Author: Woods Whur

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Local Risk Assessments – Are they being taken seriously?

The Gambling Commission has given clear guidance about local risk assessments. They say “premises licence holders in your area must conduct a local risk assessment for each of their current premises. This is a social responsibility code which helps them demonstrate how they aim to address the local risks to the licensing objectives”.

The Gambling Commission, in advising the Licensing Authority, goes on to stress that this applies to all categories of gambling operations requiring premises licences and highlights that operators are required to conduct and update a risk assessment when applying for a new premises licence, applying for a variation of a premises licence and when there are changes in the local environment or to the premises warranting a fresh risk assessment to be conducted.

It is my view that Licensing Authorities are not taking obligations in this area particularly seriously and that operators’ risk assessments currently tend to be generic rather than specific in their drafting. I am not convinced that Licensing Authorities or operators are giving this the attention to detail the Gambling Commission expects.

The Gambling Commission has stressed that there is power for the Licensing Authority to challenge a risk assessment, if it feels that there is evidence that local risks have not been taken into consideration.

The requirements relating to local risk assessments should be set out in clear detail in a Licensing Authority Statement of Gambling Principles. A good example of this is Liverpool’s Statement, which says:

A.4.1      The City Council is entitled to request such information from operators as it requires to make effective licensing decisions. Whilst the 2005 Act requires that an application must be accompanied by a minimum level of information, the City Council agrees with the Gambling Commission’s view that this does not preclude reasonable requests by licensing authorities for additional information to satisfy themselves that the licensing decision is reasonably consistent with the licensing objectives and the Commission’s code. That information may include, for example, a suitable business plan or the operator’s own assessment of risk to the licensing objectives locally.

A.4.2      The City Council welcomes the implementation from 6 April 2016 of the Social Responsibility Code provision 10.1.1 (which must be followed and has the force of a licence condition) which will require licensees to assess the local risks to the licensing objectives posed by the provision of gambling facilities at each of their premises, and have policies, procedures and control measures to mitigate those risks. In undertaking their risk assessments, they must take into account relevant matters identified in the licensing authority’s policy statement.

A.4.3      Licensees will be required to undertake these local risk assessments when applying for a new Premises Licence.

At paragraph A.4.4 of its Statement, Liverpool go on to quote Ordinary Code Provision 10.1.2., which encourages licensees to share their risk assessments with Licensing Authorities.

We are now seeing that similar policies are being incorporated into more Statements of Gambling Principles, as they are being revisited and revised.

However, we are also finding that a significant number of operators (particularly when operating from multiple sites) are not taking the site-specific basis for these risk assessments seriously enough.

The Gambling Commission Guidance states that these risk assessments should be “structured in a manner that offers sufficient assurance that the premises has suitable controls and procedures in place. These controls should reflect the level of risk within the particular area which will be determined by local circumstances.”

Risk assessments should therefore take into account the risks presented by the local landscape. For example, if premises are a near school, then the operator must explain how it will mitigate the risk of underage gambling.

The Gambling Commission’s advice also states that operators should have available copies of these risk assessments on each individual premises.

I think that we will see this become a key feature in Licensing Authority policies moving forward, and operators will be expected to create bespoke risk assessments for each premises, rather than a generic risk assessment which serves all of their premises, many having different local circumstances. It is clear from the Gambling Commission’s advice that the purpose of these risk assessments is to be particularly local and bespoke, and to deal with any issues arising around the individual locality of the premises, rather than being of a generic nature.

We are more than happy to look at operators’ risk assessments and to see whether, in the circumstances, they are fit for purpose when applying for any new premises licence, applying for a variation to a premises licence, or where there has been, or is proposed, any material change in the local area or in the premises’ operation.

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Even Ian Rankin’s latest Novel targets Fixed Odds Betting Terminals – any hope for the Industry?

We should all soon know the result of the long-awaited review of FOBTs, which is being carried out by the Government and which is expected to be announced very shortly.

The outcome of the review has already been delayed, allegedly following an argument between the Treasury and the Government Department responsible for the gambling industry over regulation of the machines. The Guardian also reported on 30 June 2017 that MPs in the Democratic Unionist party are in favour of cutting the stake from £100 to as low as £2. In the same article, Tracey Crouch MP, the Conservative Minister responsible for the review, confirmed that gambling advertising would be looked at as well, and that the results of the review would be not “kicked in to the long grass”.

