wider harms including sexual exploitation. Safeguarding can be addressed in part through licence conditions. The Act includes a mandatory condition requiring alcohol-licensed premises to have an age-verification policy, but other conditions relating to the protection of children from harm can include restrictions on the times which children may be present and the requirement that children must be accompanied by an adult.
Whilst the local children’s safeguarding board, or multi-agency safeguarding arrangements as they are now known, are a responsible authority, in practice it is unusual for them to make representations. Public health also have an important role to play in safeguarding and PHE have developed a guidance note which explores how public health can support prevention and intervention. Some authorities have used their powers under the Licensing Act to address child sexual exploitation (CSE) both proactively and reactively when considering licences.
Kirklees Safeguarding Children Board (KSCB) has been working proactively with partners to engage with the licensed trade and promote risk management in relation to CSE. The board provides advice to assist licensees to identify risk and report concerns at different types of licensed premises and they have developed a webpage providing local information about child safety, child sexual exploitation, policies and procedures including risk factors and signs and symptoms. Kirklees’ licensing policy outlines the council’s recommendation that applicants address the access of children in the operating schedule. They also expect that employers will make careful checks where premises or entertainment is specifically targeted towards children to ensure all persons employed or involved with the supervision or management are deemed appropriate persons to be engaged in the activity, for example that employers would use a Criminal Records Bureau check.
Harrow Council states within its SLP that it expects staff in premises that will be particularly attractive to children to be familiar with the Metropolitan Police’s Operation Make-safe to identify and report possible signs of abuse.
It is also important to look at the wider context of vulnerability. Safeguarding is not limited to children and young people, and vulnerability is an inherent part of the night time economy, for the most part due to the presence of alcohol and drugs. There are various resources and training packages that could be signposted to in the SLP, including the Welfare and Vulnerability Engagement (WAVE) initiative which is a free tool, developed by the Metropolitan Police, looking at vulnerability in the night time economy and the proactive steps operators can and should take to address this.
Again there are various initiatives that can be utilised by operators to help identify and manage vulnerability in the night time economy, for example Drinkware schemes and Ask for Angela. Reference to these initiatives could be made in the SLP.
Ask for Angela was an initiative first launched by Lincolnshire County Council as part of a campaign to raise awareness of sexual violence and abuse and has since been rolled out across a number of cities. The intention is to help prevent and reduce sexual violence and vulnerability in the night time economy. Customers are advised via posters in venue toilets that, if they ‘ask for Angela’ at the bar, staff will be alerted to the fact that they feel unsafe or threatened. Bar staff will know that the individual needs some help getting out of their situation and will call a taxi or help them out discreetly and providing a vital life-line to someone who finds themselves in a difficult situation and can’t get out of it.
Drinkaware is an independent charity, funded by the alcohol industry, which works to reduce alcohol misuse and harm in the UK. Drinkaware’s focus is on education and they offer information, advice and practical resources to support people to make better choices around their alcohol consumption. Drinkaware also run a number of different initiatives including ‘Drinkaware crews’ who work in clubs and venues to help support provide support the welfare and wellbeing of young people on a night out. More recently they have partnered with PHE on a ‘Drink Free Days’ campaign which aims to help people cut down on the amount of alcohol they are regularly drinking.
Working in partnership
Creating a safe, vibrant and diverse night time economy is in everyone’s interests and the police, councils, emergency services, local businesses and the community all play a central role to achieving this.
Working together will almost always achieve the best results; at a minimum, it will establish a clear understanding of positions and identify where there is room for agreement and collaboration.
There is plenty of evidence of the success that partnership approaches to managing the night time economy has had in our towns and cities. The Government’s Modern Crime Prevention Strategy placed considerable weight on the benefits of voluntary partnerships, a theme which is likely to remain on Government’s agenda for the foreseeable future.
The role of councils is to facilitate dialogue between different groups including local businesses and residents, in particular making sure that there are forums for these conversations to happen.
Whilst challenges will be different in different places, there is a range of best practice from schemes across the country as well as tools available to support joint working. The LGA will shortly be publishing some case studies which will be available on the website. The Governments Local Alcohol Action Area (LAAA) programme, has recently completed its second phase, has been one way that authorities have been supported to tackle issues like diversifying the night time economy and data sharing.
The industry has worked hard to raise standards, and there are a large number of initiatives which can be used as tools by business to manage and improve the night time economy, for example the Purple Flag accreditation scheme.
The best premises will be active participants in one or more of the many industry best practice schemes that exist. If these schemes are not in operation locally, then they can be an effective way to significantly boost performance for comparably little investment. The Portman Group have useful guides around the various industry led Local Alcohol Partnerships.
There is always scope to set up a local initiative to tackle a specific issue; but the following is a short outline of some of the more prominent schemes that already exist. The scheme coordinators will always be happy to meet with councils to discuss how their scheme could work in the local area.
Partnership schemes involving the industry Pubwatch is an effective network of licensees working together to combat crime, disorder, and anti-social behaviour in towns, cities and local communities. There are about 1000 pub-watches in the UK. www.nationalpubwatch.org.uk
What other tools are available?
There are a variety of statutory and non-statutory tools that can be used to help manage the night time economy where issues are identified.
Cumulative impact assessments
If authorities have evidence that the high number or density of licensed premises in a particular area is having a detrimental effect on one or more of the licensing objectives, the licensing authority may consult on a cumulative impact assessment (CIA). A CIA is essentially an evidence-based tool for licensing authorities to limit the growth of licensed premises in a problem area. Whilst the concept of cumulative impact was not initially included in the Act, it was included in the Section 182 guidance and therefore a number of authorities introduced cumulative impact policies (CIPs).
Recent changes under the Policing and Crime Act 2017 have now put cumulative impact on a statutory footing and the Section 182 guidance has been updated to include CIAs. Existing CIPs will need to be reviewed to ensure they comply with the principles in new legislation, primarily the need for evidence, rules around consultation and the need to review CIAs at least every three years. A CIA sits apart from the SLP but the statement should include a summary of the CIA.
The effect of having a CIA is that it no longer creates a presumption that applications for new (or variations to) licences that receive relevant representations will be refused unless the applicant can show that granting the application will not add to the cumulative impact of existing premises. A CIA does not change the fundamental way that licensing applications are made under the Licensing Act.
In an area where a CIA has been published, licence applications must be granted if no relevant representations are made in relation to that particular application. If a CIA is in place, responsible authorities or any other interested persons can still make representations to promote the licensing objectives. Where relevant representations are made, they must be able to withstand the scrutiny of a hearing. It is possible for the licensing authority to grant an application in an area covered by a CIA where it considers it appropriate to do so.
The late night levy is payable by licensed premises and holders of club premises certificates within the designated area, which sell or supply alcohol between midnight and 6.00am. The levy is intended to recoup some of the costs of policing, and generally maintaining, an area with a high number of licensed premises operating late into the night. It is effectively a tax on licensed premises in the area that must be approved by the full council following an extended consultation period and a recommendation by the licensing committee.
There has been a limited uptake of the levy by local authorities, which is due in part to the requirement to apply a levy across the entirety of a local authority area, and limitations on how the levy can be spent.
Legislation requires that up to 30 per cent of net levy revenue can be allocated to local councils, with at least 70 per cent allocated to the local police and crime commissioner (PCC). However, in practice PCCs have the ability to agree a different split locally, an approach taken in Hounslow and Cheltenham.
Whilst originally a levy had to apply across the whole of the local area, changes under the Policing and Crime Act 2017 (yet to be commenced) will allow licensing authorities to target the levy at specific geographic areas rather than having to implement it in the entirety of their area. They will also give PCCs the right to formally request that a council consults on the levy and make it a requirement that local authorities publish information about what the levy revenue has been spent on, to increase transparency. Changes will also allow local authorities to charge the levy to late night refreshment outlets, in addition to premises selling alcohol in the night time economy. These measures will be commenced once the Home Office has consulted on the levy charge to be applicable to late night refreshment providers.
