I suppose that one of the more interesting aspects of working with the Licensing Act 2003 is that we regularly get involved in cases in which there is a disagreement over the interpretation of the Licensing Act 2003. This also just goes to show that the best way to fully understand the Act is to be involved in the legislation on a daily basis and we are certainly fortunate to be in that position. We regularly get telephone calls from clients and Local Authority officers alike asking for our interpretation of various sections of the legislation which are not commonly used and which are the subject of a debate.
I don’t think that I personally have been involved in a contested Temporary Event Notice (TEN) for a few years. I have been involved in lots of discussions with clients and Local Authorities with regard to applications for TENs. We submit a large number of TENs in Westminster and work closely with Westminster Police and Westminster Licensing Department on these applications. The police will regularly ask us for a “last entry time” or for confirmation that all existing conditions on the licence will be adhered to with the TEN but very rarely do we actually go to a hearing for a contested TEN.
In one recent case that I was involved in the police (and I will not name the premises or the Local Authority area) visited some premises during a TEN when the TEN had been applied for to start prior to the end of permitted hours on the Premises Licence. If a terminal hour for alcohol is 11pm on the Premises Licence the TEN had been applied for from 8pm to 1am giving the applicant a two hour extension but also the ability to operate under the TEN between 8pm and 11pm. This was for a particular event and the TEN had been applied for with the intention of the existing conditions on the Premises Licence not being complied with during that period from 8pm to 11pm. The police were adamant that as the premises were trading at 8pm then the existing conditions should have been complied with but I am afraid that this is not correct. The premises were operating not under the Premises Licence but under the Temporary Event Licence. The Temporary Event Licence was being displayed on the premises and as the police had not objected to the TEN and no conditions had been placed on the TEN then the premises could operate under the TEN without conditions at all.
We did not submit the aforementioned application and it may be that if we had submitted the application we would have specifically noted on the TEN that the existing conditions on the Premises Licence would not be complied with during this period of time and we would have set out the reasons why this was the case. The applicant had applied in person and not done this but nor had the police raised the question and this just goes to show how important it is for the police and Local Authorities to check that their understanding of the TEN applied for is correct.
In a second case I have recently been involved with the police did object to a TEN and the matter did proceed to a hearing before the Licensing Committee. During the hearing there were submissions as to various conditions which should be considered if the Licensing Authority were prepared to grant the application. There is then a debate as to what conditions the Licensing Authority can impose and this dealt with very clearly in the guidance issued under Section 182 of the Licensing Act 2003 at paragraph 7.37.
The 2003 Act provides that only the Licensing Authority can impose conditions to a TEN from the existing conditions on the Premises Licence and the Licensing Authority can only do so:
- If the police or EHA have objected to the TEN;
- If that objection has not been withdrawn;
- If there is a licence or certificate in relation to at least part of the premises in respect of which the TEN is given; and
- If the Licensing Authority considers it appropriate for the promotion of the licensing objectives to impose one or more conditions.In this particular case the Licensing Authority did impose all existing conditions on the Premises Licence onto the TEN. The applicant had offered one or two other measures during the course of the hearing and the Licensing Authority and their decision noted this and made it quite clear that they expected the applicant to comply with this additional measures as well even though they were not conditions on the TEN. There is no doubt that the applicant will have to comply with these additional measures or else there is a significant risk of future action being taken against the premises if incidents occurred on the evening of the TEN and the applicant had not been complying with the measures that were promised to the Licensing Committee.
- The decision is one for the Licensing Authority alone regardless of the premises users views or willingness to accept conditions.
The Licensing Authority is not able to impose conditions on the TEN which are not conditions on the existing Premises Licence.