The importance of this review cannot be understated, both for those who are looking for a significant cut to the maximum stake, and for those in the industry who are opposing any draconian measure and who hotly dispute allegations made by the anti-gambling lobby. Even Ian Rankin’s latest Rebus thriller “Rather be the Devil” has scenes in which detectives are looking into betting shops and in particular fixed odds betting terminals. “Plenty of jaunty blips and beeps and colourful lights. Not just high-tech one-armed bandits, but versions of blackjack and roulette too…”; “…a quid gone in 15 seconds”. The Detective Inspector visiting the betting office even enquires with the cashier as to whether or not he can still get a bet on horses in these premises.

The Guardian’s article reports that there are 34,388 FOBT machines in the country, which contribute around £4 million in taxes every year. The Treasury therefore must be concerned at the impact that any review may have on the amount of tax it takes from the gambling industry. Meanwhile, on the other side of the argument, Jim Shannon, MP for Strangford, has made clear his distaste for FOBT machines and accuses bookmakers of seeking to “protect their huge profit made at the expense of the vulnerable”.  

The book-making industry led by the Association of British Bookmakers has constantly urged any review of FOBT machines to base its decision on evidence and fact, instead of on scare-mongering led by the anti-gambling lobby. The Association of British Bookmakers has itself been accused of scare-mongering by arguing that a significant curb to FOBT stakes could lead to a significant number of shops closing, 20,000 jobs being lost, and the Treasury deprived of millions of pounds in taxes. It is easy to find numerous articles written on this subject, although many articles often drift into a wider moral discussion on gambling and, in particular, on online gambling and advertising.

The Campaign for Fairer Gambling has argued against FOBTs for many years and has often referred to these machines as “the crack cocaine of gambling”. Mr Zarb – Cousin of the Campaign has said: “In the early days when I used to do local radio interviews about my addiction, the radio host would say something like, “These are just fruit machines” and I would say “Well actually, no, these have been described as the crack cocaine of gambling””.

Whatever the outcome of the review, this is unlikely to be the end of the story. The bookmaking industry appears to accept that there will be some reduction in stakes, but it is unlikely that the reduction will go as far as the anti-gambling groups wish. So this debate is likely to go on for some time. It is to be hoped that the outcome of the review can be based on evidence submitted to it and not merely on speculation. It is without a doubt one of the most important issues that has surrounded the industry and its customers for many years.

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Industry Group for Responsible Gambling updates Code on Responsible Advertising

The Industry Group for Responsible Gambling (“IGRG”) has updated its Industry Code for Socially Responsible Advertising (“the Code”) this month. This is the 3rd version of the Code, and a full copy may be downloaded here: http://igrg.org.uk/wp/wp-content/uploads/2017/10/gicodev3.pdf.

The IGRG is currently composed of the Association of British Bookmakers, BACTA, the Bingo Association, the National Casino Forum and the Remote Gambling Association (“RGA”). IGRG was established in 2014 and incorporated in November 2015. Its object is to promote socially responsible gambling across all of the gambling sectors in the UK.

This latest iteration of the IGRG’s Code is intended to fully be implemented by the end of the year. The Code was originally introduced on 1 September 2007. It was aimed at augmenting other social responsibility measures relating to gambling advertising imposed and enforced by the Gambling Commission (“GC”) and the Advertising Standards Authority (“ASA”) and to detail a range of measures that go above and beyond the already extensive requirements placed on operators by those regulators.

It remains the case, under this latest draft of the Code, that the gambling industry will look to the GC and the ASA for the enforcement of the rules relating to socially responsible gambling advertising. This includes compliance with the Codes of Practice issued by the Committee for Advertising Practice and the Broadcast Committee of Advertising Practice, which are enforced by the ASA, which is also required by the GC’s Licence Conditions and Codes of Practice (“LCCP”).

It was always envisaged that the Code would be reviewed on an ongoing basis and, accordingly, the industry welcomed the Government’s decision, in 2014, to initiate a review of all aspects of the regulation of gambling advertising. The then Secretary of State at the Department for Culture, Media and Sport (“DCMS”) wrote to the RGA to request a review of the industry Code:

“to ensure that controls keep at pace with developments in the market, and continue to reflect public attitudes towards gambling advertising”.

