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National Organisation of Residents Associations |
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Introduction
NORA welcomes the government's wish to redress the imbalance in the 2003 Licensing Act and the Guidance that accompanies it. The bias in favour of applicants for licences has distorted the licensing process at the expense of the community,
and we look forward to the government's proposals designed towards restoring the ′Equality of Arms′ that existed with the previous licensing act.
Answers to Questions
The major impact would be on the ability of Licensing Authorities (=LAs), in spite of there being no valid representations, to ensure that the proposals are compatible with the relevant local Licensing Policy and so be able to impose appropriate conditions on premises licences omitted from applications that are necessary in order to benefit the four licensing objectives. At present they are specifically prevented from doing so by the legislation. Accordingly why not use the Guidance to encourage Environmental Health Officers to consider making representations in order to ensure that the conditions on a licence meet the criteria in the local Licensing Policy until the legislation in the Act can be changed? Conclusion: Make licensing authorities ′responsible authorities′ as a long-term aim, but use the Guidance to persuade Environmental Health Officers to make representations when applications do not meet the conditions in the local Licensing Policy. The inability of objectors to satisfy the level of proof for their evidence has meant that legal advice often given to licensing committees is to ignore pleas from residents and their groups. In particular advice given to LA committees by legal officers to ignore substantial anecdotal evidence from interested parties can seriously undermine their representation. The lack of documented proof is often compounded by police licensing officers using the Data Protection Act to refuse to provide factual evidence on crime, disorder and anti-social behaviour in respect of particular premises. Beat data may be provided but it does not meet the requirements for hearings. Removing the requirement to prove, that any imposed conditions are ′necessary′ to promote the licensing objectives, will, however, reduce the involvement of the courts in argument over the relevance of the term ′necessary′. Conclusion: Reduce the burden of proof expected of LAs, and ensure that police data for adverse events for streets and for licensed premises are available to the public. An important procedure that could resolve numerous difficulties in the licensing process would be to ensure that all applicants for licences provide an impact study with their application to show that adequate and constructive pre-application discussion has taken place with all relevant stakeholders, who might be adversely affected by the proposals. This should always include residents and their groups, if they are relevant. Often such discussions take place with the police licensing officer and environmental health officer, when they have concerns over a licensing application, but that this has occurred is often not revealed until a hearing takes place. If such discussions were held openly, so that all parties were aware of them, much needless confrontation and argument could be avoided. Licensing officers should advise applicants on the relevant residents and associations they should consult. The third licensing objective - the prevention of public nuisance - does not appear to be included in the Consultation Paper as a separate subject for appraisal. The likelihood of public nuisance developing as a result of a new premises licence or a variation to an existing licence may be considered a matter of serious concern by residents and their groups, and this concern is the commonest reason for their representations. Adequate and early pre-application discussions with residents could allay such fears and, if successful, this procedure could avoid the need for a hearing. Police licensing officers are properly concerned primarily with the first licensing objective, the prevention of crime and disorder, but too often they appear to be prepared to ignore the third licensing objective, so that appropriate evidence is not provided either to interested parties or to the licensing committee. Licensing applications are not infrequently incomplete, and the Guidance could be used to emphasise that incomplete applications should be rejected especially when the section on the four licensing objectives is not completed or not adequate. Conclusion: Include with licensing applications an impact study with evidence of pre-application discussions with all relevant parties including interested parties. The Guidance could advise the rejection of applications that are not properly completed. The police licensing officer is only likely to submit a representation when pre-application discussions to resolve concerns held by the officer are not resolved to the officer's satisfaction. To deny the applicant the opportunity to rebut the police's representation would also be denying the right of other parties to support or rebut the police proposals. If it were appropriate for the police's representation to be paramount, why should this privilege be restricted to the police? Where there is dispute, it is proper for it to be discussed openly, and the decision taken by the LA explained