City of Westminster
Cabinet Date Title of Report
20 January 2003 Policy Guidelines for Entertainment
and Night Café Premises – Results of
Classification Report of
For General Release Director of Planning and
Transportation and Director of Legal
and Administrative Services
Wards involved All
Policy context Planning and Licensing Performance Plan 2002/2003,
Aim 2: ‘The most attractive City’. 1. ‘Promote a more
Financial Summary There are no financial implications for the Cabinet, at this
stage, as a result of the recommendations of this report.
Report Originator Philip Doyle Tel. 020 7641 1982
Peter Large Tel. 020 7641 2711
1. Summary of this Report
1.1 This report details the outcome of the recent consultation exercise on the
revised licensing policy guidelines for entertainment and night café premises.
The report sets out the comments received together with officers’ responses to
these comments and proposed consequential changes. The report
recommends that the revised policy guidelines for entertainment and night café
premises attached as Appendix 1 be approved and adopted with effect from 21
January 2003. A detailed summary of the consultation responses received, and
officers comments on the responses, is a background paper to this report and
has been circulated separately to all members of the Cabinet.
2.1 That the issues arising from the public consultation exercise be noted.
2.2 That the amendments to the revised policy guidelines set out in section 5 of this
report be agreed and the policies as set out in Appendix 1 be approved and
adopted with effect from 21 January 2003.
3. Background Information
3.1 At its meeting on 25 January 2000 the Planning and Transportation Committee
considered a comprehensive report on 'Policies for the management of the
entertainment industry in Westminster'. The report was an extremely detailed
one and encompassed a range of issues including licensing, planning,
environmental health, cleansing, crime and disorder. The Committee deferred
consideration of the report so that it could first be considered by the Licensing
(Major Issues) Sub-Committee and the UDP Sub-Committee.
3.2 Following consideration by these Sub-Committees a revised report was
submitted to the Planning and Transportation Committee of 28 March 2000. The
Committee agreed new interim UDP planning policies and a comprehensive
policy document entitled 'Policy Guidelines for Entertainment and Night Café
3.3 In agreeing the planning and licensing policies the Committee also instructed
officers to develop a policy that contained a presumption against entertainment
uses beyond 11pm outside the stress areas, except where the applicant could
demonstrate that there would be no harm to residential amenity or local
3.4 Officers developed such policies and submitted them to the new Planning and
Licensing Committee. On 20 June 2000 that Committee decided to formally
designate three areas of the City as Stress Areas for licensing and planning
purposes. The Committee also agreed for the first time “guideline terminal
hours” for Planning and Licensing purposes.
3.5 On 20 March 2001, following an application to the High Court for a Judicial
Review of the policies, the Planning and Licensing Committee resolved to make
amendments to the Entertainment and Night Café Licensing Policy Guidelines to
make it clear that the presumption against the grant of applications to vary
licences applied only to extensions so as to increase the capacity, or to
otherwise vary a condition attached to a licence so as to alter the nature of the
operation in a way which may adversely affect residential amenity.
3.6 The Council now has over two years experience of the practical operation of the
policies and their application by the appeal courts. The policy has also been the
subject of an application for judicial review (referred to above) and was also
considered in an application by the City Council for a judicial review of a decision
taken by Middlesex Crown Court on an appeal.
The appeal concerned the problems arising from ‘cumulative’ impact – that is the
situation where the concern arises not from the particular licensee or particular
licensed premises but relates to the cumulative effect caused by large numbers
of people congregating in the streets in the small hours of the morning. The City
Council sought to establish ‘from a consideration of the policy document alone’
in these legal proceedings that it was inappropriate for the Magistrates Courts
and the Crown Court on appeal to make exceptions to the City Council’s policy
on the grounds that the premises in question were well managed, or that there
was no evidence specific to the premises or the licensee.
3.7 The High Court held:
There is no doubt that the Council is entitled to have a policy with regard to
the grant of licences. Any policy must not be applied blindly and routinely
without any possibility of exceptions.
That a Crown Court (or a Magistrates Court) should approach any appeal
where the Council’s policy was an issue by accepting the policy and applying
it as if it was standing in the shoes of the Council considering the application.
Neither the Magistrates Court nor the Crown Court is the right place to
challenge the policy. The remedy, if it is alleged that the policy has been
formulated unlawfully, is an application for judicial review.
It is for the party seeking to persuade the Council (or an appeal Court) to
depart from the policy to show that it can be done without imperilling it or the
reasons that underlie it, or that there are other exceptional circumstances
why they should be departed from.
