Licensing Act 2003 objecting to a licence by jsq13914

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									                  Licensing Act 2003: objecting to a licence
                  Standard Note:    SN/HA/3788
                  Last updated:     14 January 2010
                  Author:           Philip Ward
                  Section           Home Affairs Section



This is one of a series of notes on the alcohol and entertainment licensing regime introduced
by the Licensing Act 2003. It describes how local residents, the police and others can raise
objections to the granting or variation of a licence, appeal against the grant of a licence or
trigger a review of a licence which has already been granted. Reference is made at the end
to a new power, to be introduced in January 2010, which will allow licensing authorities to
object to a licence application or to initiate a licensing review on their own initiative,
something which they could not previously do.




Contents

1    Introduction                                                                           2 

2    Objecting to a new licence or a variation                                              2 

3    Appeals                                                                                4 

4    Review of an existing licence                                                          5 

5    Re-application                                                                         7 

6    A new power for licensing authorities from January 2010                                7 




This information is provided to Members of Parliament in support of their parliamentary duties
and is not intended to address the specific circumstances of any particular individual. It
should not be relied upon as being up to date; the law or policies may have changed since it
was last updated; and it should not be relied upon as legal or professional advice or as a
substitute for it. A suitably qualified professional should be consulted if specific advice or
information is required.

This information is provided subject to our general terms and conditions which are available
online or may be provided on request in hard copy. Authors are available to discuss the
content of this briefing with Members and their staff, but not with the general public.
1       Introduction
The new licensing regime under the Licensing Act 2003 took effect on 24 November 2005. 1
There is scope for objections to be raised against an application for a new licence or a
variation of an existing licence; it is also possible to trigger a review of an existing licence.
These details were not written into the Act but are in the Regulations which were approved
by Parliament in January 2005, principally the Licensing Act 2003 (Premises licences and
club premises certificates) Regulations 2005 (SI 2005/42). The key document on which local
authorities are relying, in their role as licensing authorities, is the Guidance issued under
section 182 of the Licensing Act 2003, published by the Department for Culture, Media and
Sport (DCMS). 2 The term used in the Act, regulations and associated Guidance is not
“objections” but “representations”.


2       Objecting to a new licence or a variation
Once the application has been lodged with the licensing authority, authorised persons,
interested parties and responsible authorities have 28 days starting on the day after the
application is lodged to make “representations” (SI 2005/42, para 22).

The first group – “authorised persons” – are bodies empowered by the Act to carry out
inspection and enforcement roles. The police are not included because they are separately
empowered by the Act to carry out their duties. In respect of all premises, the authorised
persons include officers of the licensing authority, fire authority inspectors, inspectors locally
responsible for the enforcement of the Health and Safety at Work etc. Act 1974 and
environmental health officers (2009 Guidance, para 8.3).

The second group – “interested parties” – are the bodies or individuals who are entitled to
make representations to licensing authorities on applications for the grant, variation or review
of premises licences. In addition, interested parties may themselves seek a review of a
premises licence. This group includes:

• a person living in the vicinity of the premises in question;
• a body representing persons living in that vicinity, for example, a residents’ association;
• a person involved in a business in the vicinity of the premises in question; and
• a body representing persons involved in such businesses, for example, a trade
association. 3

Any of these individuals or groups may specifically request a representative to make his, her
or its representation on his, her or its behalf. For example, a legal representative, a friend, a
Member of Parliament, a Member of the National Assembly for Wales, or a local ward
councillor could all act in such a capacity. In the case of the last of these, it would be
expected that any councillor who is also a member of the licensing committee and who is
making such representations on behalf of the interested party would disqualify him or herself
from any involvement in the decision-making process affecting the premises licence in
question. In addition, it is expected that “individuals involved in business” will be given its
widest possible interpretation, including partnerships, and need not be confined to those
engaged in trade and commerce. It is also expected that the expression can be held to
embrace the functions of charities, churches and medical practices (2009 Guidance, para
8.6).
1
    Licensing Act 2003 (Second appointed day) Order 2005 SI 2005/2091
2
    There have been several editions. The most recent is the Consolidated version published 10 December 2009
    (hereafter referred to as 2009 Guidance)
3
    As of 29 January 2010, licensing authorities are to be added to the list of “interested parties”. See below
    section 6.



