Premises Licences Under the Licensing Act 2003

www.emlawshare.co.uk

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Belinda Moore

Weightmans LLP

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Premises Licence

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Variations of premises licences

•

Review of premises licences

•

Practical issues to consider

•

Review of licences

•

Case studies

•

Hearing

•

Appeals

•

Summary review

•

Alcohol sales

•

ASBOs/antisocial behaviour injunctions

Premises licence

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The Licensing Act 2003 (LA 2003) defines the types of activities

which require a licence under the Act (s1(1)). It consolidates and

defines four specific types of licensable activity

a)

The sale by retail of alcohol

b)

The supply of alcohol by or on behalf of a club to, or to the order

of, a member of the club

c)

The provision of regulated entertainment

d)

The provision of late night refreshment



Authorisations to carry out licensable activities are granted by

licensing authorities



Regulated entertainment is caught by the Act

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The aim of the Licensing Act 2003 is to promote the

four licensing objectives which are:

1.

The prevention of crime and disorder

2.

To promote public safety

3.

The prevention of public nuisance

4.

The protection of children from harm

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Regulated entertainment is entertainment provided with a view

to profit, inclusive of charity fund raising.

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The question is whether there was an intention to make a profit.

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Examples include plays, showing of films, all indoor sporting

events, music events unless incidental to some other event

•

Live Music Act 2012

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Exemptions may include religious places of worship, garden

fetes, vehicles in motion

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

When thinking about restrictions concerning certain

premises such as garages and service stations,

consider:

R v Liverpool Crown Court Ex p. Goodwin (1998)

‘The question must be what was the intensity of use by

customers at the premises?’

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Q. Who issues the licence?

The authority with the greater part of the premises, in

which area the premises is situated.

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Q. Who can apply for a licence?

Anyone who carries on, or proposes to carry on, a

business involving licensable activities on the

premises.

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Q. How is an application made?

In the appropriate form prescribed by the Secretary of State

to the relevant licensing authority and accompanied by:

an operating schedule, a plan of the premises, consent of an

person nominated as ‘designated premises supervisors,’ the

appropriate fee

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The applicant must publish a notice on at least one

occasion not more than 10 working days after

submitting the application to the authority, either in a

local newspaper, newsletter, or similar document.

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Unless any relevant representation and made to the

authority, the application must be granted

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What are ‘relevant representations?’

Made by a responsible authority relating to the effect of the

grant of the licensing objectives. It will be the decision of

the licensing authority as to whether the applications are

irrelevant or not.

•

An irrelevant representation would not be directly related to the

application such as:



A vexatious application based on business rivalry



A ‘frivolous’ application considered to be lacking in seriousness

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Applications authorising the sale of alcohol must state:



‘details of a designated premises supervisor’ who is holder of a

valid personal licence



Every sale of alcohol must be made or authorised by a personal

license holder

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Schedule 4 of the Policing and Crime Act 2009 introduced other

mandatory conditions applicable to all premises licences

authorising the sale or supply of alcohol:

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Reasonable steps should be taken to ensure staff on

the licensed premises:



Do not promote games or promotions encouraging

excessive drinking



Ensure tap water is available



Put in place an age verification policy



Ensure the availability of smaller measures of alcohol

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The applicant must be informed of a successful/refused application, and

on approval, should be issued with the licence and a summary of it

•

Q. How long does the licence last?

–

Unless transferred, surrendered or revoked, it will last as long as the

licensee continues to operate the business.

–

If the license was for a specified time, it will expire on completion of

that time.

•

Licensing authorities cannot time limit a premises licence. The applicant

must ask for this in their application.

Variation of licence

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The holder of a premises licence can apply to vary the

licence to include a new activity or extend the

licensing hours, or vary substantially the premises to

which the licence relates.

•

The application to vary should be made in the same

way as a new application, and if no relevant

representations are made the variation will be

granted.

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If relevant representations are made, the licensing

authority must arrange a Hearing, unless

representations are deemed ‘frivolous’ ‘vexatious’, or

all parties agree to the Hearing being dispensed.

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The licensing authority should consider, if appropriate

for the promotion of the licensing objective, the

modifications or rejection of the conditions of the

licence.

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Variation of licence to supply of alcohol from community

premises:



Where a management committee holds a premises licence in

respect of community premises, it can vary the licence, and

replace two mandatory conditions with an alternative condition.



The condition to be replaced are those requiring the premises to

have a designated premises supervisor, and for the sale of

alcohol to be made or authorised by the management committee



The Chief Officer is the only person who can object to such an

application and only on the basis that he is satisfied that granting

the application would undermine the crime prevention objective.