and justified. To make the proposals from the police licensing officer pre-important could effectively demolish representations from interested parties, because applicants could claim that because the police have no concerns, the LA should ignore any representations from interested parties. Conclusion: Do NOT include this proposal as it is unfair both to the applicant and adding a privilege to one party to the licensing process, and could undermine the representations of residents. The method of advertising licensing applications is based on the system that operated under the 1964 Licensing Act. For the applicant to place appropriate notices on the relevant premises is open to abuse by siting the Blue Notice so that the public do not see them. They may be inadequate and therefore illegal. Such advertisement is necessary, but it should be the responsibility of the LA to display the notices in a prominent public site and ensure that it is legally complete, a method used in planning applications. The publication of applications in the local press is expensive for the applicant and rarely seen by the public. The LA should supply relevant data to the local press - if there is one - so that a weekly notice is published usually in the form of an article, which is more obvious to the public, and is the method used by planners. Some planning authorities also circulate notices of planning applications to residents and businesses neighbouring the relevant premises although it is not mandatory, but it does represent good social practice. These three methods of changing the method of advertisement would encourage greater involvement of the public and residents. The mandatory involvement of resident groups in pre-application discussions would ensure public engagement, but obviously it would only apply if there were residents likely to be affected by the licensing application. The LA should be able to advise applicants which residents and which groups they should consult. A third way of involving community groups in the licensing process would be to expect LAs to produce an agreed vision of the night economy in their area. This would enable resident groups to contribute to the local licensing and planning policies and would alert everyone to the kind of standards which were desired and expected in the area. Conclusion: Make the impact study essential, and ensure that pre-application discussions with all relevant parties take place prior to the submission of a licensing application. Oblige LAs to produce an agreed vision for the night economy in their area and include local community groups in the discussions. These measures could be introduced in the Guidance. The total removal of the requirement for interested parties to show ′vicinity′ could be counter-productive, since it might then attract representations from interested parties with no clear involvement in the application. Unfortunately the legislation on vicinity allows LAs to define vicinity, with the result that it can be used to restrict the right for interested parties to submit representations even though they can provide evidence that the application would affect them. When a review of a licence is requested, however, the guidance allows representations from interested parties who need not be in the vicinity, however defined, as long as they can show that the licensed premises affects them. This allows representations from interested parties, for example, on recognised routes used by patrons travelling to and from the relevant licensed premises. Licensing magistrates under the 1964 Licensing Act allowed representation by those who could claim that the application could affect them, and NORA considers this the most fair and the simplest method of determining validity for representations. Conclusion: Define the status of interested parties as being able to show there is likely to be an effect on the interested party by the licensing application proposals. Do not remove the relevance of vicinity without replacing it with this definition, but do not leave it as it is, because it is discriminatory and unfair to interested parties. This too could be introduced in the Guidance. In NORA's opinion the involvement of health bodies in individual licensing applications is inappropriate. The data regarding acute incidents and chronic illness related to the excessive consumption of alcohol is of great value in deciding whether there is a serious health problem in the area of the LA. In our opinion reports from health bodies should therefore be relevant to the local licensing policy, and such data may also be relevant in making a decision to designate an area a Cumulative Impact Zone in order to protect the health of the public in their area. On the other hand even when the health authority knows which licensed premises are at fault, unless a serious crime has been committed, the ethics of confidential information involving a third party prevents this information being released. So health bodies are unlikely to be prepared to make representations in individual licensing applications. Conclusion: Reports from health bodies are relevant to licensing policy and are unlikely to be relevant to individual licensing applications. They should be sought with the intention of using them to inform the local Licensing Policy, so that the availability of alcohol can be restricted by the LA if the local health data supports that measure. If ′the prevention of health harm′ were