Paddy Whur discusses the role of health bodies in premises licence applications in England and Wales.
I have recently had to deal with a representation by the DPH (Director of Public Health) in relation to a premises licence application in London.
We had undertaken a significant amount of pre-application consultation with the licensing authority and particularly the Environmental Health Officer and licensing police officer for the area. In addition we had undertaken significant public consultation before we had lodged the application and had received positive indications from all we had consulted with.
I was somewhat surprised after putting in the application for a new premises licence to receive a representation from the DPH and this was asking the authority to refuse the application outright as it contravened the crime and disorder and the public nuisance licensing objectives.
The health body, acting as a responsible authority under the Licensing Act, is in a difficult position in England and Wales in that there is currently no promotion of health licensing objective for them to hang a compelling representation upon.
When the list of responsible authorities was extended to include the health body for a licensing authority area, the Government were debating whether to introduce a fifth licensing objective but declined to do so.
Previously I had dealt with representations from the DPH in cases where there were multiple objections and in real effect they were adding weight to the objections raised by the application.
This was the first time that I have dealt with a case where the sole representation was from the director of public health and they were seeking to engage the authority to refuse the application and public nuisance licensing objectives.
I turned to the Section 182 Guidance document to see what is said in there regarding representations from health bodies in England and Wales. Paragraphs 9.20 to 9.24 set out the advice given by the Home Office. Paragraph 9.20 states “If the authority wishes to make representations, the DPH will need to decided how best to gather and coordinate evidence from other bodies which exercise health functions in the area, such as emergency department and ambulance services”. Paragraph 9.21 says “Health bodies may hold information which other responsible authorities do not, but which would assist a licensing authority in exercising its functions. This information may be used by the health body to make representations in its own right or to support representations by other responsible authorities, such as the police.” No evidence had been submitted to support the representation by the authority.
I immediately asked to have a meeting with the representatives from public health.
We discussed the two grounds of their objection and in particular focussed on the following relevant issues.
Crime and Disorder
We discussed with them that the police are the statutory responsible authority and experts on crime and disorder when it comes to informing a licensing authority.
To this effect, they enjoy enhanced status under Paragraph 9.12 of the Guidance (“The police should be the licensing authority’s main source of advice on matters relating to the promotion of the crime and disorder licensing objective…the licensing authority should accept all reasonable and proportionate representations made by the police unless the authority has evidence that to do so would not be appropriate for the promotion of the licensing objectives”).
I stressed to the Public Health Department that it was unique in my experience that their department was opposing a new grant on the Crime and Disorder licensing objective when the police had written to say “The operating schedule contains sufficient control measures that address the prevention of crime and disorder licensing objective and therefore we have no further comment to make.” I made the point that it would be difficult for the licensing authority to refuse the grant of the licence on crime and disorder grounds purely on the basis of a contention from public health, not backed up by evidence, when the police had assessed that the operating schedule exhibited sufficient control measures.
Prevention of Public Nuisance
A similar position arose here in that the Environmental Health Department of the licensing authority, being the statutory expert for public nuisance, had not objected to the application. They had been engaged throughout and had received extensive policies dealing with event safety, travel plans, dispersal policies and a noise management strategy. Again we highlighted that there had been significant local engagement by way of invitations to residents, businesses and councillors. Further, there had been attendance at business and community forums in the area and there had been no objection from the Environmental Health Department nor any businesses, residents or ward councillors.
The meeting was fruitful in that the public health body went away and considered their position before coming back to withdraw their representation to our application, it then being granted by way of delegated authority.
I think this case significantly highlights the difficulty that the health body are in when seeking to engage the licensing authority in a representation to the grant of a new premises licence.
In my view, it also exhibits how important it is to invest the time in pre-application meetings, to finesse a significant application before it is lodged with a licensing authority.