Author: Woods Whur

I had a contested application yesterday for a new premises licence to go into one of the railway arches near the new South entrance to Leeds station. It was for Ossett Brewery who operate two of the other licensed premises in the immediate area…without complaint or issue.

The application premises fall within the “green” part of the Cumulative Impact Policy for Leeds. I have an issue with the definition of the “green” part of the CIP….but that is for a separate article. The definition states:

“All other areas within the city centre CIP will be designated green areas where good quality applications will be generally be more acceptable even though the area is a CIP area.”

So, we met the police and spoke to them about the application, and carefully drafted an operating schedule to go with the application. We received a “qualified” representation from the Police and Health and Safety and agreed their additional conditions so that their representations went away.

We received a representation from the Environmental Protection agency and 11 members of the public from city centre apartments in the immediate vicinity of the premises.

The EHO wanted an additional seven conditions which we agreed. They did maintain their representation on the hours requested saying that 1 am on a Friday and Saturday was unreasonable, suggesting a terminal hour of midnight, and that the smoking area at the front of the premises should not be used from 11pm.

As there were effective representations the matter went to a hearing. The residents did not attend and the authority was persuaded that their fears were ameliorated by the operating schedule and the fact that the operator had two other premises promoting the licensing objectives in the area. They also took note that whilst 11 of the residents in the two blocks of apartments objected, 270 did not.

So we were left with the stance of the EHO. He accepted that the layout of the premises, acoustic lobby on the front door, exiting people through the rear of the premises away from the apartments and quality of the operator eased his fears as to noise escape from the premises. However, he persisted with two arguments:

• The Hours were too late on a weekend.
• The operator could not manage the smoking area without causing a nuisance to residents of the apartment block and the two close hotels.

The main thrust on the hours were that other operators in the area would follow suit and ask for longer hours was dismissed by the sub-committee on the basis that every application would be judged on its merits….and the merits of this application passed the test.

Smoking outside the premises…..

We had suggested that we would stop using the outside area at the premises for anything other than smoking from 11 pm to close of business but would supervise the area where smokers would be. EHO wanted the use to finish at 11 pm and premises close at 12 midnight. I can not see the logic in this and told the committee that surely it is better to have customers in a supervised/controlled environment so that they would be more likely to behave and respect the neighbourhood. EHO would not have it.

And here we had a breath of fresh air. One of the counsellors said to the EHO that if people buy apartments or chose a hotel in the City centre then surely they would expect licensed premises would be in the vicinity, that could be part of the attraction and that 1am was not a late night licence for premises in the City centre.

The licence was granted as applied for as the sub committee obviously agreed with the comments of the counsellor and were impressed by the operator and his plans to manage the premises and the smoking area.

I am now looking forward to the opening party as the menu looks superb!

I have recently represented a Local Authority in a case which has now been running for well over a year and is only now close to being finished. The case should never have continued for so long. It highlights some of the difficulties Local Authorities can experience, when dealing with matters under the Licensing Act 2003.

 An application for a Review of a Premises Licence was submitted in the usual way by The Police. The matter was listed for hearing within the required timescales, but it had to be adjourned as the Premises Licence Holder had a hospital appointment on the day.. At the subsequent hearing, the Premises Licence Holder proposed conditions at the last minute, which the Police needed time to consider, leading to a further adjournment, before the matter was eventually dealt with by the Licensing Committee, who accepted the ‘agreed conditions’, as the Police were content with what was proposed.

 A decision notice was sent out, and on the last day possible the Premises Licence Holder appealed the decision – despite the fact that it reflected what they had proposed by way of ‘agreed conditions’.

The original review had been submitted in July 2014, with the appeal eventually listed for a directions hearing in December. At the directions hearing – aware that there had not been a full hearing of the matter in the first place – the Magistrates remitted the Appeal back to the Local Authority to consider in full. A full hearing took place in January this year but,  before the full hearing, the Premises Licence Holder submitted an application for a new licence in respect of the same premises!

 The Premises Licence holder appealed the decision of the Licensing Committee again, and the appeal was eventually heard in July this year – exactly 12 months after the application was submitted – but the appeal was not concluded and stands adjourned to September. The Licensing Committee considered the application for the new licence and refused the application and that decision was also appealed, although that appeal was subsequently withdrawn.

 The interesting legal point to emerge amongst this legal morass came when, after the Magistrates remitted the appeal back to the Licensing Authority in December, the Premises Licence Holder sought to withdraw the appeal altogether – perhaps because they were concerned that  the Licensing Committee might impose a harsher decision than the one originally agreed.