to become a fifth licensing objective, it could provide justification for LAs to impose conditions to ban both promotional on-sales of alcohol such as ′happy hours′, ′two for one′, and off-sales of discounted alcohol when bought from retail and wholesale outlets. The grounds for this would be to deter both binge drinking on licensed premises and excessive drinking of alcohol at home. It could also be used to justify earlier closing times on the grounds of ′health harm′ to residents, whose sleep is so disturbed by street noise and nuisance as to cause stress and depression. Conclusion: The addition of ′the prevention of health harm′ as another licensing objective would provide a method of reducing alcohol consumption by those who drink excessively, and also provide an option to ensure peace and quiet in residential areas seriously affected by the night economy. Interested parties have to be residents or businesses, which might mean that schools, religious bodies, youth bodies, civic societies, etc. are excluded from making representations. Some LAs already recognise the importance of these other groups and accept their representations as ′interested parties′ by extending the term ′businesses′ to include them, so legislation may not needed. The Guidance could simply indicate that such groups should be considered as businesses, and provided they can demonstrate the proposals could affect them, they could be included as making relevant representations. Conclusion: By indicating in the Guidance that the definition of interested parties can include schools, etc., would ensure that such organisations would be able to make representations. In NORA's opinion Magistrate Courts should only refer licensing appeals back to LAs to allow a reconsideration of their decision when it is clear that there is new evidence or the evidence has been mis-judged. When the evidence presented to the magistrates is identical to that presented at a hearing, there is no point in sending it back to the LA, since the same decision is likely to be taken. NORA's major concern regarding appeals to magistrates' courts is the omission of ′interested parties′ as having a right to participate in appeals by applicants. In Schedule 5 of the 2003 Licensing Act specific mention is made in para. 9(3) of the right of the holder of the premises licence to be the respondent when an appellant is a person who made relevant representations, but no mention is made of a right of an ′interested party′ to be a respondent when the appellant is an applicant. This can be particularly important when the LA decision on a licensing application is based on the evidence given by residents at a licensing hearing, and there is no right for the residents to ensure their evidence is presented effectively. If this were to be rectified, then the ′Equality of Arms′ would be enhanced. Conclusion: The proposal to remit all appeals back to LAs would not be a helpful or fair procedure, but if the procedure of appeals can be modified in the proposed Bill, we would seek an additional sub-section to Schedule 5 para.9 so that it reads: 9 (5) On an appeal under paragraphs 2(2), 3(2)(a), 4(2), 8(2)(a), 8(2)(b), 8A(2)(a) or 8A(2)(b) and when relevant representations have been made by residents, such residents or their representatives are to be respondents in addition to the licensing authority. There are two conflicting issues with this proposal. The current situation whereby the breach of the licensing consent is allowed to continue until an appeal is heard means that those suffering from the breach may have to endure it for several more months before the appeal is decided. This facility can also lead to abuse by some licensees, who continue their breach for commercial reasons such as the advent of Christmas, for example, and then after the event they may withdraw their appeal knowing they would lose it. On the other hand, if the licensee had to observe the LA's decision as soon as it is determined and then the licensee wins his appeal, claims for substantial damages could follow. Accordingly it is NORA's opinion that there is good reason to enforce instantly the decision made by the LA to resolve the first problem, but it must only be on the understanding that an appeal would be heard within a week (or 48 hours) as is the practice when the police licensing officer or a trading standards officer uses his power to close a licensed premises. Conclusion: this proposal would only be fair were it to be followed by an urgent appeal process similar to that provided when closure by the police is ordered. A key issue for residents is the problem of street noise, nuisance and fouling at night. The 2003 Licensing Act lays emphasis on the exclusion of liability of licensees for problems created by their patrons after they have left the licensed premises. The argument that if the premises were closed, their patrons would not be in the street in the middle of the night and disturbing the peace and quiet of residential areas to the detriment of the environment, is currently ignored in any discussions on the night economy. Accordingly the EMRO could provide a remedy for the problems of late night street ′adverse events′. Noise from the premises can be covered by existing legislation, but sadly there is currently no adequate legislation to manage street noise and nuisance. In general police licensing officers concerns are primarily and often solely directed at the first licensing objective of ′the prevention of crime and disorder′. This may explain the absence of this subject in this Consultation Paper. NORA considers EMROs as a helpful measure that could satisfy the concerns of residents currently disturbed by ′adverse events′ at night directly attributable to alcohol consumption in their locality. Limiting the restriction of closing hours to 3 am to 6 am due to come into effect in the autumn is inadequate since the problems usually start shortly after midnight. So NORA would seek an extension of this measure from the 3 am to 6 am period to 12 midnight to 8 am in order to cover the usual period when most residents are hoping to fall and stay asleep. Conclusion: EMROs are supported and should be modified to suit the differing situations in each area under the aegis of LAs. Since no local authority has introduced an Alcohol Disorder Zone, it is quite clear that they are ′not fit for purpose′. The usual reasons given appear to be that they are both difficult to set up and even more difficult to monitor. So NORA has no concerns if this order were repealed. Conclusion: They have not been implemented, and the legislation can be ignored and even repealed if necessary. If this proposal applies to the LA's arguments regarding the setting up of a CIP, especially when requested by the local community, this would remove an important disincentive. The suggestions made in the answer to question 1 would avoid the need for representations from other parties to justify a hearing. Conclusion: This would both simplify the licensing regime and reduce the costs of the process. The cost of the night economy is not limited to the cost of policing. There is the cost of managing the refuse and street fouling, which falls on the Environmental Health Department of the local authority, the cost of the damage and disturbance caused to the properties of residents and businesses, the cost to the Accident & Emergency Departments of the NHS from injury and illness secondary to alcoholic intoxication, the cost of any legal action taken as a result of ′adverse events′ and then the cost of any reviews of licences that might eventually follow. It is only fair that these costs should be borne by those supplying the alcohol refreshment to patrons that are responsible for the ′adverse events′. So a late night levy should not just cover the cost of policing. The costs of these ′adverse events′ vary from area to area, so each LA should be entitled to decide the charge under the levy. Such a levy needs to take account of several factors including the number of hours the premises are open after midnight, the capacity of the licensed premises, the nature of the licensed premises - restaurants and hotels are far less likely to be the cause of ′adverse events′ - and whether there are any extenuating circumstances such as membership of PubWatch and other appropriate bodies, which could moderate the charge. Conclusion: It is only fair and reasonable for the polluter to pay, so a late night levy on licensed premises and late night refreshment facilities should be imposed to cover the likely costs both of policing and other expenses, and then regulated by the LA. Conclusion: Good and responsible behaviour and management should be rewarded. Conclusion: Yes The convincing evidence from the European Community (reference: ′Binge Drinking and Europe′ http://www.dhs.de/makeit/cms/cms_upload/dhs/binge_drinking_report.pdf ) clearly shows that three simple and inexpensive measures reduce alcohol-related crime. They are ′taxation′, ′restricted access′ and ′controlled advertising′ of alcohol. Reducing opening hours is only one way of reducing the availability of alcohol to reduce alcohol-related crime. In addition a reduction in the number of outlets selling alcohol, increasing the cost of alcohol and restricting the advertisement of alcohol particularly aimed at the young similar to the restrictions on the advertising of tobacco products and for the same reason are all measures that could be introduced some by local authorities but others by central government not only to reduce alcohol-related crime but also in the interest of reducing harmful alcohol use. Conclusion: Three measures are needed. Reduce the availability of alcohol by limiting the hours for off-sales to normal shopping hours to 900 to 2000 hours and allow LAs the power to agree policies to limit the hours of opening of all licensed premises: Tax the alcohol adequately. Control the advertisements of alcohol and ban alcohol advertisements directed at the young. a. All the responsible authorities can object to a TEN on all of the licensing objectives? b. The police (and other responsible authorities) have five working days to object to a TEN? c. The notification period for a TEN is increased, and is longer for those venues already holding a premises licence? d. Licensing authorities have the discretion to apply existing licence conditions to a TEN? TENs are quite unfair and allow abuse. The whole system either needs major revision or repeal. It was originally intended to allow village halls, church halls and similar organisations to hold events at short notice without the need for an enduring premises licence. This mechanism has been abused by some landlords of licensed premises in order that conditions imposed on their premises licence can be ignored, by some 18 year-olds with no experience in managing alcohol-fuelled events, and promoters forming consortia to take advantage of different