Making a Representation under the Licensing Act 2003

 

Here, Alan Shrank, chairman of the National Organisation of Residents’ Associations (NoRA) summarises the main lessons learnt from experience so far.

 

In the last few weeks emails received by NoRA have exposed several problems with the licensing process. As more information comes in, the difficulties experienced in various parts of the country become clearer.

 

“Vicinity”

Some Licensing Authorities have defined “vicinity” as within 100 metres of the premises for which a licence is sought. This excludes large numbers of residents in villages and estates adversely affected by “the vibrant economy”, because they live further away. During the parliamentary debates ministers stated that, if there were problems with the definition of “vicinity”, the Courts should decide the meaning of “vicinity” in this context. When this eventually happens, it would be hoped that magistrates or judges will view the problem in the light of the Human Rights Act rather than parliament’s limited view of the interests of residents in a community.

 

“Planning issues”

When an application is for a variation for which there is no planning consent – extended hours, use of garden, change of use – planning authorities can object. Apparently few do on the grounds that their objection does not fit any of the four licensing objectives. On the other hand, if there is, for example, a time limit on the premises paralleling the times of a Justices Licence, presumably the time limit was made a condition in order to preserve the quality of life of residents. In my view when this is the case, appropriate pressure on the Planning Department should produce a positive response.

Doing nothing leads either to the applicant seeking relaxation of the time limits, which allows residents to object without the restrictions listed in the licensing legislation, or the applicant will implement the licence only to receive an enforcement notice from the Planning Department, which is a waste of time and effort.

 

“Evidence”

The quality of evidence presented by objectors and its evaluation by councillor members of Licensing Sub-committees is so variable even in the same district, that doubt must be cast on the quality of justice being administered.

 

In some districts “hard” evidence, such as diaries, police evidence and reports from environmental health officers of adverse events, is required, otherwise the Legal Adviser to the councillors will suggest to them that any other evidence would be challengeable on appeal in Magistrates Court. The impression is sometimes given that the council officers managing the licensing process are more sympathetic to the licensed trade than to objectors. Councillors, who may be subject to officer pressure in other spheres, may also be persuaded that encouraging the “evening and night economy” is good for trade and the image of their council.

 

Some applicants suggest that even such “hard” evidence is no proof that extended hours for example would produce more adverse events, since the only real proof would be to allow the extension of hours and record what happens. It makes nonsense of the licensing objective, “the prevention of public nuisance”.

 

The police, who have all the “hard” evidence to confirm that a particular licensed premises is the source of many adverse events, plead that such evidence cannot be revealed since it would breach the Data Protection Act and they justify this by using an exemption clause in the Freedom of Information Act. Unless they appear at a hearing, this response is difficult to question, but an appeal might allow appropriate questioning.

 

“Applications”

The time for objections to applications made by August 6 2005 has past. In the first week of August up to 40% of applications were received by some Licensing Authorities. As many as half of applications were the subject of objections. Many applications had quoted conditions from the Guidance, such as “noise or vibration does not emanate from the premises so as to cause nuisance to nearby properties”, but this provides an opportunity for objectors to add the condition “All doors and windows must be closed whenever regulated entertainment is taking place, and noise limiters must be installed on all audio-amplifying equipment”, also listed in the Guidance (page165).

 

Many applications for premises licences include the wish to hold events outside the permitted hours sought on the application. The section in the Licensing Act 2003 on temporary events restricts objections to these to the police and only on the grounds of preventing crime and disorder. It is important to object to this request at the outset on the grounds of preventing public nuisance, since there is no opportunity to object once this request has been approved.

On pages 148-179 of the Guidance are several conditions that could be added to premises licences, which should command our attention. Access to the Guidance is easily obtained on the NoRA website.

 

“After August 6 2005”

If applicants have failed to apply for a premises licence prior to August 6 2005, they will have lost their “grandfather rights” and will have to apply for a totally new licence. This provides an opportunity for objectors to seek a removal of acquired consents for extended hours, for entertainment facilities and for use of outside areas. Objectors can seek - for example - to restrict hours of opening to Justices Licence permitted hours, to limit the hours of regulated entertainment and to impose conditions on preventing noise emerging from premises, to prohibit events outside permitted hours, to control the sale of drinks in open containers for consumption off the premises and to limit the hours of the use of outside areas of premises. The licensing objectives and the “vicinity” restrictions will still apply, but “grandfather rights” can no longer be the subject of conversion.