 Appeals under the 2003 Act are dealt with under section 181 and Schedule 5 of LA2003. S181 states as follows

“

1. Schedule 5 (which allows for appeals) has effect.
2.  On an appeal in accordance with that Schedule against a decision of a licensing authority , a magistrates court may-

1. Dismiss the appeal
2. Substitute for the decision appealed against any other decision which could have been made by the licensing authority
3. Remit the case to the licensing authority to dispose of it in accordance with the direction of the court.
4. And may make such order as to costs as it thinks fit. “

In these particular circumstances the Premises Licence Holder could of course continue to operate under the existing licence ( by virtue of submitting an appeal) until the appeal was disposed of and it is those words which we had to look at when the Premises Licence Holder approached the Licensing Authority seeking to withdraw the appeal after it had been remitted back to the Licensing Authority in December.

It seemed clear to us that the Magistrates’ court had completed its duty under s181(2) and, in accordance with s181(2)(c), had remitted the matter back to the Licensing Authority. The Appeal had been determined and was therefore over, and in those circumstances the Premises Licence Holder/Appellant was not able to withdraw an appeal which, in effect, no longer existed. This placed the Licensing Authority in a position whereby it had to hold a further hearing and deliberate fully in respect of a matter that had been agreed in the first place , subsequently appealed and remitted back to the Licensing Authority!

There have been other issues arising out of this case which I will write  about in later articles but it is clear that all parties to an appeal need to be fully aware of all of the complex provisions in the Licensing Act relating to appeals, the procedural intricacies, and all possible outcomes!

It is 26 years since my boss sent me to sit behind counsel in my first betting case. There was an immediate attraction. John Bull QC v Sir Richard Beckett QC in a battle between William Hill and Ladbrokes in St Austell, Cornwall. A 5 star luxury hotel, 3 nights away with a stunning dinner each night (lawyers, company representatives and expert witnesses all dining together), and 550 miles at 42 per mile in expenses. I knew immediately that I wanted to be a licensing lawyer…2 weeks into being an articled clerk! What of the case? William Hill won a new licence and everyone left with hearty farewells.

Until the Gambling Act of 2005 became effective legislation I repeated this for Demmy, William Hill and then Ladbrokes, once, twice and sometimes three times a week and all was serene in the betting world. We fought like dogs in court….sometimes there were heated exchanges…but for the most part, good humour prevailed once the case was over. And the industry went along making money with little or no adverse comment in the media.

The court of first instance was the magistrates’ , with a route of appeal to the Crown Court for both parties. No political influence, no suggestion that betting was an overtly worrying pastime. All out in the open, on the High Street and carried on by a well regulated industry. The only real issues to be determined by the courts were:

1. The suitability of the premises. Were they compliant with certain regulatory compliance checks?
2. And the real battle ground…was there demand for a new licence?

All great fun, but now in the dim and distant past.

What has changed? Why so much negativity in some quarters towards the betting industry?

• We now have premises licensing controlled by the Local Authority.
• Fixed Odds Betting Terminals (“FOBTs”) generate huge profits, and some would say are the primary reason for the grant of many new licences.
• No demand test and a relaxed planning environment, which have led to unprecedented growth in the number of betting shop licences in some areas.
• Huge competition from online betting and gambling operators.

It really is worth just taking a step back to analyse where the issues are and whether there is any substance to them.

The Gambling Act 2005 moved the licensing of premises for the provision of betting facilities to the local authority in whose area the premises are situated. What has happened since that point, with the removal of the demand test, is that operators have been able to go through a relatively straight forward process of applying to the authority for a premises licence.

Virtually all licences have been granted by delegated authority or after a hearing where objectors have been able to articulate their representations. Some have been refused, but not many. Not a single refusal has been upheld by the magistrates’ court on appeal…anywhere in England and Wales. Some say this is indicative of the unreasonably liberal drafting of the legislation. Others point to the decision of the legislature to relax and liberalise the provision of betting, after Alan Budd’s report, years of deliberation and parliamentary scrutiny.

What has happened as a result, is that nationally the number of betting shops has not increased. There is a finite spend available from potential customers and the free market has led to a reasonable distribution of new licences. However there has been a large increase in some inner city areas, and particularly in some London Boroughs.

What exercises these authorities against the further proliferation of licences? The main issue is concern surrounding FOBTs. Each betting shop premises is automatically allowed 4 of these high stake and prizes machines. There has been a significant rise in the amount of money gambled using FOBTs in recent years. Between October 2013 and September 2014, £1.6bn was lost by gamblers using the machines, up from £1.3bn in 2010-11, according to the Gambling Commission. Bookies now make more profit from these machines than they do from horse and dog racing and other bets combined.

