The Licensing Act 2003: post-legislative scrutiny Contents

Chapter 8: Temporary Event Notices

Introduction

323.Temporary Event Notices (TENs) are a ‘light touch’ system for regulating temporary events with fewer than 500 people (including staff) held by individuals, organisations or businesses where alcohol will be sold. In the 2015/16 financial year, 136,300 TENs were served, up from 124,400 in 2009/10.314

324.Despite frequent incorrect usage of the term on most local council websites and the GOV.UK website, under the Licensing Act 2003 no ‘application’ is involved. Those wishing to hold events give their local licensing authority a notice and pay a fee of £21. The onus is then on the police or environmental health officers to object, within three working days. They may do so only if they believe an event may lead to crime and disorder, cause a public nuisance, pose a threat to public safety or put children at risk of harm.

325.TENs are subject to a number of restrictions. These include:

326.There are also ‘Late TENs’, which may be applied for no later than five working days before an event (and no earlier than nine working days). If an individual does not hold a personal licence, they may serve up to two late TENs per year, rising to 10 with a personal licence. Late TENs count towards the general limits on TENs.

327.A local council cannot reject a TEN unless they receive an objection from either the police or Environmental Health. Any objections must be made within three working days of the responsible authorities receiving them. They may object to an event on the grounds that it may:

If an objection is made to a TEN, a local council will hold a hearing no later than 24 hours before the event, at which the licensing committee may either approve, add conditions, or reject the notice. If a Late TEN receives any objections, it is declared invalid without a hearing.

Community versus commercial uses of TENs

328.A common, but misplaced, assumption is that TENs were originally devised for community purposes, but are now being abused by commercial operators. Those who hold this view believe TENs are functioning as legal loopholes to evade the terms imposed on commercial operators through premises licences, particularly with respect to later opening hours, allowing businesses to evade proper scrutiny and effectively acting as a second, much laxer, shadow licensing regime alongside the main provisions of the Act.

329.Councillor Page of the Local Government Association told us that:

“Things such as temporary event notices are a real bane. Some of us object to the principle of them, because they are no longer for voluntary organisations, they are abused regularly by pubs and clubs, and for £21 they in no way cover the costs to the local authority in administering, let alone enforcing … The original intention was for this to be used by local voluntary groups, and we could still see the regulations more tightly drawn to deliver that … I can give the example of Reading, where we have the annual rock festival. We get floods of TENs from pubs and clubs that are looking to ride the wave of local business and dispense with all the hours and conditions that they would normally have to comply with. That was not the intention of the original TENs provision.”315

330.Many local councils and local residents’ associations shared this view that the system was being abused by licensees. Westminster City Council stated that while “they were intended for use by small events and for communities”, with a correspondingly low fee, of the 3,100 notices processed by the council every year, approximately 85% were to extend licensable activities in already licensed premises.316 Ealing Civic Society provided examples of how they believed the system was being “abused”; “for example, a club in London W13 which had had operational hours restricted following a licence review regularly applied for TENs to run events into the early hours at weekends causing nuisance to neighbours.” In their view, “TENs have been subject to abuse and need tightening to ensure that existing conditions cannot easily be circumvented by their use.”317

331.However, one of the main original purposes of TENs was to retain flexibility within the Licensing Act 2003 for one particular kind of semi-commercial operator—private members’ clubs. Under the Licensing Act 1964 there had been the “Little Ships Club” rule, which allowed private members’ clubs to pass a rule, enabling them to hire out parts of their premises to non-members on an occasional basis despite not having a conventional premises licence.318 The Licensing Act 2003 curtailed this right, and the TENs regime was therefore in part devised to preserve the flexibility afforded to private members’ clubs.

Cumulative impact

332.Some respondents made the point that the TENs system did not consider the cumulative impact of many licensed premises in close proximity to one another, all using TENs frequently to extend their opening hours, generating a persistent nuisance to local residents in the process. The Harmood, Clarence, Hartland Residents Association noted that in Camden, north London:

“TENs are used by all or almost all the large venues, to the maximum 15 a year per premises and lasting for up to 21 days, to extend licensing hours. As a result, there is at least one local late TEN event on most weekend nights. Residents are sometimes, but not always, troubled by noise from venues … They are ALWAYS disturbed by people issuing from licensed premises at any time up to 5am. We have resident parking until 11pm and visitors are allowed to park after that time. They are exceedingly rowdy when they return to their cars.”319

333.In some cases TENs are used by business owners to test the commercial viability of extended opening hours, prior to a formal application for variations to their existing premises licence. This appeared to be more common in Cumulative Impact Policy (CIP) areas,320 where licensees need to make a strong case if they wish to extend their licensable hours in the face of the rebuttable presumption to reject applications.

