Licensing Committee
18 September 2007 GAMBLING ACT 2005 – DELEGATION ARRANGEMENTS
Report of the Head of Environmental Health & Housing
Ward(s) affected: All Purpose of Report – To enable the Council as the Licensing Authority to discharge its functions under the Act effectively and efficiently by delegating functions to the appropriate level. A list of the recommended delegation arrangements is set out in the guidance issued by the Gambling Commission at Appendix 1 to this report, along with a document outlining the key differences between the 2003 Act and the 2005 Act – Appendix 2. Recommendations – Members are recommended to:
1.
2.
(i) It is recommended that the functions of determining applications where representations have been received and are not withdrawn are delegated to the Council’s Licensing Committee, established under the Licensing Act 2003 and (ii) applications where no representations are received or representations have been withdrawn as detailed in Appendix 1 are delegated to the Head of Environmental Health & Housing. (iii) It is recommended that the function of determining discretionary fees is delegated to the Licensing Committee. (iv) It is recommended that the remaining functions set out in the Act are delegated to Head of Environmental Health & Housing with the exception of determining whether any representations are frivolous or vexatious in which case determination should be delegated to Head of Environmental Health & Housing in consultation with the Chair or Vice Chair of Licensing Committee. (v) It is recommended that the function of registration of small lotteries is delegated to Head of Environmental Health & Housing and a decision as to whether the local authority decides to promote a lottery should be delegated to Policy Committee or the appropriate Director. (vi) It is recommended that the power to make an Order under the Act is delegated to Head of Environmental Health & Housing and any representations are referred to the Licensing Sub Committee. (vii) It is recommended that the Head of Environmental Health & Housing is given delegated authority to initiate a Review.
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3.
Report
The Gambling Act 2005 received Royal Assent on the 7th April 2005 and establishes a new regulatory system for the provision of all gambling in Great Britain. The Act introduces a two-tiered approach. The Gambling Commission will from 2007 be responsible for granting operating and personal licences. The Council as the Licensing Authority under Section 2 of the Act will be responsible for licensing gambling premises within its district, as well as undertaking the other functions detailed in this report. One of the main new functions of the Council as a Licensing Authority is to licence premises for gambling activities. ‘Premises’ is defined in the Act as ‘any place’. Different licences cannot be applied in respect of single premises at different times, however it is possible for a single building to be subject to more than one premises licence provided they are for different parts of the building and the different parts may be reasonably regarded as being different premises. With regard to the premises licences these may authorise the provision of facilities on: 3.4 Casino premises Bingo premises Betting premises including tracks Adult gaming centres, and Family entertainment centres.
The other licensing functions under the Act are to: Consider notices given for temporary use of premises for gambling; Grant permits licences for gaming and gaming machines in clubs and miners’ welfare institutions; Regulate gaming and gaming machines in alcohol licensed premises; Grant permits to family entertainment centres for the use of certain lower stake gaming machines; Grant permits for prize gaming; Consider occasional use notices and temporary permissions that betting attracts; and The registration of small lotteries within the District.
3.5
In exercising most of their functions under the 2005 Act , Licensing Authorities must have regard to the licensing objectives set out in Section 1 of the Act. These are: Preventing gambling from being the source of crime or disorder or being used to supply crime; Ensuring that gambling is being conducted in a fair an open way and; Protecting children and other vulnerable persons from being harmed or exploited by gambling.
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3.6
Section 153 of the Act provides that in exercising its functions under part 8 of the Act (premises Licensing and Provisional Statements) a Licensing Authority should aim to permit the use of premises for gambling in so far as it thinks fit: In accordance with relevant Code of Practice issued under Section 24 of the Act. In Accordance with any relevant guidance issued by the Commission under Section 25. Consistent with the licensing objectives. In accordance with the Statement published by the Licensing Authority.
3.7
Issues for consideration by Licensing Committee:-
3.7.1 Small lotteries:- Small lotteries are non-commercial societies as defined in the Act, namely societies which are established and conducted: For charitable purposes For the purposes of enabling participation in or supporting sports, athletics or a cultural activity, or For any other non-commercial purpose other than private gaming.
3.7.2Local Authorities may if they so choose decide to promote a lottery for the benefit of their community if they obtain an operating licence from the Commission. 3.7.3. It is recommended that the function of registration of small lotteries is delegated to the Head of Environmental Health & Housing and a decision as to whether the local authority decides to promote a lottery should be delegated to Policy Committee or an appropriate Director. 3.8 Section 154 of the Act provides that all decisions relating to premises licences are delegated in accordance with the Act to the Licensing Committee of the Authority that has been established under Section 6 of the Licensing Act 2003 except: A resolution not to issue casino licences. This must be taken by the whole authority (functions under Section 166 of the Act); Function in relation to the 3 year licensing policy; which must be taken by the whole authority (functions under Section 349); Setting fees (to the extent that the Licensing Authority has delegated power in relation to fees). The Licensing Authority can delegate decisions to the Licensing Committee. There is no automatic delegation under the Act so each authority must decide its approach as to setting fees (Section 212 of the Act).
