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Licensing committees

Wine 26118355 s 146x219This LexisPSL Local Government article was produced in partnership with Walaiti Rathore of Fraser Browne and sets out the law and practice in relation to the duties and responsibilities of a licensing authority under the Licensing Act 2003.

This includes the requirement for a licensing authority to establish a licensing committee to discharge its licensing functions and, the option for a licensing committee to constitute one or more subcommittees to delegate most of its licensing functions.

This also includes advice on best practice for licensing committees and/or subcommittees on how to conduct hearings and how to avoid common pitfalls.

A licensing authority should have a good working knowledge of the Licensing Act 2003 (LA 2003) as interpreted by the courts, the relevant regulations to the LA 2003, the statutory guidance and their own statements of licensing policy. It must also observe and follow the rules of natural justice; particularly in relation to hearings where it must act fairly, impartially and without any bias.

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See Local Authorities (Functions and Responsibilities) (England) Regulations 2000, SI 2000/2853; Local Authorities (Functions and Responsibilities) (England) (Amendment) Regulations 2013, SI 2013/2190; Licensing Act 2003 (Premises licence and club premises certificates) Regulations 2005, SI 2005/42; Licensing Act 2003 (Fees) Regulations 2005, SI 2005/79; Licensing Act 2003 (Hearings) Regulations 2005, (LA 2003 (Hearings) Regulations) SI 2005/44; Revised guidance issued under LA2003, s 182; and Statement of Licensing Policy.

What are the duties and responsibilities of a licensing authority?

The duties and responsibilities of a licensing authority consist of the following:

  • to carry out its functions under LA 2003, s4(1) with a view to promoting the licensing objectives under LA 2003, ss 4(2)(a)–4(2)(d) namely:

- the prevention of crime and disorder

- public safety

- the prevention of public nuisance

- the protection of children from harm

  • in carrying out its licensing functions, a licensing authority must under LA 2003, ss 4(3)(a)–4(3)(b) also have regard to:

- its licensing statement published under LA 2003, s 5

- any guidance issued by the Secretary of State under LA2003, s182 (the current revised guidance was issued in March 2015)

  • for each five-year period a licensing authority must under LA 2003, ss 5(1)(a)–5(1)(b):

- determine its policy with respect to the exercise of its licensing functions

- publish a statement of that policy before the beginning of the period

  • the licensing authority must under LA 2003, ss 8(1)(a)–8(1)(d) keep a register containing the following information:

- a record of each premises licence, club premises licence certificate and personal licence issued by it

- a record of each temporary event notice issued by it

- the matters mentioned in LA 2003, Sch 3

- such other information as may be prescribed by regulations which are currently prescribed in Licensing Act 2003 (Licensing authority’s register) (Other information) Regulations 2005, SI 2005/43

  • the licensing authority must make the register available in legible form for inspection by anyone during office hours and without payment (LA 2003, s 8(3))
  • if requested, the licensing authority must supply a copy of a register entry in a legible form and a reasonable fee may be charged for this (LA 2003, ss 8(4)–8(5))
  • there is a requirement under LA 2003 s178 for a licensing authority to give notice of any application, notice or other matter relating to premises and to advise them of their right to request a copy of the information, to any person who satisfies the following criteria:

- has an interest in the premises:

  • a freeholder or leaseholder
  • a legal mortgagee
  • an occupier
  • any other person prescribed by the regulations to LA 2003 (there are currently no prescribed persons)
  • has given a notice in the prescribed form with the prescribed fee (LA 2003, ss 178(1)(a)–178(1)(b); Licensing Act 2003 (Premises licence and club premises certificates) Regulations 2005, SI 2005/42 and Licensing Act 2003 (Fees) Regulations 2005, SI 2005/79

The requirement for a licensing authority to establish a licensing committee

Each licensing authority must establish a licensing committee consisting of between ten and 15 members of the authority to discharge its licensing functions under LA 2003 ss 6(1), 7(1).

Constitution of licensing sub committees

A licensing committee may establish one or more sub committees consisting of three members of the committee under LA 2003, s 9 and it may regulate its own procedure and its sub committee subject to regulations about:

  • the proceedings of licensing committees and their sub committees (including provision about the validity of proceedings and the quorum for meetings. See further Practice Notes: Conduct of meetings—chairing, quorum and voting) and Meetings—executive decision-making process
  • public access to the meetings of those meetings
  • publicity for those meetings
  • agendas and records for the meetings
  • public access to agendas and records

(See also Licensing Act 2003 (Hearings) Regulations 2005, SI 2005/44)

The regulations under LA 2003 are silent on the issue concerning quorum of a sub committee where the sub committee does not sit as a panel of three.

The issue concerning quorum will depend on the licensing committees own rules concerning constitution of licensing sub committees. In the absence of such rules the logic seems to be that the sub committee must consist of three members following LA 2003, s 9(1).