                                                       2
The Act (s. 13(3)) includes among interested parties "persons living in the vicinity of the
premises". The word "vicinity" is not defined in Act or regulations but, according to press
reports, some authorities are interpreting it to mean within 100m of the premises. DCMS has
published guidance for interested parties on making representations. 4

The third group – “responsible authorities” – includes public bodies that must be fully
notified of applications and that are entitled to make representations to the licensing authority
in relation to the application for the grant, variation or review of a premises licence. All
representations made by responsible authorities are relevant representations if they concern
the effect of the application on the licensing objectives. For all premises, these include the
chief officer of police; the local fire authority; the local enforcement agency for the Health and
Safety at Work etc. Act 1974 (which may be the local authority in certain circumstances, and
the Health and Safety Executive in others); the local authority with responsibility for
environmental health; the local planning authority; any body that represents those who are
responsible for, or interested in, matters relating to the protection of children from harm and
is recognised by the licensing authority for that area as being competent to advise it on such
matters; and any licensing authority, other than the relevant licensing authority, in whose
area part of the premises are situated (2009 Guidance, para 8.12).

All representations must be relevant to the licensing objectives set out at the beginning of the
Act (s.4):

    •    the prevention of crime and disorder;
    •    public safety;
    •    the prevention of public nuisance; and
    •    the protection of children from harm.

In addition, representations must not be “vexatious” or “frivolous” (2009 Guidance, para
9.10).

At the same time the applicant is required for a period of no less than 28 days starting on the
day after which the application was given to the authority to display a notice prominently on
the premises. Details of size, typeface, content of the notice and its exact location are
specified in SI 2005/42 para 25. The applicant is also required to publish a notice in the local
newspaper (or newsletter if there is no newspaper) on at least one occasion during a period
of ten working days starting on the day after the day on which the application was given to
the licensing authority (ibid, para 25). There is no obligation on the council or on the applicant
to notify local residents individually. This last point has attracted criticism, with complaints
from local people that they were sometimes not aware of licence applications in their vicinity,
even if the advertising requirements had technically been fulfilled. In response to a written
parliamentary question from Theresa May, the (then) Minister James Purnell said:

        The 2003 Act […] requires that licensing authorities must place details of applications
        on its licensing register which must be available and accessible to the public. There is
        nothing in the 2003 Act which prevents licensing authorities themselves from taking
        supplementary action to bring applications to the attention of individuals living in the
        vicinity of the premises concerned if they consider it necessary, but this is a matter for
        them to decide in the light of local circumstances.

        We are committed to monitoring closely how the new regime operates in practice and
        this will include looking at evidence about the effectiveness of requirements such as
        those on the advertising of applications. Where the evidence suggests that elements of

4
    DCMS, Guidance for interested parties: making representations, December 2007



                                                     3
        the system could be more effective, we will consider revisions to the guidance or, if
        necessary, asking Parliament to amend the legislation. 5

Asked in another written question whether it was acceptable for local councillors to inform
constituents by circular leaflet of applications for a premises licence, Mr Purnell said: “It is for
local councillors themselves to decide whether to communicate with constituents about
licence applications, and, if so, by what means.” 6

Once representations have been received, the council must hold a hearing to determine the
issue, unless matters can be resolved without a hearing. In the case of an application to vary
a licence, the hearing must be commenced within 20 working days beginning with the day
after the end of the period during which representations may be made (Licensing Act 2003
(Hearings) Regulations 2005 SI 2005/44, Schedule 1). The Act places an obligation on the
licensing authority to grant applications made in “proper form” (s17) unless “relevant
representations” have been made (s18(2)).

The above requirements apply equally to applications to vary an existing licence and
applications for an entirely new premises licence. However, as of July 2009 there is a new
“minor variations” process available where an applicant is seeking to make a limited change
to an existing licence. In this instance the local authority must still take residents’ views into
account in reaching a decision but it is not required to hold a hearing. 7


3       Appeals
Following the decision by the licensing authority there is a right of appeal to the magistrates’
court. This right is available to both the applicant and those who have made representations
on an application (authorised persons, interested parties, responsible authorities). Appeals
have to be lodged with the court within 21 days from the day the appellant is notified of the
licensing authority decision about the application. On receiving an appeal, a magistrates’
court has three options. It can:

    •    Dismiss the appeal
    •    Substitute for the decision being appealed against any other decision the licensing
         authority could have made
    •    Send the case back to the licensing authority and tell them how to deal with it in
         accordance with directions of the court.

