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Thursday, 25 August 2016

Lords Committee on Licensing Act 2003 a response to call for evidence


Licensing objectives

1. Are the existing four licensing objectives the right ones for licensing authorities to promote? Should the protection of health and wellbeing be an additional objective?

While the existing objectives are fine as far as they go they do not allow a proper consideration of the impact that granting a licencing application may have on the quality of life in the neighbourhood.

They also fail to address questions of cumulative impact. Cumulative impact takes two forms:

·         Introducing new premises into areas that already have a number of licenced venues. Banes council who struggle with balancing the large number of people who live and stay in the city centre with the demands of the night time economy have had to create the rather contrived mechanism of a local cumulative impact policy and cumulative impact zone. This should be addressed within the objectives of the licensing Acts.

·         Mission creep by applicants. A typical example was two residential houses in a purely residential neighbourhood being bought and converted into a B&B. The owners then applied for an alcohol licence offering many reassurances and conditions to limit the sale of alcohol to in-house residents. Successive applications have by small steps extended this to having a bar open to the public, vertical drinking, an outdoor drinking area of some size and off sales.

2. Should the policies of licensing authorities do more to facilitate the enjoyment by the public of all licensable activities? Should access to and enjoyment of licensable activities by the public, including community activities, be an additional licensing objective? Should there be any other additional objectives? The balance between rights and responsibilities.

The enjoyment by the public of all licensable activities has not been an issue

3. Has the Live Music Act 2012 done enough to relax the provisions of the Licensing Act 2003 where they imposed unnecessarily strict requirements? Are the introductions of late night levies and Early Morning Restriction Orders effective, and if not, what alternatives are there? Does the Licensing Act now achieve the right balance between the rights of those who wish to sell alcohol and provide entertainment and the rights of those who wish to object?

The issue with the Live Music Act 2012 was that it was a one size fits all deregulation regime which allows little discretion for local authorities to adapt its provisions to local situations. In situations where people live near licenced premises, this Act has left them defenceless in the face of premises exploiting the opportunities the Act creates for boosting their commercial offer. The limitations imposed by the act are hard and expensive to police, who will go and count how many people are in a crowded pub, and the legislation on noise nuisance is often inadequate to deal with the real world situations that arise.

It is perhaps worth noting at this point that licensing reviews have proved to be largely useless in practice for defending the rights of residents and indeed other businesses. It is a little disturbing that your question talks about “those who wish to object” rather that those who live and work in affected areas.

4. Do all the responsible authorities (such as Planning, and Health & Safety), who all have other regulatory powers, engage effectively in the licensing regime, and if not, what could be done? Do other stakeholders, including local communities, engage effectively in the licensing regime, and if not, what could be done?

If you take an area like Bath you will find that most licenced premises are or have been in a position where there planning conditions are in conflict with their licensing conditions. The artificial barriers created by the legislation between planning and licensing should be removed. This would allow both planning and licensing authorities to hear and consider all the evidence of the impact or potential impact that a premises will have on its environment.

Similarly, the constraint on licencing authorities not to impose conditions on things which are subject to other legislative regimes should be removed allowing the licencing authority to effectively coordinate the work of all agencies in relation to licenced premises.

Licensing and local strategy

5. Licensing is only one part of the strategy that local government has to shape its communities. The Government states that the Act “is being used effectively in conjunction with other interventions as part of a coherent national and local strategy.” Do you agree?

No the see 1 & 4 above

6. Should licensing policy and planning policy be integrated more closely to shape local areas and address the proliferation of licensed premises? How could it be done?

Yes, see 4 above

Crime, disorder and public safety

7. Are the subsequent amendments made by policing legislation achieving their objects? Do they give the police the powers they need to prevent crime and disorder and promote the licensing objectives generally? Are police adequately trained to use their powers effectively and appropriately?

The new policing legislation has certainly created improvements and had given officers far more options which they seem keen to exploit. However, it is still early days.

The new legislation still leaves gaps the most obvious example being the lack of any effective control over “Party Houses” which can cause endless misery for their neighbours and blight communities.

