Insight Local Government Lawyer Insight February 2018 41 object”, or “the responsible authorities have no concerns”. The police and responsible authorities frequently do not attend the licensing hearing. The basis upon which they have decided not to object is seldom known, and therefore never examined critically. ● The objecting resident or association is left high and dry, often being asked “have all the responsible authorities got it wrong?” – when in fact no one knows if they have got it wrong or right: all we know is that they have made no representation, we do not know upon what basis. ● The application is granted, undue weight being given to the fact (but not the reasons behind) absence of police objection, and little scrutiny being given to the application itself. Sometimes (rarely) one gets to hear what has been said at these meetings between the authorities and an applicant. At other times it may reasonably be inferred that the authorities have been told a similar story to the one told to the residents in trying to persuade them not to object. And that story, as we have seen already, may be a rather ‘tall’ one. I am strongly of the opinion that there should be much greater transparency regarding these behind closed doors pre- hearing meetings. In particular, it is essential that reasons are given (by the relevant responsible authorities) for not making representations. But even with the benefits of transparency, pre-hearing meetings can sail too close to the equivalent of a hearing. If attended heavy-handed (as in my recent experience) there is a vulnerability to ‘discussion’ being steamrollered to ‘decision’ when not all interested persons are present, or if they are present, not having come to the meeting prepared to argue their position to a conclusion. (5) Lack of objection is not the same as support A fifth culprit for “things going wrong”, touched on above, is the undue importance sometimes given by sub- committees to the absence of any representation on behalf of the police or any other responsible authority. Frequently, the lack of any representation means nothing more than that an applicant has given various assurances to the police or licensing officers – at those ‘behind closed doors meetings’ already discussed – and the authorities are satisfied that, if those assurances can be relied on, they would have no objections. The all-important question – can the assurances be relied on? – never gets asked. I have been told by police officers that they have neither the resources nor the time to investigate the truthfulness or otherwise of the various promises and assertions made at pre-hearing meetings. Their lack of objection, on analysis, is no better than: “If what we have been told is true, then there is no ground for objection” - but it is held out by applicants (and sometimes accepted by committees) as being support. Current Home Office guidance is that “The police should be the licensing authority’s main source of advice on matters relating to the prevention of crime and disorder licensing objective... 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.” That guidance is wrongly interpreted by licensing authorities: absence of police (and other) objection is too frequently equated to a representation in favour, and taken as determinative of a decision to grant the application. Although it is anticipated that this guidance will change, I think it will continue to resonate with licensing sub-committees. Even when an applicant’s assurances to residents (i.e. as to how their premises in other towns and cities operate) are found to be demonstrably false - as has too often been my experience - the absence of police objection, or objection from other responsible authorities, can present an impenetrable barrier to successfully resisting a grant. (6) The sub-committee is overly concerned as to costs on an appeal A vulnerability to costs, should there be a successful appeal of a refusal to grant – particularly when the police have not objected – has been cited to me, informally after the hearing, as the principal reason for the sub-committee having granted a licence, when otherwise they would have unhesitatingly refused. There is a body of case-law to the effect that honest decision-making by an administrative authority which has conducted itself reasonably and with propriety should not be penalised in costs simply because a court on appeal says that the decision was wrong. That any licensing committee should give a decision that it thinks is wrong, solely to avoid the risk of costs on appeal, betrays either an ignorance of, or a fundamental misunderstanding of, the principles spelled out in these cases. Conclusions I have no doubt that some of the eyebrow-raising grants I have seen would have been decided no differently, even if the sub-committee were alive to the various issues I have raised in this article. It may be, for example, that the creation of new jobs or the bringing to life of a derelict building weighed more favourably in the balance. The problem then would be that the real reasons for the decision might not have been given. Other grants, however, have to my mind been inexplicable: contrary to policy, with no genuinely exceptional circumstances advanced by the applicant. In summary, I think that cumulative impact policies are likely to be ‘more honour’d in the breach…’ unless licensing sub-committees scrutinise applications far more critically, adapting their procedures as necessary to allow evidence to be effectively tested; and committees should be on the alert for the wool to be pulled over their eyes – by the bale. Gerald Gouriet QC is a barrister at Francis Taylor Building. There is a body of case-law to the effect that honest decision- making by an administrative authority which has conducted itself reasonably and with propriety should not be penalised in costs simply because a court on appeal says that the decision was wrong. That any licensing committee should give a decision that it thinks is wrong, solely to avoid the risk of costs on appeal, betrays either an ignorance of, or a fundamental misunderstanding of, the principles spelled out in these cases.