Whilst there has been some criticism of how the levy is spent, legislation is prescriptive in terms of the types of services that councils can fund with revenue from the levy, to help ensure it is spent on tackling alcohol-related crime and disorder. PCCs have no restrictions on how their portion can be spent. As highlighted above, new regulations under the Policing and Crime Act mean that licensing authorities will need to be more transparent, requiring them to publish details about how the levy is spent.
The levy has also been criticised by sections of the trade as having a disproportionate effect on smaller businesses. Whilst fees are set centrally in line with the rateable value of the premises, consideration should be given to whether exemptions could be applied.
Councils have the option to apply exemptions and reductions from a list set out by regulations for example to theatres and cinemas, and country village pubs. Councils can also exempt, or reduce the level of levy for businesses contributing to a business improvement district (BID). Islington and City of London offer a 30 per cent reduction and Nottingham City Council allow a complete exemption to licensed businesses that are part of a BID.
Any plans to introduce a late-night levy will need to be consulted on. In 2017 Tower Hamlets Council’s introduction of the levy had to be delayed following a successful challenge following a Judicial Review launched by the Association of Licensed Multiple Retailers (ALMR). The challenge focused on the consultation process which failed to include an implementation date for the levy.
There is dedicated statutory guidance available on the late-night levy, which can be found on the gov.uk website.
Business improvement districts
Often councils prefer to use alternative approaches to the levy and BIDs are one such alternative. BIDs are not specific to licensed premises and have been operating across the UK for over a decade and there are over 250 established around the country. BIDs are a popular approach which enable a targeted and business led approach to managing the allocation of funds collected through the BID levy. BIDs have the benefit of being locally led, and can be tailored and developed to meet the needs of the locality in which they operate.
A BID can be set up by a council, business rate payer or a person or company whose purpose is to develop the BID area. The ‘proposer’ of the BID is required to develop a proposal and submit this to the local authority, along with a business plan setting out the size and scope of the BID, and what businesses will be required to contribute. Following this, businesses which will be affected by the proposed levy vote in a ballot to determine whether the scheme goes ahead.
The amount that businesses pay (the BID levy) is calculated by the business rates of the premises within the targeted area in a similar way to the late night levy (LNL) and the money is ring-fenced to use within the BID area. Unlike the LNL, all types of business contribute rather than just those open between 12.00pm-6.00am, meaning that BIDs can often raise more revenue than LNL.
Whilst councils will often play a role in BIDs, they are primarily business led with businesses deciding and directing what they want money to be spent on. This could include extra safety, cleaning or environmental measures. Councils do have the power to propose the introduction of a BID, however they still need to go through the ballot process and ultimately any scheme would need the support of business to be successful meaning in some cases BIDs are not always a viable option.
A LNL was introduced in Cheltenham in 2014 and between its introduction and 2017 raised over £250,000 which was allocated to various projects to improve the late night economy. Projects and work funded by the levy include the purchase of body worn CCTV cameras for taxi marshals and licensed door staff, funding a ‘club hosts’ trial in partnership with DrinkAware and obtaining Purple Flag accreditation for the town. In August 2016, Cheltenham adopted its first BID which is set to generate around £440,000 annually through its levy. Although the BID focused on a smaller area of the city, Licensing Act 2003 19 the significant majority of licensed premises paying the LNL were also subject to the BID levy and therefore were disproportionately affected. In 2017 the council made a decision to remove the LNL given the BID’s potential to generate significantly more income and its commitment to continue to fund the existing projects funded by the LNL, where they operated within the BID area.
Business Improvement District Leeds Business Improvement District (LeedsBID), established in 2015 was developed by the city’s business community and has been a catalyst for change, leading on inspiring plans, projects and events to deliver its vision to make Leeds city centre an attractive place to live, work, visit and do business.
Representing close to 1,000 businesses and organisations in the city centre (those within the BID area with a rateable value of £60,000 or above), LeedsBID is focused on transforming Leeds city centre working in collaboration to improve experiences and standards for all city users.
Initiatives led by LeedsBID include the introduction of new street teams to improve the welcome and experience for people, the creative use of art, lighting and experiential activities in public spaces and a new programme of events.
LeedsBID has been a lead partner in helping strengthen, improve and highlight the city’s growing evening economy, working collaboratively with a range of organisations to secure Purple Flag status. The LeedsBID Street Rangers provide an early morning reactive service to tackle litter from the night before, while the introduction of the Leeds Evening Ambassadors (primarily funded by LeedsBID with Leeds City Council and BACIL (Businesses Against Crime in Leeds), welcome people in to the city centre on Fridays and Saturdays from early evening through to the early morning. In addition new events and activities have helped to encourage people into the city for a night out.
More information about LeedsBID can be found on their website.
Early morning restriction orders (EMROs)
An Early Morning Restriction Order may be applied where an area experiences a significant amount of late-night alcohol-related crime and disorder. The order, which can apply to a specific geographical area within the council’s district, can restrict all alcohol sales (but not other licensable activities) between midnight and 6.00 am where this is appropriate for the promotion of the licensing objectives. A strict consultation process must be followed before an EMRO can be adopted. Although it was introduced in the Police Reform and Social Responsibility Act 2011, no licensing authority has yet introduced one.
Blackpool Council looked at the introduction of an EMRO to restrict premises in the town centre from selling alcohol between 3.00 am and 6.00 am. After consideration, the Licensing Committee decided that an EMRO would be disproportionate and instead opted to establish a multi-agency Night Time Economy Working Group which could present recommendations to the committee on alternative approaches to addressing violent crime in the town centre.
Role of councillors
Membership of the licensing committee is prescribed within the Act, and should consist of at least 10, but no more 15 councillors. The licensing committee may delegate some of its responsibilities to a licensing sub-committee, however this must consist of three members of the main committee in order for decisions to be made with proper authority. This has been highlighted in recent case law where the decision of a licensing sub-committee in a review hearing was challenged successfully on the basis that the sub-committee was not lawfully constituted as members were not part of the licensing committee. The sub-committee does not need political balance and can also be appointed outside of full council. We also recommend that effort is taken to ensure that licensing committees are representative of the local communities that they serve.
The sub-committee’s primary role is to consider whether a licence application is likely to undermine one or more of the licensing objectives in the light of any relevant representations that may have been made about it. These considerations will be made at a hearing.
Licensing hearings, which are convened when a sub-committee is required to consider a contested application, must be held within strict timescales which are set out in regulations.
Day-to-day administration is carried out by licensing officers with some authorities opting for shared service arrangements. Licensing teams are commonly located within environmental health, regulatory services or legal services departments.
The Licensing Act 2003 (the Act) is a permissive regime. This means that licences must be granted if they have been made in accordance with statutory requirements and in the absence of any relevant representations or (depending on the type of application), objections.
Councillors may wish to check if arrangements are in place for the grant of non-contested licences to be reported to members on a regular basis, for example by an annual report to the Licensing Committee.
The House of Lords select committee which undertook post-legislative scrutiny of the Act between 2016 and 2017 was critical of licensing committees/subcommittees. The committee felt they had seen and heard about poor examples of practice by licensing committees. They made a number of recommendations in relation to this, the most far reaching being that the functions of licensing committees and sub-committees should be transferred to planning committees. Whilst government did not accept this recommendation they did support recommendations around the training of licensing committee members.
Training of councillors
No councillor should be permitted to sit on a committee or sub-committee without first having been formally trained.
It is important that training does not simply relate to procedures, but also covers the making of difficult and potentially controversial decisions, as well as the legal parameters within which the committee as a decision-making body may operate. The use of case study material can be helpful to illustrate this.
All training should be formally recorded by the council and require a signature by the councillor. Training should be refreshed at regular intervals for example following changes in legislation.
In addition to in-house training, there are a number of independent training providers, including licensing bodies – the National Association of Licensing Enforcing Officers (NALEO) and the Institute of Licensing (IoL). The IoL is in the process of developing a course outline for a councillor training package.
