Update | Licensing

The importance of complying with the requirement to advertise applications under the Licensing Act 2003 has been highlighted in a magistrates' court appeal and there have been several developments with regard to licensing sexual entertainment venues (SEVs). A new code on under-age sales has important implications for test purchase operations, particularly the need for a RIPA authorisation and taxi law has again come under review.

The 2013 edition of Paterson's Licensing Acts, Lexis Nexis Butterworth (£290) continues to be the standard text for licensing law. It is thorough, scholarly and in its 110th edition. The format is much the same as for 2012 and the editors' commentary once again provides stimulating and erudite observations on developments over the preceding 12 months. It is an indispensable tool for the serious licensing practitioner.

Advertising applications

Applications under the Licensing Act 2003 must be advertised. As well as a notice on the premises and, for most applications, in a newspaper circulating in the area, regulations made under the Act also include a requirement that the authority advertises applications on its website. Originally only applicable to reviews, the Licensing Act 2003 (Premises Licences and Club Premises Certificates) (Amendment) Regulations 2012 extend the requirement to new and variation applications.

In Mu Mu Enterprises v North Somerset District Council (2013) the authority's sub-committee determined to continue with a review hearing despite failing to advertise the application on its website. The sub-committee, on the basis that its function was to promote the licensing objectives, dismissed the Appellant's argument that the review could not proceed. On appeal the Respondent accepted that the application should have been on its website but argued (a) the application had been advertised by notice on the premises and had been reported in a local newspaper and (b) it was a clerical error and sought to rely on R v Secretary of State for the Home Department ex p. Jeyeanthan CA 1999. The appellant distinguished Jeyeanthan and quoted from Corporation of the Hall of Arts and Sciences v Albert Court Residents' Association & Ors v Westminster City Council [2011] EWCA Civ 430: "When exercising any discretion or power of decision under the Act, a licensing authority must do so "with a view to promoting the licensing objectives" as there defined. However, once the authority is under an unqualified duty to carry out an act specified by statute there is no room for section 4 to apply. The authority simply has no choice but to perform its statutory duty' (para.37)".

Further, Matthew Taylor v Manchester City Council & TCG Bars Limited [2012] EWCH 3467 (Admin) 30 considered the statutory procedural requirements under the Act and the judgment notes: "Subject to the express requirements of the Hearing Regulations, procedure at the hearing of an application is expressly a matter for the licensing authority (regulation 21 of the Hearing Regulations). There is no similar provision in the Premises Regulations, which are generally prescriptive as to the pre-hearing procedure that must be followed by the applicant...and the licensing authority' (para.20 and again at para.83)". "Clearly, a power to amend that would defeat or undermine the object of the procedural provisions relating to advertisement ... could not conceivably be implied' (para.70)."

The court in Mu Mu allowed the appeal, declared the review proceedings void and made a costs order against the Respondent authority. As the requirement to advertise on the authority's website has been extended it would be wise for practitioners to check that applications appears on the authority's website for '28 consecutive days starting on the day after the day on which the application was given to the relevant licensing authority' - otherwise they may face the prospect that their applications will be declared invalid.

Sexual entertainment venues

By Section 27 of the Policing and Crime Act 2009 local authorities now have power to regulate SEVs in their area under Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982. Since the provisions came into force 28 applications for SEVs have been refused by local authorities (to 2 June 2013). Representations generally concern lowering the tone of the area, attracting unsavoury people, crime, nuisance and disorder and compromising the safety of female performers and women working and living in the area. A study from Kent University (Hubbard, P, Colosi, R, (2013), Sexualisation, nuisance and safety: Sexual Entertainment Venues and the management of risk), contains some useful information. Of the 241 lap dancing premises in England and Wales at the time of the study some 43% received no representations while around one in 10 attracted more than 30. Not surprisingly, locality is important. Town/city centres were considered appropriate locations by 54% of those surveyed but not near a school/nursery (83%) or religious premises (65%). Only three per cent saw SEVs as a source of public nuisance and 'SEVs' contribution to antisocial behaviour and criminality was deemed marginal, and in some cases insignificant, compared with other venues'. Unease over SEVs 'appeared more related to questions of class, morality and disgust than fear'.

R (KVP Entertainment Limited) v South Bucks District Council [2013] EWHC 926 (Admin), considered the relationship between planning and licensing. An application for a lap dancing club attracted 201 representations and was refused on the grounds that the grant would be inappropriate having regard to the character of the locality and the proximity of a residential area.