Some 93 councils in England and Wales called for the highest stake on fixed-odds betting terminals to be cut from £100 to £2. However, the bid to have the stakes and prizes reduced was dismissed by the Government.

Newham Council, which led the campaign, said the move would help prevent clusters of betting shops, particularly in deprived areas. The proposal had been submitted under legislation which allows councils to urge central government to change the law to help them promote the “sustainability of local communities”. The Government said it had already introduced stronger controls through changes in planning permission for betting , which will give authorities greater control over their number and position.

Newham’s mayor, Sir Robin Wales, said the decision was an “insult” to councils. “We will challenge this decision, because without a reduction in stakes, FOBTs will continue to blight the nation’s high streets,” he said.

Earlier this year, new rules were introduced which mean anyone wanting to place a stake over £50 on the machines has to interact with staff or set up an account with a bookmaker. The Government said this change will allow staff to monitor behaviour, and act if they identify signs of problem gambling.

All bookmakers have to comply with rigorous compliance tests carried out by the Gambling Commission, in order to be granted and maintain an operating licence, which is a condition precedent for operating from high street premises. Government believes these tests are stringent and it also monitors potential issues of problem gambling through regular prevalence studies.

Bookmakers operate voluntary self exclusion programmes where customers who feel their betting is getting out of control can voluntarily exclude themselves from betting in certain shops or with certain operators. Glasgow is taking the lead and going a stage further, and for the first time people in Scotland will be able to call a confidential helpline to exclude themselves from all 36 of the city’s high street betting shops, regardless of the operator.

The scheme, launched as a three-month pilot by the Association of British Bookmakers (ABB) and Glasgow City councillors, will also allow individuals to select individual shops they would like to refuse them service. Previously, anyone in the Scottish city wishing to exclude themselves had to do so by contacting one shop at a time and filling out a form for each different operator.

The helpline will also provide advice on how to deal with, and receive counselling for, a gambling problem.

Malcolm George, Chief Executive of the ABB, said: “This is a very important step towards helping problem gamblers in Glasgow stay in control, and get the help they need. High street betting operators want all customers to enjoy their leisure time and gamble responsibly. We also want to help those who may be getting into difficulties, and this scheme is a big step forward to achieving that. In addition, it will directly shape the UK-wide scheme that will begin next year.”

Glasgow City councillor Paul Rooney was more cautious, stating: “Only time will tell if it will offer more effective support for Glaswegians who are struggling with their gambling here and now. But, I also want to ensure the city uses this opportunity to gain a better understanding of who finds their gambling become a problem, how they try and cope with that, and to what extent they are able to bring it under control.”

However, the scheme has been decried as a PR exercise by a gambling campaign group, citing issues with enforcing the exclusions. Adrian Parkinson, director of the Campaign for Fairer Gambling, “There is nothing new about self-exclusion. It has been operating in betting shops since the mid 2000s.The bookmakers are trying to improve a system that has consistently been shown to be ineffective in helping pathological problem gamblers to exclude from betting shops.”

Instances of self-exclusion have been on the rise across Britain, according to statistics published last month by the Gambling Commission. New self-exclusions recorded by operators rose from 22,541 for the period April 2012 to March 2013 to 28,844 between October 2013 and September 2014.

We will continue to monitor the success of the Glasgow self-exclusion pilot and whether Newham does indeed attempt to challenge the Government over their reluctance to reduce the stakes and prizes for FOBTs….and any other potential changes affecting the sector.

I can still remember Sir Richard Beckett’s face when, after asking for a lift to the station, he saw my blue Fiesta 1.1L…complete with coat hanger as a radio aerial…and no heating!

Olive Cooke jumped to her death from the observatory near the Clifton Bridge in Bristol. Her body was found in the Avon Gorge on 6 May. A tragic event for this lady, of course, but also one that has – some may say unjustifiably – unleashed a media storm against charities.

Olive had been a fundraiser for the Royal British Legion for 76 years. She supported numerous other charities and it was revealed after her death that she had been receiving some 200 letters a month from charitable organisations, asking for donations. The media immediately went to town, with a general assault using headlines such as “Despicable charities prey on the elderly” and “Shame of charities that drove Olive to her death”. Olive’s daughter made an express statement on the day the story first spread to the effect that she did not believe that charity communications had been a factor in her mother’s death, and her granddaughter added that she had not been “overly concerned” by them. Instead, her suicide had apparently been motivated by repeated bouts of depression and a recent cancer diagnosis. However, the media chose only to report these stories belatedly, and even then in incredulous tones.