Suggested content of a training course
- background to the Licensing Act
- makeup of local licensed premises
- current industry trends
- licensable activities
- the Licensing Authority
- responsible authorities
- statement of licensing policy
- statutory guidance
- premises licences
- personal licences
- temporary event notices
- club premises certificates
- industry initiatives such as Challenge 21, ID entry schemes, Best Bar None
- enforcement - licence reviews - other procedures
- making representations
- holding a hearing - committee procedure, rules of nature justice, proportionality, Wednesbury principles, and other legislative duties, eg Human Rights Act - member’s conduct during a licence consultation
- member’s conduct at a hearing
- assessing and testing representations
- developing licence conditions
- giving reasons
- partnership working with the licensed trade and others.
Summary of key permissions under the Act
- Can apply to ‘any place’ (including outdoors).
- Can last indefinitely or for a fixed duration.
- Must name a Designated Premises Supervisor (DPS) in order to allow alcohol sales.
- Subject to public consultation before grant or variation.
- May be reviewed on application by residents/other persons or responsible authorities.
A premises licence is required to allow licensable activities to be provided in a specific location. Licences can be granted for an indefinite period, or for a fixed period such as for a music festival in a local park. More than one premises licence can be in force for an area or premises at a time.
To allow public engagement in the process, applicants are required to prominently advertise applications for new or varied licences on the premises for 28 days (10 working days for minor variations). There is a prescribed format for notices that are displayed which need to be at least A4 and printed on pale blue paper. Whilst the LGA has called for the end of the requirement for public notices to be published in a local paper as a way to save businesses money this is still a requirement and an application needs to be advertised in a local newspaper (except for minor variations). It is the responsibility of the licensing authority to advertise applications for new licences and full variation applications on its website from the day after they are received.
Every licensing authority must be able to accept electronic applications to comply with the EU Provision of Services Regulations 1990. Where applications come in online, the licensing authority is responsible for sharing them with responsible authorities in a timely manner as set out in regulations. However, in the case of postal applications, applicants themselves must distribute applications to all responsible authorities, licensing authorities application forms should therefore include addresses for responsible authorities.
There are four key parts to a premises licence application:
- the application fee
- the operating schedule, where the applicant details how they propose to operate and promote the licensing objectives
- a detailed plan of the premises
- the consent of the person designated as the premises supervisor (DPS) if alcohol is to be sold.
Since 2017 personal applicants for premises licences (such as sole traders or partnerships) also have to demonstrate they have a right to work in the UK as part of their application process.
An operating schedule is an important part of a premises licence (or club premises certificate) setting out how the applicant will promote the licensing objectives. It is good practice for applicants to discuss their operating schedules with officers from the appropriate responsible authorities before an application is submitted so that any potential issues can be identified early on and advice given. There is no rule to prevent ward councillors being involved in these discussions, providing they do not subsequently sit on a licensing subcommittee which considers an application they have been involved in discussing.
Making changes to a licensed premises
Where changes occur, there are provisions for varying a premises licences. A full variation application (similar to the process for the grant of a new licence) is required for significant changes, for example extending the hours during which alcohol may be sold.
A minor variation can only be used for less significant changes such as the removal of outdated or redundant licence conditions, or minor changes to the premises layout. The minor variation process involves a more streamlined 10-day consultation period compared to 28 days for a full variation.
Granting a licence
If no representations are made about a premises licence application during the consultation period, the licence must be granted subject to the mandatory conditions and any conditions consistent with the operating schedule. Where relevant representations are received, a hearing will need to be held to consider these. The next section considers these in more detail.
Once a licence has been granted, a review of a current licence can be called for by anyone. Someone experiencing ‘noise’ well outside the vicinity can still make a representation, as long as it is about the effect of granting the licence on the promotion of one of the licensing objectives. Reviews are explored in more detail later on.
Premises licences may be suspended if the annual licence fee is not paid. Procedures are laid down as to notices that must be given by the licensing authority before a licence can be suspended, and suspensions last until the outstanding fee is paid.
Ways to support businesses
Westminster, Cheltenham and Cherwell are among a number of licensing authorities offering a cost recovery, pre-application advisory service for business licences. This service collaborates with businesses to advise on the most appropriate, cost-effective and sustainable licence for them.
For new or growing businesses, the licensing process can be particularly complex, costly and difficult to get right the first time. Business licences can stretch the most fragile budgets and therefore investing a proportionate amount of time and money into a pre-application advisory service can result in businesses trading sooner. An additional benefit of this service is that these councils now receive more appropriate, full and accurate licence applications which overall speeds up the time required to grant businesses their licence to trade.
Temporary event notices
- Can apply to ‘any place’.
- Can be held by any individual over the age of 18 whether or not they hold a personal licence.
- May not allow temporary events to last for more than seven days.
- No premises may be used for more than 21 days in total a year under a TEN.
- May be objected to by the police or environmental health.
Unlike licences, carrying out ‘temporary licensable activities’ does not have to be authorised by the licensing authority, instead the person holding an event is required to give notice to the licensing authority in the form of a temporary event notice (TEN).
TENs usually account for the largest number of authorisations or transactions for a licensing authority. They can be used to hold ‘one-off’ licensable events at unlicensed premises where a premises licence, club premises certificate or the presence of a personal licence holder might not be necessary. They can also be used to temporarily extend the hours or activities permitted by existing premises licences or club premises certificates, although there are limitations on the amount of times a premises, and an individual, can use a TEN, depending on whether or not they are a personal licence holder.
Notices can be submitted to the licensing authority online (for example via www.gov. uk) or by post, in which case they will need to be sent by the applicant to the police and environmental health, and acknowledged by the licensing authority.
The key features of TENs are that an individual, rather than a business, will need to make the application as a ‘premises user’. The premises user has the same responsibilities as a Designated Premises Supervisor (DPS) but is not required to be a personal licence holder.
Compared to other types of notices the timeframes for TENs are relatively short – no less than 10 clear working days for a standard TEN and no less than five working days for a late TEN. A late TEN is simply a TEN that is submitted late; again there are restrictions on the amount of times this can be done by an individual or at a premises.
Whilst only environmental health or the police can object to either type of TEN, an objection to a standard TEN could lead to a hearing whereas objections to late TENs (due to the timescales involved) means the TEN cannot be used. This does not always mean the associated event has to be cancelled – for instance, a TEN may seek to allow alcohol to be sold at a school fundraising event. The event could still take place, but not with the alcohol sales.
The police or environmental health may also intervene by agreeing a modification of the proposed arrangements directly with the proposed premises user. If they send an objection, this may result in the licensing authority imposing conditions on a TEN if there is an existing premises licence or club premises certificate.
As a matter of practice, licensing teams will often notify ward councillors when a TEN has been given, particularly if the premises or event is likely to cause concern locally. The ward councillor cannot however object to a TEN.
Issues frequently arise when a premises user does not give a notice in sufficient time. The Act is very prescriptive and the licensing authority does not have any discretion to override those timescales.
Licensable activities under a TEN may not last for more than seven days at a time, and there must be a 24-hour gap between successive TENs when given by the same premises user. No more than 499 people may be present on the premises at any one time, which includes staff.
The licensing authority’s officers will issue a counter-notice if any of the limits (for example in relation to the number of TENs given in a year) have been exceeded.
The LGA has raised concerns that in many areas these are not being used by the community groups and clubs for whom it was intended, but instead to extend the regular operating hours of premises without the safeguards normally imposed by a licence. TENs are also the area where there is the biggest discrepancy between the fee charged and the costs received by licensing authorities, while also making up a significant administrative volume.
Club premises certificates
- May only be granted to a bona fide non-commercial qualifying club consisting of at least 25 members.
- A DPS is not required.
- The club may be open to members and to guests (not the general public).
- Subject to public consultation before grant or variation.