 

“Hearings”

The style of hearings can vary from cross-examination and interrogation to an informal discussion with no opportunity to question advocates. This can disadvantages objectors, since many do not take kindly to aggressive questioning nor understand why they are prevented from questioning statements made by applicants.

The membership of Licensing Sub-committees is usually of three councillors who vary from hearing to hearing. The calibre of councillors is consequently variable, and “junior” councillors are more easily ruled by officer advice. Experienced councillors may feel strong enough to make their own decisions, but they are open to the influence of economic pressures outside the licensing process. It means that deliberations and decisions may not be consistent, resulting with a premises in one street refused extensions of opening hours with music and dancing while a similar application from a nearby licensed premises is granted.

 

Whereas committees making planning decisions consist of the same councillors certainly for a year at a time, there is no such consistency expected in Licensing Sub-committees.

 

The best approach appears to be a meeting between the applicant and residents to try to resolve concerns without recourse to a hearing. If successful, both sides are happy, otherwise the burden of a hearing will have to be borne. If the applicant is granted the premises licence requested, either objectors need to collect data of adverse events both before and after the Second Appointed Day with a view to organising a “review” or they need to consider an appeal to the Magistrates Court. The first is free, while the second option runs the risk of costs awarded against the appellant.

 

“Appeals”

Few appeals to Magistrates Courts have been reported, but there is a serious problem with the notification of interested parties by the Courts. This has been highlighted by Glen Suarez of the Soho Society. The Guidance (para. 10.4) states that “The Licensing Authority will always be a respondent to the appeal, but where a favourable decision has been made for an applicant…… the person who made the relevant representation or the chief officer of police will be the appellants.” This implies that the Court is not obliged to inform the objectors when the appellant is the applicant. It means that the evidence of objectors may not be presented to the Court and objectors will be denied the opportunity to question the applicant. It’s yet another obstruction designed to thwart objectors.

 

The solution suggested is a letter to the Clerk to the Magistrates Court along the following lines, and this advice is recommended to all NoRA members. “I am writing to ask the Court to adopt a procedure to require applicants making appeals against decisions of the Licensing Authority under the Licensing Act 2003:

 

(i) to notify responsible persons and interested parties who made relevant representations in respect of the case in question that an appeal has been made; and

 

(ii) to send the notice of the appeal to the interested parties and responsible persons at the same time as the notice is served on the Licensing Authority and the Court.

 

I believe that this step may be necessary to ensure that the Court complies with its obligations under the Human Rights Act 1998 to interpret the Licensing Act 2003 compatibly with the ECHR article 6 and in some cases article 8.

 

As you know, the Licensing Authority may only exercise its discretion when determining an application for a licence or for a variation of a licence (i) after the application had been advertised and (ii) if a relevant representation has been received from an interested party or responsible person. An applicant for a licence or a variation may appeal to the Magistrates’ Court against the decision of the Licensing Authority after giving notice to the Licensing Authority and the Court. The Court may take any decision that the Licensing Authority could have taken. But there is no explicit requirement in the Act when an appeal is made for interested parties or responsible persons who made relevant representations to be notified of the fact so that they may ask to submit evidence to assist the court (as in a judicial review) or join in the case as third parties. In the absence of these notification procedures, important decisions that affect the interests and rights of these interested parties may be made by the Magistrates’ Court without its giving those who interests are affected an opportunity to be heard.

 

Given the nature of the issues at stake, we believe that it is important that we and other interested parties who made relevant representations should have an opportunity at the very least to present a written statement to the Court when it hears the appeal and to have an opportunity to rebut any new evidence and witnesses brought before the appeal court which was not put before the Licensing Authority.

 

You are aware I am sure, that in a judicial review all parties with an interest in a case have a right to be notified of a challenge against a decision of a public authority so they can join in as third parties or submit evidence to assist the Court. It would be strange if the Magistrates’ Court, which has greater powers to overturn decisions of the Licensing Authority than the Administrative Court, should be able to take its decision with less notification and consultation of interested parties.

 

I believe that these appeal cases may involve issues under article 6 as well as ECHR article 8. Under the Human Rights Act 1998, the Magistrates’ Court is a “public authority” and is therefore bound by the requirement to interpret all legislation compatible with the Human Rights Act 2003 so far as it is possible to do so and is prohibited from acting in contravention of a convention right unless required to do so by primary legislation. In this case the Court has the power to regulate its own procedure and therefore nothing prevents the Licensing Act from being interpreted compatibly with ECHR 6 and 8 and nothing requires the Court to act in contravention of these articles.”

Alan SHRANK

 

7.September 2005