The court may also make such costs orders as it considers fit. 8 This last point is important
because there have been allegations that certain breweries and pub chains have attempted
to intimidate residents who might wish to appeal against a licence by warning them that, if
they lose the appeal, they will be liable for costs. A clear message has gone out from DCMS
that the threat of costs should not be a deterrent used to discourage local people from
objecting to licence applications:

        Vincent Cable: To ask the Secretary of State for Culture, Media and Sport if she will
        take steps to ensure that residents appealing the award of a late licence to a nearby
        establishment under the Licensing Act 2003 will not incur legal costs if their appeal is
        lost.


5
    HC Deb 31 October 2005 c746W
6
    HC Deb 1 November 2005 c900W
7
    For detail see section 8 of the Library Standard Note Live music in small venues (SN/HA/5134)
8
    Licensing Act 2003 s178



                                                       4
         James Purnell: A resident wishing to appeal against the decision to grant an
         extension under the Licensing Act 2003 has to pay a procedural fee of £23.50 in total.
         This is the usual payment required by the courts to cover costs incurred issuing and
         delivering a summons of complaint. The awarding of costs is a matter for the courts.
         The advice of the Magistrates Association and the Justices Clerks Society is that the
         awarding of costs for a licensing appeal should be an exception and not a rule. I would
         therefore not expect residents who are appealing to be penalised. 9

DCMS has published a guidance leaflet for residents seeking to appeal. 10 Note that only
those interested parties who made “relevant” representations during the application stage will
be able to appeal. If residents keep their objections until the licence has been granted before
voicing them, their only remaining option will be to seek a review of the licence once it comes
into operation (see section 4 below).

The Act does not provide for a further appeal against the decision of the magistrates’ court.
The other routes open to the appellant are to seek judicial review or to make a complaint to
the Local Government Ombudsman.


4        Review of an existing licence
At any stage, following the grant of a premises licence, a responsible authority, such as the
police or the fire authority, or an interested party, such as a resident living in the vicinity of
the premises, may ask the licensing authority to review the licence because of a matter
arising at the premises in connection with any of the four licensing objectives. In addition, a
review of the licence will normally follow any action by the police to close down the premises
for up to 24 hours on grounds of disorder or noise nuisance as a result of a notice of
magistrates’ court’s determination sent to the licensing authority. Officers of the local
authority who are specified as responsible authorities under the 2003 Act, such as
environmental health officers, may request reviews on any matter which relates to the
promotion of one or more of the licensing objectives. 11

Representations must be in writing and may be amplified at the subsequent hearing or may
stand in their own right. Additional representations which do not amount to an amplification of
the original representation may not be made at the hearing. 12

The 2009 Guidance continues:

         Where the request originates with an interested party – e.g. a local resident, residents’
         association, local business or trade association – the licensing authority must first
         consider whether the complaint made is not relevant, vexatious, frivolous or
         repetitious.(…). A repetitious representation is one that is identical or substantially
         similar to:

         • a ground for review specified in an earlier application for review made in respect of
         the same premises licence which has already been determined; or

         • representations considered by the licensing authority when the premises licence was
         first granted; or



9
     HC Deb 18 October 2005 c1007W
10
     DCMS, Guidance for interested parties: appealing licensing decisions, November 2005
11
     2009 Guidance, para 11.5
12
     2009 Guidance, para 11.8



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         • representations which would have been made when the application for the premises
         licence was first made and which were excluded then by reason of the prior issue of a
         provisional statement; and

         • in addition to the above grounds, a reasonable interval has not elapsed since that
         earlier review or the grant of the licence.

         Licensing authorities are expected to be aware of the need to prevent attempts to
         review licences merely as a second bite of the cherry following the failure of
         representations to persuade the licensing authority on earlier occasions. It is for
         licensing authorities themselves to judge what should be regarded as a reasonable
         interval in these circumstances. However, the Secretary of State recommends that
         more than one review originating from an interested party should not be permitted
         within a period of twelve months on similar grounds save in compelling circumstances
         or where it arises following a closure order. (…)