 A number of amendments and updating measures to the Code followed the subsequent review and engagement with DCMS and a commitment was given at the time by IGRG to review the Code on a regular basis. This 3rd version of the Code reflects the latest developments in this ongoing process.

The Code was proactively volunteered, from its inception, by the gambling industry as a result of the liberalisation of gambling advertising brought about by the implementation of the Gambling Act 2005 in September 2007. This was as a result of the facts that the new advertising freedoms were relatively untested and that there was little evidence about their potential impact. As a result, a number of precautionary measures were introduced at that time, the most significant of which being the 9.00pm television watershed for all gambling product advertising except for that relating to bingo and sports betting surrounding televised sports events, a requirement for all advertisements to include information leading to the GambleAware website, and a prohibition on sponsoring operators’ logos appearing on any children’s merchandise.

This latest version of the Code continues primarily to be focused upon the issues of problem and underage gambling. It also continues to place the primary responsibility for enforcement upon the GC and the ASA. In practice, when breaches of the Code are identified, the company concerned has generally already taken remedial action provided any breaches are brought to its attention. If this is not the case then the IGRG will look to the GC to “encourage companies to be compliant”, as per the GC’s LCCP.

Complaints about breaches of the Code go here: adcodecomplaints@igrg.org.uk. The relevant specific Code requirement, together with details of where the alleged breach was noticed, should be included within any complaint, together with any other details that the complainant can provide. The IGRG then commits to considering the case before responding to the complainant and placing a summary of the complaint and decision on its website, albeit the complainant’s details will not be disclosed at this stage. Any sanctions will fall to the GC or ASA to apply and enforce.

The principal changes brought about by the 3rd Edition of the Code are as follows:

 

  • Following a rebranding, GambleAware has been replaced by a reference to the following link: https://about.gambleaware.org/fundraising/begambleaware-logo/. All references to GambleAware on print and broadcast media must be changed and made clearly legible to www.begambleaware.org, as soon as possible and ideally before the end of the year, although the existing link http://www.gambleaware.co.uk will remain operational until the end of 2018, but will redirect visitors to the new website;

 

  • A raft of new measures relating to advertising on social media, designed to limit further the access of under-18s to inappropriate gambling marketing material on YouTube and Twitter.

 

  • Gambling operators must now carry the required social responsibility and age requirement specifications on consumer-facing marketing content on their YouTube channels. They must also use the Twitter age-screening function when marketing to consumers, which approach has previously been piloted by the alcohol industry. In addition, they must restrict or direct marketing video uploads to YouTube. This can be done simply by checking the age restriction option when uploading content, via: https://support.google.com/YouTube/answers/2950063?rd=1.

 

  • For the first time, the Code includes a requirement that operators use their best endeavours to ensure that any affiliates that market on their behalf do so compliantly. This reflects the provisions of the GC’s LCCP, notably Licence Condition 16.1.1(b).

As mentioned above, the latest amendments to the Code, which should be fully implemented by the end of this year, represent an attempt by the IGRG to keep up with the continuously and rapidly involving nature of the online gambling market. As social media continues to evolve, operators will need to take care to ensure that they are similarly vigilant across all channels, even if the IGRG Code does not specifically refer to them. The IGRG expressly says in this month’s Edition of the Code that it’s unlikely that any further revisions will be made in a short term but responsibility nevertheless rests with operators to ensure that they continue to promote high standards across all advertising channels, as these evolve.

This does beg the question as to what impact the IGRG Code will have in real terms, in what is already a heavily-regulated field that falls under the responsibility of the GC and ASA. As I finish writing this article, Guy Parker, Chief Executive of the ASA, is on the news stressing that advertisements on Snapchat and other social media must be flagged as such, for example by the use of the hashtag #ad, and gambling operators advertising on any form of social media would do well to remember this.

Should you have any queries about the latest changes to the IGRG Code, please do not hesitate to contact Anna Mathias at Anna@www.woodswhur.co.uk.

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Does your licence provide what you need for Christmas and New Year?