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Provisional statement



Intended for use in relation to premises being used, extended or

altered for licensable activities.  This allows a person interested

in the premises to obtain an indication of the likely effect of the

intended licensable activity on the licensing objectives.



This application must be advertised in the same way as a

premises license.

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Transfer of licences



Can be made with immediate effect, with the consent of the

holder of the premises licence

•

 s.44 –The licensing authority must reject application unless:

i) The transfer application has been given immediate effect

ii) The existing licence holder has agreed to the transfer

iii) The applicant has been exempted from the need

to obtain that consent

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There is no real definition of ‘minor variation’ although the Act

prohibits certain applications from being subject to minor

variations such as:



Transfer of a licence or certificate



Specify a new Premises Supervisor



Add the sale, by retail or supply, of alcohol at any time between

11pm and 7am



Authorise an increase in the amount of time on any day during

which alcohol may be sold, by retail or supply.

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The application must be made on the prescribed form,

submitted to the licensing Authority, advertised on or

near the premises concerned for 10 working days. A

decision should be reached within 15 days of receipt

of the application. After this time the application will be

deemed to be rejected, although an extension of this

time can be agreed with the applicant.

•

Power to make the decision lies with the Licensing

Officer, who should consider if the variation adversely

affects any of the Licensing Objectives, in which case

it will be refused, and the fee returned.

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Change of supervisor:



The holder of a premises licence can apply to substitute a

different person as the designated premises supervisor



The application should be accompanied by signed consent of the

proposed premises supervisor, and the police notified.



Any designated premises supervisor can give notice to the Local

Authority to stop acting

Practical issues

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Death of the premise licence holder



A premise licence will lapse if the holder dies or

becomes mentally incapable or insolvent. Or, in the

case of a company, if it has dissolved.



An interim authority can be obtained by the licence

holder representative and should be passed to the

chief officer of police within 7 days. This will reinstate

the lapsed premises licence.

Review of licence

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The Act provides for the licence of premises causing problems to

be reviewed and, if necessary revoked, suspended or amended.

•

The basic procedure:



An applicant seeking review must give written notice of the same

application to the licensing authority, and give a copy to the

premises licence holder, and to each responsible authority



The authority must reject an application unless it is relevant to at

least one of the licensing objectives, or is, frivolous, vexatious, or

repetitious.

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An applicant seeking a review must give written notice

of the application to the licensing authority, who

should advertise the application and invite

representations from responsible authorities. This

must be advertised in the appropriate form, at least A4

in size, for not less than 28 days post application.



The licensing authority must arrange a Hearing at

which all parties may put their case.

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Following this Hearing the authority may take the following steps:



Modify the condition of the licence



Exclude a licensable activity from the scope of the licence



Remove the designated premises supervisor, where they

authorise the sale of alcohol



Suspend the licence for a period not exceeding three months



Revoke the licence

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Any party to the Hearing may appeal against the decision within

21 days of being notified of it

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The review decision does not have effect until the time for

bringing an appeal has expired

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When considering a case regarding conditions imposed on a

premises licence at the second stage review for underage sales

of alcohol, the High Court made the following observation:

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R v Hinkley Magistrates Court & Blaby DC (2011) L.L.R.

669

‘on a second review, rather than start with a

consideration of the evidence and what was

proportionate for the promotion of the licensing

objectives, there would be a presumption of

revocation. It would be of no consequence that the

revocation was not imposed, but that revocation was a

starting point.’

Case examples

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Case study 1

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A pub in the centre of Ipswich lost its licence after a number of incidents

including some being threatened with a carving knife. Police revoked the

licence in order to maintain public

safety. As per the procedure

discussed, Licence holder Scottish

& Newcastle said an appeal

could be lodged.

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Case study 1 continued

The police became involved in February, when a noise abatement officer

from Ipswich Borough Council was confronted by an aggressive crowd at a

private party. He said police began to work with the pub but further

incidents led them to believe that it was not a "safe place for the public".

After hearing the submissions, Ipswich Borough Council's licensing sub-

committee determined the licence should be revoked.

A spokesman for Scottish & Newcastle said, "We understand we

have 21 days within which an appeal could be lodged. We are

currently in the process of liaising with our legal representatives."

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Case study 1 continued

The Appeal -August 2012

Scottish & Newcastle Pub Company, which owns The County of Suffolk in

St Helen’s Street, made an application before magistrates in Ipswich to lift a

licence revocation order made in May.