Olive Cooke, then, became a standard bearer for a cause celebre against charities, despite this being, as her family said, the last thing she would have wanted. The Prime Minister waded in, vowing to tighten the regulation of charities’ cold-calling and data-sharing activities. He announced a review of the Code of Fundraising Practice, the self-regulation scheme enforced by the Fundraising Standards Board (“FSB”) that controls the way in which charities raise funds, and hinted that he might be prepared to push through legislation to replace the self-regulatory framework.

The FSB and various major charities have promised to contribute to the review, and Peter Lewis, of the Institute of Fundraising’s Standards Committee, conceded that: “it is critical to maintain public trust and confidence in charities, and an important part of this is to fundraise in the right way.”

At the same time, several players in the lotteries sector have expressed considerable disquiet about the effect that all of this negative publicity might have on lottery recruitment and participation. For many charities, their lottery accounts for a large proportion of overall income, with many donors enjoying the fun aspect of participating in a raffle and the prospect of perhaps “getting something back”.

Whilst the Government may legitimately feel that a clampdown on cold-calling and data sharing by some charities is needed, it is to be hoped that the proposed review will acknowledge the fact that the lotteries sector is already an extremely tightly regulated one. Small society lotteries must register with their local authority, and large society lotteries can only be run under the authority of an operating licence issued by the Gambling Commission.(“GC”) This means that they must comply with all of the requirements of the Gambling Act , and the GC’s Licence Conditions and Codes of Practice (“LCCP”). A recent change to the LCCP, in particular, which came into force on 8 May this year, requires charities and their commercial partners who help them run their lotteries, also known as external lottery managers, to set upper limits for the numbers of lottery tickets sold to a person and undertake and record interaction with the customer where those limits are sought to be exceeded. The records have to be kept for at least three years and made available to the GC on request. Even before this, many charities have voluntarily imposed such limits, and have tended to differentiate between numbers of tickets sent to known supporters and those sent “cold”.

Of course, charities must comply with the social responsibility provisions of the legislation and LCCP when approaching people to play their lotteries, and they may not target those aged under 16. They are obliged to account to the GC in respect of their lottery activity, through the submission of regular regulatory returns. Charity lotteries are also subject to the Committee of Advertising Practice’s advertising codes, which govern the way in which they are marketed. Marketing communications must not portray, condone or encourage gambling behaviour that is socially irresponsible or could lead to financial, social or emotional harm. They must not suggest participation in a lottery as an escape from personal, professional or educational problems, that it represents a solution to financial problems or that it is indispensable or should take priority in life. They must not exploit the susceptibilities, aspirations, credulity, inexperience or lack of knowledge of children, young persons or other vulnerable persons, or cultural beliefs or traditions about gambling or luck.

The Government is expected to consult shortly on the tightening of regulation of charities. I expect the lotteries sector to produce a robust response that resists the imposition of yet further controls on what is already a strictly regulated activity. The impact more generally, though, of the dark cloud currently hanging over charities on society lottery take-up remains to be seen. We will continue to monitor developments and will report back.

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I am currently advising a major UK charity, a household name, on how best to maximise the revenue it can raise from its lotteries, in order to, in turn, optimise the sums of money that it can devote to its charitable aims and objectives. A relatively uncontroversial endeavour, one might have thought, and one that all of us would support.

The problem, however, is that the Gambling Act imposes various financial limits on society lotteries, which sit as conditions on every operating licence granted to a so-called “large society” by The Gambling Commission. These limits are prescribed by the legislation in order to preserve the pre-eminent position of The National Lottery, whose monopoly is driven by the view that a single national lottery, with protections, is the most efficient way of generating money for good causes on a national scale.

The National Lottery was established in 1994 and is the only lottery scheme in the country with the capacity to offer life-changing prizes with no cap on annual sales. By contrast, society lotteries cannot raise more than £10 million in ticket sales in any calendar year, or £4 million via a single draw. In addition they are limited insofar as the value of the first prize they can offer is concerned, to £25,000, or 10% of the value of the ticket sales, whichever is the greater.

The problem that my client has encountered, then, is that its lottery scheme has proved to be so successful that it has inadvertently breached the £10 million annual proceeds limit, largely due to the way in which it timed its lottery draws. Whilst The Commission has been broadly supportive and is keen to ensure that the charity concerned can maximise the funds it applies to its numerous charitable activities, the breach of the proceeds limit constitutes a breach of a condition of its operating licence and, accordingly, The Commission has no choice but to impose a sanction, which it has chosen to frame as a corresponding reduction in the lottery proceeds that the charity can raise via lotteries this year.