A sub committee which has not been lawfully constituted either in accordance with legislation or its own constitution risks having its decision set aside as per the decision in R (on the application of Bridgerow Ltd v Cheshire West and Chester BC (Whitefriars Resident Association, interested party) [2014] EWHC 1187 (Admin), [2014] LGR 485

The requirement for a licensing committee to make licensing decisions and delegation to a sub committee

A licensing committee must make licensing decisions under LA 2003 when required but it may make arrangements for those decisions to be made by a sub committee (LA 2003, s 7(1) and S 10(1)(a)).

For practical reasons a licensing committee will usually make arrangements for a sub committee to make licensing decisions

Pre hearing procedure

Licensing hearings must commence within the timescales prescribed under the LA 2003 (Hearings) Regulations, SI 2005/44, Sch 1. For example, a hearing to determine an application for a new premises licence must commence within 20 working days after end of the period during which representations can be made in relation to the application.

The licensing authority must give notice of the hearing to the relevant persons and within the timescales prescribed in the regulations. For example, notice must be given to the applicant and any person who has made a relevant representation in relation to application for a new premises licence (LA 2003 (Hearings) Regulations, SI 2005/44, Sch 2 and reg 6).

Hearing procedure

A licensing hearing takes the form of a discussion led by the licensing authority and cross examination will not be permitted unless the authority considers that cross examination is necessary (LA 2003 (Hearings) Regulations, SI 2005/44, reg 23).

During a licensing hearing:

  • a party (ie a person (including a company who has been given notice of the hearing) may address the licensing authority (reg 16(c))
  • parties may give further information at a hearing only in response to a request for clarification from the licensing authority (reg 16(a))
  • if permitted by the licensing authority a party may question any other party or witness (reg 16(b))
  • documentary or other evidence produced by any of the parties may be considered provided it is produced before a hearing or at the hearing with the consent of all other parties (reg 18).

The purpose of this regulation is to avoid a party being ambushed. Therefore, the interpretation of the regulation should be approached with that in mind. It may, for example, be reasonable to consider a plan or a short non contentious document which was served shortly before a hearing but not a bundle of statements. It all depends on the quantity and nature of the evidence as to when it should be served.

  • any information not relevant to a party’s case and the promotion of the licensing objectives must be disregarded. For example, planning and highways issues which are not relevant to the licensing objectives must be disregarded (reg 19)
  • licensing Authorities should focus the hearing on the steps considered appropriate to promote the particular licensing objective which has given rise to the specific representation and avoid straying into undisputed areas (see paragraph 9.36 of the revised guidance issued under LA2003, s 182)

Best practice for during a licensing hearing

  • A licensing authority can reduce the risk of a successful challenge against a licensing decision by:
  • setting realistic time scales and giving a fair opportunity for each party to present their case and respond to assertions made against them—a party responding to several allegations, for example, may need more time than one or more party making those allegations
  • conducting a fair hearing which includes treating all parties equally and fairly
  • avoiding pre determination or giving the appearance of pre determination:

- avoiding preconceived ideas and political input

- not making a public comment before all the evidence is heard (Mu Mu Enterprises (Weston) Limited v North Somerset District Council [2004])

  • dealing with a licensing hearing impartially
  • avoiding actual bias or giving the appearance of bias (Georgiou v London Borough of Enfield [2004] EWHC 779 (Admin), [2004] All ER (D) 135 (Apr))
  • treating each case on its merits
  • making decisions which are evidence based, justified as being appropriate for the promotion of the licensing objectives and proportionate to what it is intended to achieve (see paragraph 9.42 of the revised guidance issued under LA 2003, s 182) (R (on the application of Daniel Thwaites plc) v Wirral Borough Magistrates’ Court [2008] EWHC 838 (Admin), [2009] 1 All ER 239)
  • giving full and clear reasons for their decision which:

- give a clear indication of what evidence was relied on and what evidence was rejected

- indicates what persuaded the committee to make the decision

- demonstrates that the decision is appropriate and proportionate

- enables an aggrieved party to know why it has lost and to consider prospects of a successful appeal

- do not necessarily have to be lengthy (R (on the application of Hope and Glory Public House Limited) v City of Westminster Magistrates’ Court (Lord Mayor and Citizens of the City of Westminster, interested party) [2011] EWCA Civ 31, [2011] 3 All ER 5)

The quality of the reasons themselves can influence as to whether the decision of the licensing authority is appealed.

A successful appeal could result in substantial costs being ordered against the licensing authority.

Avoiding common pitfalls

  • Licensing decisions are more likely to be challenged when

- parties to a hearing are not treated equally and fairly by the sub committee:

- negative body language

- interruptions and interjections

- being rude and hostile towards a party

- not giving a fair opportunity to respond to allegations or assertions made

- excessive questioning of one party

- making comments suggesting bias

  • evidence is not handled fairly
  • excess weight is given to hearsay and speculation
  • straying into irrelevant areas
  • taking into account irrelevant matters
  • failing to take into account relevant facts and unchallenged evidence
  • there is a lack of understanding of licensing law
  • misinterpreting and misapplying the law
  • failing to give adequate reasons for decisions

This article, written in partnership with Walaiti Rathore was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

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