Memorandum from the Network of Residents'
Associations (RL 03)
PREAMBLE
We report on the implementation of the Licensing
Act 2003 as experienced by residents all over England, who are
members of this organisation. There are members from large cities
such as Norwich, market towns such as Shrewsbury and from small
towns and villages in various parts of the country. The experience
is varied, presumably a consequence of devolving the detailed
policy of implementation to each of the separate Licensing Authorities
with no central control apart from the Guidance document to limit
the interpretation of the Act itself. Some like Norwich report
an excellent service with few problems but the majority are highly
critical of the manner in which the Act is being implemented.
EXPERIENCE
The variations derive from several factors.
Licensing Policy—cumulative impact
1. In cities with a dense collection of
licensed premises, it has proved possible to include in the local
Licensing Policy a strongly worded policy on "cumulative
impact" related to certain areas. This has allowed Licensing
Authorities to respond to representations with firm policies so
that adequate restrictions to protect the environment can be imposed.
It was much easier to refuse extensions of hours and impose noise
controls on premises in areas of "cumulative impact".
1.1 Where local Licensing Policies have
no such "cumulative impact" policy, it has proved much
more difficult for objectors to succeed in restricting hours of
closure. The main concern of residents has always been street
noise, nuisance and anti-social behaviour, "adverse events"
not covered by any legislation. The failure to limit the closing
times of numerous licensed premises to the evening rather than
the early hours of the morning has been a serious consequence
of this Act, so that this main concern is expected to spread into
the night and early hours.
Evidence
2. In spite of the several statements made
by the Secretary of State, that the Act and the Guidance would
increase the influence and power that residents and their associations
would have over decisions on licensing, it is clear that the opposite
is true. The Act and the Guidance severely restrict the ability
of residents affected by licensed premises to object to premises
licences. There are three issues.
2.1 The Act prescribes that residents wishing
to object to an application for a premises licence must reside
in the "vicinity" of the premises for which the premises
licence is sought. The term "vicinity" is not defined
in the legislation. A few Licensing Authorities have decided that
a finite distance such as 100 metres describes the "vicinity",
but the majority leave it to each Licensing Sub-committee to treat
each case on its merits. This frequently excludes residents with
a legitimate concern that would have been accepted in Licensing
Magistrates Courts, before the system of granting licences was
transferred to local authorities. This freedom granted to individual
Licensing Authorities and then to the several Licensing Sub-committees
of each Licensing Authority has led to a variable standard of
determinations not only occurring in different Licensing Authorities
but also within each Licensing Authority.
2.2 A second significant restriction in
the Act states that objections must refer to a single licensed
premises. This is not infrequently an impossibility when there
are several licensed premises near one another. Attributing a
problem to one rather than another licensed premises in a group
of premises cannot be proven by a resident or a residents' association.
2.3 A third problem is prediction. If legally
acceptable proof of a problem is required, how can an objector
prove that extending the opening hours of a licensed premises
will lead to "public nuisance"? It can only be proved
having allowed it to happen and then report it. Although the third
"licensing objective" is "the prevention of public
nuisance", many Licensing Sub-committees will not accept
the prediction of "public nuisance" that has not yet
happened as a valid reason for objection.
2.4 Consequently many Licensing Authorities
have granted extension of licensing hours into the early hours
of the morning in spite of strong objections by residents even
when their properties have been contiguous with the relevant licensed
premises.
Temporary Activities
3. There is a concern regarding the section
of the Act dealing with Temporary Activities and Temporary Event
Notices, which deal with events that take place on unlicensed
premises or outside permitted hours on licensed premises. These
events comprise farmers' markets, church fetes as well as events
that can last continuously for 96 hours for up to 499 people.
The legislation restricts control of these events to the police,
who can only object on the grounds of only one of the four licensing
objectives, that is the "prevention of crime and disorder".
Residents likely to be affected by events that continue after
11 pm have no right to express their concerns. This matter is
currently under consultation with the DCMS and we await its conclusions.
We have suggested that a wider exposure to objections should be
available for events that continue after 11 pm.
Responsible Authorities and Liaison Groups
4. Although "responsible authorities"
are listed to receive licensing applications, they are also restricted
in their ability to object in the same way as "interested
parties" such as residents and resident associations.
4.1 The police approach is varied. In some
areas the Police Licensing Officer appreciates the problems of
residents and expresses appropriate concerns, but in others the
involvement is limited strictly to "the prevention of crime
and disorder" objective, so that "the prevention of
public nuisance" is ignored. This appears less likely where
there is close cooperation between the applicants, the licensing
authority, the environmental health department and the planning
authority, especially in those authorities which have formed a
liaison working group as recommended in the Guidance. In many
areas the police raise no objections to extended hours, presumably
because they share the government's belief, that extended hours
will lead to staggering (in time) of customers leaving licensed
premises and this will reduce the need for policing. We do not
share this belief. In these areas we also suspect the police authorities
will be ill-prepared for the consequences of the extension of
opening hours.