There is a solution to this situation, however, which consists in the charity establishing a second society, with a separate lottery carried on under a second large society lottery operating licence. The Commission is prepared to sanction such a structure, and produced guidance on the subject in August 2011. There are various hurdles, however, that need to be overcome in order to run a so-called “umbrella” scheme – running multiple lotteries under a single brand.

First, the charitable aims and purposes of each society under the “umbrella” must be clearly and demonstrably distinct. This is not to say that the objects of the overarching charity themselves necessarily need to change, but the purposes for which each society is established must be different. That means that one cannot, for example, have a single charity with one society lottery being run to benefit animal welfare and another in aid of the welfare of donkeys. A scheme with one lottery for Irish dog rescue and another to raise money for Welsh cat rescue would work, though.

Secondly, whilst the general advertising and marketing material relating to an “umbrella” lottery scheme can feature the branding and logo of the main charity, it must make it clear that each draw will be on behalf of separate identified societies. The relative prominence on promotional material and tickets of the name of the umbrella lottery brand compared to the name of the society or societies involved in the promotion of the draw must be such as to ensure that consumers clearly understand which society’s lottery, exactly, they are supporting.

Some six large national charities currently hold multiple society operating licences in respect of separate societies that they have set up, and which meet the distinctiveness tests set down by The Commission. One example is The People’s Postcode Lottery, which has established The Postcode Animal Trust to support animal welfare, The Postcode Children’s Trust to support children’s charities and The Postcode Culture Trust to support museums and other cultural groups and organisations.

After extensive discussions with The Commission in this case, it appears that we have come to an agreement on establishing separate societies that will satisfy both parties. The challenge, of course, is to come up with charitable aims that are both sufficiently distinct to meet The Commission’s requirements whilst still having a broad enough appeal to make entering into the individual lottery remain attractive to players as a means of charitable giving.

Looking at the society lottery landscape more generally, though, it may well be that the law in this area is set to change in the relatively near future. From 11 December 2014 to 4 March 2015, The Department for Culture, Media and Sport held a consultation in the form of a “call for evidence”, looking at the current balance and respective boundaries between The National Lottery, society lotteries and other forms of gambling, many of which, such as some betting-on-lotteries products, are run entirely for commercial gain. At the same time, The Culture, Media and Sport Committee carried out an investigation into society lotteries, specifically examining their role and their place within a system that allows “umbrella” schemes and the arguments for raising or removing the financial limits.

These moves were undoubtedly motivated by the recent furore surrounding the best-publicised “umbrella” scheme, The Health Lottery, which launched in October 2011 and is a consortium of 51 society lotteries defined by geographical region but which operates across the country and can, accordingly, raise up to £510 million annually in ticket sales. A high-profile challenge to The Health Lottery, brought by Camelot, who operate The National Lottery, in the High Court failed in the summer of 2012, but the case raised concerns that the new “umbrella” scheme was placing the unique national nature of The National Lottery and the good cause funds it raises under pressure. The Coalition Government of the day’s stated position was that maintaining the health of The National Lottery was essential and that it was prepared to bring forward changes to regulation, if necessary to achieve this.

The consultation was launched with this approach in mind and with a view to gaining more of an understanding of how the current market operates and the competing interests of those within that market, before adopting any reforms.

The call for evidence had the benefit of advice from the Commission on the boundaries between The National Lottery, society lottery and commercial gambling markets and how any changes therein might affect both public perception and returns to good causes from The National Lottery and society lotteries. The information provided established that the market share of lottery income to society lotteries has risen slightly between 2009/10 and 21013/14, from 6% to 9%, whilst the share to The National Lottery has fallen, from 94% to 91%. However, taken as a proportion of national gambling spend, the proportion taken by the lottery sector overall has remained constant.

Society lotteries have achieved great success in recent years, with sales having risen rapidly over the last five years. In 2008/9, £178.6 million sales were achieved. This more than doubled to £376.9 million in 2013/14, with £175 million going to good causes. Societies must donate a minimum of 20% of proceeds to the good cause and in practice the percentage donated varies considerably from society to society, with some donating the bare minimum and others considerably more. The average donation across the society lottery sector is 42%; this contrasts with The National Lottery, which donates approximately 26%, although Camelot does pay 12% on top of this in lottery duty to The Treasury.