The applicant sought judicial review on the basis that the authority as planning authority had granted planning permission. The court held that planning and licensing were separate regimes and the licensing committee was not obliged to consider the planning report. Of wider interest, the Court also held that the authority was entitled at a later date to amplify its reasons for the decision if these 'elucidate' (para.68) rather than change or modify its original reasons.

In Secrets v London Borough of Camden a long established lap dancing club challenged the authority's standard conditions imposed on its transition to a SEV under the new provisions, arguing that no problems had arisen in the past without these conditions. The court dismissed the challenge holding that the committee was exercising powers to decide what was in the public interest and that there were good reasons for the adoption of the conditions (which had been arrived at through a two-stage consultation process).

Test purchasing

The Code of Practice: Age Restricted Products 2013 published by The Department for Business Innovation and Skills contains guidance on test purchasing and the need for authorisation for 'directed surveillance' (for example, an adult accompanying the volunteer or the use of covert recording equipment) and the use of 'covert human intelligence sources' (the test purchase volunteer) under the Regulation of Investigatory Powers Act 2000 (RIPA).

While there has been debate on the need for an authorisation for test purchase operations paragraph 13, when read in conjunction with the guidance issued by the Office of Surveillance Commissioners (OSC) and the Home Office guidance on RIPA in the wake of the Protection of Freedoms Act 2012 (Protection of Freedoms Act 2012 - changes to provisions under the Regulation of Investigatory Powers Act 2000 (RIPA) October 2012, London: Home Office), make a strong argument that a RIPA authorisation from a magistrate may well be necessary for test purchases. The Code is not statutory but an authority will need to be prepared to justify any departure from the guidance to the OSC, which monitors the exercise of covert surveillance powers.

Taxis

R (application of Singh) v Cardiff City Council [2012] EWCH 1852 (Admin) considered the legality of penalty points schemes for taxi drivers' licences and licence suspension as a punishment. By s.61 Local Government (Miscellaneous Provisions) Act 1976 'a district council may suspend or revoke… or refuse to renew the licence of the driver of a hackney carriage or a private hire vehicle' on the grounds that he has since the grant of the licence been convicted of certain offences or for any other reasonable cause. How is an authority to deal with unacceptable behaviour by those holding taxi drivers' licences? The 'fit and proper person' criterion is the basis for holding a licence and while some matters arising after grant will not require action by the authority what of matters which require a response but not by way of suspension or revocation?

Cardiff City Council adopted a penalty points scheme where 10 points collected in a three year period resulted in the drivers' licence being revoked. Singh J found that the introduction and enforcement of a penalty points scheme was not unlawful in principle: (para.65) but 'how a defendant authority ... goes about formulating such a policy is perhaps of more critical importance ...' (para.67). On this basis Singh J went on to find the policy unlawful in three ways. First, the policy called for automatic revocation if 10 points were accumulated in a three year period, which 'on its face, leaves no room for judgment or discretion' (para.74). Secondly, no consideration of the facts behind the earlier imposition of points was required or 'it would appear perhaps even permitted by the policy' (para.76). Thirdly, the policy did not recognise that the outcome of finding a driver not to be a fit and proper person 'is not necessarily revocation, it may be under section 61 the sanction of suspension' (para.78).

So while lawful to adopt a penalty points scheme it must not remove the authority's discretion. The scheme could, for example, state that when a driver has accumulated a set number of points within a set period of time the drivers' licence will be re-evaluated to consider whether the criterion has been breached and the driver will have the opportunity to offer mitigation for any of the offences that led to the imposition of the points. The authority would then exercise its discretion on the appropriate response.

Singh is also important on the use of suspension by an authority. Some authorities have used suspension as an interim measure when facts come to its attention concerning a driver. However, Singh decided that there is no power of interim suspension. Suspension cannot be used as an administrative measure to allow an authority to investigation matters; it is a final determination on the fitness and propriety of the driver.

It is clear from the cases (for example, Leeds City Council v Hussain [2002] EWCH 1145 (Admin) and there is nothing different in Singh) that suspension is not there to 'punish' the driver for bad behaviour (it is a sanction but not a punitive sanction). The purpose of the licensing regime is to protect the public not punish the driver. In order to suspend or revoke the licence the authority must be of view that driver fails the fit and proper person criterion. If the failure is deemed to be rectifiable then suspension may be appropriate.