It is both understandable and appropriate for the Council to have a policy in
the light of the problems we have identified in the West End. If the policy is
to have the effect that the Council desires the policy needs to make it clear
that it is not directed at questions of operation or fitness of licensees but at
the global effect of licences as a whole.
If the policy is not to be consistently over-ridden in individual cases it must be
made clear within it that it will only be overridden in exceptional
circumstances and that the impeccable credentials of the applicant will not
ordinarily be regarded as exceptional circumstances. It should be highlighted
that the kind of circumstances that might be regarded as exceptional would
be where the underlying policy of resisting further growth would not be
The Court recommended that the policy guidelines be redrawn so as to
eliminate ambiguities and inconsistencies.
The Court was, though, only considering the lawfulness of the application of
Westminster’s current policy and not the lawfulness of any future policy. Whilst
the judgment is generally supportive of the policy as proposed it is does not
declare that it is lawful.
4 The Consultation Exercise
4.1 On 21st August 2002 a Members Induction Session was held at which the draft
revised policy guidelines were presented to Members who discussed and
commented on the proposed amendments. Counsel advising on the policy, and
officers were present to explain and address any concerns that were raised at
4.2 On 13th November 2002 over 800 letters were sent out to organisations and
individual consultees enclosing a copy of the draft revised policy guidelines for
entertainment and night café premises and inviting comments on the pro-forma
4.3 The letter that was attached to the revised draft policy set out the most important
changes, and these are shown below:
We have removed the suggestion that licence applications would not
normally be refused on policy grounds alone. We have replaced this with an
indication of the circumstances in which we may be prepared to grant licence
applications as an exception to the policies which are set out.
We have made it clear in the case of each policy which type of application
the policy will apply to.
4.4 The list of groups/individuals consulted as part of the consultation exercise was
put together to reflect those interested in the very wide ranging issues reflected
in the document, including those involved in the entertainment and night café
industry, i.e., licence holders and solicitors who frequently represent the industry.
Following the consultation exercise 94 responses were received. If the Licensing
Bill which is presently before Parliament is enacted, it will be a statutory
requirement for a licensing authority to have a policy, and for consultation on that
policy to take place before it is adopted. Although that statutory obligation has
not yet come into effect, all those parties which the draft bill requires a licensing
authority to consult have been consulted in this exercise.
Consultee Number Responses
Licence holders (Entertainment premises) 415 35
Licence holders (Night Cafes) 152 8
Recognised amenity societies and 41 9
Commercial organisations 21 5
Associations and Representative Bodies 36 9
Strategic Government Bodies 35 6
Solicitors 44 3
Councillors and local MPs 60 8
Additional comments received from bodies - 11
not included in consultation exercise
4.5 All comments received, and officers’ responses to these comments, are
summarised in paragraph 5.2.1 – 5.2.12 below and have been attached in full in
an Appendix which has been circulated separately to all members of the
5 The main issues arising from the consultation exercise
5.1 Although, as explained above, the purpose of the consultation exercise was to
consult on the proposed changes to the policy guidelines, a number of other
comments were made in the responses received to the reformation of the policy.
Officers have, therefore, responded to these comments alongside those made
regarding the changes to the policy guidelines. A schedule of comments is
attached in the Appendix which has been circulated separately. The comments
that are in the schedule of comments have to be read in the context of the
general comments contained in this report and of the other comments in the
Appendix as a whole.
5.2 In general, some fairly strong views were expressed by the industry about the
nature of some of the proposals. Doubts were also expressed about the legality
of some of the proposals. Conversely the residents response was supportive
with some commenting that the proposals did not go far enough. The sections
below indicate a summary of the main concerns raised in response to the public
consultation exercise and the officer response to these concerns.
5.2.1 Public Consultation Response – The consultation period was too short and the
consultation is a ‘sham’
Officers Response - A response time of two weeks was allowed for the
consultation exercise because of the relatively limited nature of the changes to
the policy. However, any respondent who indicated a need for further time was
allowed further time and all responses received have been included in the City
Council’s analysis. The responses received have been numerous and detailed
and include responses from all the major licence holders in the City.
Officers are recommending a number of changes to the wording of the policy in
the light of the responses which have been received.
5.2.2 Public Consultation Response - The policy is inconsistent with government
policy and the Licensing Bill currently in Parliament.
