Objecting - Making a representation

 

In the Act making an objection is known as ‘making a representation’ but it is just a different form of words for the same thing and the two terms are interchangeable. Residents and businesses in the vicinity can make representations. The term ‘business’ is expected by Government to be interpreted widely so a school, a church, a charity, a medical practice and similar bodies would all fall within the term.

 

‘In the vicinity’ is a term that is not defined. Ministerial Guidance asks licensing authorities to consider if the individual is ‘directly affected’ and says ‘it is expected that the decision will be approached with common sense and individuals living and working in the neighbourhood or area immediately surrounding the premises will be able to make representations’. If you live some distance away and still want to make a representation it is therefore likely that you will have to show that you are in some way directly affected. For example, if you are near a bus stop or takeaway used by customers of a licensed premises then it seems clear that you are directly affected. But you should make this link clear in your letter of objection otherwise you risk having your objection disregarded because you are not at first sight seen as ‘in the vicinity’.

 

Checking the details of Variation applications

You can see full details of all the Variation applications at the offices of your local authority. (If they have offices in more than one place you may need to check first which one to save a wasted journey). Most council’s also have web sites and of those some are likely to list the full details somewhere on that web site. Others may just list a summary, which is not much help.

 

You can also ask the applicant if they would mind showing you their application. It is always a good idea to try and talk it through with an applicant. A lot of misunderstanding can be avoided and if they are unfriendly or refuse to show you their plans it is worth referring to this if latter you go on to make a formal objection as they are supposed to consider when making he application how their application will promote the 4 licensing objectives. These are really all about the public good and if when approached by you, a member of the public, they clam up and are unhelpful that can be pretty telling and is worth recording.

 

When can you make a representation (an objection)

You have 28 days starting from the day after the day the application was given to the licensing authority (the local council). NOTE This is an absolute limit. If you don’t object within this 28 day period you have lost the right to make any objection at all. All objections must be dated within this period and you should make every effort to get it to the council by the end of the 28 day period. Objections sent in by post on the last day are a grey area, so don’t risk it. If you email your objection on the last day you must at the same time send a hard copy in the post.

 

Challenging whether applications have been validly made

As you can see it is quite a complex process to make a valid application and one way of challenging licence applications is to check whether all the steps have been followed correctly.

 

If you have evidence that they have not then you can challenge whether a valid application has been made. The most obvious from a neighbours point of view is has the application been correctly advertised in the paper and on the premises? If you think it hasn’t it is no good just saying that alone, you will need to have evidence that it didn’t comply.

For example, if the advert doesn’t seem to be in any of the local papers in the relevant period you would need to check what the relevant 10 working day period was and get copies of all of them and search them. The official notices are often tucked away and easy to miss. If it is definitely not there then write in and say something like ‘I have checked all the newspapers circulating in the vicinity of the premises during xxxxx(the relevant period) and can find no advertisement of this application and I can find no reference to this application therefore I do not believe it has been validly made and ask that it be declared invalid.’

 

However, this is really just a spoiling tactic if it is your only reason for objecting and the applicant is likely to carefully make a valid application but then feel pretty negative towards you for, as he or she sees it, wasting their time. But if you really feel someone is trying to sneak their application through without letting the public know then it may be worth highlighting such technical points for the perfectly reasonable assumption that there may be something about the proposed new activities they are trying to hide.

 

The relationship with town and country planning

Now that there have been changes to the town and country planning Use Classes Order which came into force on the 21st April 2005 you may be able to question whether the applicant should also have to apply for planning permission to change the use of the premises.

 

This is a complicated area and you may wish to take specialist advice from your local council’s planning department or the independent Planning Aid service www.planningaid.rtpi.org.uk. Briefly most licensed premises previously were all part of one use class defined as A3. From 21st April 2005 these are now divided into 3 separate use classes:

 

Where there are combined uses that have more than one primary element then they are to be treated as ‘sui generis’ which means in a class of their own and will need a specific planning consent which defines what is authorised.

 

These changes can be helpful in preventing unrestricted changes of activities and if you feel that the Variation applied for will, for example, clearly change a previous restaurant into a bar into a bar then you may well be able to argue that planning consent should be required before the variation application is decided upon.

 

Challenging whether the applicant is promoting the licensing objectives

This is likely to be the real substance of any objection you make. The heart of the philosophy lying behind the Licensing Act is that licensees are to be given the chance to apply to extend their hours and activities but only at the same time if they promote the 4 licensing objectives so that there is no overall harm to the public good. That’s the theory.

So you will need to look at the changes that are being asked for which will be set out on pages 10-17 of the application form. Then look at pages 6 and 18 of the form to see the operating schedule that is proposed (If it is a complex application these pages may be continued on to additional sheets). Try to weigh up the variation that is asked for against the operational conditions that are also proposed.

 

As a simple example, if there is a proposal to extend the provision for live music until midnight and there is an operational condition to keep all the windows closed until midnight - is that fair and sufficient? Will it work in practice? What will happen on hot humid nights when someone is bound to want to open a window? Should they also be proposing as a condition to install air conditioning – would that be reasonable, if so where will the plant for that go? Check it is not next to your bedroom window or someone else’s. Have they got planning consent for it? If not, should the condition say that the live music shall not commence until properly authorised air conditioning plant has been installed and is running effectively.