         When a licensing authority receives a request for a review from a responsible authority
         or an interested party or in accordance with the closure procedures described in Part 8
         of the 2003 Act, the licensing authority must arrange a hearing. The arrangements for
         the hearing must follow the provisions set out by the Secretary of State in regulations.
         The details may be viewed on the DCMS website. The Secretary of State considers it
         particularly important that the premises licence holder is fully aware of the
         representations made in respect of the premises, any evidence supporting the
         representations and that he or his legal representatives has therefore been able to
         prepare a response. 13

The hearing can have several possible outcomes. The authority may decide that no action is
necessary. They may issue an informal warning and/or recommend improvement within a
particular period of time. 14 Or they may take more drastic steps, such as:

     • modify the conditions of the premises licence (which includes adding new conditions
        or any alteration or omission of an existing condition), for example, by reducing the
        hours of opening or by requiring door supervisors at particular times;
     • exclude a licensable activity from the scope of the licence, for example, to exclude the
        performance of live music or playing of recorded music (where it is not within the
        incidental live and recorded music exemption);
     • remove the designated premises supervisor, for example, because they consider that
        the problems are the result of poor management;
     • suspend the licence for a period not exceeding three months;
     • revoke the licence. 15

Modifications of conditions and exclusions of licensable activities may be imposed either
permanently or for a temporary period of up to three months. 16

The 2009 Guidance includes a separate section on “Reviews arising in connection with
crime”. 17 I assume that where criminal activity is alleged to be taking place on or around the
premises the review is more likely to be prompted by representations from the police, but
since crime prevention is one of the licensing objectives, it is open to a resident as
“interested party” to seek a review on crime prevention grounds.


13
     2009 Guidance, paras 11.10, 11.12, 11.13 and 11.15
14
     2009 Guidance, para 11.17
15
     2009 Guidance, para 11.18
16
     2009 Guidance, para 11.22
17
     2009 Guidance, paras 11.23 to 11.28



                                                      6
DCMS has published a guidance leaflet for residents wishing to apply for a review of a
premises licence or club premises certificate. It also contains information about the hearings
process that follows. 18

Under the old regime, based on the Licensing Act 1964, the only opportunity to determine
whether a licence should continue in force (and for objections to be made) arose when the
licence came up for renewal at three-yearly intervals, except that application to revoke the
licence outright could be made at any session of the licensing magistrates.


5        Re-application
In November 2005 John Hemming tabled an Early Day Motion as follows:

         OPERATION OF THE LICENSING ACT

         That this House notes that, under the Licensing Act 2003, if an application for extended
         opening hours is submitted, withdrawn, and then resubmitted slightly amended, any
         objections raised to the first application are not carried forward to any subsequent,
         slightly amended, application; believes that this can leave interested parties thinking
         that they have submitted an objection to extended opening hours in cases where they
         have not; and urges the Department for Culture, Media and Sport to look into finding a
         suitable solution to this unfortunate loophole. 19

DCMS gave this response to the assertions made by the EDM:

         The position submitted is misleading. Where interested parties have objected to an
         application, they will have been notified of a hearing. They will also be notified of the
         cancellation of that hearing following the withdrawal of an application. So local
         residents who objected will be aware that the application has been withdrawn.

         Any new re-application made subsequently must be re-advertised in a newspaper
         circulating locally and a notice must be displayed prominently at the premises
         indicating to whom and by when any representations may be made. Re-applications
         involve the whole application being re-made: new forms, new fee, new advertisements
         and fresh hearings if required.

         We do not therefore consider that there is any loophole of the kind described.
         However, we shall include in guidance for local residents specific information about
         what happens when an application is withdrawn and a re-application is made. 20



6        A new power for licensing authorities from January 2010
In the 2003 Act as originally framed, the licensing authority could not take the initiative in
objecting to a licence. This will change under the Policing and Crime Act 2009. At a late
stage in the Bill’s passage the Government introduced a new clause (ultimately to become
section 33 of the Act) which means that members of a licensing authority are added to the
definition of an “interested party”. In particular, it will allow them to object to a licence
application or to initiate a licensing review, powers which they do not have previously. The
Government argued that this will give local authorities more flexibility to decide what action to


18
     DCMS, Guidance for interested parties: applying for a review, December 2007
19
     EDM 996 2005/06
20
     Communication from DCMS official, 15 November 2005



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take against irresponsible premises in their area. 21 The section will come into force on 29
January 2010. Accompanying guidance will be issued by the Home Office in late
January/early February. 22




21
     HL Deb 5 November 2009 c454
22
     HC Deb 12 January 2010 c866W



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