- May be reviewed on application by residents or other persons, club members or responsible authorities.
‘Qualifying’ clubs can operate under club premises certificates instead of premises licences. This means, for example, that they are not required to have a designated premises supervisor, and sales of alcohol do not need to be authorised by a personal licence holder.
The club premises certificate authorises the supply of alcohol and regulated entertainment. To be classified as a qualifying club, a number of requirements need to be met which are outlined in the Act. Examples of qualifying clubs are Labour, Conservative and Liberal clubs, the Royal British Legion, other ex-services clubs, working men’s clubs, miners’ welfare institutions and social and sports clubs.
As with the premises licence, where an application for a club premises certificate has been made lawfully and there have been no representations, the licensing authority must grant the application subject only to the conditions that are consistent with the operating schedule and relevant mandatory conditions. A hearing will be held to consider any relevant representations.
There are various benefits for qualifying clubs. There is technically no sale by retail of alcohol (except to guests of members) as the member owns part of the alcohol stock and the money passing across the bar is merely a mechanism to preserve equity between members where one may consume more than another.
This means that there is no requirement for a personal licence holder or a DPS to authorise the supply of alcohol. The premises are considered private as they are not open to the public which means the police and the licensing authority have more limited powers of entry. They would also be exempt in the case of a Magistrates’ court order to close all licensed premises in an area where disorder is happening or expected to happen.
Applications for club premises certificates must be in a specific format and be accompanied by the required fee, plans (if applicable), a copy of the club rules, and a club operating schedule (which is equivalent to an operating schedule). The licensing authority may inspect the premises before an application is considered.
A club may apply to a licensing authority to vary a certificate in the same way as a premises licence. Certificates may be suspended for non-payment of fees in the same way as premises licences.
- Applicants must have attended an approved training course.
- Authorities have the power to suspend or revoke a licence following conviction for a relevant offence.
- Licences last indefinitely.
- Applicants must demonstrate they have a right to work in the UK.
A personal licence is granted to an individual to make a sale of alcohol, or to authorise others to make sales of alcohol from licenced premises. Whilst all sales of alcohol must be made by or under the authority of a personal licence holder, not everyone who makes a sale has to hold a personal licence. A personal licence holder will need to give ‘meaningful’ authorisation for the sale of alcohol by non-licence holders which could mean either by being on the premises, or by written permission from the Designated Premises Supervisor (DPS) or another personal licence holder.
In a similar way to a driving licence, a personal licence is ‘portable’ and is not attached to a specific premises. Personal licence holders no longer have to apply for a renewal of their licence, meaning it lasts in perpetuity unless it is surrendered by the licence holder, or revoked/suspended by the licensing authority, or a court.
To qualify to be a personal licence holder applicants must be over 18 and hold a licensing qualification that has been accredited by the Secretary of State, the intention being that licence holders are aware of licensing law and the wider social responsibilities attached to the sale of alcohol.
Applicants will also need to prove their right to work in the UK and submit a police disclosure check with their application. If there are relevant current offences (as set out in Schedule 4 to the Act), the police can make a representation against the application on crime prevention grounds. If the police make a representation then there will be a hearing on the application.
A court can order a licence to be forfeited or suspended for up to six months following a conviction for one of the relevant offences. New powers introduced in 2017 allow licensing authorities to also suspend or revoke personal licences following a conviction for a relevant offence, or if the holder has been required to pay an immigration penalty.
Role of Designated Premises Supervisor
Each licensed premises must have a DPS, the person named on the premises licence as the individual designated to supervise the premises; they must always be a personal licence holder. The DPS will be the single point of contact for responsible authorities, particularly the police and licensing authority. They also have responsibility to make sure licensable activities are carried out lawfully in the premises, although they are not required to be on the premises at all times.
There can only be one DPS in relation to each premises, although the same personal licence holder could be the DPS for several premises. The DPS may also be the, or one of the, premises licence holders.
It is a breach of a mandatory condition for alcohol to be sold without a DPS being named on the licence. There are routine procedures in place for a DPS to be replaced, for example when changing their job. A DPS may be removed following a licence review; the police may object to an incoming DPS on the grounds that they would undermine the crime prevention objective.
Premises that are run as community facilities such as village halls may apply to remove the requirement to have a DPS, making the management committee collectively responsible for the supervision of alcohol sales instead.
Licensing sub-committees will need to meet to consider relevant representations about the likely effect of an application on the promotion of the licensing objectives, unless all parties agree that a hearing is unnecessary.
What is a ‘relevant’ representation?
Representations by parties other than RAs, for example individuals or businesses, are not relevant if the licensing authority considers them to be vexatious or frivolous, i.e. are not serious or there are insufficient grounds for action. Representations can be made in favour of or against an application. Equally, a representation may contain both relevant and irrelevant matters.
Representations must be made in writing within the required time period, and are copied or summarised to the applicant for them to consider. Officers can reject representations that are out of time (outside the 28 day period) or irrelevant, or if they are from persons other than responsible authorities and are considered vexatious or frivolous. Statutory guidance recommends that the benefit of the doubt should be given to those making representations and borderline submissions allowed to be considered by the sub-committee.
In the case of a review, representations should not be repetitious, i.e. identical or substantially similar to grounds for review already made should not be considered if a reasonable interval has not elapsed since an earlier application or a review (at least 12 months).
Councillors may make representations:
- in their capacity as a private individual
- as a ward councillor
- on behalf of local residents or organisations.
Representations can be withdrawn in writing at any time up to 24 hours before the start of a hearing, or alternatively at the hearing itself.
Hearings are convened where relevant representations have been made and those issues have not been satisfactorily resolved. In the run up to the hearing it is quite proper and indeed should be encouraged, for applicants, responsible authorities and other persons to discuss issues that may lead to the application being amended, additional conditions agreed and/or the representations being withdrawn. Applicants should be encouraged to contact responsible authorities and others, such as local residents, who may be affected by their application before formulating it so that the mediation process may begin before the statutory time limits on hearings (addressed later in this handbook) come into effect following the submission of an application.
The setting of conditions is one of the most significant ways in which licensing authorities can influence the running of a premises. As well as mandatory conditions which are set out in the Act, authorities can also add ‘voluntary’ conditions to a licence. Used effectively, this can mean that authorities put in place the elements that are essential to promoting the licensing objectives.
However, poorly designed or inappropriate conditions can have the effect of hampering a premises, preventing it from being financially viable and potentially leaving the community with an empty premises. The general rule is that conditions should be appropriate to the specific premises, necessary and proportionate.
Many licensing authorities publish pools of conditions, which give applicants an idea of the types of conditions that may be imposed. It is recommended that these are published separately from the SLP to allow them to be updated in a more flexible way than the SLP would allow. Whilst pools of conditions are helpful, licensing committees should always avoid imposing these conditions as a matter of course, or as blanket conditions to be applied to every premises. The wording of such conditions should be seen as a template to ensure conditions are tailored to the specific operation of the premises.
Licensing authorities must bear in mind that breach of any licence condition can potentially amount to a criminal offence, punishable by an unlimited fine and/or up to six months’ imprisonment. Conditions must therefore be clear, precise and proportionate in order for them to be enforceable.
Applications that do not attract any representations (or where representations have been withdrawn) are granted subject only to conditions consistent with the operating schedule and the relevant mandatory conditions. Officers will draft those conditions under delegated authority in that situation, drawing on their expertise and any pools of model conditions.
However, if there have been representations then licensing authorities have the opportunity to impose or amend/modify conditions on the licence. Like any decision during a licensing hearing, the steps taken to impose conditions must be appropriate to promote the licensing objectives.
A sub-committee should be proactive with conditions and it is always worth considering whether objections could be overcome by conditions. Comments should be invited on proposed conditions before they are imposed. Conditions can be imposed in any case where they are considered ‘appropriate’.
The key thing to remember with conditions is that less is more. The premise licence holder will need to be able to easily implement them if they are genuinely to make a difference to how the premises are run. Licences may be issued with just the mandatory conditions.