It is vitally important that you check specific hours on your Premises Licence for Sundays as both Christmas Eve and New Year’s Eve fall on a Sunday in 2017. The terminal hour for a Sunday can be earlier than other nights of the week on many Premises Licences throughout the United Kingdom. Some local policies have Sunday closing hours as early as a 10:30pm or 11:00pm, so you may need a Temporary Event Notice to trade to your desired time on both Christmas Eve and New Year’s Eve. Some licences will specify hours for Christmas Eve and New Year’s Eve which may be later than the standard Sunday hours but not all licences will do so.   You must check your licence as soon as possible and as a matter of policy, ensure that any request for a Temporary Event Notice is sent to us before the end of November 2017. It may also be a good idea to think about applying to vary your non-standard timings to include later hours for Christmas Eve and New Year’s Eve if your licence does not already have the benefit of the longer hours.

If you require more information, want us to apply for a Temporary Event Notice or a variation then please contact us either at info@www.woodswhur.co.uk or by contacting the person responsible for your work.

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Paddy Whur is successful in persuading South Yorkshire Police to allow Area Nightclub, Sheffield, to reopen

It is Sunday afternoon, I have walked the dogs and my Yorkshire Puddings are rising nicely as I prepare Sunday dinner for the family. My day off comes to an abrupt end when the operators of Area Nightclub (home of Gatecrasher) contact me to see if I can help them. There has been a major incident in the premises overnight, and as a result of stabbings that occurred, the premises have been closed immediately via a Closure Notice issued by South Yorkshire Police.

Anyone who has dealt with the legislation will know it is very impactful and immediate and can lead to a business disappearing pretty quickly. The legislation in question is the Anti-Social Behaviour, Crime and Policing Act 2014. This removed s161 of the Licensing Act 2003 and replaced it with the new powers which are available in respect of a wider list of premises, not just licensed premises.

CHAPTER 3 Closure of premises associated with nuisance or disorder etc is the Chapter of the legislation which is relevant. Section 76 of the legislation deals with the power to close premises immediately by service of a closure notice.

S76(1) A police officer of at least the rank of inspector, or the local authority, may issue a closure notice if satisfied on reasonable grounds—

(a) that the use of particular premises has resulted, or (if the notice is not issued) is likely soon to result, in nuisance to members of the public, or

(b) that there has been, or (if the notice is not issued) is likely soon to be, disorder near those premises associated with the use of those premises, and that the notice is necessary to prevent the nuisance or disorder from continuing, recurring or occurring.

(2) A closure notice is a notice prohibiting access to the premises for a period specified in the notice.

(5) A closure notice must—

(a) identify the premises;

(b) explain the effect of the notice;

(c) state that failure to comply with the notice is an offence;

(d) state that an application will be made under section 80 for a closure order;

(e) specify when and where the application will be heard;

(f) explain the effect of a closure order;

(g) give information about the names of, and means of contacting, persons and organisations in the area that provide advice about housing and legal matters.

(6) A closure notice may be issued only if reasonable efforts have been made to inform—

(a) people who live on the premises (whether habitually or not), and

(b) any person who has control of or responsibility for the premises or who has an interest in them, that the notice is going to be issued.

(7) Before issuing a closure notice the police officer or local authority must ensure that any body or individual the officer or authority thinks appropriate has been consulted.

So, the notice had been served, the premises were emptied of customers and were to remain closed for 24 hours, the maximum period permitted under S77(1) of the Act. This was then subsequently extended by 7 hours, as is permitted under S77(4) if authorised by a superintendent.

This meant that I needed to get to the premises and conduct a full audit, including looking at the CCTV and all management controls. Time was tight as, once a notice is served, the snowball is rolling down the hill and picking up pace, as the court must consider whether a closure order should be imposed within 48 hours of it being applied for.

The legislation is brutal:

S 80 Power of court to make closure orders

(1) Whenever a closure notice is issued an application must be made to a magistrates’ court for a closure order (unless the notice has been cancelled under section 78).

(2) An application for a closure order must be made—

(a) by a constable, if the closure notice was issued by a police officer;

(b) by the authority that issued the closure notice, if the notice was issued by a local authority.

(3) The application must be heard by the magistrates’ court not later than 48 hours after service of the closure notice.

(4) In calculating when the period of 48 hours ends, Christmas Day is to be disregarded.

