Empowering residents

The coalition government’s much vaunted ‘Big Society’ is a clarion call to local people and residents’ groups to take control of their communities. With this in mind, the Home Office is currently consulting on a document entitled Rebalancing the Licensing Act: A consultation on empowering individuals, families and local communities to shape and determine local licensing. With the role of local residents firmly to the forefront of the government’s thinking and with alcohol issues of increasing concern to local people, Richard Brown explains – in the first of a three-part series – how residents can become involved in shaping the night time economy in the communities in which they live.

The statutory scheme of which the Licensing Act 2003 (LA03) is the backbone envisaged a partnership approach within which local people have a full role to play. However for this to be the case, it is vitally important that local people – often without the resources or wherewithal to obtain specialist legal advice – are sufficiently empowered with knowledge of their rights and responsibilities under the Act. This series of articles is primarily concerned with how residents can object to licensing applications, rather than with action they may be able to take in respect of ‘problem’ premises under s51 Licensing Act, which is another issue.

LA03 states that a licensing authority must carry out its functions under the Act with a view to promoting the licensing objectives (s4(1)). Representations in respect of a licence application must be made by an ‘interested party’ and must relate to the likely effect of the grant on the promotion of the licensing objectives, which are (s4(2)):

• prevention of public nuisance
• prevention of crime and disorder
• public safety
• protection of children from harm

The licensing objectives are the cornerstones of LAO3.

In the case of applications for new premises licences or variations (but not reviews) the ‘cumulative impact’ on the licensing objectives of a concentration of licensed premises can also give rise to a representation. Residents and residents’ groups can play an important role in developing a cumulative impact policy, which has to be put out for public consultation and is evidence-based.

The Licensing Objectives

Public nuisance is the most common licensing objective referred to in representations by interested parties. It is not given a statutory definition in LA03 but is addressed by the Guidance at paragraphs 2.32-2.33. The Guidance suggests it is for the licensing authority to make judgments about what constitutes public nuisance – quite a wide discretion then. It suggests the main issues will be noise nuisance, light pollution, noxious smells and litter. The most common for residents is noise emanation from inside the premises or from people drinking/smoking outside the premises, or when leaving the premises.

Public nuisance retains its broad common law meaning. The oft-quoted section of the Guidance is that “…the prevention of public nuisance could therefore include low-level nuisance perhaps affecting a few people living locally as well as a major disturbance affecting the whole community” (Guidance 2.33). This is different from the definition of statutory nuisance under the Environmental Protection Act 1990. What constitutes ‘public nuisance’ has been examined in a range of case law pre-LA03, and has been examined further in cases arising under LA03.

The issue in the context of LA03 was finally taken to the higher courts in the case of ‘The Endurance’, R (oao Hope and Glory Public House Ltd) v City of Westminster Magistrates’ Court [2009] EWHC 1996. This is an important case for residents as it concerned outside drinking. The decision of Westminster City Council’s Licensing Sub-Committee to restrict outside drinking to 6pm and add other conditions was upheld on appeal to the Magistrates’ Court. Permission was sought by the Endurance to judicially review the decision. Permission was refused, Burton LJ holding that a public nuisance is merely something more than a private nuisance. This case is something of a blow to operators as the vast majority of complaints in the Endurance case had come from a single resident. Hope and Glory Public Houses Limited has been given permission to appeal to the Court of Appeal, but only on what is known as the ‘Sagnata’ point, not on the public nuisance question.

Residents should bear these factors in mind when seeking to demonstrate in their representations that a public nuisance exists:

• the number of persons making a representation
• the geographic spread within the vicinity
• the extent and remit of any representative body (eg a Residents’ Association)
• the existence of a petition
• involvement of local councillors
• the time and place of the nuisance
• the effects of the nuisance
• the frequency of the nuisance

It is important to keep in mind that representations should relate to the likely effect of the grant. In the case Daniel Thwaites Plc v Wirral Borough Magistrates’ Court and Ors [2008] EWHC 838 (Admin), the High Court decided that decisions must be based on actual evidence not speculation, but the statute suggests that speculative evidence can be taken into account; if the effect is more likely than not. In applications for new licences, the representations cannot usually be premises-specific and must to some extent be speculative. In fact, the Home Office’s consultation proposes reducing the evidential burden of proof and shifting the onus on to an applicant to demonstrate how any potential negative impacts will be mitigated. Thus, the proposed reduction in the burden of proof required may benefit residents.

Of further interest to residents is the fact that the Thwaites case also stated that conditions relating to opening and closing times are a legitimate mechanism for the licensing authority to promote the licensing objectives. Such conditions are often important to residents where the end of licensable activities may not be too late but the when customers finally leave the premises, nuisance is nevertheless caused. The current consultation discusses enshrining this principle in statute.

Outside drinking and smoking

While the smoking ban may have been a boon for the health conscious, it has not had such an advantageous effect on residents who live adjacent or opposite to a licensed premises which has an outside area, or, worse, which does not have an outside area and thus customers smoke (and often drink) on the public highway. Tables and chairs (with or without permission) at the front of premises can also cause problems, in late night cafes as well as premises licensed to sell alcohol.

The protection of children from harm

This objective is intended to protect children from moral, psychological and physical harm. It is important to peruse the operating schedule contained in the application form. Lap dancing clubs are now licensed under Local Government (Miscellaneous Provisions) Act 1982, but only where the relevant provision has been adopted by the local authority.

If a resident is concerned that under-age drinking is occurring at the premises, this would be a ground for using this licensing objective. This would no doubt also interest the police. There is now a ‘two strikes and you’re out’ rule for under age sales, before which a police may initiate a review or other remedy under LA03 or other legislation.

Crime and disorder

The crime and disorder objective is concerned with matters such as fighting, drugs and disorder. In the context of lap dancing venues, protecting performers from assault may be a relevant consideration. It may be worthwhile for residents who have concerns over crime and disorder to contact their local Safer Neighbourhoods Team to ask for support. The police are a responsible authority and can make representations (and call for reviews) in their own right. The police also have other powers under LA03 and other legislation to tackle crime and disorder and nuisance.

Public safety

The public safety objective is concerned with the physical safety of persons using the premises eg overcrowding), not with public health. Examples include if the pub is often overcrowded or has crowds of people drinking outside the premises on the public highway, forcing pedestrians into the road. If the pedestrians are children, the protection of children from harm objective could be used too.

Richard Brown is a solicitor who manages the Westminster Licensing Advice Project. The project is funded by Westminster City Council and provided by Westminster Citizens Advice and advises residents on their rights and responsibilities under Licensing Act 2003 and related legislation.

Part two will cover how residents can engage with the regime and what information should go into their representations, while the final part will look at hearings and appeals.