Officers’ Response - Under the Licensing Bill a licensing authority will be
required to promote the “licensing objectives” when taking any decision on a
licensing matter. The Bill requires a licensing authority to publish a statement of
its licensing policy and as drafted at present requires the licensing authority to
have regard to guidance issued by the Secretary of State when formulating its
policy and taking other licensing decisions. Officers consider that the City
Council’s policy is consistent with the licensing objectives identified in the Bill
which include the prevention of nuisance and the prevention of crime and
The Secretary of State has not yet published even in draft form the guidance
which he intends licensing authorities to take into account when formulating
policies. However, he has published in draft a “framework” for that guidance
which he has indicated he intends to consult upon. That draft “framework” could
in part be considered inconsistent with the City Council’s existing policy. The
draft framework stresses “that licensing policies must not cut across the principle
of individual consideration of applications by adoption of arbitrary quotas of
numbers of licensed premises”. It would “lay additional emphasis on the
importance of longer opening hours as a key mechanism for combating binge
drinking, disorder and anti-social behaviour which is often provoked by fixed and
artificially early closing times”. It would “confirm that licensing authorities may
demand stricter conditions for late licences operating in residential areas, but
stress that it would be inappropriate to establish generalised closing times in
such areas. It would strongly recommend that no system of zoning be
introduced because this proved unsuccessful when attempted in Scotland”.
Whilst the Governments thinking on licensing is a relevant matter for the Council
to take into account, the Secretary of States draft framework document is not
something which the City Council is yet required as a matter of law to comply
The contents of the draft are likely to change before the document is eventually
issued on the basis of the Government’s response to challenges when the Bill
was introduced in the Lords. Furthermore, the draft is a national document that
has to be considered in the arguably unique circumstances of the West End.
It is important to note that the Police in Westminster support the Council’s policy
approach for the purpose of preventing crime and disorder and that is reflected
in their response to this consultation exercise.
There is also a need to have a clear policy NOW. It can be amended later if
appropriate and/or necessary.
5.2.3 Public Consultation Response – The policy guidelines offer no evidence that
an increase in the numbers of licensed premises do cause problems
Officers Response – The policy document is not an appropriate place to
provide evidence in support of the policy. A body of evidence in support of the
policy has been presented at recent court hearings. The evidence is also
available as a public document.
Furthermore in public statements, the police have made the link between a
concentration of late night public entertainment licences in a small area and the
problems of crime and disorder which are associated with such a concentration.
Moreover, the existence of the problem of having too many premises underlies
the policy in existence in 2000.
Finally, whilst it is noted that the individual and some experts espouse the view
that the problems have arisen from other reasons, this is not accepted. On the
contrary there is very good support for Westminster’s statistics.
The precise number of premises and their capacity will change over time. An
amendment to paragraph 5.4 of the policy is recommended accordingly.
2.5.4 Public Consultation Response - The policy guidelines create a “blanket ban”
Officers’ Response –The term ‘blanket ban’ is normally used to refer to a policy
under which a decision is taken automatically with no consideration as to
whether the circumstances of the individual application justify an exception. The
proposed policy does not involve such a blanket ban. On the contrary the policy
expressly states at paragraph 5.18 that “the City Council will not apply the policy
inflexibly.” It will always consider the individual circumstances of each individual
application, even where an application is made apparently contrary to any policy.
For example, an applicant may wish to submit that the policy does not apply in
the circumstances of the case, or that there are good reasons for making an
exception to the policy.
The practical effect of the policy has to be considered too. Whilst the policy is
firm – in response to the perceived problems – there are realistic though limited
exceptions to it.
5.2.5 Public Consultation Response - The City Council’s policy guidelines do not
provide encouragement for premises to locate in Westminster
Officers’ Response - Paragraph 1.3 of the policy guidelines states that the City
Council “recognises that the entertainment industry in Westminster is a major
contributor to the economy and enhances the appeal of London as a whole. It
attracts tourists and visitors, makes for a vibrant City and is a major employer” It
further recognises that “the industry has grown substantially in recent years and
the hours of operation for entertainment premises and night cafes have been
However, as stated in 1.6 “the role of the Council as licensing authority is to hold
an appropriate balance between the needs of the entertainment industry and the
needs of residents and other users of the City including businesses, workers,
shoppers and visitors.”
Furthermore, at least part of the motivation of the policy is provided by a desire
to maintain the West End’s status and the contribution of the entertainment
industry and not allow it to become degraded.
However, it is recognised that, as drafted, policy LOC 1 is couched in purely
negative terms, even in relation to those parts of CAZ which are outside the
Stress Areas and which are not residential areas. It is recommended that an
amendment be made to paragraph LOC 1(3), so that it is couched as a policy to
grant, save where problems can be demonstrated, rather than a policy to refuse
except where it can be demonstrated there are no problems.
This change would effect a shift in the balance of proof in those cases from the
applicant to objectors, but the change is consistent with the Council’s policy that
the CAZ is the desired location for entertainment uses and night cafes, and
would go some way towards meeting the criticism that the policy pays mere lip-
service to the need to provide encouragement to applicants.