(5) The court may make a closure order if it is satisfied—

(a) that a person has engaged, or (if the order is not made) is likely to engage, in disorderly, offensive or criminal behaviour on the premises, or

(b) that the use of the premises has resulted, or (if the order is not made) is likely to result, in serious nuisance to members of the public, or

(c) that there has been, or (if the order is not made) is likely to be, disorder near those premises associated with the use of those premises, and that the order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring.

(6) A closure order is an order prohibiting access to the premises for a period specified in the order. The period may not exceed 3 months.

(7) A closure order may prohibit access—

(a) by all persons, or by all persons except those specified, or by all persons except those of a specified description;

(b) at all times, or at all times except those specified;

(c) in all circumstances, or in all circumstances except those specified.

(8) A closure order—

(a) may be made in respect of the whole or any part of the premises;

(b) may include provision about access to a part of the building or structure of which the premises form part.

(9) The court must notify the relevant licensing authority if it makes a closure order in relation to premises in respect of which a premises licence is in force.

Full instructions taken, we headed for court and hopefully the chance to have a proper conversation with the Police before the hearing. We had been advised to be at court for 10 am. When we arrived there was nothing listed and we were told it would be 2 pm. Fortunately the Police station sits next to the court so we went to see if the Police were amenable to having a conversation with us.

Throughout the morning we were able to discuss a number of measures which the operator was happy to incorporate into the management controls at the premises. The Police thought that if those measures could be placed as conditions on the premises licence, then they would be happy for the premises to be allowed to open. In those circumstances, we agreed to submit a minor variation to add those conditions to the licence and the Police issued a cancellation notice under S78, which meant that the court was no longer seized of anything to adjudicate on and there was no need to adjudicate on the closure order.

This was a great example of how an operator and the responsible authorities can work together for a mediated conclusion which everyone is happy with.

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J D Wetherspoon PLC refused appeal in Leeds Magistrates Court

I was delighted to represent Arc Inspirations Limited as a party in the Appeal by J D Wetherspoon PLC against the decision of Leeds City Council to refuse it a new premises licence for the former Elinor Lupton Centre in Headingley.

The Elinor Lupton Centre, being part of the old Leeds Girls High School, sits in a residential area away from the commercial centre of Headingley. A number of residents and Arc Inspirations had objected to the grant of a premises licence for the site. On 29 November 2016 Leeds Licensing Authority’s Licensing Sub-Committee heard the application by J D Wetherspoon PLC and refused to grant it a licence.

District Judge Mallon had accepted my submissions that my client, Arc Inspirations Limited, should be allowed to be an interested party and I represented Arc’s interests at the Appeal. The main issues which Arc wished me to bring out, in support of the residents who also objected, centered around the potential for an increase in crime and disorder, were the application to be granted, through a change to the Otley Run (an organised pub crawl through Headingley) and the impact on major match days at the Headingley Rugby League and Cricket grounds.

My clients chair the Headingley Pubwatch and were deeply concerned that the introduction of a 500 capacity premises in the location applied for could have a significant effect on the overall management of licensed premises in the area. Having led Pubwatch for a number of years and having formed strategies for all operators to comply with in relation to the Otley Run, there were significant concerns that premises such as these could significantly reverse the positive steps that had been achieved.

The case came before District Judge Mallon and Stephen Walsh QC represented the Appellant, with Sarah Clover representing Leeds City Council.

After hearing all of the evidence and submissions on behalf of all parties, District Judge Mallon determined that the licence should not be granted, and therefore dismissed the Appeal. In her judgment she set out that the premises fell within the Headingley Cumulative Impact Policy Area which establishes a rebuttable presumption that new grants of premises licences will be refused, unless the applicant can demonstrate that a grant would not exacerbate the cumulative impact already suffered in the area.

The District Judge found that a 500 capacity premises so close to major sporting stadia and in the heart of the Otley Run would have a negative impact on the licensing objectives. She went on to say: “this brings the Court to what it perceives to be the fundamental contradiction at the heart of the Appellant’s case – it does not want to be a student pub and wants to appeal to local residents, yet two-thirds of these are students; it wants to bring in customers from elsewhere, but has a car park with 17 spaces; it wants to encourage a food-led approach whilst offering shots at 3 for £5. The Court does not doubt the honesty of the Appellant’s case, but it is contradicted by the evidence; and, of course, this analysis is not assisted by the evidence of how the business would respond on the occasions of one or other of the sports grounds hosting a match, with the huge increase in trade that would bring”.

