Update | Licensing: Live Music Act 2012, changes to the licensing of taxis and the impact of new case law concering applications

Legislation freeing small-scale live music events from regulatory control has come into force as have provisions providing two tough new powers for licensing authorities in respect ?of late night alcohol premises (Early Morning Restriction Orders and the Late Night Levy).

Also published are further amended statutory guidance, revised guidance for licensing authorities from the Gambling Commission, Home Office guidance on ?the Late Night Levy and factsheets on closure notices and licensing enforcement. An important alcohol strategy consultation is under way, a taxi licensing consultation recently closed and the Department for Business Innovation & Skills has launched a consultation on street trading and pedlary laws. There have been several higher court decisions. Two have left public authorities and the Home Office nursing financial losses; others have concerned applications for and removal of taxi licences; and ?the procedural requirements for applications under the Licensing Act 2003 have been considered.

The latest version of the amended guidance issued under section 182 Licensing Act 2003 was published on the 31 October 2012. Importantly, the guidance states that applications made prior to its publication should be processed in accordance with the guidance in force at the time at which the application was made. The revised guidance is not retrospective and applies only to applications commenced on or after the date of publication (paragraph 1.6).

Cooperation and mediation

Guidance is provided on Early Morning Restriction Orders (EMROs) – which allow licensing authorities to restrict the sale of alcohol in all or part of their area between midnight and 6am and the Late Night Levy (LNL), which allows licensing authorities to charge a levy for late-night licences to contribute to the cost of policing. ‘Guidance on the Late Night Levy’ (October 2012) has also been published together with regulations for EMROs (The Licensing Act (EMAROs) Regulations 2012) and the LNL (Late Night Levy (Applications and Administration) Regulations 2012 and Late Night Levy (Expenses, Exemptions and Reductions) Regulations 2012. The complexity of the LNL provisions, and the fact that licensing authorities may keep only 30 percent of the money raised, may see the LNL go the same way as Alcohol Disorder Zones.

Revised Guidance to Licensing Authorities (October 2012) has been issued by the Gambling Commission to assist licensing authorities to carry out their responsibilities under the Gambling Act 2005. The previous guidance was published in May 2009. The “new edition provides updates where necessary as well as incorporating material published in other formats since then”. It is a useful document that may even serve as a reasonably up to date textbook. Guidance has also been produced by the Department for Transport on ‘Licensing Motorcycles as Private Hire Vehicles; a guidance note from the Department for Transport’ (2012). While recognising the convenience and benefits of bike taxis, licensing authorities will be concerned about weather protection and physical safety. The guidance states: “we do not consider that there is a compelling case for ruling out motorcycles as PSVs on safety grounds” (paragraphs 5-6). There is a balance to be struck between convenience and safety; the guidance assists authorities in achieving this balance.

It is generally agreed that wherever possible cooperation, advice and mediation between operators and enforcement agencies is the preferred approach to licensing enforcement. This is supported by the Home Office factsheet ‘A Stepped Approach to Achieving Compliance Factsheet’ (2012): “The authority should make a judgement based on the seriousness of the situation and respond accordingly using the minimum interference necessary to address the problem. For example, this might include dialogue with the licence holder, mediation between applicants/licence holders and residents, or a warning about future conduct of the premises. In more serious cases, an investigation will be necessary and this may include inspections or test purchase operations.”

In contrast, recent enforcement action has seen West Yorkshire Police and the Home Office being made to pay financially in a recent High Court challenge. The challenge concerned Home Office guidance entitled ‘Practical Guide for Preventing and Dealing with Alcohol Related Problems: What You Need to Know’. Dealing with closure notices under section 19 Criminal Justice and Police Act 2001 the guidance stated that upon issue of a section 19 notice all licensable activity must cease immediately and anyone selling alcohol can be arrested or summonsed under section 136 Licensing Act 2003. West Yorkshire police issued a closure notice 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 loss of trade and the claimant’s costs. The service of a closure notice pursuant to section 19 Criminal Justice and Police Act 2001 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.

The Home Office has published ‘Section 19 Closure Notice Factsheet’ (September 2012) containing revised guidance: “A section 19 notice informs a person in control of, or responsible for, the premises that there is either no authority to sell alcohol or one or more of the conditions of an authorisation are not being met. The person should be warned that it is an offence under section 136 of the Licensing Act 2003 to carry on the sale of alcohol without, or in breach of, an authorisation. However, it is their decision whether to close or to continue trading, with or without the sale of alcohol.”

Across regions

The Home Office in November 2012 launched a consultation on measures contained in the government’s alcohol strategy published in March last year. These include a ban on multi-buy products; review of the mandatory conditions; health as an additional licensing objective for cumulative impact policies; and minimum unit pricing. The consultation closes on 6 February 2013.

The Law Commission consultation ‘Reforming the law of taxi and private hire services (Consultation Paper No 203)’ presages a much needed review of taxi licensing some of 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 but 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 Department for Business and Innovation & Skills has published ‘Street Trading and Pedlary Laws – Compliance with the European Services Directive’ (November 2012). The directive aims to make it easier for service businesses to set up or sell their services throughout the EU. The consultation proposes that the Pedlars Acts 1871 and 1881 be repealed and that schedule 4 to the Local Government (Miscellaneous Provisions) Act 1982 be amended as they do not meet the requirements of the directive. The consultation runs to 15 February 2013 and can be found at www.gov.uk/government/consultations.

Development

Hemming & Ors v Westminster City Council [2012] 89 LR 21 concerned licensing fees for sex shops. Westminster had set an annual licence fee for the year 2005-2006 but failed to set fees for subsequent years until January 2012. Westminster argued that the 2005-2006 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.

R (on the application of Shanks) v Northumberland County Council [2012] EWHC 1539 (Admin) concerned a condition on a taxi licence imposing record keeping requirements. Upholding the legality of the condition, the court once again underlined the centrality of the ‘important overall public safety issue’ in taxi licensing decisions. R (on the application of Singh) v Cardiff City Council [2012] EWHC 1852 (Admin) upheld the lawfulness of a penalty points scheme which could result in a taxi driver’s licence being revoked. The case also provides a useful review of where a challenge to a licensing committee decision should go. Singh J decided that while generally the magistrates’ court appeal should be pursued as an adequate alternative remedy a challenge to a licensing authority’s policy statement should be pursued by way of judicial review; as the magistrates’ court, standing in the shoes of the authority, would be required to adopt the policy.

R (TC Projects Limited) v Newcastle Justices [2007] EWHC 1018 (Admin), a gambling case, has sometimes been used to argue a permissive approach to a departure from strict adherence to licence application procedures generally (despite Gibbs J stating that his view in the case “is not necessarily intended as a guide to the effect of procedural defects in other situations” (paragraph 35). Guidance on the Licensing Act 2003 has now been provided in Matthew Taylor v Manchester City Council & TCG Bars Limited [2012] EWHC 3467 (Admin) which considered “when and to what extent, if at all, can an application to vary a licence under the Licensing Act 2003 be amended?” (paragraph 1). Hickinbottom J viewed the pre-hearing procedures for applications under the Act to be “detailed and prescriptive” (paragraph 83) and held that “clearly, a power to amend that would defeat or undermine the object of the procedural provisions relating to advertisement and rights of responsible authorities and interested parties to make representations could not conceivably be implied” (paragraph 70).

The Live Music Act

The Live Music Act aims ‘to encourage more performance of live music’ by excluding small-scale live (not recorded) music from the definition of ‘regulated entertainment’ for the purposes of the Licensing Act 2003. The exemption applies to live music events in premises authorised for the supply of alcohol for consumption on the premises and in workplaces. Music may be amplified or unamplified but if amplified the audience must not exceed 200. The exemption operates between 2300 and 0800 hours (see section 177A Licensing Act 2003 and Guidance 15.10-33). Public performance of live unamplified music that takes place between these hours no longer requires a licence in any locations. However, exempted live music does not go unregulated as excessive noise may, in the case of licensed premises, lead to review proceedings and provisions such as those contained in the Noise Act 1996 and the Environmental Protection Act 1990 are also available.