Select Committee on Delegated Powers and Deregulation Ninth Report

Letter to the House of Commons Deregulation committee from the Royal Borough of Kensington and Chelsea

Thank you for your letter of 16th February 2000. The Committee, quite understandably, has asked why the Council has not found the provisions contained in Schedule 12 to the London Government Act 1963 adequate to provide sufficient safeguards for residents.

I will explain.

Background—The Law

The provisions of the London Government Act 1963 were administered by the Greater London Council until its abolition in 1986. In order to be permitted to serve alcohol after 11.00pm an application had to be made either to the Licensing Justices for a supper hour certificate or an extended hour order, or to the Greater London Council for a music and dancing licence followed by an application to the Licensing Justices for a special hours certificate. The provisions in relation to special hours certificates are contained in Sections 76 - 83 of the Licensing Act 1964.

Under these provisions a special hours certificate allows a licensee to serve alcohol up to 2.00am weekdays and Saturdays, with an area running along the borough boundary with the City of Westminster having a permitted hour up to 3.00am. In both cases special hours certificates allow for half an hour's drinking up time.

Background—The Practice

The majority of music and dancing licences now existing in The Royal Borough were originally granted by the Greater London Council. It is fair to say that until the late 1980s and the early 1990s licensing was not a particularly contentious subject. Premises generally divided themselves into three categories:-

  • public houses with closing times of 11.00pm

  • restaurants with closing times of 12.00pm (supper hours certificates) or 1.00am (extended hours orders)

  • night-clubs with closing times of 2.00am or 3.00am (music and dancing licences and special hours certificates).

The GLC Licensing Committee was seen as somewhat remote and residents rarely objected. The licensing functions were exercised more administratively and the Committee was not seen to act in a quasi judicial capacity. At that time many applications were granted on request with a minimum of restrictive conditions. In those circumstances the provisions of the London Government Act 1963 were suitable for the purpose.

Background—Closing Times

To secure maximum flexibility, operators who needed to obtain a music and dancing licence would in any event apply for a licence up to 2.00am or 3.00am. They would then close earlier if there was no commercial imperative to stay open. Nevertheless, having the maximum permitted hours under a special hours certificate was seen as valuable in the event of the premises being sold.

When The Royal Borough took over the licensing function from the GLC in 1986 the number of licences for music and dancing that existed was only slightly less than now. The Licensing Committee's function was chiefly to do with renewals of existing licences that were in the main, unopposed.

The Present Position—The Law

The law governing licensing has in all material respects remained the same since 1963-4. The only difference is that public houses can stay open during the afternoon. There has been no change in night time closing. Under the previous government the Home Office undertook a series of consultation exercises designed to deregulate public entertainment licensing generally, to extend permitted hours for public houses on Fridays and Saturday nights and to extend permitted hours on Sundays making them no different than weekdays and Saturdays. None of these measures were pursued after consultation.

The Present Position—The Practice

This Council's Licensing Committee, though, has seen significant changes in the nature of the proceedings that it conducts. Activity after 11.00pm has intensified considerably with restaurants opening basements underneath premises for later entertainment and with operators using the approved licences to the full as the leisure industry saw the need to cater for a market especially those who wanted to consume alcohol later at night and early in the morning.

The increase in such activity saw a corresponding increase in complaints. Residents began to object to renewals. There were objections to new applications on the basis that certain areas reached saturation point. The Council's Licensing Committee strove to exercise a balance. In particular the Committee attempted to reduce tensions between residents who did not want to be disturbed by intrusive late night activity and business which wanted to meet a perceived demand. It has been one of the most contentious issues in this Council during the 1990s. In exercising that function properly, residents did not see the Council as operating in their interests.

The Present Position—Appeals

A Licensing Committee's decision is not final. If it had been then Schedule 12 of the London Government Act 1963 may have been sufficient. However, any decision can be subject to an appeal to the Magistrates Court and then to the Crown Court, the appeal process being open only to the applicant.

The Committee was advised correctly that it could not simply adopt a policy of imposing closing times for all premises earlier than that allowed by the Licensing Act 1964. Each case had to be decided on its merits and supported by evidence presented to the Committee. Hearings during the 1990s changed from being administrative to quasi judicial. In contested applications, lawyers representing applicants would cross-examine residents when they came forward to give evidence. Given the rights of appeal, the Council had to take into account the need for those residents to give evidence in front of the Magistrates Courts. Furthermore, in these deliberations the Committee always had been aware of the costs involved if their decision would not be upheld on appeal.