The sheer scale of The National Lottery, though, means that it has been very successful and has donated an eye-watering sum of money to good causes, over £32 billion to date. Since its inception it has made over 450,000 individual awards, which amounts to a quite staggering average of 138 for each postcode district in the UK.

The Commission’s advice to the consultation was that, in terms of quantum, The National Lottery continues to dwarf the society lottery sector and that impacts generated from potential threats posed by “umbrella” society lottery schemes are currently small. It did not rule out greater impact occurring in the future but thought this unlikely, given the considerable commercial barriers to such schemes achieving genuine consumer traction, including the current financial limits that apply to them.

Against this backdrop, the Lotteries Council of Great Britain, which represents the interests of society lotteries, submitted a strong response to the consultation, in which it argued for the relaxation of the financial limits to £100 million annually and £10 million from a single draw. It also issued a plea for a new first prize limit of £100,000 or 50% of proceeds. It maintained that market share of society lotteries remains extremely small, even since the launch of The Health Lottery, and that increasing the financial limits in this way would enable charities to raise considerably more money to do good, without affecting a thriving National Lottery. It believes that there is scope for this to happen, given the generosity of the British public, combined with more sophisticated modern fundraising methods. It also takes the view that increasing financial limits would do away with the need for charities to create multiple lotteries, with the additional cost and bureaucracy burden that this brings, and points to the fact that it is at present possible to circumvent turnover restrictions in this way calling into question  the need to have them at all.

The current Government is still considering the responses to the consultation, and various meetings have been taking place behind the scenes. Thus far, it is unclear what, if any, reforms it will decide to implement. However the tide appears to be turning at present as far as the charitable sector is concerned, with new legislation promised to curb excessive marketing, cold-calling and touting for donations. In this context it may well be that the relaxation of the rules that the society lottery sector so craves may not be forthcoming. We will continue to monitor developments in this area and will issue a further update when one is available.

For further information please contact Anna Mathias at anna@www.woodswhur.co.uk

I have acted for Authorities wanting conditions on premises licences precluding the sale of beers and ciders above 5% or 6%, operators who are happy to accept the condition and operators who are keen to fight the condition. All of these cases have concerned off sales premises licences and have been directed towards the impact that street drinkers have in a particular locality when they consume high ABV alcohol in the street and then cause antisocial behaviour and/or crime and disorder.

Are these valid conditions to attach to premises licences?

It is a much debated point. I have seen authorities and Magistrates’ Courts rule in different directions. Some imposing the conditions and others not, in my view this is consistent with the need to be case/premises specific and what we should expect to see.

Para 1.16 and Chapter 10 of the S182 Guidance are good starting points to look at this issue.

Licence conditions – general principles

1.16 Conditions on a premises licence or club premises certificate are important in setting the parameters within which premises can lawfully operate. The use of wording such as “must”, “shall” and “will” is encouraged.

Licence conditions:

• must be appropriate for the promotion of the licensing objectives;
• must be precise and enforceable;
• must be unambiguous and clear in what they intend to achieve;
• should not duplicate other statutory requirements or other duties or responsibilities placed on the employer by other legislation;
• must be tailored to the individual type, location and characteristics of the premises and events concerned;
• should not be standardised and may be unlawful when it cannot be demonstrated that they are appropriate for the promotion of the licensing objectives in an individual case;
• should not replicate offences set out in the 2003 Act or other legislation;
• should be proportionate, justifiable and be capable of being met;
• cannot seek to manage the behaviour of customers once they are beyond the direct management of the licence holder and their staff, but may impact on the behaviour of customers in the immediate vicinity of the premises or as they enter or leave; and
• should be written in a prescriptive format.

I have highlighted the relevant sections of this paragraph, if the condition is imposed in breach of this guidance/with lack of evidence for it being appropriate; the likelihood is it would be unlawful.

Chapter 10 then covers other areas which are relevant to whether this is a valid condition to attach to a premises licence and the following paragraphs are relevant and the following paragraph is most important:

10.10 The 2003 Act requires that licensing conditions should be tailored to the size, type, location and characteristics and activities taking place at the premises concerned. Conditions should be determined on a case-by-case basis and standardised conditions which ignore these individual aspects should be avoided. For example, conditions should not be used to implement a general policy in a given area such as the use of CCTV, polycarbonate drinking vessels or identity scanners where they would not be appropriate to the specific premises. Licensing authorities and other responsible authorities should be alive to the indirect costs that can arise because of conditions. These could be a deterrent to holding events that are valuable to the community or for the funding of good and important causes. Licensing authorities should, therefore, ensure that any conditions they impose are only those which are appropriate for the promotion of the licensing objectives.