During the unopposed application, magistrates agreed to replace the order

with another suspending the licence temporarily;

Magistrates heard the underlying objective of the licence revocation in May

was to get the tenant evicted and replace them with a new one, so the pub

could be run properly.

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Case study 1 continued. The Appeal -August 2012

Police, the borough council and the brewery were all said to be in

agreement the licence should now be suspended rather than be revoked.

After May’s revocation hearing Pc Craig Lannigan of Ipswich’s licensing

unit, said:

“This result will resonate with the licensed trade in Ipswich and

will send a strong message that licensees have strict responsibilities

under the Licensing Act and should continually monitor their performance

to ensure the public are kept safe while enjoying a night out”

The Pub has since reopened under new management.

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A city centre bar that police said was like a "boxing ring" because

of the number of violent incidents inside and outside the

premises has had its licence revoked.

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A member of the force's licensing team told the Town Hall

hearing how customers had been involved in 19 violent incidents

in five months, between July and December.

"There is responsibility for the venue management to

prevent these issues, which they have failed to do. They

have worked with us but what they have done does not

work.”

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Licensing committee chairman Councillor Adam Clarke

said: 

"We have a lack of confidence that the Long Bar

owners are able to uphold any of the licensing objectives.

Therefore, we have no choice other than to revoke the

licence."

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The owners have 21 days to lodge an appeal once they have

received formal notification of the decision.

•

The bar can remain open for that time or until the result of an

appeal, if one is lodged.

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Hearing

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Whenever relevant representations or objections are made to an

application, or if an application has been made for a review of a

premises 

licence

, a Hearing has to be held, unless all parties

consider it unnecessary.

•

Before a hearing



A Hearing will normally need to be commenced within 20 working

days of the end of the period for making Representations.

However this can be extended where it considers public interest,

although notice of this should be given to all parties. 

H

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Mediation



It may be possible to seek to mediate between an applicant for a

premises licence and other parties to avoid the Hearing.  This

can be done by correspondence, or by convening a meeting

between the parties with an officer who will facilitate, but not pass

decisions.



The licensing authority will arrange a date, time and location for

the hearing, whilst reviewing the application to see of there will

be points on which clarification will be required at the Hearing

H

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This hearing can be dispensed with at the agreement of all

parties, if confirmed in writing.

•

Notice of the Hearing should be given no later than 10 working

days before the Hearing, and should contain:



The rights of the parties at the Hearing and the consequences if

a party does not attend or is not represented at the Hearing



The procedure to be followed at the Hearing



Any particular points on which the authority considers it will want

clarification at the Hearing

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On receipt of the notice the parties should, no later than 5

working days, give a notice to the Authority stating:

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Whether they intend to attend or be represented

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Whether he considers a hearing to be unnecessary

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The Authority may adjourn a Hearing to a specified date should it

be necessary in expediting an agreement between parties 

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Hammersmith & Fulham LBC v Food Express Ltd (2010) L.L.R 292

Applicant arrived late to a Hearing as the decision to reject a 24hr

alcohol 

licence

 was announced. They appeal the decision on the

basis there had not been a fair Hearing as the parties had only

waited 10 minutes before commencing. This was not upheld on

the basis that the time to wait is for the sub committee to decide.

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Shortly before the Hearing, an Officer should prepare a report

determining the application, so as to 

familiarise

 themselves with the

case. This should include:

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the nature of the application

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any relevant background application



Details of the promotion of the four licensing objective

1. The prevention of crime and disorder

2. Public safety

3. The prevention of public nuisance

4. The protection of children from harm

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Q. What happens at a Hearing?

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The procedure is generally at the discretion of the licensing

authority but must conform to the regulations.

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At commencement the authority will explain the procedure to the

parties, and consider any request



Any hearing must conform to European human rights legislation.

Any licensing authority can still be subject to Judicial Review,

even if they follow the Regulations, if their conduct does not

promote natural justice and fairness.

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Reg 23 states the Hearing will be in a discussion format held by

the authority, without cross examination unless the authority

considers it necessary.

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Any disruptive persons will be requested to leave the hearing and

may be:

1. Refuse to permit that person to return

2. Permit him to return only on conditions

3. They may continue to make written submissions

Appeals

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An applicant who has a licence/attached conditions refused may

appeal the decision.

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An appeal must be commenced within 21 days of notification of

the licensing authority’s decision. The Magistrates Court can

make an Order for costs of the appeal.

