Annex
Responses from Department of Culture, Media and
Sport to Inquiry Manager of the Committee requesting information
Question 1 - Cost of Reviews
"The
LRO would remove the automatic right of residents and responsible
authorities such as the police to be informed of an application
and to object to it, although the right for anyone to request
that a licence be reviewed at any time would remain. Please provide
statistics on the costs involved in review applications, their
duration, and the frequency with which there is a need to obtain
legal advice, including not just average figures but some indication
of the spread of costs.
There is no standard cost of a review, or any available
estimates of duration. The length of a review hearing, which is
the key cost driver, depends on the number of individual interested
parties and responsible authorities that wish to attend the hearing
and speak on the issues. Accordingly, a review hearing might take
several days, and involve adjournments, or might be completed
within a couple of hours. However, prior to the implementation
of the Licensing Act 2003, the Department for Culture Media and
Sport (DCMS), together with the Local Government Association (LGA),
estimated that the average cost of a review hearing to a licensing
authority would be around £1200 in 2008-09. This assumed
that the Licensing Authority would require the input of its legal
department in most hearings. In order to generate this average,
the Local Government Association surveyed over 150 of its members,
of which 133 provided usable data. While we have no details of
the individual ranges, we know that average costs varied between
different types of authority. These variations are shown in the
table below:
| Authority type |
Average cost of Committee hearings (average ££s)
|
| City Councils | 1,094
|
| District Council | 706
|
| Borough Councils | 840
|
| Metropolitan Boroughs | 1,273
|
| London | 1,771
|
| Wales | 1,533 |
| TOTAL average | 1,202
|
Interested parties and responsible authorities are not charged
a fee for making representations. Their costs are discretionary
and will usually be limited to expenses connected to their own
attendance at hearings, should they choose to do so. These costs
apply equally whether the hearing is a consequence of representations
received during an application for a licence or variation, or
of a review. Our understanding is that interested parties obtain
legal advice in connection with their representations only on
very rare occasions. It is also open to interested parties
to draw evidence to the attention of responsible authorities,
and thereby provoke a application for review.
The timescale from an interested party making a representation
to the last decision will also vary from case to case. However,
the basic timescales are governed by regulations:
- representations have to be made in a maximum
of 28 days after the application for review is lodged[16].
- the authority has to advertise the review application
for a minimum of 28 days after it receives the application[17]
- after the period for representations has closed,
the authority has another 20 working days in which to commence
the hearing, unless all parties agree that a hearing is unnecessary[18]
- the hearing itself may last for a single day,
or more or less depending on the complexity of the issues, the
amount of evidence etc.
- after the hearing is concluded the authority
has five working days to make its decision.
These are maximum timescales, so generally they will
represent the longest time the process will take. But the authority
may extend the times in some circumstances[19]
and hearings can be adjourned[20]
Subject to that, the timescales would give an overall process
lasting just over two months. There is also the possibility
of an appeal to the magistrates' court once a decision has been
given.
Question 2 - Live Music and Reviews
"Do the majority of licence reviews relate
to live music venues? What are the numbers and percentages for
different grounds of licence review?
The most common ground for a review of a premises
licence or club premises certificates is the prevention of crime
and disorder. Statistics on the number of reviews, and the grounds
for review, are published in the DCMS Statistical Bulletin[21].
The grounds for a review can be one (or more) of
the four licensing objectives (the prevention of crime and disorder;
public safety; the prevention of public nuisance; and the protection
of children from harm). Unfortunately, statistics indicating what
activities take place at each premises are not available.
Reason for completed review - England and Wales
in 2007/08
| Total Percentage
|
| Crime & Disorder | 628
| 62% |
| Protection of Children | 396
| 39% |
| Public Nuisance | 408
| 40% |
| Public Safety | 174
| 17% |
Note: more than one reason may apply to each review, so the
percentages will not add to 100%
However, public nuisance is a factor in 40% of reviews, and it
can be reasonably assumed that reviews which are provoked by incidents
connected to regulated entertainment, including live music are
more likely to be made on public nuisance grounds than the other
grounds[22]. The Live
Music Forum (LMF)[23],
reporting in July 2007, estimated that 68% of objections to live
music authorisation during the transition process related to the
noise level of the music[24].