So, my view has always been that we may see the condition on the premises licence for off sales in the following circumstances:

• Where the operator has offered this as a condition in their operating schedule, maybe because of discussions with the police and/or licensing officer prior to application.
• After a review the condition may be imposed if there is evidence to show that the sale of high ABV beers and ciders is causing an adverse impact on the licensing objectives in the immediate vicinity of the premises.
• The condition should not be imposed as a “standard condition” on all new licences in an area or the whole of the Licensing Authority area, there must be specific evidence for each premises licence as to why it is appropriate to attach this as a condition.

However, the picture is now a much bigger one as the on trade are fearful that this could grow into pubs bars and clubs.

SIBA, the Society of Independent Brewers, which represents over 820 British brewers, has thrown its weight behind a campaign calling for the European Commission to force the UK Competition and Markets Authority to act against “collective boycott schemes” run by licensing authorities, which prevent the sale of higher-strength beers and ciders. They estimated that around 95 authorities covering up to 18,000 licensed premises are running schemes of one kind or another. This certainly is not my view of the scale of the imposition of conditions of this nature, and certainly not so much concerning the on trade.

SIBA has written to the European Commission and encouraged its members to submit examples in support of its submission. SIBA is concerned that retailers who agree to participate in the schemes run a serious risk of infringing competition law by engaging in a coordinated boycott. While the schemes are typically aimed at low-price, high-strength beers and ciders and not ‘craft’ or ‘artisan’ beers; the Society is seriously concerned that this is not the case in reality and that consumers risk losing access to thousands of high quality crafted beers.

Mike Benner, Managing Director, said ‘Our members take great pride in the excellence and range of their beers. They make beers for everyday drinking, beers to accompany food, and beers for connoisseurs to savour and sip. They brew a huge range of different beers, both regularly and occasionally, and many of these are fabulous, complex brews of higher strength and great repute. They make beer, they sell beer, and they take the utmost pride in beer.’

‘As a responsible organisation we absolutely support proportionate, effective measures to reduce alcohol misuse, but we do not support any intervention which is not within the law. We have significant concerns about the proportionality and legality of these schemes. It is our understanding that licensed retailers who agree to participate in these schemes run a serious risk of infringing competition law by engaging in a coordinated boycott of certain products.’

‘It is essential that British beer drinkers are not unnecessarily and unreasonably denied access to the thousands of fantastic beers available across the country and the Commission should take action to ensure competition law is upheld.’

I would not be advising an Authority to seek to impose this as a condition on the premises licence, nor advise an operator to accept the condition, unless there was a clear risk that the licensing objectives were to be put at risk without the condition being attached.

We will continue to monitor the imposition of conditions of this nature and see if the issue becomes a live issue for the on trade.

 

Although kick-off times for the home nations’ games vary, with some taking place in the afternoon, all 4 of England’s Pool A matches start at 8pm and, whilst this is not universally popular with fans travelling to the games, it will benefit pubs who can draw in a rugby crowd.

The fact that the Cup is being hosted here at least means that you don’t need to worry about games being played outside your normal licensed hours, but there are some other aspects of your licence that you should check before planning and publicising your rugby-themed events.

If you are screening matches live, there is no requirement to have permission to show films on your licence. You will need it; however, in the event that England make it to the Final, for example, and you want to show a recording of the game again at some point in the future. Remember that you could do this under a Temporary Event Notice.

You may be thinking of putting up a big screen, or even setting up an occasional bar to serve beer to thirsty supporters. If so, it’s worth checking your licence plan to ensure that you will not be straying into a part of your premises or garden that isn’t currently licensed for the sale of alcohol. Also take a look at the conditions on your licence to make sure that there are none that might prevent you from operating as you intend – only using plastics outside after a certain hour, for example.

You’ll be hoping to be busy during the 6 weeks or so of Pool matches – perhaps busier than usual. Of course, you’ll need to bring in adequate supplies and staff to make sure that everything goes smoothly – but keep an eye on numbers, too, to ensure that you don’t exceed any maximum capacity figure on your licence or fire risk assessment.

Rugby crowds tend not to be associated with disorder, but prepare for customers being boisterous – depending on how the game is going! If you have neighbours who have already shown themselves to be sensitive with regard to noise from your outside area, or patrons blocking the pavement, for example, you will need to consider how you will manage busy times, especially as large numbers of people may be arriving at, and leaving, your premises at the same time, as games kick off and end. You may need to carry out increased monitoring of external areas and bring in extra staff to patrol, collect glasses and clear up.

