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What Are the Implications of Local Policy Making Under the Licensing Act?

I have recently been involved in a number of cases where localised initiatives and policies are at play which could make it very difficult for multiple operators to streamline their operations, so as to have the benefit of economies of scale whilst not infringing any of these local policies. Having to come to grips with responsible authorities wanting slightly differently worded conditions can be costly to an operator who has a good track record of promoting the licensing objectives. I can see the logic of not creating a “one size fits all” standardised pool of conditions, but consistency wherever possible would be hugely beneficial for all.

Also, localised issues such as not allowing applicants and responsible authorities to “finesse” the operating schedule to create conditions which promote the licensing objectives during the notice period can frustrate applicants. I am a big fan of the “qualified rep”… I get paid for the hearing, but at times you do wonder why you are there at all, when parties are so close to agreement.
The s182 Guidance gives Local Authorities clear discretion in creating a Statement of Licensing Policy which reflects local issues, needs and initiatives, to help in promoting the licensing objectives. Lest we forget, s4(1) states:

“A licensing authority must carry out its functions under this Act (“licensing functions”) with a view to promoting the licensing objectives.”

This means that all of its policies and decision-making must be focussed on promoting the licensing objectives. The authority must have regard to the S182 Guidance and its own statement of licensing policy when it makes its decisions. So, scope for localised policy, but a need to focus on the promotion of the licensing objectives.

Chapter 13 of the s182 Guidance needs careful consideration. The following paragraphs under “Fundamental Principles” are very important:

13.12 Statements of policies should make clear that:

• Licensing is about regulating licensable activities on licensed premises, by qualifying clubs and at temporary events within the terms of the 2003 Act; and
• Conditions attached to various authorisations will be focused on matters which are within the control of individual licence holders and others with relevant authorisations, i.e. the premises and its vicinity.

13.13 A statement of policy should also make clear that licensing law is not the primary mechanism for the general control of nuisance and anti-social behaviour by individuals once they are away from the licensed premises and, therefore, beyond the direct control of the individual, club or business holding the licence, certificate or authorisation concerned. Nonetheless, it is a key aspect of such control and licensing law will always be part of a holistic approach to the management of the evening and night-time economy in town and city centres.

These are two sections which sometimes can be ignored by the decision-makers within authorities which set artificial time limits for hearings. It cannot be fair for a premises licence holder, at a hearing with multiple objectors and representations, to deal with all of these issues in 20 minutes….especially when the Police are saying it isn’t fair also, as they cannot make their representation in such a small time frame. It can be very expensive for the Magistrates to unravel decisions made in undue haste. This is a local issue which I feel can cause significant difficulties to all parties in heavily contested cases.

Another issue which can cause problems is dealing with Cumulative Impact Policies (CIPs). My colleagues and I have all written articles about the difficulties in applying for licences in Cumulative Impact, or ”Stress Areas”. This can be very frustrating for an operator who already has licences in other CIP areas, with practices and procedures which promote the licensing objectives, but gets a push back from regulatory authorities who feel they must object just because the premises fall within a CIP area.

Authorities should look closely at the following:

Steps to be taken before adopting a special policy

13.29 The steps to be followed in considering whether to adopt a special policy within the statement of licensing policy are summarised below:

• Identify concern about crime and disorder; public safety; public nuisance and protection
of children from harm.

• Consider whether there is good evidence that crime and disorder or nuisance are
occurring, or whether there are activities which pose a threat to public safety or the
protection of children from harm.

• If such problems are occurring, identify whether these problems are being caused by
the customers of licensed premises, or that the risk of cumulative impact is imminent.

• Identify the boundaries of the area where problems are occurring (this can involve
mapping where the problems occur and identifying specific streets or localities where
such problems arise).

• Consult those specified in section 5(3) of the 2003 Act, and subject to the outcome of
the consultation, include and publish details of the special policy in the licensing policy

Effect of special policies

13.32 Once adopted, special policies should be reviewed regularly to assess whether they are needed any longer or if those which are contained in the statement of licensing policy should be amended.

13.39 Every application should still be considered individually. Therefore, special policies must not restrict such consideration by imposing quotas – based on either the number of premises or the capacity of those premises. Quotas that indirectly have the effect of predetermining the outcome of any application should not be used because they have no regard to the individual characteristics of the premises concerned.

And critically….

13.36 A special policy should never be absolute. Statements of licensing policy should always allow for the circumstances of each application to be considered properly and for applications that are unlikely to add to the cumulative impact on the licensing objectives to be granted. After receiving relevant representations in relation to a new application for or a variation of a licence or certificate, the licensing authority must consider whether it would be justified in departing from its special policy in the light of the individual circumstances of the case. The impact can be expected to be different for premises with different styles and characteristics. For example, while a large nightclub or high capacity public house might add to problems of cumulative impact, a small restaurant or a theatre may not. If the licensing authority decides that an application should be refused, it will still need to show that the grant of the application would undermine the promotion of one of the licensing objectives and that appropriate conditions would be ineffective in preventing the problems involved.

I am not convinced we get national, or even local, consistency, when applications are being judged against the backdrop of a CIP.