As readers will recall from my previous articles, the Government has knocked back most of the changes which were recommended after the House of Lords’ review of the Licensing Act 2003. However, the Government did suggest that a number of changes could be introduced via the section 182 Guidance which now seems to be reviewed annually by the Home Office. On close reading of the new Guidance, only a small number of the proposed changes has been incorporated in this revision, but they are important changes, nonetheless.
The first change in the revised section 182 Guidance document is that the Regulators’ Code under the Legislative and Regulatory Reform Act 2006 is included as a document for all parties to give consideration to.
The first new section in the guidance is at paragraph 8.3.8 – 8.40, headed “Entitlement to work in the UK”. Three additional paragraphs have been added to the Guidance document, which give clear advice as to the evidence that needs to be adduced to satisfy Licensing Authorities that individuals applying for premises licences for the sale of alcohol or late night refreshment are entitled to work in the UK.
One area where we have had inconsistency across the country is what needs to happen with outdoor areas when applying for a new premises licence. Hopefully the new additional paragraphs below will now remove this inconsistency.
“Beer gardens or other outdoor spaces
8.35 Applicants will want to consider whether they might want to use a garden or other outdoor space as a location from which alcohol will be consumed. The sale of alcohol is to be treated as taking place where the alcohol is appropriated to the contract. In scenarios where drink orders are taken by a member of staff in the garden or outdoor space and the member of staff then collects the drinks from the licensed premises and returns to deliver them to the customer this would be treated as an off-sale and any conditions that relate to off-sales would apply.
8.36 In such cases it will be not necessary to include the garden or other outdoor space on the plan as part of the area covered by the premises licence. However, it will be necessary for the applicant to include the garden or other outdoor space on the plan as part of the area covered by the premises licence if the intention is to provide a service whereby drinks are available for sale and consumption directly from that area (i.e. the provision of on-sales). This would apply in the case of an outdoor bar or a service whereby a member of staff who is in the garden or outdoor space carries with them drinks that are available for sale (without the need for the staff member to return to the licensed premises to collect them).
8.37 If the beer garden or other outdoor area is to be used for the consumption of off-sales only, there is no requirement to show it on the plan of the premises, but the prescribed application form requires the applicant to provide a description of where the place is and its proximity to the premises.”
The first really significant change is at paragraph 9.12 of the Guidance. In the previous version of the Guidance, issued in April 2017, the Police had retained their position as having heightened status in making representations under the crime and disorder licensing objective.
The heading “representations from Police” has now been incorporated into the section “the role of responsible authorities”. This new paragraph 9.12 has now been re-written to read as follows:
“Each responsible authority will be an expert in their respective field, and in some cases, it is likely that a particular responsible authority will be the licensing authority’s main source of advice in relation to a particular licensing objective. For example, the Police have a key role in managing the night time economy and should have good working relationships with those operating in their local area. The Police should usually therefore be the licensing authority’s main source of advice on matters relating to the promotion of the crime and disorder licensing objective. However, any responsible authority under the 2003 Act may make representations with regard to any of the licensing objectives, if they have evidence to support such representations. The Licensing Authority must therefore consider all relevant representations from responsible authorities carefully, even where the reason for a particular responsible authority’s interest or expertise in the promotion of a particular objective may not be immediately apparent. However, it remains incumbent on all responsible authorities to ensure that their representations can withstand the scrutiny to which they would be subject at a hearing”.
This marks a significant departure from the previous position, whereby only the Police were given a heightened status in relation to their representations.
It appears from the rewording of paragraph 9.12 that representations made by the Police have been downgraded from the heightened position that they enjoyed previously, and that now all responsible authority representations fall to be considered in a similar light.
The next additional paragraph in the document is at paragraph 13.11 in the appeals section to the guidance. This states:
“It is important that licensing authorities also provide all parties who were party to the original hearing, but not involved directly in the appeal, with clear reasons for any subsequent decisions where appeals are settled out of court. Local residents in particular, who have attended a hearing where the decision was subject to an appeal, are likely to expect the final determination to be made by a court”.
It is my experience that there has been a distinct lack of voluntary compliance in this regard, and it is interesting that this has now been set out in the section 182 Guidance.
We have been involved in many cases where appeals have been settled without the original objecting residents being involved in the process. In all of my appeals where I have represented the London Borough of Newham, we have always looked at any compromised position in an inclusive manner with residential objectors, to see whether they agree to the compromised position being resolved by a consent order, thus avoiding the need for court time of an effective appeal.
There has been a considerable redrafting of the section of the Guidance dealing with cumulative impact polices. It is worth reading this whole new section. In particular, paragraphs 14.24 to 14.28 have seen significant change. Paragraph 14.34 of the new Guidance replaces paragraph 14.29 and is more prescriptive in the guidance given in relation to the steps to be taken in publishing a cumulative impact assessment.
A new section has been introduced, entitled “reviewing the CIA”. Paragraphs 14.35 to 14.38 detail the steps that a Licensing Authority should take when reviewing the cumulative impact policy applying to a particular area. A number of changes have also been highlighted within the section “effect of cumulative impact assessments”. This replaces the section “effect of special policies”. The two sets of paragraphs need to be read side by side in order to understand the Guidance properly.
We were promised changes after the House of Lords’ review and a careful assessment of the current section 182 Guidance is advisable before making any applications in cumulative impact policy areas.
So, all in all, there have been fairly modest changes to the latest iteration of the section 182 Guidance document. Nonetheless, some of these changes do have an impact on the licensing process and are worthy of careful attention. To view the full revised Guidance click on the link below, and feel free to email me to help with any specific enquiries: