Licensing update

Extensive reforms

Most of the licensing provisions contained in sections 103-140 of the Police Reform and Social Responsibility Act came into force on 25 April 2012, together with amended statutory guidance laid before parliament on the same date. These are the most extensive reforms since the Licensing Act 2003 came into force in 2005 and look set to present many challenges on interpretation.

The new measures and guidance give effect to the coalition's desire to unravel the liberalising agenda pursued by the previous administration and 'to rebalance the Licensing Act 2003 in favour of local communities and give licensing authorities greater flexibility to shape and determine local licensing' (Amended Guidance, April 2012). This process will continue with ?the Home Office confirming October 2012 ?as the planned start date for the coming ?into force of early-morning restriction orders and the late-night levy (together ?with further amended statutory guidance). ?The last of the reforms, the new fee structure, is unlikely to fully take ?effect until 2013.

Little time was given to prepare for the amended guidance and a number of licensing authorities and practitioners started to use the new guidance for all matters being dealt with after 25 April. The lack of a start date in the guidance did not help, but it is clear that the guidance is not retrospective and applies only to applications received by the licensing authority after 25 April. For applications before that date the old, October 2010, guidance applies '“ not only to any hearing but also in any appeal that may follow (the Home Office has confirmed by personal correspondence that it supports this approach).

The amendments to the guidance go further than simply inserting material to cover the 2011 Act reforms. The Home Office has taken the opportunity for a general redrafting and tidying up of the document, which now reflects a Home Office rather than DCMS style. Gone are many of the examples previously offered by the guidance (together with all of the annexes) while tightened wording in places, with a redrafting of many paragraphs and some restructuring, make for a better document (will the absence of an index be remedied when time allows?). Only some of the guidance is considered here and practitioners should download a copy from the Home Office website to fully appreciate the scope of the changes.

Throughout the guidance 'appropriate' replaces 'necessary' and as a definition of 'appropriate' the guidance suggests 'suitable' to promote the licensing objectives. When considering what is suitable 'the authority should aim to consider the potential burden that the condition would impose on the premises licence holder', but this is rather undermined by the apparent contradiction that 'it is imperative that the authority ensures that the factors which form the basis of its determination are limited to consideration of the promotion of the licensing objectives and nothing outside those parameters'. The debate on the meaning of 'appropriate' and 'suitable' will continue and no doubt find its way to the higher courts.

Removal of the vicinity test sees the disappearance of 'interested parties' to be replaced by 'other persons'. This may result in those with general objections to licensed premises and/or alcohol-making representations that lack a basis within the licensing objectives. A single such representation would of course trigger a hearing at considerable cost to the ?premises. Greater use is therefore likely to be made of the requirement that representations are not 'vexatious or frivolous' '“ frivolous representations are 'essentially categorised by a lack of seriousness'¦ [concerning] issues which, ?at most, are minor and in relation to ?which no remedial steps would be warranted or proportionate'.

On child protection: 'The government believes it is completely unacceptable to sell alcohol to children', and 'licensing authorities should give considerable weight to representations about child protection matters'. With this in mind operators should note the new sections on delivery of alcohol. In particular, the guidance that 'alcohol delivery services' should be mentioned in operating schedules and existing premises licence holders who wish to add delivery services should 'apply to vary their licence to add this activity to their existing licensable activities'. Can this be right? While the guidance may apply to new applications, premises that run a delivery service without having included this specifically in their application may enquire on what basis they are being required to do this.

A significant reform is the addition of licensing authorities and health bodies to the list of responsible authorities. The former will need to work very carefully to avoid challenge to the fairness of hearings by ensuring effective separation of functions between those instigating the representations (the responsible authority) and those called upon to determine the matter (the licensing authority). And it will be interesting to see the basis of representations by health bodies in the absence of a public health licensing objective (but see paragraph 9.21 where the guidance appears to be attempting to add a health promotion licensing objective in the form of A&E data linked to premises under the guise of the public safety licensing objective).

Steps to promote the licensing objectives receive considerable coverage, with licensing authorities and responsible authorities 'expected to publish information about what is meant by promotion of the licensing objectives' and applicants being required to make enquiries and gather information to present the steps they propose to take to promote the licensing objectives in the particular circumstances of the area in which the premises are located. This, presumably, is to ensure individualised rather than generic applications. Applicants will be pleased to note that the steps to be taken are now 'realistic, proportionate and within the control of the applicant' '“ 'proportionate' being added.

The much-discussed guidance on representations from the police states that 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. However, it remains incumbent on the police to ensure that their representations can withstand ?the scrutiny to which they would be subject at a hearing.

Any well-informed committee will continue to weigh the probative value of police representations based on the quality and relevance of the evidence presented. Guidance on licensing authorities instigating a review refers to the possibility of early intervention by the authority but stresses that it is not intended that the authority should instigate reviews on behalf of local residents, responsible authorities and others who are entitled to apply for a review in their own right. Other matters, including a rewrite of the section on cumulative impact and TENs, can also be found in the guidance.

Consultations: taxis and gambling

Reforming the law of taxi and private hire services (Consultation Paper No 203) launched on 10 May 2012 by the Law Commission, presages a much-needed review of taxi licensing, which dates from 1831 in London and 1847 elsewhere. The proposals retain the distinction between hackney cabs that can ply for hire and private hire vehicles that must be pre-booked and recommends national minimum standards that will replace more than 340 sets of local regulations (allowing vehicles to operate across regions). Further proposals include scrapping the power of licensing authorities to limit the number of hackneys in their area and bringing vehicles such as stretch limousines and pedicabs fully into the licensing system. The consultation closes on 10 September 2012. The consultation paper (which runs to 253 pages) can be found at https://lawcommission.justice.gov.uk.

The Gambling Commission Consultation on Revised Guidance to Licensing Authorities was published on 19 April 2012 and seeks views on proposed changes to the guidance issued to local authorities on carrying out their responsibilities under the Gambling Act 2005. The current guidance was published in May 2009 and the 'new edition provides updates where necessary as well as incorporating material published in other formats since then'. The consultation paper and a copy of the draft guidance (helpfully available in 'marked up' format) can ?be found at www.gamblingcommission.?gov.uk. The consultation period ends on ?6 July 2012.

Council licensing fees

A recent High Court case has left a licensing authority nursing a financial loss. Hemming & Others v Westminster City Council [2012] 89 LR 21 concerned licensing fees for sex shops. Westminster had set an annual licence fee for the year 2005-06 but failed to set fees for subsequent years until January 2012. Westminster argued that the 2005-06 fee applied until a different fee was set, but the court rejected this argument. The court also held that the council was precluded from making a profit from the licence fee, that accounts should be kept and any surplus returned to the licence holder.

It was further held that, since the Provision of Services Regulations 2009 came into force in December 2009, the council could no longer utilise the licence fee to bring enforcement action against illegal third-party operators. The council was ordered to set a fee for the missing years, calculate its costs and return any surplus to the licence holders. Westminster has appealed the decision.

Incorrect guidance

West Yorkshire Police and the Home Office have also been made to pay financially in a recent High Court challenge. The review concerned Home Office guidance published entitled Practical Guide for Preventing and Dealing with Alcohol Related Problems: What You Need to Know. Dealing with closure notices under section 19 of the Criminal Justice and Police Act 2001, it stated that upon issue of a notice all licensable activity must cease immediately and anyone selling alcohol can be arrested or summonsed under section 136 of the Licensing Act 2003.

West Yorkshire Police issued a closure order for premises known as the Bank and upon pain of arrest forced the premises to close. The Home Office and West Yorkshire Police conceded that the guidance was incorrect and agreed to pay damages for the loss of trade and the claimant's costs. The service of a closure notice pursuant to section 19 of the 2001 Act does not require the premises to close or cease selling alcohol immediately; entitle the police to require it to do so; or entitle the police to arrest a person on the sole ground of non-compliance with the notice.