Licensing authorities should not aim to micro-manage premises through the use of conditions. Premises that appear to need more conditions than usual may have more fundamental problems in terms of management or planned operation.
Many operators will put forward their own conditions when they make an application. This is to be welcomed, but licensing Licensing Act 2003 committees will need to ensure that all of these proposed conditions are genuinely necessary; properly worded so that they are enforceable; and are achievable. These conditions can also be modified or new conditions added.
A poorly-worded condition which is imprecise and difficult to comply with at all times might read: ‘Windows and doors must be kept closed’. A better-worded condition which is more appropriate (addressing the particular concern of the prevention of public nuisance objective) and proportionate (only applying during specific times) might read: ‘The Designated Premises Supervisor shall ensure that (apart from access and egress) all external windows and doors are kept closed when live music is played between 10.00 pm and the closing time of the premises on any day.’
An inappropriate condition might read: ‘The premises licence holder shall ensure customers use public transport to travel to the premises.’ A better-worded condition might read: ‘The premises licence holder shall prominently display signs and notices in the premises promoting the use of public transport to travel to the premises.’ The premises licence holder would be unable to control their customers’ action beyond the immediate vicinity of the premises, as stated in the statutory guidance.
Similarly, conditions that relate solely to best practice or management styles are often more effectively addressed by a code of practice on effective management. A number of licensing authorities have adopted this approach and it has proven effective, removing any distracting conditions from the licence and emphasising the crucial importance of those remaining on the licence.
However, there will always be individual cases where a specific condition may be appropriate to include on the actual licence; for instance, serving drinks in polycarbonate or polycarbonate containers may be appropriate where a premises has a history of violence or where broken glass is routinely found on nearby public footpaths. In this example, the conditions would be imposed during a review of the premises.
There are five mandatory conditions which all licensed premises and club premises must follow.
- Staff on relevant premises must not carry out, arrange or participate in any irresponsible promotions in relation to the premises. This includes drinking games, encouraging someone to drink as much as possible with or without a time limit; providing free or unlimited alcohol or for a fixed or undetermined fee, including as a prize; using posters that promote or glamorise anti-social behaviour or present the effects of drunkenness in a positive manner.
- Provide free potable drinking water on request to customers in on-licensed premises.
- Have in place an age-verification policy and apply it to the sale of all alcohol.
- Must ensure that the following drinks if sold or supplied for consumption on the premises are available in the following measures:
- beer or cider – half pint
- gin, rum, vodka or whisky – 25ml or 35ml
- still wine in a glass – 125ml.
The availability of these measures must be displayed in a menu, price list, or other printed material available to customers and must be brought to a customer’s attention if they do not specify what quantity they want.
- 5. Not sell alcohol below the cost of duty plus VAT.
In a premises licence application, the applicant has the opportunity to volunteer conditions, which will be measures that the licenced premises will introduce, above and beyond the mandatory conditions to promote the licensing objectives.
There are some conditions which need to be approached particularly carefully, as the choice of words used could make the difference between something that makes a meaningful difference to the safety and background noise of the area, and something that causes a regulatory burden to business but fails to protect the community.
There shall be a minimum of four door supervisors employed at the premises (or more if required in writing by the police) from 9.00 pm until 30 minutes after the time for the premises to close on Fridays, Saturdays and any Sunday falling within a bank holiday. It is not clear if this volunteered condition applies every Friday, every Saturday and any Sunday or only those that are also a bank holiday (in which case there would not be a Saturday or Sunday bank holiday).
These risks exist with all conditions, but experience has shown that they are most acute when it comes to conditions that require the installation of CCTV or the imposition of noise limits. There have been a number of instances where CCTV has been installed at the licensing committee’s request, but the quality of the system failed to meet the standards needed for it to be used by the police.
Similarly, a number of noise conditions have been overturned in Magistrates’ courts due to wording that required the premises to keep noise levels ‘inaudible’ – raising questions of audibly by whom, in what location, and failing to take account of the fact that for the most part young people can detect more sounds than older people.
Where conditions concerning noise or CCTV are being imposed, the final wording must have the input of the police or the council’s acoustic expert in the environmental health team. This will ensure the conditions meet their purposes, although the licensing officer will need to ensure that they remain intelligible to the DPS, who will not be trained in these technical areas but must understand how to meet them. Again, these sort of conditions need to be proportionate.
‘Mediating’ conditions in advance of a hearing
Following an application for a late night restaurant, the police make representations about crime and disorder; environmental health make representations about noise control, and local residents make representations about possible late-night noise. The applicant agrees to install CCTV, to include licence conditions to keep windows and doors shut after 9.00 pm, and to close an hour earlier than originally applied. All parties withdraw their representations and no hearing is necessary.
An off-licence wants to extend its premises into the shop next door. The police’s representations about crime prevention measures and trading standards representations about under-age sales have been resolved by the applicant agreeing to include appropriate conditions. However, the residents’ association representation about possible anti-social behaviour has not been withdrawn and a hearing is arranged.
A petrol station submits an application to extend its sales of late-night refreshment until 3.00 am. A number of representations are made and the application is withdrawn.
A nightclub applies to vary its hours for licensable activities until 6.00 am. Representations are made and the applicant decides that an application to allow closing at 7.00 am would allow customers to use public transport better to get home. As this is applying for longer than the original hours, a new application is needed.
A nightclub within a cumulative impact area is being refurbished and will need to submit an application to vary its licensing plans and also extend its hours. The applicant meets with officers from various responsible authorities, local residents and ward councillors. New conditions are agreed between all the parties that are included on the operating schedule. If no representations are made the varied licence is granted by officers under delegated authority
Hearings and appeals: what to expect next
Purpose of hearings
The purpose of a hearing is to decide whether granting an application would undermine the licensing objectives in the light of any relevant representations, the statutory guidance and the authority’s SLP.
Potential issues in terms of an applicant not meeting the licensing objectives should be identified early. Licensing officers should provide pre-application advice and guidance to applicants to help avoid the need for a hearing, this advice could form part of the SLP. In cases where relevant representations are made about either granting or changing a licence, early mediation is encouraged between parties; this can help avoid the need for a hearing.
Conducting a hearing Provisions for holding hearings are set out in the Licensing Act 2003 (Hearings) Regulations 2005 which provide for the various notification requirements, conduct at, and timings of, hearings.
Where specific provisions for the procedure for hearings have not been made, councils are able to set and control their own procedure as long as it is not contrary to the Regulations. The purpose of procedure should always be to enable those with the right to, to appear and advance their point of view and to test the case of their opponents. This will assist the licensing sub-committee to gather evidence and understand relevant issues. Expectations should be clearly documented in a member’s Code of Conduct.
Councillors should be aware there may often be an imbalance of expertise between applicants who may be represented by lawyers, and residents (or even representatives from responsible authorities) who do not have the same degree of familiarity with the Act or the licensable activities being proposed. A degree of latitude and discretion may be necessary.
There is a growing body of case law around licensing hearing procedures, but the following should act as a guide to help avoid decisions being challenged.
The Act delegates hearings to the licensing committee or sub-committee, and cannot be delegated to officers. They must be held within 20 working days of the end of the consultation period for premises licences and full variation applications. Hearings may be held during normal working hours, and this may be more suitable if all of the parties are available. Hearings during an evening may be more suitable if local residents are unable to attend during the day but run the risk of being more rushed for parties to make their case and for members to reach a reasoned decision.
Regulations set out timescales for the giving of notices of the hearing, and specify that details of the representations should be provided to the applicant in advance. The Local Government Act 1972 requires that agendas should be published at least five clear days before the meeting (although this would not apply to hearings for TENs or for expedited reviews).
Where there are no longer any matters of dispute a hearing is usually cancelled. If the licensing committee wants to hold the hearing anyway, it is recommended that the reasons why should be communicated as soon as possible to the applicant/licensee. It should be clear within the scheme of delegation in the SLP who has the authority to dispense with a hearing. Hearings should not be held where all parties agree one is unnecessary.