5.2.6 Public Consultation Response - The policy guidelines would stultify investment
and stop competition
Officers Response – Officers believe that the policy guidelines would not stultify
the market. There will remain new opportunities for operators by way of transfer
of licences and the ability to offer a different type of entertainment within an
existing entertainment licence.
5.2.7 Public Consultation Response – The policy should not be applied to
extensions to licences which only increase floor area where no increase in
capacity is involved.
Officers Response – Officers consider that it is extensions which have the
effect of increasing capacity which should be resisted in the stress areas. It is
accepted that, in Licensing terms, where floorspace is increased without an
increase in capacity it may improve facilities without any detrimental impact. The
issue of capacity can be adequately controlled through the Licensing process. In
the case where an extension to an entertainment premises requires planning
permission, at that stage, the issues of impact on residential amenity as a result
of that extension, will be considered having regard to the policies in Chapter 8 of
the draft replacement Unitary Development Plan (ie. consideration of the effects
in the stress areas etc.). It is considered that there is no need for 'floorspace' to
be a consideration under this licensing policy as it is considered to be adequately
addressed through the planning process. Officers consider the comment to be
well founded. Accordingly it is recommended that the words "the floorspace or"
in paragraph 2.2(2)(b) be deleted.
5.2.8 Public Consultation Response – The Council’s approach to when the policies
will apply to applications for variation should be re-drafted. The word ‘may’
suggests that the Council could apply the policy even where there is no evidence
that harm will occur.
Officers Response – The intention is that location policies should be applied to
variations of licences which alter the licensed activities in a way which will
adversely affect public order or amenity, to that extent this comment is accepted.
It is recommended that the word “may” be changed to “will” in paragraph
2.2.(2)(c) of the policy. This will give rise to consequential changes throughout
5.2.9 Public Consultation Response – The application of the Terminal Hours Policy
is unclear. In particular, the policy suggests that on any application to vary the
terminal hour the existing terminal hour will be replaced with a 1.00am terminal
hour in the stress area, and an earlier hour elsewhere.
Officers Response – Paragraph 2.3 of the revised policy and section 8 itself,
state that the terminal hours policy will apply to all new applications and
applications to vary the terminal hour. Paragraphs 8.2 and 8.3 make it clear that
there is no policy to cut back terminal hours on renewal, or on variation
Consultees have suggested that the wording of the policy leaves it open to the
Council to cut back terminal hours if an applicant makes an application to reduce
his terminal hour. For example, it is suggested, an applicant may apply to have
his terminal hour reduced from 6am to 4am and have it cut back under the policy
In fact, the Council does not receive applications to reduce terminal hours, since
an applicant who wishes to close earlier than the terminal hour of licences does
not need to vary his licence to do so. But for the avoidance of doubt, it is
recommended that the word “vary” in paragraph 2.3 and section 8 be replaced
5.2.10 Public Consultation Response – It is wrong and unfair that the policy should
be applied retrospectively to applications made before it comes into effect.
Officers Response – It is necessary to determine a date from which the policy
will be applied. Given the current concerns about the extent of the problems in
Westminster and the West End in particular it is considered appropriate that the
policy should be applied to all determinations of applications made after the
policy comes into force, notwithstanding that this may work to the disadvantage
of some applicants. It is not accepted that it is unfair to apply the policy to
applications made before the date on which it comes into effect. Any other
approach may equally cause anomalies and greater unfairness.
However, it is accepted that cases may arise where it could cause particular
unfairness to an applicant to apply this policy to an application made before the
effective date. An example would be where determination of the application has
been delayed, through no fault of the applicant, by the City Council. In those
circumstances the Sub-Committee considering the application would have the
discretion to treat the case as an exceptional one. It is recommended that the
word “normally” be inserted in paragraph 2.3 to make the existence of this
5.2.11 Public Consultation Response – It is unreasonable to take a fresh look at
whether there should be a licence, and on what terms, taking into account the
current needs of the area, on renewal, as for instance is indicated at paragraph
4.4 of the policy. That ignores the protection licensees have under Human
Rights legislation, and land use is in any event a matter for planning.
Officer’s Response – No policy of not renewing licences is proposed. This is
made explicit in paragraph 8.2. But the whole purpose of a licensing regime
under which public entertainment licences must be renewed annually is to allow
the position to be considered afresh each year. It is not accepted that the impact
of a licensed use on an area, and the needs of the area, are exclusively a matter
It is accepted that at the very least it is arguable that the effect of the European
Convention on Human Rights is that a licence holder is entitled to retain his
licence unless to refuse to renew it is in the public interest and in accordance
with conditions provided for by law. The proposed policy involves no
infringement of those rights. An amendment to section 2 of the policy is
recommended for the avoidance of doubt.