R v City of Magistrates Court (2011) L.L.R. 105

Appeals are a rehearing, therefore new evidence can be introduced

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On hearing the appeal the magistrates can:

1. Dismiss the appeal

2. Substitute for the decision appealed against, any other decision

which could have been made by the licensing authority

3. Remit the case to the licensing authority to dispose of in

accordance with the direction of the court

Summary review

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S52(a1) - power for the police to ask for summary review of a

premises licence which authorises the sale of alcohol

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Procedure

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Senior police officer must complete a certificate showing that the

premises are associated with serious crime, or serious disorder

or both.



They may then apply to the licensing authority for a review of the

premises 

licence

. The authority must advertise the application for

a summary review for a period of seven working days after the

application in received. 

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The licensing committee will consider the following interim steps,

which have immediate effect:

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Modification of the conditions of the premises 

licence



Exclusion of the sale of alcohol by retail



Removal of the designated premises supervision.



Suspension of the 

licence

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The final Hearing of the summary review application must be

made within 28 days of the application being received by the

authority. The Licensing Act 2003 (Hearings) Regulations 2005

apply. Therefore 5 days notice of the final Hearing must be given

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Steps at the final Hearing are:



The modification of the conditions on the 

licence



The exclusion of licensable activities



The removal of the designated premises supervisor



The suspension of a 

licence

 for a period not

exceeding 3 months



The revocation of the licence

Sale of cheap, high strength alcohol

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Following government initiatives, Council’s are taking a

far stricter view on the sale of high strength alcohol and

associated anti social behaviour, in order to uphold the

licensing objectives

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Case study 1

Shop ban on high-strength booze cuts street drinking

crime by 50%

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A campaign to ban the sale of super strength lager and cider

launched in Ipswich, Suffolk in 2013, has led to a 50 per cent fall

in reports of anti-social behaviour, and has proved so successful

it is expected to form a blueprint for cities fighting to crack down

on street drinking and alcohol related crime across the country.

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Two thirds of the town’s 122 licensed retailers,

including the Co-op, Tesco, Debenhams, Marks &

Spencer, BHS, Waitrose, Sainsbury’s and Aldi, have so

far backed the scheme by voluntarily taking cheap,

highly-potent lagers and ciders off the shelves.

As a result, the number of police calls made by

members of the public to report concern about street

drinking and related anti-social behaviour dropped to

94 between September and March 2013, from 191

during the same period the previous year.

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Case study 2

A shop has lost its alcohol licence for the Christmas period after

allegedly exacerbating underage alcohol consumption, drug

misuse and anti-social behaviour. At the shop, miniature bottles

and high-strength alcohol were on sale at discounted prices,

easily accessible to young people.

The court decided to reduce this to three months after evidence

showed management trying to establish clear and consistent

standards of acceptable behaviour, reflecting the responsibility

involved in the sale of alcohol.

Shop owners were ordered to pay £1,000 costs and their licence

to sell alcohol will be reinstated on January 22, 2014.

ANTISOCIAL BEHAVIOUR

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Act contains provision for:



Temporary closure of premises with a licence or temporary

events notice, by the Local Authority, should it be reasonably

believed that a public nuisance or disorder is being caused by

the premises.



Closure notice issued for up to 48 hours without going to court



Thereafter seek order for closure for up to 6 months from the

magistrates court

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Case Study -Noisy Marsden pub to be closed for first time using

ASB law in existence at the time

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In April 2009, Kirklees Council used the Anti-Social Behaviour Act 2003

for the first time to call time on a noisy pub following repeated

complaints from neighbours about noise and anti-social behaviour. The

act was usually used to close nuisance residential properties.

•

Daniel Thwaites Brewery, which owns the premises, served a notice on

the landlady seeking possession of the premises following talks with

Kirklees Environmental Services.

•

The pub, which was licensed until 12am on weekdays and 2.30am on

weekends, was ordered to close by a district judge following complaints

of loud music, shouting and fighting until the small hours.

Case study continued

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The District Judge considered many factors:

“I notice a complaint at 9.30pm. That was

unreasonable but some were at 2.30am and that

clearly was in breach of the licence.”

“I am satisfied that the use of the premises has been associated

with persistent and serious nuisance to members of the public.”

•

Overall the reliance on the ASB Act expedited the closure of the

pub, and so upheld the objectives of the licensing act.

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To stop a person, business or organisation

committing anti-social behaviour which spoils the

community's quality of life

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Behaviours must be detrimental, persistent and

continuing and unreasonable

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Warning letter

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Issue of notice

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Breach is criminal offence

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Can be used to deal with noise nuisance

Any questions?