4.2 The involvement of planning authorities
is also varied. Where an application for a premises licence includes
a request that conflicts with a planning condition, the planning
authority has an option to object. Some planners will not object
unless the relevant condition can be specifically related to one
of the four licensing objectives. Others will just mention it
to the Licensing Authority with the expectation that this will
be pointed out to the applicant. The Licensing Authority may then
advise the applicant to apply to have the planning condition removed
or modified or to modify the application, but, even if neither
of these actions are taken, the Licensing Authority will grant
the premises licence with the facility that is in breach of the
planning condition.
Publicity
5. Some Licensing Authorities have first-class
web sites on which all the data one could possibly want are readily
accessible without having to visit the Licensing Authority offices,
but this is rare indeed. At the other extreme there are some authorities,
who have not even established an adequate Licensing Register.
In some authorities it is difficult to discover the new applications
without studying the whole register.
5.1 Some licensing authorities restrict
access to the detailed files, so that, for example, negotiations
between the applicant and the police are not available for scrutiny.
The police will not provide details of "adverse events"
in relation to particular premises, but only provide "beat
data", which is inadequate as evidence as described in the
section on Evidence (vide supra). Their reason for this limitation
is given by reference to the Data Protection Act and to exemptions
in the Freedom of Information Act. We consider this unreasonable
and it has prejudiced objectors' ability to present adequate hard
evidence to hearings and will continue this prejudice in the future
to reviews.
Appeals
6. There is a suspicion that Licensing Sub-committees
are advised by their relevant Legal Advisers not to refuse an
application, because they do not want to risk an appeal. It is
far more likely that a dissatisfied applicant will appeal against
a determination than a dissatisfied objector, who is less likely
to want to run the risk of having to pay costs.
6.1 There is also the problem, that in the
event of an appeal by an applicant, the Act omits to specify an
obligation to inform objectors of the fact. Nor does it specify
that objectors should have an opportunity to be parties to the
appeal. It means that the hard evidence presented by objectors
at the licensing hearing is not necessarily heard in the Magistrates
Court.
6.2 Another problem affects an objector,
who is rejected by the Licensing Sub-committee because he/she
is not in the "vicinity". The objector has no right
of appeal to a Magistrates Court, because he/she has never been
registered as an objector. Such an objector would have to seek
Judicial Review and a High Court action in order to have the term
"vicinity" defined. This abrogation by Parliament to
the Courts to decide the meaning of "vicinity" at the
not inconsiderable expense of an objector appears grossly unfair.
An applicant would not be concerned with this definition and so
would not need to incur this expense.
Suggestions for change
7. Many residents consider they have been
disadvantaged by the new legislation. They consider the "playing
field" is not level. Although the Act itself does not weigh
the balance in favour of the applicant, it certainly appears to
be the effect of several sections of the Guidance. In particular
the quotes in Chapter 6 of the Guidance appear to be used to justify
extended hours at the expense of residents quality of life. It
is understood that the DCMS is intending to review the Guidance
in 2006, but it is now too late since the vast majority of premises
licences have been granted, and they have been granted in perpetuity.
If there had been a "level playing field", we feel sure
that many of the premises licences would have taken greater account
of residents' objections.
7.1 The remedy available to resident objectors
now lies in the possibility of seeking reviews of the licences.
The Guidance will still restrict objectors because of the imbalance
inherent in this document. The key features meriting modification
are first the definition of "vicinity" and secondly
the restriction on allocating "adverse events" to a
single premises when there are several premises too near each
other.
7.2 If the term "in the vicinity"
were to be defined as "anywhere in the area where relevant
problems could be attributed to the relevant premises", the
exclusion of relevant residents from making representations might
be resolved.
7.3 To resolve the difficulty of identifying
particular premises with a particular problem really devolves
onto the police. If the police were obliged to obtain the name
of the last licensed premises visited by possible offenders in
the street, and this information made available to objectors,
then a possible solution is to hand. Unfortunately the police
in some areas hide behind the Data Protection Act and use exemption
clauses in the Freedom of Information Act to deny objectors vital
information needed to support their case.
7.4 The fear of having to pay costs at an
appeal deters most residents and their associations from taking
their grievances to appeal. Currently there are no rules governing
the awarding of costs for licensing appeals, unlike other appeals
to magistrates' courts. If a fair system listing rules for awarding
costs against litigants were designed, then perhaps this line
of action for objectors might be less daunting than it is.
7.5 The formation of Liaison Committees
should be mandatory and not just recommended. Not only should
Council officers from the relevant departments—licensing,
planning, legal and environmental health—meet regularly,
say monthly, to discuss licensing applications and whether they
conflict with relevant policies, but also a Liaison Committee
should be formed from representatives of the relevant players—licensees,
police, transport services, health authority, business community,
parish council, residents associations. The latter could meet
three or four times a year, so that problems can be discussed
and resolved without recourse to hearings and reviews. Similar
committees already exist in many planning departments to discuss
planning issues, and this measure would surely be beneficial in
the licensing field.
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