Local Government Lawyer Insight February 2018 LocalGovernmentLawyer 36 Context is king Tim Briton looks at how licensing authorities - and their lawyers - can reach the "right" decisions in the absence of specific guidance from the law. Licensing is like baking a cake - it requires a fine balance, and the right ingredients. Just as a baker may decide to use a little more flour or a little less sugar, licensing decisions invariably require a balance to be struck between a range of considerations. As Mr Justice Burton said in Hope & Glory, "In licensing matters there is often no single 'right answer'". The role of responsible authorities is to provide the ingredients that decision makers need in order to evaluate the various competing considerations, and to reach a decision that is appropriate in all the circumstances. Sometimes this can be relatively straightforward - for instance where the police can provide evidence of violence, drug use or underage sales in pubs. Where there is clear evidence that the licensing objectives are being undermined on the premises, this will clearly be a factor for the decision maker to take into account. The question of what is relevant can, however, sometimes be harder to answer. The undermining of the licensing objectives does not always take place within the curtilage of the licensed premises. This can particularly be the case with off-licences and alcohol delivery services. The harm caused by the sale of alcohol is often displaced from the point of sale. Mr Justice Burton went on in his judgment in the Hope & Glory case to set out that "Licensing decisions often involve weighing a number of competing considerations: the demand for licensed establishments, the economic benefit to the proprietor and to the locality by drawing in visitors and stimulating the demand, the effect on law and order, the impact on the lives of those who live and work in the vicinity, and so on". He also emphasised that licensing decisions, "involve an evaluation of what is to be regarded as reasonably acceptable in the particular location". It is for this reason that the role of responsible authorities is paramount to the licensing regime fulfilling its objectives. Understanding the exigencies of the location is essential in order to reach a well-informed decision about what licensable activities are appropriate at particular premises and how they should be controlled. Equally, a baker presented with some flour, sugar and eggs may make a sponge cake when what is needed is in fact a pancake. Context is key. Licensing committees are often told that the police should be their main source of advice on licensing issues. In fact, what the Home Office Guidance states is that the police "should be the main source of advice on crime and disorder", and that "licensing authorities should also seek to involve the local Community Safety Partnership". The bigger picture Police data provides only one part of a much bigger picture. Many crimes that occur do not end up as a statistic in in the Police National Database. They may be reported to other bodies such as Environmental Health team in the form of a complaint, or to Licensing Authorities themselves. They may never be reported, yet still have a bearing on the wellbeing of residents in a particular locality who can suffer from anxiety, sleep deprivation and depression. Decision-makers should be hesitant to afford any one set of statistics undue deference in their evaluation of what is acceptable in a particular location. Data that is pertinent to public health may potentially be as instructive as crime statistics if the analysis of it assists in showing the likely impact that granting a licence would have on the promotion of the licensing objectives. In order that licensing committees may make appropriate decisions they need to understand the context of the decision they are asked to make. What may be appropriate in a busy town centre with a thriving night-time economy may not be appropriate in a quiet residential area. The Home Office Guidance makes it clear that it is incumbent on applicants to demonstrate knowledge of the local area. Licensees who are engaged with their locality can be a valuable source of information and advice on how better to manage the issues arising in the night time economy. Yet there are also applicants and indeed licensees who simply seek to impose their way of operating across their entire portfolio without apparent regard to Statements of Licensing Policy, local issues or concerns. The onus rests with responsible authorities to ensure that the relevant local context is understood by licensing committees when their decision making powers are engaged. Cookbooks usually have photographs of what the finished article should look like when all the ingredients are mixed together. As Mr Justice Burton said, with licensing there is often no single right answer. The recipe for success is to understand the context. Tim Briton is a litigation solicitor at Gateshead Council and National Lead Officer for Litigation & Licensing - Lawyers In Local Government.