adjacent sites all to the detriment of the environment and neighbouring residents. What is missing from the current scheme is involvement of ′interested parties′. While most TENs do not disturb residents, those that do come without adequate warning and most importantly without any means of preventing the problems that are predictable. Item (d) is vital to ensure that the conditions on existing premises licences are not breached by using a TEN. That a TEN can last a continuous 96 hours can cause considerable distress if it is in a residential area, and the conditions that control the noise and nuisance from licensed premises can be ignored by the applicant. It is also patently absurd to allow an 18 year old with no experience in managing the sale of alcohol to be allowed to apply for a TEN. There must be a more suitable definition of the applicant, and perhaps it should be confined to personal licence holders. Conclusion: There are several possible solutions to these problems, all presumably needing legislation. a. Reducing the number of TENs that can be applied for by a personal licence holder to 12 per year? Conclusion: This should reduce the number of ′adverse events′ in a neighbourhood, but condition 19d would avoid the need to reduce the number from 15. b. Restricting the number of TENs that could be applied for in the same vicinity (e.g. a field)? Conclusion: The number of TENs designed to abuse the facility may be small, but when it occurs it can be disastrous. A condition needs to be introduced to prevent different parts of premises, whether a field or a building, being the subject of simultaneous or contiguous TENs. Conclusion: TENs need to be more simply managed and abuse prevented. Part 8 of the 2003 Licensing Act deals with the Closure of Premises. Section 169A dealing with the closure notices for persistently selling alcohol to children is separate from Section 161, which deals with closure for reasons of suspected disorder or public nuisance due to noise from premises. In NORA's view the persistent selling of alcohol to those underage is of similar seriousness as the two other reasons for closure by police, and therefore it should be included in the list in 161 (1) as 161 (1) (c). It would be necessary to add ′the inspector of weights and measures appointed under Section 72(1) of the Weights & Measures Act 1985′ to the list of relevant persons for this particular reason for a closure notice. All the subsequent measures associated with closure in 162-170 excluding 169A and 169B would then apply. The closure for 48 hours should allow time for the introduction of an adequate method of ceasing to supply alcohol to children, and if this fails then permanent closure is required and instituted by a review to revoke the premises licence. Revoking the licence of the designated licence holder would not prevent a replacement designated licence holder appearing the next day to take over the licensed premises. Conclusion: Delete sections 169A and 169B and include ′persistent selling of alcohol to children′ in Section 161 (1) as 161 (1) (c) in the 2003 Licensing Act. Voluntary closure is not an appropriate measure for such a serious offence. It must be mandatory and can be quite short in order to provide the opportunity for a rapid change in the process of selling alcohol which would stop such sales. If the suggestion made in answer to question 21 is accepted, an urgent appeal mechanism would allow the change in practice to be assessed. If none was organised, permanent closure could follow. It would be advantageous if this measure could be advertised in the Guidance. Conclusion: By including ′persistent underage selling′ as a reason for immediate closure in Section 161, closure would not be ′voluntary′. Mandatory closure for 48 hours associated with an urgent appeal process would be more appropriate for this serious offence. Review would follow under the regulations in Part 8 once this offence was included in Section 161. Conclusion: By including ′persistent underage selling′ in Section 161 and providing a speedy appeal would make the process simpler and more effective. a. Simple and effective ways to define the ′cost′ of alcohol b. Effective ways to enforce a ban on below cost selling and their costs c. The feasibility of using the Mandatory Code of Practice to set a licence condition that no sale can be below cost, without defining cost. By far the easiest and simplest way to cost alcoholic refreshment for the purpose of reducing excessive consumption is to relate the cost to the alcohol content. There could be no argument about selling below cost. The average adult with a normal liver metabolises 15 mls. ethyl alcohol in an hour, and that is an appropriate unit of measure. If such a unit were to cost no less than £1, then a pint (568 mls) of beer with a 4% alcohol content c ontains 22.7 mls of alcohol and would cost no less than £1.50; a 125 mls glass of a 12% alcohol wine contains 15mls of alcohol and would cost no less than just £1. A bottle of wine - 750 mls of 12% alcohol - contains 90 mls. of alcohol and would cost no less than £6. A bottle of vodka - 750 mls of 40% alcohol - would contain 300 mls. of alcohol and would cost no less than £20. These prices are far less than those charged for on-sales in licensed premises, but much more than those charged for off-sales in supermarkets, where most underage purchases are made. Also supermarket off-sales are recognised as being mostly responsible for the ′priming′ of those going out for a night's ′entertainment′. This method of increasing the price of alcohol ensures the extra charges go to the licensed trade, whereas it would be more appropriate for it to go to the Exchequer. Conclusion: Make it illegal to sell alcohol at less than £1 per 15 mls of alcohol. This pricing would need to respond to inflation. The fees charged for licences bear little or no relationship to the cost of managing the in-house licensing regime and certainly fail to cover the cost of supervision and monitoring. The fees should cover entirely the cost of management of the whole licensing process. It is not appropriate for any cost of the licensing process to fall on the council taxpayer. Conclusion: Fees for licensing applications and annual fees for licences must relate to the local relevant cost of running the service. NORA fails to understand why a licence remains in place even when the relevant fees have not been paid. If the premises licence were to lapse on the day after the last possible date for payment, then it would be paid promptly, and there would no need to chase the defaulter. Conclusion: Yes, it is entirely appropriate to cancel an unpaid premises licence the day after the closing date for payment when payment has not been made. Conclusion: No valid conclusions can be drawn from such a short period of implementation. NORA sees EMROs as an important helpline for residents, so repeal of any of its mandatory conditions would be regarded as a serious retrograde step. If government has concerns for the well-being of the community, it is vital that it accords adequate respect for residents, who comprise the electorate and the Big Society, and does not give unreasonable licence to those seeking to sell alcohol to one minor section of the community at the expense of everyone else. Conclusion: NORA is opposed to repeal of any of the mandatory conditions. NORA has a wish-list of changes to the 2003 Licensing Act, which would ensure an even fairer balance of power than the Consultation Paper provides. Of the several changes NORA desires, three stand out, while others have been included in the other answers. The first item is the problem of conflicting consents. For example, a property may have imposed upon it a planning condition limiting the hours of use, but it can acquire a premises licence which allows use for hours outside those of the planning condition. The planning condition over-rides the consent granted by the premises licence, so applicants wishing to implement the extra hours of the premises licence have then to seek a variation of the planning condition. If refused, an appeal to the Planning Inspectorate may follow, the whole process taking months to complete with consequent costs and time wasted by all the parties involved. If it was known that any planning condition affecting the use of a property would be included in any premises licence granted, then wise applicants would seek a planning variation before submitting a licensing application. Conclusion: The wording of paragraph 13.65 in the Guidance could be altered slightly to emphasise that a premises licence should not conflict with the conditions imposed on an existing planning consent. It would save every party in the licensing process time, energy and costs. Conclusion: allow LAs to reject repetitious licensing applications that have been refused. The third deals with the provision of Late Night Refreshments, which is not mentioned in this consultation paper. NORA understands this matter is in the remit of the Home Office, and we would wish to present suggestions for improvements to this section of the Act. NORA sees the role of both licensing and planning regulations to be to facilitate development whilst ensuring the environment is protected. If that caveat were unnecessary because all development was perfect, regulation would not be needed. Because the environment needs protection, regulation is vital, so any de-regulation of the act would need to be carefully balanced. Defects in the Act
NORA has always considered it extra-ordinary, discriminatory and inconsistent that there are four excellent licensing objectives designed to make licensed venues
safe and acceptable to the community, yet the Licensing Act has two sections devoted to licensed venues which specifically exempt them from respecting them.
The exemption of non-commercial lotteries (Section 176) and certain other events (Schedule 1, Part 2) from requiring any sort of licence is easy to understand
since the four licensing objectives are not relevant to them. That TENs have only to satisfy the ′prevention of crime and disorder′ licensing objective,
and that events at small licensed venues need only satisfy ′the prevention of crime and disorder′ and the ′public safety′
licensing objectives appears incompatible with the aims of the licensing act. The presumption that the other licensing objectives are not relevant
for these two licensed venues is nowhere explained. NORA has always had concerns for the effects these venues have on its members and the hazards to
which those attending these venues are exposed. The chance to highlight these concerns has now arisen with this opportunity
to suggest that there are two sections of the 2003 Licensing Act involving the sale of alcohol that could be repealed,
and would provide substantially better protection for all sections of the community.
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