I was delighted with the decision of District Judge Mallon and the fact that, in her reasons, she incorporated many of the issues that I had raised in submissions and cross examination of the witnesses.

I have always been of the view that these premises do not lend themselves to being such a high capacity public house, when the impact would be felt by residents and given the potential for an increase in crime and disorder in the wider area, as a result of major sport events and the Otley Run taking place.

 

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Club Flamingo sees its Sexual Entertainment Venue Licence returned after year-long battle

I was instructed to represent City Traders, the owners of Club Flamingo on Alie Street, Aldgate, to attempt to have its Sexual Entertainment Venue Licence (SEV) returned after an unsuccessful renewal application in 2016.

The decision which brought about the immediate closure of the venue was like an exam question, made significantly harder by the fact that we had not been instructed from the outset. The Licence had been the subject of a contested annual renewal and non-specialist lawyers had undertaken representation of the company.

SEV applications are always some of the most tricky, and Tower Hamlets Licensing Committee had refused the licence renewal because they had felt distinctly underwhelmed with the quality of the application to renew. There is a lesson to be learnt here: I would never look to represent my clients in attempting to secure a property deal on new premises. I simply do not have the legal training to do my client’s instructions justice. It is the same with Licensing Applications which become contested, particularly SEV applications. Non-specialist representation had meant that many of the subtle issues (and some not so subtle) had been missed. The renewal process in 2016 had got out of hand and, upon reading all of the papers and the decision, I could easily see that the situation would take some unravelling.

The licensing and control of Sex Establishments is governed by the Local Government (Miscellaneous Provisions) Act 1982. Schedule 3 deals with the licensing and renewal of licences for premises such as Club Flamingo. Paragraphs 8-13 are the critical parts of the Schedule and, in particular, paragraph 12.

Paragraph 12(3) deals with the discretionary grounds that the Licensing Authority has to grant or renew licences.

The discretion to refuse is engaged in the following situations:

(a) that the applicant is unsuitable to hold the licence by reason of having been convicted of an offence or for any other reason;

(b) that if the licence were to be granted, renewed or transferred the business to which it relates would be managed by or carried on for the benefit of a person, other than the applicant, who would be refused the grant, renewal or transfer of such a licence if he made the application himself;

(c) that the number of sex establishments in the relevant locality at the time the application is made is equal to or exceeds the number which the authority consider is appropriate for that locality;

(d) that the grant or renewal of the licence would be inappropriate, having regard —

(i) to the character of the relevant locality; or

(ii )to the use to which any premises in the vicinity are put; or

(iii) to the layout, character or condition of the premises, vehicle, vessel or stall in respect of which the application is made.

The Licensing Committee had refused the 2016 renewal application for Club Flamingo under sub-paragraphs (a) and (d). This refusal meant that any attempt to over turn the decision became complicated. We lodged an appeal to Thames Magistrates Court for the refusal under para (a) as the legislation gives a statutory right of appeal. The lodging of the appeal stays the decision of the Authority. If that were the only ground for refusal then the premises would have been allowed to reopen.

BUT, and it was a big BUT, the renewal had also been refused under para (d), which has no statutory right of appeal. As a result, we worked in collaboration with Philip Kolvin QC of Cornerstone Chambers to apply for permission to judicially review this ground of refusal, and we had to apply for a stay of the decision while the High Court adjudicated on the point, as there is no automatic stay under this para.

We were granted permission, and a stay, which in these types of cases is hugely significant as it means that the premises can reopen and trade pending the substantive decisions in the Magistrates’ Court Appeal and the High Court action. Philip Kolvin QC had persuaded the High Court on his written submissions that there was an arguable case, which was a major step in unlocking the issues.

I am grateful that, at this stage, Tower Hamlets Council representatives accepted our invitation to meet and discuss the full case, as I had never had an opportunity to engage with the Authority previously, due to not being instructed from the outset.

I was able to supply significantly more information about the company, operation and management of the business than had been made available to the Licensing Committee as part of the previous renewal application. We were able to offer additional conditions to be attached to the licence, and as a result the Authority agreed to settle both the statutory appeal and the Judicial Review proceedings, something which allowed the licensee to have certainty to continue to invest.

This was all concluded satisfactorily last week, when the Licensing Authority agreed to renew the licence again for 2017-2018. A considerable amount of work had been undertaken to unravel the issues of the previous refusal.