334.We witnessed one such person who had used the TEN system in this way on our visit to the Southwark Licensing Sub-Committee hearing. During this hearing, the owner of a southern European-style café pointed to the fact he had used a number of TENs throughout the previous year to determine whether extended licensable hours would be a profitable business model, and whether it would cause problems with local residents.321 The applicant’s bid was ultimately successful, although it is unclear from the formal notice of the decisions whether his use of TENs contributed at all to the sub-committee’s deliberations.

335.From what we have heard and witnessed, in isolation this practice does not necessarily pose a problem, and indeed may even provide nearby residents with a more realistic sense of whether extended opening hours will in fact bother them. However, where several businesses in close proximity to one another are routinely using TENs to extend their business hours, sometimes with no intention of formally regularising them through variation of their licences (and therefore subjecting themselves to appropriate scrutiny from licensing committees), this can cause problems.

Cost

336.A number of local authorities and the LGA focused on the undue financial burden they believe has been placed on them by a system which charges only £21 per TEN, but can cost considerably more to administer.322 Birmingham City Council suggested to us that “when the amount of officer time and other factors are considered, the true cost is estimated at £400”, or 19 times the statutory fee. The consequence of this was that “Birmingham City Council is asked to subsidise the cost of the licensing service, which should be self-financing and paid for by licence holders”.323

337.Other local authorities cited the true cost of processing a TEN as residing anywhere between £60 and, if a hearing is required, £2,000, but nearly all were unanimous in their belief that the £21 fee was grossly inadequate.324

338.Even some representatives of the pub trade agreed that the low fee charged for TENs should be looked at. Stuart Gallyot of Punch Taverns noted that the fee had not increased for the last 10 years, and accepted that “it may well have to rise”.325 Brigid Simmonds of the BBPA voiced a similar opinion, suggesting that a general 10% increase in all licensing fees might be appropriate, though she believed that, for example, an increase to £100 specifically for TENs would be “hugely damaging” to the trade.326

Two-tiered system

339.A number of respondents suggested that dividing TENs into two distinct categories, to reflect the different uses to which they are currently put, might solve a number of these issues. The TEN as it is would remain for non-commercial community organisations. In addition, new ‘commercial TENs’, which might apply to those already holding a premises licence, might cost substantially more than £21, to reflect the actual cost to the council of administering them. They would also entail a greater degree of consultation with local residents.

340.Leeds City Council for example suggested that“it would be useful to have two systems to reflect the additional work that goes into administrating TENs for commercial purposes”,327 while one local authority in Devon suggested a two-tier system, with larger events of “over 300 persons triggering an increased level of consultation, and conditions being able to be placed as part of the process”.328

341.Westminster City Council believed temporary events for existing premises licence holders should be split off entirely from TENs:

“These temporary extensions should be dealt with in a similar way to the minor variation process. This would enable the Licensing Authority to determine who it consults and also provide sufficient time (14 days) to consider the application. This temporary extension would then, if granted, permit the premises to operate within the remit of the permitted temporary extension subject to the conditions of the licence or any new conditions attached for the purpose of that temporary extension. Such a scheme would not necessarily need to then limit the licensed premises to a specific number of extensions a year, as the extensions would only be permitted and conditions attached if it was deemed that the extension would not adversely impact one or more of the licensing objectives.”329

342.However, it is important to remember that TENs were originally devised for a broad range of purposes. These included not just small not-for-profit community events, but also allowing private members’ clubs to open their doors to the wider public for fundraising purposes. Peter Adkins, speaking from his experience as a lawyer to private members’ clubs, noted:

“The main problem is in the definition of what is commercial and what is not. A social club may well run a major event on New Year’s Eve, for instance, which will bring money into the club and raise the club’s coffers. Is that commercial or not? They are not-for-profit clubs, obviously, but there is money coming in. I can see various other premises licence holders thinking, ‘They are holding that event and paying £21. We are paying £150. What is the difference?’”330

343.Several organisations representing pubs and their customers were also opposed to the splitting of the TENs regime for similar reasons. CAMRA explained that they run beer festivals throughout the country, which would be difficult to classify as clearly either ‘commercial’ or ‘community’ events. Stuart Gallyot, representing the Punch Taverns pub company, pointed out that a distinction is already made between existing licence holders who apply for a TEN, and an individual without an existing licence, in terms of how many they may apply for. He went on to argue that, when dealing with pubs:

“We are talking about individual small businesses. We are not talking about large corporate organisations. We are talking about your local publican trying to put on a wedding or a beer festival. That is the context, and everybody thinks that if you pay £100 for a TEN instead of £21, that £100 is not just £100 of beer but £100 of profit. They have to be commercially viable and there should be some commercial reality around the level of fees.”331

344.Temporary Event Notices are used for a wide range of purposes, and the impact of a particular event on local residents cannot be reliably determined by whether they fall into broad ‘community’ and ‘commercial’ categories. We do not recommend the division of the current TENs system into ‘community’ and ‘commercial’.

Consultation on and scrutiny of TENs

345.Many local residents wanted some means of being informed about and consulted on TENs in their local area. Dr Alan Shrank of the National Organisation of Residents’ Associations told us that:

“The problem with the TEN system is that residents know nothing about it until it happens. There is no advertisement, there is no warning and it comes out of the blue. A large number of them, the vast majority, as far as I am aware, cause no problems. But when they do cause problems, it gets into the press and you hear about the ones that are awful. How many really are that awful, I do not know, but it is not a major problem. There are a few people who abuse the system, and some licensees will take advantage of the fact that they are 168 hours a week and you can have 15 of those in a year, which is tantamount to about a third of the year”.332

346.Many local residents’ associations and local councils voiced similar views, and were angry that only the police and environmental health can currently object to TENs, and only then on very limited grounds.333 However, this is based on a partial misunderstanding of the TENs system as it currently stands; the Police Reform and Social Responsibility Act 2011, alongside changes allowing environmental health officers to object to TENs, also allowed objections relating to any of the four licensing objectives.334 Previously, only objections relating to the prevention of crime or disorder were permitted.

347.A number of local councils suggested that, rather than opening up TENs to direct consultation, the list of responsible authorities who could object to them should be expanded instead. Middlesbrough Council and Cornwall Council Licensing Authority suggested that all responsible authorities, not just police and Environmental Health, should be able to object to a TEN.335 The former did, however, acknowledge that “this could impact on the timescales involved as at the present time there is very little time for objections, modifications, hearings etc.”336 Berkshire Licensing Liaison Group suggested the more moderate approach of opening TENs up to objections from licensing teams, in addition to the existing police and environmental health authorities.337

348.We believe that introducing an element of direct consultation from local residents would significantly slow down the TENs system, and undermine its fundamental purpose as a ‘light touch’ form of regulation. Local residents, unlike the police or environmental health officers, could not reasonably be expected to issue objections within three working days, as is currently the requirement. While opening up TENs to objections from all responsible authorities would again introduce many new sources of delay, we do believe there is merit in giving licensing authorities the power to object to TENs. Local councillors, as representatives of the views of their local residents, can then relay concerns from the local community in a timely and efficient way.

349.We recommend that licensing authorities be given the power to object to Temporary Event Notices, alongside police and environmental health officers. A system for notifying local councillors and local residents of TENs in a timely fashion should also be implemented.

Other issues

350.There were a number of complaints relating to the addition or amendment of conditions placed on TENs. At present, if objections are raised by police and/or environmental health officers before a hearing of the licensing sub-committee is held, a TEN may be amended if all parties are in agreement, but this is not the case if agreement is reached during a hearing. Section 106(2) of the Licensing Act 2003 reads: “at any time before a hearing is held or dispensed with under section 105(2), the chief officer of police may, with the agreement of the premises user, modify the temporary event notice by making changes to the notice returned to the premises user under section 102.”338

351.In a similar vein, one respondent explained that:

“The current process for adding conditions to TENs when all parties are in agreement is bureaucratic. Currently only the Licensing Committee can add conditions to TENs, which means that all cases have to be referred to the Licensing Sub-Committee even though all parties are in agreement. This process can be very costly to LAs, therefore it should be reviewed to allow a hearing to be dispensed with if all parties are in agreement.”339

352.We recommend that section 106(2) of the Licensing Act 2003 be amended, replacing the words “before a hearing” with “before or during a hearing”, to enable TENs to be amended during a hearing if agreement is reached.