Licensing officers should prepare a report for committee members in advance of the hearing. Whilst there is no standard format for these reports they should collate and summarise relevant representations.
In some councils the sub-committee may receive a briefing before the start of the hearing. This should be solely confined to procedural matters. The merits of any material or the application before the sub-committee must not be discussed.
Who may attend the hearing
Any party making an application or making a representation can attend the hearing, and may be accompanied by anyone to represent them or give evidence.
A hearing can still take place in the absence of a person making representations although it is recommended it should not take place in the absence of an applicant/licence holder (particularly for a review) unless they have previously indicated otherwise.
If a party has indicated they will attend as required by the regulations but are absent at the stated time, the hearing should be temporarily adjourned to allow officers the opportunity to try and contact the people concerned.
Powers exist for a hearing to be adjourned in the above circumstances. Hearings may be adjourned in the public interest before they start (for example to allow an applicant to arrange legal representation following consideration of the representations). Hearings may be adjourned during the hearing if for example further information is needed in order to reach a decision. However, case law determines that a matter cannot be adjourned indefinitely but, instead, to a specific date.
Members must, at all times, comply with the council’s member code of conduct which should set out the standards that members must observe and include:
- treat others with respect
- do not bully or intimidate anyone
- do not compromise the impartiality of an officer
- give reasons for all decisions
- the ‘prejudicial interest’ concept.
A prejudicial interest is ‘one which a member of the public, with knowledge of the relevant facts, would reasonably regard as so significant that it is likely to prejudice your judgement of the public interest’.
Appearance of bias
While third party lobbying of elected members is legitimate and councillors may make representations to the licensing committee on behalf of other persons, it is crucial for the licensing authority and its committee to ensure that there is neither actual nor an appearance of bias in its decision-making. It should also be remembered that concerns about political lobbying were the basis of the concerns which led to the first Nolan Committee on Standards in Public Life.
Section 25 of the Localism Act 2011 does not prevent councillors from publicly expressing a view about an issue or giving the appearance of having a closed mind towards an issue on which they are to adjudicate. However it is recommended that to avoid an appearance of bias the following advice should be observed.
- No member sitting on the licensing subcommittee can represent one of the interested parties or the applicant. If s/ he wishes to do so s/he must excuse him/herself from membership of the sub-committee which is considering the application. Case law has also established they should not be in the room for the hearing once an interest has been declared.
- If a member who sits on the licensing sub-committee is approached by persons wishing to lobby him/her as regards the licence application then that member must politely explain that they cannot discuss the matter and refer the lobbyist to his/her ward member or the licensing officer who can explain the process of decision making. If the member who sits on the licensing subcommittee wishes to represent them then s/ he will need to excuse him/herself from the licensing sub-committee.
- Members who are part of the licensing sub-committee must avoid expressing personal opinions prior to the licensing sub-committee decision. To do so will indicate that the member has made up his/ her mind before hearing all the evidence and that their decision may not be based upon the licensing objectives nor the statement of licensing policy.
- Members must not pressurise licensing officers to make any particular decisions or recommendations as regards applications.
- Political group meetings should never be used to decide how any members on the licensing sub-committee should vote. The view of the Local Government Ombudsman is that using political whips in this manner may well amount to findings of maladministration. It may be advisable that the chair of the licensing sub-committee should state, during proceedings, that no member of the sub-committee is bound by any party whip.
- Councillors must not be members of the licensing sub-committee if they are involved in campaigning about the particular application.
- Other members (i.e. those who do not sit on the licensing sub-committee) need to be careful when discussing issues relating to matters which may come before the licensing sub-committee members as this can easily be viewed as bias/pressure and may well open that sub-committee member to accusations of such. While a full prohibition upon discussing such issues with committee members by other members may be impractical and undemocratic, local authorities are advised to produce local guidance for members on how such matters can be dealt with. Such guidance could include a definition of what is viewed as excessive, eg attempting to obtain a commitment as to how the member might vote.
- Councillors must also be aware of the need to declare any pecuniary or non-pecuniary interests in matters that may come before them, whether these relate to policy issues or to specific applications.
- Member behaviour is also governed by the code of conduct which members should have regard to, and most authorities also have a member/officer protocol which governs how members and officers should interact and the differences in their roles and responsibilities.
- Members should consult their monitoring officers for further advice where necessary.
A well-defined policy and comprehensive scheme of delegation to officers can go a long way to avoiding many of these pitfalls, although, of course, members must retain full oversight of how the scheme is working. There are no rules preventing councillors from sitting on applications within their own wards, although some authorities adopt their own rules to avoid this. Members may make representations about applications, make representations on behalf of others, or appear at a hearing if asked to do so by another person who has made a representation (subject to the rules above).
Principles of good practice
Ultimately, there are three objectives in holding a hearing; to conduct it fairly, so that each party, regardless of the outcome, would ultimately accept that they have had a fair opportunity to put forward their case; to grant a licence (if appropriate) that promotes the licensing objectives; and also to assist in producing well-reasoned, balanced, and proportionate decisions which will withstand the scrutiny of an appeal.
Procedures should be published before the hearing and reiterated at the outset of a hearing. The chair (who may be elected at the start of the hearing) also has the role of ensuring members have read and understood papers. During a hearing (within the boundaries of fairness), needless formality should be avoided, the meeting should proceed as a discussion, and there should be a dialogue with the chair who is keeping order. The cross-examination of parties at the hearing (the repeated questioning of a person on the same point) should be avoided.
Time limits can be a useful way of managing the hearing, but must be sufficient to allow an applicant or their representative to effectively put their case forward. The practise of allowing a limited amount of time, for example five minutes, for each party to address the sub-committee should be discouraged in all apart from exceptional cases such as where there are a very large number of people wishing to address the sub-committee. Parties must also have adequate time to respond to submissions or questions.
Members must take into account anything relevant, and use this to make judgements or inferences, about potential harm and what is necessary to avoid it. For example they can draw on local knowledge, regardless of whether it would qualify as ‘evidence’ in a court. However, it is sensible to raise any specific areas of local knowledge for comment by the parties. The committee must disregard any irrelevant considerations, including (but not limited to) information or evidence which is not relevant to the application or to the promotion of the licensing objectives.
The committee may accept hearsay evidence, such as when a witness gives evidence of something which they did not personally see or hear. For example, a newspaper report about a fight at the premises or a neighbour’s description of dispersal noise from the premises at night. Hearsay is admissible but it inherently carries less weight than the direct evidence of a witness who experienced the events being described.
Many SLPs contain rules about how petitions would be treated by the sub-committee. It may also refer to ‘round robin’ letters, and how much weight will be attached to those.
Part of the role of the committee is to keep order, which can mean making sure people stick to the point and to ‘cut through issues’. Committees also need to ensure fair treatment of witnesses for example preventing them from being interrupted, and ensuring no ‘leading questions’ are asked on contentious matters. It is good practice to ask open-ended questions and preferably through the chair.
The committee should be proactive with conditions and it is always worth considering whether objections could be overcome by conditions. Comments should be invited on proposed conditions before they are imposed.
Members should not express a view on merits before giving decisions. There is a duty to behave impartially so members should not make up their mind until the end, nor appear to do so. Merits of the case should not be discussed with the press or residents or any of the parties to the hearing. If this does happen, disqualification from the hearing should be considered.
This also applies to the time leading up to the hearing. Members must not prejudge any application, express any view on the merits of any application, organise any support or opposition to any application, in advance of the hearing. Any member with a ‘closed mind’ on any application should be disqualified from sitting on the Licensing Committee which considers that application.
The sub-committee has up to five working days after the end of the hearing to make its decision and give its reasons. Sometimes this additional time is useful to fully consider the representations and the application in more depth.