The other sources of objection to live music (such as noise from
customers leaving the gig) are, likewise, more likely to be related
to public nuisance than the other licensing objectives. The LMF
also looked at how often complaints about noise made under the
Environmental Protection Act 1990 were related to live music.
It estimated that only about 3.5% of such complaints related to
live music (compared with 45% for domestic sources of music)[25].
It should be noted that this estimate is based on data from only
one licensing authority. However, it does indicate that the proportion
of reviews that relate to live music may only be a small proportion
of the 40% figure.
Question 3 - Representations and Applications
"How many representations are currently made by residents
in relation to what DCMS would classify as minor variations, or
if those figures are not available, how many are made in total?
Please also provide statistics on the breakdown of different types
of application (e.g. physical alterations as compared with extension
of hours)."
There were 12,400 new applications for premises licences and 11,100
applications for variations in 2007-08. The equivalent figures
for Club Premises Certificates are 200 and 530[26].
These applications resulted in 5,200 hearings[27].
Therefore, around 21% of applications resulted in valid representations.
We do not know how many representations were made in respect of
these applications (because each hearing may have been instigated
by a number of representations), nor what proportion of representations
are made by each class of responsible authority or interested
party (such as residents). Although we do not have statistics
on the breakdown of different types of application as requested,
discussions with licensing stakeholders in advance of the first
stage consultation indicated that around 30% of current variations
would be minor variations under the new process, and 70% of these
would relate to changes in layout.[28]
Under the LRO a minor variation will be one which, by definition,
cannot have any adverse impact on the promotion of the licensing
objectives. Where a plausible case can be made that a variation
would have such an impact (i.e. the proposals could have
an adverse impact on the objectives) the application would not
fall within the minor variation provisions and the authority would
be obliged to reject it. We therefore think it is reasonable to
infer that the number of representations currently made by residents
in relation to "minor variations" is very small.
Question 4 - Specific Definitions of Minor Variations
"Why was the option of providing specific definitions
of minor variations rejected?"
Ministers considered that providing specific definitions of 'minor
variations' on the face of the Act would artificially exclude
some variations that would not have an impact on the licensing
objectives and include some that do. This issue was explored in
the first stage consultation on Minor Variations.
For example, a variation to extend licensing hours would not normally
be classed as a 'minor variation'. However, there are examples,
such as a bar offering tea and coffee (late night refreshment)
after alcohol sales have stopped, that might be 'minor' in the
circumstances. It would be impractical to cover every possible
circumstance in legislation. Following the initial consultation,
Ministers agreed that only variations to add the sale or supply
of alcohol to a licence or extend the hours during which it could
be sold or supplied should be specifically excluded from the minor
variations process because of the concerns that had been expressed
to them. The additional statutory Guidance to the Act provides
local authorities with detailed advice on the issues that should
be taken into account in deciding what variations are minor.
Question 5 - Additional Exclusions
"Why did the Department dismiss the possibility
of retaining the current definition of a "minor variation"
but with a number of additional exclusions to cover matters that
particularly concerned consultees, rather than relying wholly
on guidance? In particular, why could the definition not exclude
particularly controversial matters such as extension of licensing
hours at sex encounter establishments, extension of existing music
or dancing licensing hours beyond 11pm, and first-time applications
to allow playing of music?"
As described above (Question 4), DCMS has indeed
agreed to exclude most alcohol-related variations in response
to the concerns of consultees. In many cases the extension of
music and dancing beyond 11pm, or the addition of the playing
of music to a licence, will not fall within the definition of
a minor variation. This would be most likely where, for example,
the extension would coincide with a pre-existing authorisation
to sell or supply alcohol. But there may also be cases in which
such an extension could not impact adversely on the licensing
objectives, and we would not want these to be excluded from the
benefits of the new process. The draft Guidance (sections 8.49
and 8.51) lays out factors to consider in such cases.