5.2.12 Public Consultation Response - The issues involved are complex and
important rather than minor and for clarification as claimed by the letter
Officers Response – The policy has been comprehensively re-written.
However, officers consider that the overall thrust of the policy approach remains
unchanged in particular the central features of the existing policy, namely the
stress areas and the guideline terminal hours, are retained. In the existing policy
the introduction states that the Council will not normally refuse applications on
policy grounds alone. In the existing policy guidelines the policies in relation to
new applications or applications to extend premises in the stress areas are
expressed as presumptions.
The revised policy does represent a “tightening up” when compared with the
existing document. However, the objective is to achieve the effect which was
arguably intended by the Planning and Licensing Committee when it originally
approved the policy guidelines in June 2000 rather than to embark upon a new
There is one area where it can be argued that the revised policy document
introduces a change to existing policy. In practice, the existing policy has been
interpreted as applying no guideline terminal hour to areas within the CAZ, but
outside the Stress Area and where the area is not primarily residential or already
saturated with licensed premises. The revised policy applies a guideline terminal
hour throughout the CAZ. This is consistent with the Council’s approach in the
draft replacement UDP, and with the original decision taken by the Planning and
Licensing Committee in June 2000.
6. Financial Implications
6.1 There are no financial implications, at this stage, for the cabinet as a result of the
recommendations of this report.
7. Legal Implications
7.1 A number of legal issues have been raised by consultees and these have been
addressed in the body of the report, and where appropriate, in the Appendix
which has been circulated separately as a background paper.
7.2 The legal position with respect to the City Council’s right to adopt a licensing
policy, and the constraints that must be borne in mind when the policy is applied
in practice, have been considered by the High Court and are summarised at
paragraph 3.7 of the report.
8. Performance Plan Implications
8.1 The review of the Licensing Policy Guidelines falls under the Planning and
Licensing Performance Plan 2002/2003, Aim 2: ‘The most attractive City’. 1.
‘Promote a more sustainable environment’.
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9.1 All Members of the Council were consulted regarding the amendments to the
policy guidelines and extensive consultation has been carried out on the draft
policy guidelines the results of which are being reported to this Cabinet.
10 Crime and Disorder Act (1998)
10.1 Section 17 of the Crime and Disorder Act (1998) requires community safety to be
considered in all decisions made by local authorities. The police in Westminster
support the existing licensing policy and the proposed revisions to it.
The revised licensing policy will contribute to the requirement made in the Crime
and Disorder Act that the Police and City Council work together to reduce crime
11 Human Rights Act (2000)
11.1 The Human Rights Act came into force in England on 2 October 2000. It gives
teeth to the European Convention on Human Rights (ECHR), which was ratified
by the UK in 1951 and has been in force since 1953. The Act confers the direct
protection of English law in relation to Convention rights. For the purposes of the
role of a local licensing authority the relevant provisions are: Article 2 – right to
life, Article 6 – right to a fair hearing, Article 8 – right to respect for private and
family life, Article 14 – prohibition of discrimination and Article 1 of the First
Protocol – protection of property. The Human Rights Act is dealt with in
paragraph 1.9 of the policy guidelines and paragraph 5.2.11 of this report and an
amendment to the revised policy is recommended in recognition of the rights of
12.1 This report recommends that the Cabinet agree the amendments to the policy
guidelines for entertainment and night café premises. Amendments to the policy
are required because, as set out in paragraph 3.7 of this report if the policy is not
to be consistently overridden on appeal in individual cases it must be made clear
within it that it will only be overridden in exceptional circumstances and the kind
of circumstances that might be regarded as exceptional should be highlighted.
In addition, the guidelines need to be redrawn to eliminate ambiguities and
inconsistencies, and the indication that the Council will not normally refuse
applications on policy grounds alone.
12.2 The report sets out the reasons for the amendments which are proposed as a
result of the consultation which has taken place in paragraphs 5.2.1 – 5.2.12
If you have any queries about this report, please contact Philip Doyle on extension
7832 or e-mail email@example.com , Peter Large on extension 2711 or e-mail
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1. Revised Policy Guidelines for Entertainment and Night Café Premises (currently
highlighting changes arising from the consultation exercise)
1. Judgment of The Honourable Mr Justice Scott Baker in R v. Middlesex Crown Court
ex parte Chorion Plc and Fred Proud dated 29 May 2002
2. Schedule of Responses to Consultation Exercise on Revised Policy Guidelines for
Entertainment and Night Café Premises
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