353.We also received evidence that event organisers are applying for multiple TENs on adjacent plots of land, in order to circumvent the restrictions on the permissible size of events. Cornwall Council Licensing Authority noted that they occasionally saw multiple submissions for TENs “each for 499 people, on adjoining pieces of land. This in effect authorises a much larger event than the TENs system was intended for. This can happen as premises can be split into separate sections and are then classed as different premises.”340

354.Where it appears that notices are being given for TENs simultaneously on adjacent plots of land, resulting in effect in the maximum number attending exceeding the 500 person limit, we would expect the police or environmental health officers to object, and the licensing authority to issue a counter-notice. We recommend that the section 182 Guidance be amended to make this clear.

355.The Act requires local authorities to keep a register recording all TENs they have received, and this is supported by the section 182 Guidance, which additionally states that there is “no requirement to record all personal information given on a TEN”.341 However, neither the Act nor the Guidance says anything about what information should be stored with regards to TENs, what format they should be retained in, and for how long they should be retained.

356.As previously noted in Chapter 3, we ourselves witnessed an apparent case of the inadequate recording of TENs received when we visited a hearing held by Southwark Council’s licensing sub-committee. While the agenda for the hearing concerning one particular restaurant noted specifically that “there have been no temporary event notices (TENs) submitted for this address within the last 12 months”, the applicant themselves went on to contradict this in oral testimony, stating that he had in fact filed the maximum possible number of TENs permitted for single premises (15) in a single year.342

357.Although it is difficult to know whether the inadequate recording of TENs is widespread among local councils, we recommend that the section 182 Guidance be strengthened and clarified with respect to the collection and retention of TENs. It should clarify what personal information should be retained and in which particular format.

358.This information must be retained in a system allowing for its quick and easy retrieval, both by local authorities and by the public, and in such a way that local and national statistical data can be produced from them. The national GOV.UK platform should be used for receiving and processing TENs.

Community and Ancillary Sellers’ Notices (CANs)

359.CANs are a substantial new addition to the licensing system, which will be introduced if and when section 67 of the Deregulation Act 2015 is brought into force. The stated intention for this new category is substantively to deregulate the serving of small quantities of alcohol by community premises and some small businesses. Sarah Newton MP told us that CANs “are a very targeted measure for community groups … who want to have activities in a village hall, where they want to sell some alcohol, and … bed and breakfast providers or cottage owners where people are going on holiday”.343

360.Very few respondents appeared to be aware of these measures, and none were keen on them as currently proposed. On the other hand, a small minority of respondents, such as Cornwall Council Licensing Authority, believed they were too limited, and should also include “hairdressers and florists” within the definition of ancillary seller.344

361.Most, however, were of the opinion that this was an unnecessarily complex procedure which would further complicate the work of interpreting the Act. Lancashire Constabulary and the National Police Chiefs’ Council noted that it would “add further layers of complexity around licensing legislation”;345 Plymouth City Council was also critical of its “unenforceable limits on the levels of alcohol provided”.346

362.Broxtowe Borough Council proposed an alternative approach, which included granting exemptions to “the various bodies on a ‘de minimis’ basis”.347 Plymouth City Council made a similar suggestion when they argued for providing exemptions for such ancillary premises “from the current normal application system, such as the requirement for a public notice, only to require notifying the Police and environmental health and also to introduce a reduced annual fee payable every 3 years”.348

363.Action with Communities in Rural England, a charity supporting rural community activity, also noted that they had “no evidence that village halls were intending to rescind their Premises Licences” if and when CANs were introduced.349

364.It is also very unclear when the Government intends to introduce this measure. Despite having been on the statute book since March 2015, no further announcements or updates have been made since then. When we asked Sarah Newton MP about when she expected CANs to be introduced, she told us that “there is no particular reason why they have not come into effect other than finding parliamentary time … I really do not know when they will come into effect”.350 She emphasised that there was “proper consultation on them” and that the delay was not the result of any objections they had received regarding CANs.

365.When we requested further clarification on this issue, we received further evidence from her stating that:

“Commencing the CAN is not simply a matter of signing the relevant commencement order for the Deregulation Act 2015: two pieces of additional secondary legislation is [sic] also required before the provisions can commence.

First, secondary legislation must list the type and size of business which may use a CAN, provide a definition of community group, and specify the quantity of alcohol which is permitted to be sold. The secondary legislation will be subject to the affirmative procedure.