 

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Woods Whur successful in grant of planning permission for a new Potting Shed in the former HSBC Bank Guiseley

I am delighted that I was able to secure planning permission for a change of use for the former bank in Guiseley which will become a Potting Shed.  This is the sixth Potting Shed unit that I have been able to secure a licence upon and the first where I have appeared on behalf of the client before the Plans Panel to secure planning. It is a fantastic and growing family friendly brand.

The application for change of use had 76 objections from local residents and the two Local Ward Councillors also objected to the application.

The South and West Plans Panel of Leeds City Council considered the application yesterday and I was delighted to persuade them to grant the change of planning use with a vote of 7 in favour of the application and  2 against the application.

The panel accepted that although there was a localised level of objection to the application that the application had been promoted in a proactive way and followed policy. They also thought that there were significant benefits to the grant and also the operator had a good track record elsewhere.

We had held a public meeting in Guiseley to explain what the scheme entailed and had agreed a number of specific conditions with the Planning Officer in relation to the build fit out and opening hours of the premises.

I was delighted to work with Carl Copestake from Knights who leads their planning department.  It was beneficial to have a planner and myself with detailed knowledge of the company and the site to deal with the questions raised by the Planning Panel. 

This now gives the greenlight for the operator to fit out the redundant building and have it open in time for Christmas trading. 

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The Section 182 Guidance on Regulated Entertainment is not the easiest read!

I was recently asked to advise a client on what did and what did not constitute regulated entertainment under the Licensing Act 2003.  The background to the question was a fairly complicated one in that  a Premises Application conducted by my client in person had been refused and objections had been received to Temporary Event Notice applications, on the ground of nuisance.  My client was looking to explore the possibility of running an event without a Temporary Event Notice or Premises Licence and wanted my advice on what could and could not take place. A fairly straightforward question I thought! 

As a general rule, live and recorded music would be licensable under the Licensing Act 2003 but there are of course numerous exemptions.  The Live Music Act 2012 created exemptions for live amplified music in unlicensed premises (which didn’t apply in this case) and for unamplified music elsewhere (no audience limit 08:00 – 23:00).  Some entertainment facilities (stages, microphone stands) have not been licensable since October 2012 and recorded music in unlicensed premises benefits from the same exemption as live music, which also covers DJs and discos. 

I thought I would just check a number of points in the section 182 Guidance and I have to admit that I am not sure that I have either looked at this recently or remember looking at it at all.  I turned to Chapter 16, expecting to see a few paragraphs on the subject, and was somewhat surprised to see that the Chapter on regulated entertainment runs to 28 pages.  This compares to 8 pages in Chapter 11 on reviews, 8 pages in Chapter 2 on the licensing objectives, 5 pages in Chapter 5 on who needs a Premises Licence and even 6 pages in Chapter 7 for Temporary Event Notice.  Indeed, the chapter on regulated entertainment is the same length as the chapters on Temporary Event Notices, reviews and who needs a premises licence, all put together!

My client wanted advice on private events, which are dealt with at paragraph 16.1.3.  This starts well: “Events held in private are not licensable unless those attending are charged for the entertainment with a view to making a profit”.  Just because a musician charges the organiser of a private event, this does not of itself make the entertainment licensable.  This makes sense – you could have a private party at home and pay a musician to attend.  It only becomes licensable if guests attending are themselves charged, with a view to achieving a profit.

If, therefore, you want to hold a wedding on private land and you pay the landowner to provide wedding facilities and entertainment facilities, then that event is licensable because the landowner is charging the wedding couple with a view to achieving a profit.  If, however, the wedding couple paid the landowner for use of the land but paid the entertainer directly, without the landowner having any involvement in organising the entertainment, the music would not amount to regulated entertainment and would not be licensable.  The wedding couple are not seeking to make a profit in paying the entertainer and do not (as a general rule!) charge their guests to attend their wedding.

The chapter of the s182 Guidance continues setting out circumstances in which entertainment activities are no longer licensable, for example those staged by local authorities, hospital health care providers and school proprietors.  We often get queries from school premises with regard to musical entertainment and also from community premises, which are dealt with at 16.2.1.  No licence is required for the performance of live music or the playing of recorded music on community premises between 08:00 and 23:00, as long as there is no Premises Licence permitting the sale of alcohol, there are less than 500 people attending and the written consent of the  community premises’ management committee has been obtained.