Late representations and evidence
Representations can be supported with any other relevant material, and can be provided at any time up to 24 hours before the hearing. If material is provided at the hearing, it must be with the consent of all the parties, to avoid a party being ambushed with material they might not be able to respond to.
It is up to the committee’s discretion whether to allow late evidence. You may want to consider:
- length, content, complexity and impact of the document
- explanation for any delay
- prejudice to other parties
- whether an adjournment (even to later the same day) would assist the parties to assess the material.
Licensing hearings are administrative in nature – neither party has a burden of proof – but the procedures may be slightly different to the usual arrangements for other council committee meetings. The rules of natural justice apply, i.e. a party must know the case against them; anyone affected by a decision has a right to be heard; and no one should be a judge in his own cause.
All the parties should be given a full and fair hearing, which should be conducted in an open, transparent and accountable manner. Licensing applications must all be considered on the basis of whether they promote the four licensing objectives as incorporated in the SLP. Each application must be considered on its own merits and whilst consistency is important similar applications may be decided in different ways.
Decisions must accord with the Wednesbury principle of reasonableness.
Wednesbury principle: ‘[A decision] So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’
- in making the decision, the sub-committee took into account factors that ought not to have been taken into account, or
- the sub-committee failed to take into account factors that ought to have been taken into account, or
- the decision was so unreasonable that no reasonable authority would ever consider imposing it.
In reaching their decisions under the Act, the Licensing Committee must have regard to all relevant considerations including (but not limited to):
- the relevant statutory provisions
- relevant statutory guidance issued under Section 182 of the Act
- the SLP
- the licensing objectives
- the material facts based on the relevant evidence presented and representations received
- the individual merits of each case
- the public interest.
The sub-committee must also ensure decisions are compatible with the Humans Right Act 1998, and take account of the council’s wider duties to prevent crime under the Crime and Disorder Act 1998 and to promote equalities under the Equalities Act 2010.
The sub-committee can either grant or refuse a licence application where it is appropriate to do so for the promotion of the licensing objectives, and in accordance with its SLP (unless there are good reasons to depart from the SLP). It may impose additional conditions if it is appropriate to do so, and those conditions should be appropriate to those issues raised in representations or volunteered by the applicant.
Formulating effective reasons for any decision is vital. The sub-committee will need to make clear to parties why they have reached a decision, not just what the decision is. Reasons do not have to be lengthy (see below) but must deal with the main issues: it is important to explain any findings of fact which were necessary to reach the decision. This ensures that a court can judge whether the decision was correctly made.
Strong reasons are important if an appeal is made. The fuller and clearer the reasons, the more weight they are likely to carry. The Hope and Glory case is helpful here:
‘Licensing decisions often involve weighing a variety of competing considerations: the demand for licensed establishments, the economic benefit to the proprietor and to the locality by drawing in visitors and stimulating the demand, the effect on law and order, the impact on the lives of those who live and work in the vicinity, and so on.
‘In a sense questions of fact, they are not question of the ‘heads or tails’ variety. They involve an evaluation of what is to be regarded as reasonably acceptable in the particular location… (this) is essentially a matter of judgment rather than a matter of pure fact.’
Reasons must also refer to all representations – including referring back to the officer report. A useful structure to follow is:
• summarise key points from the evidence heard
• explain why a particular approach was taken rather than others, i.e. why some conditions might or might not have been appropriate
• refer to policy, guidance and licensing objectives as applicable.
If the sub-committee has departed from the SLP or the statutory guidance, there should be good, cogent reasons for this and these should be clearly stated. (For example, the statutory guidance advises that shops and supermarkets should be allowed to sell alcohol during the same times as other goods in the premises. A sub-committee may find it appropriate to limit alcohol sales to particular times to avoid the risk of sales to under-age people or street drinkers.)
Many licensing authorities have standard templates in which to record decisions and reasons. The decision notice also often serves as the minutes of the sub-committee and is retained as a public record.
Examples of reasons
Reasons should articulate which party’s evidence was preferred and why. If for example a party provided inconsistent or vague evidence, the decision notice should say so and make reference to that being the reason that their evidence was not preferred over that of other parties present during the hearing who were more precise and consistent in their submissions.
Rather than just saying a condition has been imposed ‘to promote the crime prevention licensing objective’, they should also articulate how it would do so and why it is appropriate to impose the condition for example:
‘The condition imposed requiring CCTV to be installed is considered appropriate to promote the prevention of crime and disorder as the presence of CCTV will deter people from engaging in criminal or disorderly behaviour and assist in providing evidence to the police of those who have been involved in such behaviour so that appropriate action can be taken against them.’
Other examples could include:
‘The condition requiring self-closing devices to be fitted to the external doors of the premises is considered appropriate to promote the prevention of public nuisance as this will help to minimise noise breaking out from the premises when people enter or leave the building.’
The role of the chair of the licensing committee/sub-committee
The role of the chair is not explicitly referred to in the Act or the Section 182 guidance. However it can be helpful to clearly set out expectations of the role of the chair.
Ultimately, the chair is responsible for oversight of the conduct of hearings and make sure they are carried out properly, this includes ensuring that all relevant matters are discussed and that effective decisions are made. The chair is also responsible for deciding whether any individual councillors should be prohibited from sitting on the committee, for example where there is a conflict of interest.
Before a meeting begins, the chair should ensure members have read and understood the papers. At the beginning of a hearing, the chair should introduce members of the (sub) committee and the council officers and ask others present to introduce themselves.
The chair should explain procedures that are intending to be followed, including a maximum period of time each party will be allowed in which to present their case if deemed necessary. The chair should also ensure procedures are followed throughout the hearing.
Following this, the chair should then ask the licensing officer to outline the background to the case, with each party then asked to confirm that this summary is correct. It is the responsibility of the chair to make sure that issues raised in relation to the case are considered at the hearing.
The chair may ask the licensing officer to clarify factual matters as and when they arise and also where necessary seek advice from the legal advisor or governance officer.
Ultimately, the chair should ensure the (sub) committee reach a decision that is based on criteria set out in the Licensing Act and that clear reasons for this decision are provided.
The role of the legal adviser
The legal adviser’s role is to guide and provide advice to the sub-committee, whether or not it is requested, for example:
- questions of law – interpreting any legislation
- matters of practice/procedure
- admissibility of evidence Licensing Act 2003 43
- range of options available to the committee
- any relevant higher court decisions
- drafting and formulation of conditions
- what the Section 182 guidance says.
The advisor may not take part in findings of fact or decision making, and members should not invite views. Legal advisors have an important but limited role to assist in the formulation and recording of reasons, but not the underlying decision. The legal advisor should advise the committee on the law and, where necessary, steer the committee procedurally to ensure that matters progress fairly and impartially. It is therefore important for legal advisors to receive appropriate training before sitting on a licensing committee or sub-committee as they play an important role and can help ensure consistency.
It is recommended that should any legal advice be given that was not raised during the hearing it should be repeated to the parties before a decision is announced so that any contrary arguments to be taken into account can be made.
The role of the licensing officer
The licensing officer is responsible for preparing a report in advance of the hearing, which should collate and summarise representations. The licensing officer should make a judgement around whether representations are frivolous or vexations. Practice varies between licensing authorities as to the extent and content of the officer report, and the degree of intervention the licensing officer can have at the hearing. However, the professionalism and expertise of the officers should be recognised and they may be able to help in clarifying matters that arise during the course of the hearing that are not set out in the report or the representations.
Following the hearing, the licensing officer must transpose conditions onto the licence. These will include mandatory conditions, any ‘conditions consistent with the operating schedule’, and any other conditions imposed at the hearing. The key point here is that these conditions need to be enforceable.
If a licensing officer has made representations on behalf of the licensing authority as a responsible authority they should be treated in the same way as other parties to the hearing.
What happens if the committee’s decision is challenged?
Process for appeals
Applicants and others may complain using the council’s corporate complaints system if they think their application has been poorly handled administratively: they may also complain to the Local Government and Social Care Ombudsman if they remain dissatisfied.