Second, further secondary legislation is required to prescribe the form which CAN users will submit to the licensing authority, and the fee is also required. This secondary legislation will be subject to the negative procedure.”351

366.We sympathise with the view that CANs might make an already complex system even more difficult to understand. The stated purpose of the Deregulation Act 2015 is “to make provision for the reduction of burdens resulting from legislation for businesses or other organisations or for individuals.”352 Implementation of section 67 (introducing CANs) would add 14 new sections to the Licensing Act.

367.We are also concerned that, given the issues around TENs, further deregulation, especially given the lack of specificity surrounding ‘community groups’ and ‘ancillary sellers’, could open up the licensing system to abuse. At present, there are very few situations which are not adequately catered for by either full premises licences on the one hand, or TENs on the other.

368.We recommend that section 67 of the Deregulation Act 2015, relating to Community and Ancillary Sellers’ Notices, should not be brought into force, and should be repealed in due course.


314 Home Office, ‘Alcohol and late night refreshment licensing England and Wales’ (31 March 2016): https://www.gov.uk/government/statistics/alcohol-and-late-night-refreshment-licensing-england-and-wales-31-march-2016-data-tables [accessed 10 March 2017]

315 Q 21 (Councillor Tony Page, Deputy Leader, Reading Borough Council and Licensing Champion, Local Government Association)

316 Written evidence from Westminster City Council (LIC0090)

317 Written evidence from Ealing Civic Society (LIC0129)

318 The rule takes its name from the case of City of London Police Commissioners v Little Ship Club Ltd (1964) Brewing Trade Review 702, which provided that a club could enact such a rule without offending the principle of “good faith” required of private members’ clubs. This was however subject to the courts’ right of veto in any case not covered by section 49(4).

319 Written evidence from Harmood, Clarence, Hartland Residents Association (LIC0033)

320 We discuss CIPs in paragraphs 402 et seq.

321 See Appendix 4.

322 Written evidence from Local Government Association (LIC0099)

323 Written evidence from Birmingham City Council Licensing and Environmental Health (LIC0141)

324 The London Borough of Hounslow (LIC0025) estimated the average cost of processing a TEN as £60, Leeds City Council (LIC0034) estimated that any TEN requiring a hearing could cost in excess of £1,000, and Berkshire Licensing Liaison Group (LIC0122) estimated this could cost £2,000.

325 Q 79 (Stuart Gallyot, Company Secretary and Director of Legal and Estates, Punch Taverns)

326 Q 91 (Brigid Simmonds, Chief Executive, British Beer and Pub Association)

327 Written evidence from Leeds City Council (LIC0034)

328 Written evidence from Devon Licensing Officers’ Group (LIC0075)

329 Written evidence from Westminster City Council (LIC0090)

330 167 (Peter Adkins, Director of Regulatory Services, Emms Gilmore Liberson Solicitors)

331 Q 80 (Stuart Gallyot, Company Secretary and Director of Legal and Estates, Punch Taverns)

332 Q 75 (Dr Alan Shrank, Chairman, National Organisation of Residents Associations)

333 Written evidence from Middlesbrough Council (LIC0073) and Cornwall Council Licensing Authority (LIC0069)

334 Paragraph 327

335 Written evidence from Middlesbrough Council (LIC0073)

336 Written evidence from Cornwall Council Licensing Authority (LIC0069)

337 Written evidence from Berkshire Licensing Liaison Group (LIC0122)

338 Licensing Act 2003, section 106(2)

339 Written evidence from Caroline Sharkey (LIC0119)

340 Written evidence from Cornwall Council Licensing Authority (LIC0069)

341 Licensing Act 2003, section 8(1ab); Home Office, Revised Guidance issued under section 182 of the Licensing Act 2003 (March 2015), paragraph 7.31: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/418114/182-Guidance2015.pdf [accessed 10 March 2017]

342 See Appendix 4.

343 Q 221 (Sarah Newton MP, Parliamentary Under-Secretary of State for Vulnerability, Safeguarding and Countering Extremism, Home Office)

344 Written evidence from Cornwall Council Licensing Authority (LIC0069)

345 Written evidence from Lancashire Constabulary (LIC0139)

346 Written evidence from Plymouth City Council (LIC0048)

347 Written evidence from Broxtowe Borough Council (LIC0138)

348 Written evidence from Plymouth City Council (LIC0048)

349 Written evidence from Action with Communities in Rural England (LIC0059)

350 Q 221 (Sarah Newton MP, Parliamentary Under-Secretary of State for Vulnerability, Safeguarding and Countering Extremism, Home Office)

351 Supplementary written evidence from Home Office (LIC0175)

352 Deregulation Act 2015, Long Title




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