8. Should sales of alcohol airside at international airports continue to be exempt from the application of the Act? Should sales on other forms of transport continue to be exempt?

No comment

Licensing procedure

9. The Act was intended to simplify licensing procedure; instead, it has become increasingly complex. What could be done to simplify the procedure?

Give licensing authorities more discretion to create or adapt the procedure to reflect local conditions and the nature of applications they are receiving.

10. What could be done to improve the appeal procedure, including listing and costs? Should appeal decisions be reported to promote consistency? Is there a case for a further appeal to the Crown Court? Is there a role for formal mediation in the appeal process? Sale of alcohol for consumption at home (the off-trade)

We have an example in Bath of a premises which used the appeal process to resist decisions of the licencing authority, and the planning authority, for 10 years. This is unacceptable and led to housing units actually being vacated because the premises involved made living in them intolerable. None of the substantive appeal issues was upheld and the premises could legally trade in defiance of the local authority’s decisions.

The fear of the cost of being appealed is clearly having an influence on licencing committee decisions and the way in which they are being implemented. Local residents are often effectively locked out of the appeals processes. The idea of formal mediation would certainly be worth considering as a way of addressing this.

11. Given the increase in off-trade sales, including online sales, is there a case for reform of the licensing regime applying to the off-trade? How effectively does the regime control supermarkets and large retailers, under-age sales, and delivery services? Should the law be amended to allow licensing authorities more specific control over off-trade sales of “super-strength” alcohol?

Licenced premises regularly report pre-loading and the smuggling of alcohol into their premises as a major factor impacting their ability to control drink fuel disorder and trade profitably.

Retailers, in particular, the major supermarkets often promote cheap drink offers and create products which in practice make drink smuggling easier.

Under the current legislation it is virtually impossible to object to a new off-licence even where it is in close proximity to numbers of licenced venues and areas know for high levels of drink-fuelled disorder – see attached exchange with Banes licensing department.

12. Should alcohol pricing and taxation be used as a form of control, and if so, how? Should the Government introduce minimum unit pricing in England? Does the evidence that MUP would be effective need to be “conclusive” before MUP could be introduced, or can the effect of MUP be gauged only after its introduction?

No comment

Fees and costs associated with the Licensing Act 2003

13. Do licence fees need to be set at national level? Should London, and the other major cities to which the Government proposes to devolve greater powers, have the power to set their own licence fees?

No comment

International comparisons

14. Is there a correlation between the strictness of the regulatory regime in other countries and the level of alcohol abuse? Are there aspects of the licensing laws of other countries, and other UK jurisdictions, that might usefully be considered for England and Wales?

No comment

15. Additional comments

Consideration should be given to giving licenses to applicants rather than premises. Applications and conditions which may give little cause for concern by one applicant may be inappropriate if the premises are sold to a different operator with a different business model. Also because licences have a commercial value there are numerous examples of applicants asking for hours they do not intend to use because they will add value to the building when it is sold.

Where applicants make assertions before licencing committees which are clearly influential in the decision to grant or are intended to be influential these assertions can often not be turned into conditions for a variety of largely technical reasons. In these cases, the assertions themselves should be recorded and be made available at subsequent applications or reviews.

The assumption to grant built into the 2003 Act was justified on the basis that the review procedure would be a powerful tool in correcting any mistakes. In practice, this has proved not to be the case. Licencing Committees who might have been quite comfortable with refusing a new application are very reluctant to close premises that are already operational and providing employment. The review procedure is also complex and difficult for ordinary residents to use. An example of the reluctance to withdraw licences can be seen BANEs with the outcome of a review on a nightclub where undercover police had been sold class a drugs on numerous occasions by a drugs operation that involved the premises management and the committee was shown some 15 minutes of CCTV footage of customers coming out of the building so drunk they were unable to stand, customers vomiting and defecating outside the premises, customers fighting, customers trying drunkenly to force entry into neighbouring premises. While conditions were imposed the premises were allowed to continue their operations uninterrupted.


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