The Rugby World Cup is a fabulous occasion and, with a bit of forward planning, a great opportunity for you to maximise revenue in your business. Don’t forget the rugby widows, though – you may wish to consider your offer to those who might come along, but are not interested in watching the game. Personally, I can’t wait for the competition to start! May the best (British) team win!

Norwich City Council has agreed to introduce a Cumulative Impact Policy (CIP) for part of the city centre. There has been a significant amount of time and work in Norwich after the City Council announced its multi point plan for dealing with issues created by the night time economy. The initial report can be seen from the link below which introduced a number of initiatives:

http://www.norwich.gov.uk/CommitteeMeetings/Cabinet/Document%20Library/44/REPCabinet06NightTimeEconomy20140326.pdf

This document shows how the council looked at their various options, gives their reasons for abandoning the introduction of an EMRO and why it was thought that the potential return from the Late Night Levy was not worth going through the process of its introduction. A number of practical initiatives are promoted, such as, the introduction of the additional CCTV, introduction of night time road closures and working with the trade to provide toilet provision at the end of the night.

The major new initiative proposed was the introduction of a Cumulative Impact Policy.

Those who have read my previous articles on CIPs will know of my view that these should be used and treated with caution. There are well over 200 of them nationally. They are not mentioned in the Licensing Act, but are a creature of the S182 Guidance. If they are not used judiciously they can lead to the stagnation of the offer of licensed premises in areas where the introduction of new/better operators might be of an overall benefit.

When a policy is under consideration there is a suggested consultation process which should be undertaken before they are introduced, and they should only come into existence if there is an evidential basis for their introduction. Chapter 13 of the S182 Guidance deals with CIPs, Para 13.24 states:

‘There should be an evidential basis for the decision to include a special policy within the statement of licensing policy. Local Community Safety Partnerships and responsible authorities, such as the police and the local authority exercising environmental health functions, may hold relevant information which would inform licensing authorities when establishing the evidence base for introducing a special policy relating to cumulative impact into their licensing policy statement. Information which licensing authorities may be able to draw on to evidence the cumulative impact of licensed premises on the promotion of the licensing objectives includes:

• local crime and disorder statistics, including statistics on specific types of crime and crime hotspots;
• statistics on local anti-social behaviour offences;
• health-related statistics such as alcohol-related emergency attendances and hospital admissions;
• environmental health complaints, particularly in relation to litter and noise;
• complaints recorded by the local authority, which may include complaints raised by local residents or residents’ associations;
• residents’ questionnaires;
• evidence from local councillors; and
• evidence obtained through local consultation’.

Once a policy is introduced it must be engaged properly. The policy should not be used as a blanket ban on new applications or variations.

Para 13.30 of the policy states:

‘The effect of adopting a special policy of this kind is to create a rebuttable presumption that applications for the grant or variation of premises licences or club premises certificates which are likely to add to the existing cumulative impact will normally be refused or subject to certain limitations, following relevant representations, unless the applicant can demonstrate in the operating schedule that there will be no negative cumulative impact on one or more of the licensing objectives. Applicants should give consideration to potential cumulative impact issues when setting out the steps they will take to promote the licensing objectives in their application’.

The Police and Licensing Authority should, therefore, be taking a pragmatic approach when new applications are lodged in a CIP area. Is it a genuinely different offer which will not add to the problems in the CIP area? Has there been good engagement with the responsible authorities to explain the application and why the applicant believes they will not add to the problems in an area? Is the operating schedule/conditions offered tailored to the issues in the area?

We have recently been successful with an application to vary a premises licence in the “red zone” in Leeds to introduce a VIP area into a previously unlicensed area. We agreed to keep to the previous capacity level at the premises, which was a condition on the premises licence. The Authority accepted that the variation had rebutted the presumption of refusal in that the agreed capacity condition, pre booked booths and waitress service was actually beneficial to the operation of the premises and the application was allowed by the licensing sub-committee. This is an example of where the local CIP is not hindering the development of a more mature offer at premises which will promote the licensing objectives.

It will be interesting to see whether the Norwich policy has a positive effect and deals with issues in the locality.

We are always delighted to receive feed back and comment from our newsletter….even if it is just to prove people are reading it! We do get a significant amount of comments. I recently had an informative reply after my article on Cumulative Impact Policies. We always try to respond to these replies and if we learn something new then this will feature in a subsequent article. We send the newsletter out every fortnight and hopefully there is a good mix of topical information across all sectors of alcohol, entertainment and gambling law and regulation. You do not have to wait for the fortnightly newsletter though as we are tweeting and posting on Facebook and Linkedin much more frequently.

 

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