 

So for each new or varied activity, extended hours, increased capacity or previous condition that they are asking to be removed or relaxed, think through step by step whether there are proposals in the operating schedule which will adequately deal with any adverse impacts. But remember the only things relevant in any objection you make are if they relate to one of the 4 licensing objectives. In the example above if you made a representation you would need to make clear that you were objecting to prevent public nuisance.

 

If you do not think that the proposed conditions in the operating schedule offer sufficient safeguards you can, as part of your objection, propose your own condition or conditions, either using you own wording or asking the licensing authority to compose a condition that deals with the issue you are raising.

 

If you are not convinced that any type of conditions will be sufficient to offset the problems you fear, you can simply object to what it proposed under the heading of one or more of the licensing objectives and ask the licensing authority to refuse the variation completely or the particular item you are opposed to.

 

For example, suppose there is an application to vary the opening hours to close at 1.00am instead of 11.00pm, to increase the capacity of the premises from 100 to 200 persons and to put on films on Friday and Saturday nights between 8.00pm and 1.00am. You could just object to all the variations or you could object to the first two but say that you do not object to the showing of films provided there is a condition imposed on the licence that the films are only shown until 11.00pm.

 

This might seem like the easiest option – just object to anything you are worried about. It is not as simple as that because all objections must be based on evidence if they are to carry weight. The objection must be relevant to at least one of the 4 licensing objectives, if not it will be rejected as irrelevant or frivolous. Your objection will also be rejected if it is regarded as vexatious for example, because it is just made out of spite or if you are another licensee and just don’t like the idea of a bit of extra competition.

 

You will see from the section on gathering evidence that this takes time and is not to be undertaken without good reason. It is also not easy to collect hard evidence to prove there will be nuisance, crime or whatever from something that isn’t happening yet and is just proposed. You may be worried that a place staying open longer will adversely effect you - but being worried isn’t enough - you have to try and put together some evidence to back up that worry if it is going to be listened to seriously by the licensing authority.

 

Also it is sensible to make sure that in your letter of objection (made during the 28 days after the application was put in) that you refer to each of the 4 licensing objective headings that are relevant to your objection. So if you are objecting about potential public nuisance, potential crime and disorder and a risk to public safety, say so at the outset. You can amplify your objection with the evidence to back up your concerns before the hearing but is important to raise all the main themes of your objection at the outset.

 

Also remember that the applicant has to be given a copy of your objection and can object at the hearing if you raise further objections he or she has not been notified of and had time to respond to.

Where a premises is to be constructed, extended or changed with a view to licensable activities taking place an applicant can at an early stage apply for a provisional statement sufficient information isn’t available at the time to make a full premises licence application. It gives an applicant some limited certainty that if the works are carried out they will get a licence.

 

From the perspective of neighbours the point to remember here is that provisional statements are advertised and applied for in a very similar way to premises licences and the law says that, if a representation could have been made at the stage of a provisional statement but wasn’t, it cannot be raised later. Each case will vary but in general you should assess provisional statements just as you would an application for a variation or a new premises licence. You can object if you think there is insufficient information available with the application to judge whether or not it will promote the licensing objectives.

 

Asking someone to make a representation or represent you at a hearing

If all this seems to onerous for you to handle or you will be away at later stages of the process you can ask (it is best to do so in writing) someone to make a representation for you. They must do so within the 28 day limit so don’t leave it until the last moment. If you want to ask someone to make a representation on your behalf and it is near the end of the 28 days then make a brief representation yourself in order to meet the deadline. Outline briefly those of the 4 licensing objectives you representation is about and say that you are asking person xyz to make further representations on your behalf.

 

A suitable person might be a legal representative, a friend, a Member of Parliament, a Member of the National Assembly for Wales or a local ward councilor. Local ward councilors who make such a representation are disbarred from any involvement in the decision-making process affecting the premises licence in question. (However, if the ward councilor themselves live in the vicinity and will be affected by the proposal then they may not be able to represent you as well because it is possible that council officers may feel that they have ‘a prejudicial interest’. In this case all they can do is write in stating their own representations and take no further part in the hearing, in which case ask another councilor to represent you).

 

A body representing residents or businesses

Besides residents and neighbouring businesses making representations themselves so can ‘a body representing persons living in the vicinity’ and ‘a body representing businesses in the vicinity’. The test here is likely to be that the body involved such as a residents association, community group or trade association does actually represent people living or in business in the vicinity. So a self appointed group that says it represents people but when challenged can’t show they have a single member in the vicinity of the subject premises is likely to have their representation disqualified.

It is important to remember that the body doesn’t have to have been specifically asked by someone in the vicinity to represent them on a particular case or even cases in general (otherwise the law would not have created this class of interested party) but it is important to show that they represent at the very least someone in the vicinity of the subject premises, proved for example by reference to an up to date membership list.

Licensing Act - 2003