Not surprisingly, residents find giving evidence daunting and awkward, having to take time off from work. Being cross-examined by lawyers in the witness box is not a pleasant experience. Many residents, while willing to appear in front of the Licensing Committee and democratically accountable Councillors, were more reticent when it came to the Magistrates Courts. They simply could not understand why their involvement was so critical to the process. However, experience showed that when residents were prepared to give evidence in court proceedings the Council stood a good chance of winning. Equally, when they decided not to appear in court the Council either lost or would have to compromise before trial.

Contested hearings in the Magistrates Court often takes two to three days with costs becoming considerable. Accordingly, the Licensing Committee has to balance the requirements of the applicant with the prospects of costs being awarded against the Council.

Those fetters on the Council's discretion in practice became so significant that the Council suggested that the appeal system should be changed. The Council proposed that only decisions that were unreasonable based on Wednesbury principles should be challenged in the courts. This measure was not pursued vigorously because it stood little prospect of success, but it does demonstrate a loss of confidence in the processes afforded by Schedule 12.

The Present Position—The Evidence

It may be helpful to expand a little on why residents are reticent about appearing in court.

With regard to dealing with noise emanating from premises, the Council through its officers are capable of addressing problems through the environmental protection legislation and by imposing conditions on a licence. In practice, sound-proofing can deal with most problems.

A much more difficult and complex issue for the Council is the disturbing noise that occurs when patrons leave the premises. In areas such as Kings Road, Fulham Road, Kensington High Street, Brompton Road it is difficult to identify which patrons from which premises are causing nuisance. Even well run operations have problems in that respect and can only, in reality, take measures to reduce intrusive noise and behaviour. They cannot eradicate it.

Residents, when complaining about premises need to be specific if the evidence is to withstand scrutiny in the Courts. Sometimes they even keep diaries of complaints. But facing cross-examination in relation to the reliability of their evidence is worrying and can sometimes be humiliating. Too often they cannot say with any certainty which premises are causing problems after midnight. Local residents know but cannot prove it, hence the frustration with the process.

The Present Position—Closing Times

The Committee's attention is drawn to the fact that Schedule 12 does not have any closing times. It is only the Licensing Act 1964 which contains closing times by way of permitted hours. These finite restrictions are seen by the Council and by residents as the one safeguard that guarantees some peace and quiet late at night and early in the morning. That is why they feel so strongly that any relaxation of closing times must be resisted. The Council in exercising its licensing functions agrees with that view.

The Council has striven to protect and safeguard residents' interests. The reality is that with the resources available to the leisure industry, the arguments deployed by their legal representatives, the cross-examination of essentially unwilling residents and the occasional perceived failure of the Magistrates to understand the tensions of the area, leave the residents and the Council feeling that it is an uphill struggle simply to maintain quality of life. This Council and its residents have repeatedly told the Home Office in every consultation exercise there is simply no substitute to retaining closing times. This is clearly the case on Sundays and Sunday evenings as closing times provide some respite at least from late-night activity during the week and on Saturdays. Schedule 12 on its own has not and will not provide such safeguards.


In making these representations I would hope that the Committee will understand that the Council is keen on promoting responsible business and has no wish to restrict their activity unnecessarily. In fairness, the Council does understand that with a change in public expectations the question of licensing needs to be reviewed. There are many balances that have to be made. However, the Council feels very strongly that the piecemeal approach adopted by the Home Office under the Deregulation and Contracting Out Act 1994, (an Act designed to deal with the removal of unnecessary red tape) does not present a proper focus for such a debate. This is especially the case with a White Paper being issued in the next four to five weeks on licensing generally.

I hope this letter does justice to the very real concerns held by residents here and elsewhere. Should the Committee wish to ask further questions or seek clarification I, together with the Council's Director of Environmental Health will be more than willing to attend at a time convenient for the Committee.

Finally, I would mention that as Leader of the Council, the Baroness Hanham, has seen the development of licensing as an issue of considerable importance and is aware of the major frailties of Schedule 12 in providing the protection residents expect. I have been asked by her to let you know that she is more than prepared to deal with any issues on the subject the Deregulation Committee considers needs further examination.

Alun Phillips LLB
Director of Legal Services

22 February 2000

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