However should they wish to challenge the committee’s decision, any party to a hearing has the right to appeal to the Magistrates court within 21 days of being notified of the licensing authority’s decision.
The licensing authority is always the respondent to an appeal and the parties at the sub-committee hearing who are not appealing effectively become witnesses on behalf of the licensing authority, should they wish to do so.
The licensing authority will almost always be represented at an appeal hearing, whether by the council’s legal services, external legal advisors or a lawyer specialising in licensing law. Whilst the cost of external legal representation can be daunting, Magistrates can and will award costs against the council if they are found to have departed unreasonably from their policy; however, they should not award costs if the council has acted reasonably but came to an erroneous decision. This is backed up in case law.
Magistrates are effectively ‘in the shoes’ of the licensing authority and are therefore bound in the same way by its policy, i.e. if they depart from it they must also record their reasons for doing so. The Magistrates cannot however ‘challenge’ or disagree with the licensing authority’s policy. This can only be done by way of a judicial review.
A Magistrates court should assess the appeal solely on the basis of the facts and the licensing authority’s licensing policy; they will not find against the authority simply on the basis that they disagree with the conclusion – the assessment is on whether the authority could reasonably and legally reach the conclusion that it did. The key test for the courts is whether the authority’s decision was ‘wrong’.
As the appeal is a ‘hearing de novo’ (a fresh hearing) the court may hear evidence of events or changes since the original sub-committee hearing – for example the police may have evidence of further crimes at the premises, or the appellants may have evidence of new, improved operating procedures.
In light of that, there are some very simple steps that licensing authorities can take at each hearing to ensure the authority is in a robust, defensible position if there is an appeal:
- Ensure proper administrative procedure is followed and that all parties are dealt with fairly.
- Avoid any instance of bias or having predetermined the case. If a councillor has campaigned politically on a relevant issue they may ask how the applicant is able to address the particular issue, but must demonstrably show that they consider the response with an open mind.
- Always set out the reasons for decisions. This includes the relevant weight that licensing committee members applied to the evidence presented by different parties; and whether or not they have followed or are departing from the authority’s policy. Members may depart from your council policy, but must be clear about your reasons for doing so.
‘behind every ground for refusal there have to be adequate reasons, and for those reasons there has to be a proper basis in fact, i.e. there must be adequate material to substantiate any ground of refusal’ Leisure Inns UK v Perth and Kinross It is worth noting that licensing appeals can take a significant length of time to be heard in the Magistrates’ courts. Hearings can take months to arrange and premises continue to carry on licensable activities while the appeal process is ongoing.
Negotiations may take place during the period after a sub-committee hearing and an appeal hearing between the appellant and other parties – for example, a premises licence holder may have further discussions with a responsible authority about the way in which they propose to operate the premises. (This is similar to the process following the receipt of representations and prior to the sub-committee hearing).
An agreement may be reached for the operating schedule to be amended or other conditions to be added to the licence and for the appeal to be withdrawn. As the licensing authority is always the respondent to the appeal, it is recommended good practice that the authority’s legal advisers or licensing officers consult with the chair and/or subcommittee members and any other party to the appeal about the terms of any possible agreement. The court can then be invited to confirm a consent order agreed between the parties, requiring the licensing authority to issue a licence on the agreed terms, or to remit the appeal back to the sub-committee for its further determination.
Councillor presence at an appeal
Some licensing authorities may wish to call the chair of the licensing committee or relevant sub-committee to give evidence to the court as to why they reached their particular conclusion. Whilst it may be helpful, such reasons should be contained within the committee minutes or determination notice which can be produced in the licensing officers’ evidence. It will be a matter of fact in each case how much weight the court puts on a councillor’s evidence in this regard, taking into account that the appeal is a new hearing, operating as if the original decision had not been made.
In most cases either the licensing officer will give evidence as to the fact of the subcommittee’s determination, or it will be accepted by the court as a matter of public notice.
Responding to issues at licensed premises
It is good practice for officers and responsible authorities to give licensees early warning of any concerns or issues relating to the licensing objectives that are linked to the premises and to offer advice on the need for improvement.
A graduated approach consisting of advice, warnings, the use of action plans or statutory notices is sometimes appropriate depending on the nature and severity of the concern.
However, where there is a failure to respond to warnings or where concerns are particularly serious licensing authorities can be asked to review a licence. It is important to note that the vast majority of licenced premises are responsible businesses and reviews are relatively rare.
A review functions as a safeguard or ‘check and balance’ for communities in the case where problems associated with the licensing objectives are occurring once a licence has been granted, or varied.
There are four types of reviews which licensing authorities can use depending on the circumstances relating to the request. These are:
- a standard review
- a summary/expedited review
- a review following a closure order
- a review following a compliance order made under the Immigration Act.
For the purpose of this section the focus will be on the standard review which can relate to the failure to promote licensing objectives, or a breach of conditions.
A responsible authority, residents, businesses or councillors, indeed anyone may seek a review of a premises licence and, in the case of a club premises certificate, that includes the members of the club. This can be done at any point following the grant or variation of a licence or certificate. Home Office figures show that the police are responsible for instigating most reviews, and most relate to the ‘crime and disorder’ objective.
The review process includes a 28-day consultation process to allow for public engagement. In a similar way to a hearing, any relevant material can be considered by the sub-committee and the party applying for the review has to persuade the subcommittee the licensing objectives are being undermined.
The primary purpose of a review is to act as a deterrent to prevent further breaches. It can also prevent any licensable activities which are causing concern from happening in future.
There are a range of options open to a subcommittee:
- to modify or add conditions, including reducing hours
- change management – remove the DPS
- suspend all or any of the licensable activities for up to three months
- revoke the licence.
Any of these steps needs to be shown to be appropriate and proportionate. Clearly revocation is the most serious of these and will need careful consideration. In most cases, reviews result in the modification or addition of conditions to the licence.
In certain circumstances the police have the power to apply to a Magistrate’s Court for a Closure Order, these should not be used lightly and should only be sought where necessary to prevent disorder. Following the making of a Closure Order the licensing authority must complete a review of the Premises Licence within 28 days. The Home Office issues separate guidance29 around police powers to close premises.
Summary reviews can be made by the police (a police superintendent or above) where premises are associated with serious crime and/or disorder. This would typically be involving violence or money laundering. The Home Office issues guidance which includes issues to take into consideration.
Summary reviews are fast track reviews within 28 days with the power to impose interim steps within 48 hours of the application pending a full review hearing. Interim steps could be modifying conditions, ceasing the sale of alcohol, removing the DPS or suspending a licence.
These are very much a last resort and not a routine step. Again, the Home Office issues specific guidance around summary reviews and forms are set out in statute.
Either before or in conjunction with a review officers may also consider using other statutory powers, including commencing a prosecution.
Prosecutions must relate to a specific breach of licence condition or specific offence under the Act with each element of the offence needing to be proved beyond reasonable doubt. Prosecutions can only be commenced by a responsible authority and must be started within 12 months of discovery of the offence.
The purpose of a prosecution is punitive and for licensing offences a review (with the threat of revocation or suspension) can often be more of a deterrent.
Range of options open to the court:
- unlimited fine
- imprisonment for up to six months (or suspended sentence)
- forfeit or suspend a personal licence where the defendant is a personal licence holder.
In practice, a case can take a significant amount of time to come to court – if there are issues with the promotion of the licensing objectives which can’t be resolved amicably, then review is likely to be the most appropriate response.
Designated Premises Supervisor (DPS): A DPS is the person named on the premises licence as the individual designated to supervise the premises.
Operating schedule: An operating schedule sets out how an applicant for a premises licence (or club premises certificate) will promote the licensing objectives.
Responsible authority (RA): RAs are statutory bodies who need to be notified of every application for a new premises licence, or variation of an existing licence. RAs include the police, fire authority, trading standards, health and safety and environmental health.