Sex encounter establishments are a specific statutory
category of premises governed by Schedule 3 of the Local Government
(Miscellaneous Provisions) Act 1982. These provisions apply only
in London boroughs that have resolved to adopt them. They are
narrowly drawn provisions and contain specific exemptions, including
premises that already hold authority to put on regulated entertainment
under the Licensing Act 2003. Accordingly, for example, virtually
no lap-dancing establishments are currently licensed under the
1982 Act because they hold premises licences covering regulated
entertainment under the 2003 Act. However, in the context of lap-dancing,
for example, while the Licensing Act 2003 regulates the performance
of dance, it contains no provisions which enable the content of
the dance to be censored by the licensing authority. In addition,
the four licensing objectives restrict the scope of any representations
involving such clubs.
Sex encounter establishments are not mentioned because
the Government is proposing to exclude these from the scope of
the regulated entertainment provisions in the Licensing Act 2003,
instead making them subject to a modified version of the provisions
currently found in Schedule 3 to the Local Government (Miscellaneous
Provisions) Act 1982. This was foreshadowed in public comments
by the Home Secretary in September 2008 and in the Queen's Speech
and will be put forward as part of the Policing and Crime Bill.
The Government considers that the Licensing Act 2003
cannot be satisfactorily amended to provide a remedy for the concerns
expressed by residents about premises, such as lap-dancing clubs,
and that the appropriate way forward is to amend the terms of
the 1982 Act.
Question 6 - Informal Minor Variations Procedure
"To what extent do some licensing authorities
already offer an informal minor variations procedure?"
We have anecdotal evidence that many authorities
operate an informal mechanism for making small changes to licences,
sometimes charging the fee formally meant to cover the
theft or loss of the original licence or certificate (£10.50).
Such a procedure is, strictly speaking, irregular and subject
to challenge, and is it therefore difficult to obtain information
about the extent to which it occurs. We do know that these 'de
facto' minor variations procedures vary substantially from authority
to authority, which applicants claim is confusing, especially
those such as national pub chains that operate across authorities.
One of the benefits of the minor variations process is that it
will impose a consistent approach and provide clarity for applicants.
Question 7 - Responsible Authorities
"What is the Department's view of the argument
that the 2003 Act does not permit assessment of applications against
the licensing objectives to be made only by licensing officers
and licensing authorities without there necessarily being any
reference to responsible authorities?"
The current provisions of the Licensing Act 2003
would not allow applications for the grant or variation of licences
and certificates to be determined without affording responsible
authorities and interested parties the opportunity to make representations.
There are some exceptions, under which only the police need to
be given such an opportunity in respect of the crime prevention
objective. Examples would include, the transfer of the premises
licence to a new holder and the variation of the licence to enable
it to specify a new designated premises supervisor. In addition,
the system of permitted temporary activities again requires reference
only to the police in connection with the crime prevention objective.
If amended by the draft Legislative Reform Order,
the Licensing Act 2003 will allow licensing authorities to determine
an application for a minor variation, but only after having consulted
such responsible authorities as it considers appropriate and taken
their comments into account.
In deciding whether there is a need to consult responsible
authorities, and if so which ones, the authority will be bound
by the duty in section 4 of the Act to promote the licensing objectives.
It will also be bound by this duty in considering what conclusions
ought to be reached in view of any comments made by the responsible
authorities. In addition, the definition of a "minor variation"
excludes any proposal that could have any adverse impact upon
the promotion of any of the licensing objectives. The authority
will also be required to take into account the relevant statutory
Guidance, a draft of which was included with the Explanatory Document.
It will also be bound by general public law principles of decision-making,
and be required to be sensitive to the interests of local residents
and others to whom it is democratically accountable. Finally,
it will also be subject to the scrutiny of the Local Government
Ombudsman in the carrying out of these functions.