3.9
The terms of reference of the Licensing Committee delegate the setting of fees from the Council to the Licensing Committee. The usual practice is to present reports to Licensing Committee as part of the budget process and where fees are discretionary, officers will make recommendation as to the appropriate level to be set. It is recommended that decisions which involve the exercise of discretion in relation to fees are to be delegated to Licensing Committee and where fees are set by the Act or its regulations are delegated to Head of Environmental Health & Housing.
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3.10
The Gambling Commission has issued guidance to Local Authorities concerning proposed delegation arrangements and these are set out in Appendix 1. Not all functions in the Gambling Act are included in this table. Other functions are detailed in paragraph 3.11. The table summarises the lowest level of delegation permitted under the Act and whilst authorities have a discretion whether to delegate decisions or not, as Members will note, some of those functions involve decisions in relation to premises and in particular consideration of representations. It is recommended that as these decisions can give rise to a risk of judicial review the decisions are taken by the Licensing Sub Committee which were established under the Licensing Act 2003. In relation to functions not listed in Appendix 1, section 282 of the Act provides an automatic entitlement to make available two gaming machines ( category C or D) for use in alcohol licensed premises. To take advantage of this entitlement the person who owns the premises licenses must give the Licensing Authority notice of their intention to make gaming machines available for use and must pay a prescribed fee. Category C machines have a maximum stake of 50p and a maximum prize of £35. Category D machines have a maximum stake of 10p or 30p when non-monetary and a maximum prize of £5 cash or non cash or £8 token or non monetary prize. This is not an authorisation procedure – most Licensing Authorities have no discretion to consider the notification or turn it down. Licensing Authorities can however remove the automatic authorisation in respect of any particular premises. The Act states that the Licensing Authority may make an Order if :a) provision of the machine is not reasonably consistent with the pursuit of the Licensing objectives b) gaming has taken place on the premises that breaches a condition of section 282. c) the premises are mainly used for gaming. d) an offence under the Gaming Act has been committed on the premises. Before making an Order the Licensing Authority must give the licensee at least twenty one days notice of intention to make the Order and consider any representations that they may make. The Authority must hold a Hearing if requested by the licensee. It is recommended that power to make an Order is delegated to the Head of Environmental Health and Housing and the consideration of any representations should be referred to the Licensing Sub Committee.
3.11
3.12
3.13
Section 157 of the Act identifies the bodies that are to be treated as ‘responsible authorities’. The Act includes the Council as the Licensing Authority as a responsible authority. The Act also includes the local planning authority and the responsible bodies in relation to pollution to the environment or harm to human health. At Craven District Council this will included Environmental Health and Housing. Local Authorities may initiate a review in relation to a particular class of premises licence or in relation to a particular premises licence. A review may be initiated in relation to the use made of the premises and in relation to arrangements made by
3.14
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licensees to ensure compliance with conditions, breach of condition or in response to complaints concerning the use of premises. 3.15 Guidance indicates that the Council as the Licensing Authority may wish to consider in its scheme of delegation who initiates a review and in addition, that a ‘filter system’ be put in place so that representations which are either frivolous or vexatious are excluded. It is recommended that the Head of Environmental Health and Housing is given delegated authority to initiate a review. It is recommended that delegation arrangements outlined in this report and at Appendix 1 are approved to enable the Council as the Licensing Authority to exercise its functions in accordance with the Act. Implications Financial Implications – None Legal Implications – The proposed delegation arrangements will ensure compliance with the Gambling Act 2005. Contribution to Corporate Priorities – Contributes to building a prosperous district Risk Management – Failure to ensure correct delegation under the Gambling Act would leave the Council open to criticism and could result in the loss of prosecutions if legal action was taken under this legislation without correct delegation and authorisation. 5. 6. Consultations with Others – Head of Legal Services Access to Information : Background Documents – Gambling Act 2005 Author of the Report – Lindsey Quinn, Head of Environmental Health and Housing Telephone 01756 706334 E-mail:lquinn@cravendc.gov.uk Appendices – Appendix 1 – Delegation Arrangements Appendix 2 – Key Differences between the 2003 and 2005 Acts
3.16
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