Giving residents a voice
In the second of a three-part series, Richard Brown looks at how residents can engage in the Licensing Act regime and the information that should go into their representations.
How can residents become aware of licensing applications?
The Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005 set out the requirements:
- by the placing of a pale blue notice at, on or near the premises
- placing an advert in a local newspaper
- applications can also be viewed at local authority offices or on their website
- some authorities notify residents in the vicinity of the premises, or notify recognised residents’ associations and amenity societies. This has been the subject of recent litigation in the High Court.
Timescales
The representation must also be made within the ‘prescribed period’ – 28 consecutive days starting on the day after the day on which the application was given to the licensing authority – and not be frivolous or vexatious.
Representations must be made in writing. Representations can be accepted by email but a hard copy must follow ‘forthwith’. As representations must be received by the end of the statutory 28-day period, it would be a sensible to send a representation by email in the first instance if there is insufficient time for a postal letter to be received by the local authority before the expiry of the 28-day period, then send a postal copy forthwith.
The question of whether a licensing authority has a discretion with regard to late representations was examined by McCombe J in R (oao Albert Court Residents’ Association and Ors) v Westminster City Council [2010] EWHC 393 (QB). The judge decided that there was no such discretion. However, he decided that the residents had a “legitimate expectation” or being notified, and quashed the grant of the licence.
The case has wider significance for local residents as it may cause local authorities which currently take positive steps to encourage residents to engage with the licensing regime in this way, or are contemplating doing so, to cease to do so. This increases the onus on local residents to be vigilant to changes which may have a detrimental impact on the communities in which they live. The decision is being appealed.
Representations can be withdrawn before or at the hearing.
Representations by interested parties to licensing applications
An interested party is defined in Licensing Act 2003 as:
- a person living in the vicinity of the premises in question
- a body representing persons living in that vicinity (eg a Residents’ Association)
- a person involved in a business in that vicinity
- a body representing persons involved in such businesses (eg a Trade Association)
- a local councillor
One of the Home Office consultation questions seeks views on making community groups ‘interested parties’ under LA03.
Representations are disclosed to the Applicant. In cases where an interested party has a fear of intimidation or violence if personal details are divulged, and the licensing authority considers such fears to be genuine, remedial measures can be considered. Examples are providing responsible authorities with details of the issues so that they may make representations if appropriate and justified or only divulging those personal details necessary for the applicant to be satisfied that the interested party is within the vicinity. Some local authorities redact personal details.
What constitutes ‘vicinity’ is a question of fact and degree, dependent on local knowledge and is therefore best left to the local authority to decide. (R (4 Wins Leisure Limited) v Licensing Committee for Blackpool Council, Brook Leisure Blackpool Limited and World Wide Clubs (UK) [2008] LLR 128).
Licensing authorities can chose to designate an area outside which representations will not be considered to be ‘in the vicinity’ although it is recommended that this only be a guideline. However it should be noted that the current Home Office consultation proposes abolishing the ‘vicinity’ requirement and making it easier for communities to have their say on local licensing by allowing local authorities to consider the views of the wider community, regardless of an individual’s geographic proximity to the premises in question.
What information should go into a representation?
A representation can be made in support or against an application. To be relevant, the representation must be about the likely effect of the grant of the licence/certificate (or of the application to vary) on at least one of the licensing objectives.
The representation needs to state the name of the premises and the reference number of the application, and the name and full postal address of the person making the representation, and the grounds on which he/she wishes to make the representation, ie which licensing objective(s). It is a good idea to obtain a copy of the application from the local authority. A resident may be able to see from the local authority’s Register if any problems have occurred at the premises in the past eg if a similar application has been refused in the past or if the premises licence has been reviewed. Perusing the application will allow the resident to see precisely what is sought, and any measures proposed to alleviate or minimise any potential problems. It is a good idea to peruse the licensing authority’s Statement of Licensing Policy.
It helps to keep a record of any problems you have experienced in the past, with times and dates, as more effective representations will be evidence based and premises-specific. It is important to show that the problems experienced relate to the premises in question. It is also important to consider any conditions which could be attached to the licence to ease concerns, or if the only remedy is outright refusal of the application.
It may be an idea to gather a petition, with names and addresses, stating clearly the nature of the objections. It may also be useful to speak to your local Residents’ Association or similar. Councillors may also provide help and assistance (including at the hearing) if necessary. Residents’ Associations may inform people living close to the premises or publicise the application in some other way and can be a useful way of coordinating opposition.
The Licensing Sub-Committee (which hears the application) will need to have details of the problems that residents experience now and what problems it is anticipated will occur in future. They should describe what causes the noise and disturbance (eg people shouting, fighting, leaving rubbish outside the pub, litter problems in the surrounding area). For instance, if litter, public urination and noise makes the neighbourhood less pleasant to live, then say so. If the noise keeps residents awake, they should describe how late it goes on until, how often in occurs and the effect on them (eg they have to keep windows shut in summer or turn up the TV). Photographs, video and sound recordings are very useful to evidence concerns.
It is an offence knowingly or recklessly to make a false statement in connection with an application.
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 one, explaining how residents can get involved in shaping the night-time economy in their communities, can be downloaded here.
Part three of this series will look at hearings and appeals.