In trying to craft an expedited procedure for minor
variations the Department was mindful of the importance of the
role of responsible authorities under the present system, and
has sought to balance the need for scrutiny by them with the need
for a system which is significantly quicker and simpler than the
existing variations process. The Department considers that the
approach taken in the draft Order, in view of the safeguards outlined
above, reflects the correct balance.
Question 8 - Site Visits
"What percentage of applications are likely
to involve site visits by licensing officers? Please provide a
clearer justification for the estimated average time for a licensing
officer to deal with an application (and hence the anticipated
application fee, which is based on that time)."
None. If a variation is truly "minor" as
defined in the draft Order it should not require a site visit
for the purposes of the minor variation. Its requiring a site
visit would be a very strong indication that it should go through
the full variation process instead.
For the fee estimate, we assumed a cost per hour
of £32.12 for administrative work and £68.85 for professional
work.
We assumed that the necessary tasks and average time
taken were as follows:
| Task | Time Taken (min)
| Administrative or Professional (%)
| Estimated Average Cost (£)
| Total Cost Each Activity (£)
|
| Reading application form | 15
| 75/25 | 6.02/ 4.30
| 10.32 |
| Checking Plan | 15 | 75/25
| 6.02/ 4.30 | 10.32
|
| Contacting RAs, if necessary | 15
| 100/00 | 8.03
| 8.03 |
| Replying, (if refused, with reasons) | 15
| 50/50 | 4.02 / 8.61
| 12.63 |
| Processing Payment | 15 |
100/0 | 8.03
| 8.03 |
| Filing Records/ Changing Register | 15
| 100/0 | 8.03
| 8.03 |
| Producing the Licence | 15 |
100/0 | 8.03
| 8.03 |
| Licence Checking and Dispatch | 15
| 100/0 | 8.03
| 8.03 |
| Total | 120 |
| | 73.42
|
During the second stage consultation, which included a question
on the precise fee[29],
the majority of respondents, including the majority of licensing
authorities, considered that the fee was about right.
16 SI 2005/42, regulation 22 Back
17
SI 2005/42, regulation 38 Back
18
SI 2005/44, Schedule 1 and regulation 9 Back
19
SI 2005/44, regulation 11 Back
20
SI 2005/44, regulation 12 Back
21
Statistical Bulletin on Alcohol, Entertainment and Late Night
Refreshment April 2007 - March 2008. http://www.culture.gov.uk/images/research/AE-Statistics-bulletin-2008.pdf
. See pages 22 and 31): Back
22
This does not imply that objections on public nuisance grounds
relate only to live music: Noise from smokers, beer gardens or
customers leaving the premises could also cause concerns. Back
23
http://www.culture.gov.uk/images/publications/lmf_chp2background.pdf
See page 20 of the PDF version for a summary of the Live Music
Forum and its terms of reference Back
24
http://www.culture.gov.uk/images/publications/lmf_chp3impactlicensingact.pdf
See page 33 of the PDF version. The LMF estimates were derived
from the Ipsos-Mori Report "The experience of smaller establishments
in applying for live music authorization" (December 2006)
http://www.culture.gov.uk/images/research/licensingsurvey2006reportFinal.pdf
, page 31, and relate to application where the premises that did
not have a Public Entertainment Licence under former regime.http://www.culture.gov.uk/images/research/licensingsurvey2006reportFinal.pdf
Back
25
LMF report, page 34. Back
26
Statistical Bulletin on Alcohol, Entertainment and Late Night
Refreshment, pages 19-20. Back
27
Ibid. page 24. Back
28
"Consultation on proposal to introduce a simplified process
for minor variations to premises licences and club premises certificates"
(November 2007), pages 22 and 39. http://www.culture.gov.uk/reference_library/consultations/5139.aspx
Back
29
"Licensing consultation - proposals to introduce a new minor
variations process, and remove certain requirements at community
premises" (August 2008), page 19: http://www.culture.gov.uk/reference_library/consultations/5349.aspx
Back
| 