Live music is dealt with at paragraphs 16.2.6 – 16.2.9, with key terms used in relation to live music explored at paragraphs 16.3.0 – 16.3.2. 

If you have a Premises Licence which authorises live music and/or recorded music, what is the position now that live music and/or recorded music is exempt under the Live Music Act?  Paragraph 16.3.6 of the s182 Guidance confirms that any existing licence conditions relating to live music or recorded music remain in place, but are suspended between 08:00 and 23:00, as long as the Premises are open for the sale of alcohol and the audience is less than 500.  

Where we have encountered difficulties sometimes is in advising clients on whether a licence condition does in fact relate to live or recorded music.  General management conditions may have been placed on the licence with an eye or ear on potential noise nuisance but it may not specifically relate to the provision of entertainment.  It could relate to noise from customers or noise from entertainment.  Holders of Premises Licences need to be very careful therefore, if they are determining that a licence condition is not applicable.  In many ways, common sense should prevail and the general duty to promote the licensing objectives and to prevent a nuisance still applies, so if the condition promotes the objectives and prevents a nuisance then Premises Licence holders should apply the conditions. 

There are further paragraphs in the Guidance on incidental music. Incidental music is not regulated entertainment if it is incidental to another activity which does not itself fall within a description of entertainment under paragraph 2 of Schedule 1 to the 2003 Act (clear as mud!).  Whether or not recorded music is incidental is one of the most regular questions we get asked when preparing new applications.  The Guidance sets out, at paragraph 16.5.9?  some factors which may be considered:

  • is the music the main or one of the main reasons for people attending the Premises and being charged;
  • is the music advertised as the main attraction; and
  • does the volume of music disrupt or predominate over other activities or could it be described as background music.

All of this is incredibly subjective and therefore difficult to enforce.  What is background music at 1:00pm whilst customers are having lunch, will be completely different to background music at 11:00pm, as the music might well be considerably louder and yet could still be classed as incidental and background music.

The Chapter of the Guidance ends by referring to other licensing regimes, such as those covering copyrighting and leafleting, and it is also necessary to consider whether the “entertainment” requires any other form of licence such as a TV licence or indeed a licence from the maker/broadcaster of any film or advert.

If in doubt, read the guidance, or contact us for advice!

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Will the new Food Law Code of Practice leave a bad taste in the mouth?

The Food Standards Agency (FSA) has introduced a revised Food Law Code of Practice (the Code) and at 158 pages, only the most determined of readers may wish to tackle it!

At face value it is a document which local authority Environmental Health Officers (EHOs) are much more likely than you to have on their desk.

However, it contains a variety of interesting developments, which, as a food business operator, you should be aware of.

As with most documents like this, the devil is in the detail and there are some useful changes, as well as worrying ones!

Usefully, the Code attempts to facilitate consistency across local authorities in relation to compliance and enforcement action.  For those of you who operate in a number of different local authority areas, this has to be welcomed and gives some hope that consistency of approach can be achieved when operating in different areas across the country.

It also indicates that those businesses with good food hygiene standards and compliance may find they have less frequent EHO visits.  As you have probably guessed, those in the past who have perhaps missed more regular and detailed scrutiny in terms of compliance are to face more inspection and intervention in the future, based on risk and non-compliance.

This is due to a new food establishment intervention scoring system, which determines the frequency  at which a business is visited.  As you would imagine, this is determined by using risk assessment criteria.  The local authority will assess the hazards, the level of compliance by the business to date, risks, and the confidence it has in the management structure of the business. 

These criteria produce a score and this in turn gives a rating which determines the minimum frequency for intervention.

In the past, individual local authorities determined the level of their inspections, however the Code is designed to provide a consistent benchmark to be used by EHOs throughout the country.

Overall, the message to take from the Code is clear.  If you have a good record of compliance and maintain it, local EHOs will have confidence in you to operate a business which complies with the law and the level of inspection will fall.  If none of those factors apply, you can expect more visits and if non-compliance is found, there will be further intervention and enforcement action.

As I have previously discussed in other articles regarding the new sentencing guidance, which applies to food safety offences, this is not somewhere any business needs to be these days!