Transcript Licensing Update - Cornerstone Barristers

LICENSING UPDATE
Cardiff City Hall,
Monday 17 September 2007
by
Alun Alesbury
Introduction
Local Authorities in Wales and England have a number of licensing
functions under various statutes – some of them obscure.
But there is little doubt that the two most important and topical
nowadays relate to:
Alcohol and Public Entertainment – LICENSING ACT 2003
Gambling in most of its forms – GAMBLING ACT 2005
Both these licensing regimes involve a relationship between local
authorities and the owners or occupiers of the relevant properties in
their areas – in common with the other themes of today’s seminar.
LICENSING ACT 2003
GAMBLING ACT 2005
Both are UK-national in application. There is no
devolution of these matters to the Assembly Government.
The same legislation and guidance from the DCMS (and
in the latter case the Gambling Commission as well)
applies here in Wales as it does in England.
Both areas have experienced new and significant
development in the last few months:LICENSING ACT – New revised statutory guidance
.
issued 28th June 2007
GAMBLING ACT – Entirely new regime in effect from
1st September 2007.
LICENSING ACT 2003
Let’s briefly recall what it covers, as it affects premises or land:
Alcohol sales – “on” or “off” type licences, with or without food
Theatres
Cinemas
Indoor sporting venues – but not most events in “outdoor stadia”
(which include ones with sliding roofs like in Cardiff)
Boxing and wrestling venues – indoor or outdoor
Live or recorded music venues
Dance venues
Other analogous entertainment venues
Late night refreshment (after ll pm), even without alcohol
LICENSING ACT 2003
‘New’ system fully in operation now for almost 2 years. Is the
general feeling that, in spite of much fevered speculation and press
‘hysteria’ before it came in, it has for the most part bedded down
and operated not too badly? What is the view in Wales?
Some parts of the new system nevertheless probably haven’t been
used enough yet to know how they will really work, e.g. –
 Powers to review (and possibly reduce) scope of licences in
light of actual experience at or outside particular premises.
One such area of experience might of course be Alcohol Related
Disorder, e.g. on city streets (and at later hours than before) – still a
matter of public and media comment.
LICENSING ACT 2003
What does the new (28th June 2007) Statutory Guidance have to
say?
Not revolutionary – does not for example try to change the four
statutory “Licensing Objectives” –
•
prevention of crime and disorder
•
public safety
•
prevention of public nuisance
•
protection of children from harm
But it does have new things to say relevant to some of them.
LICENSING ACT 2003
DCMS Guidance 2007
N.B. Licensing authorities must have regard to the new Guidance
in exercising their functions, and notably in considering and
reviewing their own licensing policies.
Cumulative impact/Licensing hours – there has been a change
of emphasis here. Even before the new system was up and
running in autumn 2005 the politicians in DCMS were forced to
issue a qualification to what was being taken (probably wrongly)
by the media as a ‘free for all’ approach to licensing hours and
premises under the new legislation.
Now the formal guidance adopts elements of a new approach –
but in quite a measured way – on the two emotive topics of
Cumulative Impact and Licensing hours
LICENSING ACT 2003
DCMS Guidance 2007
Cumulative Impact:
Although the original guidance did address Cumulative Impact as a
concept, it was very insistent on the mantra that flexible hours
would assist dispersal and tend to reduce the problems associated
with old fashioned standard ‘closing times’.
The 2007 Guidance (e.g. at 13.25) recognises that in spite of
flexible hours there may still be problems arising from a
multiplicity of licensed premises, leading to problems of conflict
and disorder, possibly at some distance from individual premises. It
recognises that this is more likely in town/city centres.
What can be done about it?
The New Guidance (13.29) is much freer than the old in allowing
for special policies which can have a rebuttable presumption
against any new licences in a problem area, unless the would-be
operator can demonstrate no negative cumulative impact.
Licensing Hours
Again the emphasis has changed (New Guidance 13.40 – 13.42).
Flexible hours are now recognised as only ‘in some circumstances’
helping with dispersal. But the advantages they give to customers
of greater choice and flexibility are now expressly to be ‘balanced
carefully’ against the four licensing objectives and ‘the rights of
local residents to peace and quiet’.
How much effect will this have?
We must wait and see.
In practical terms it is only going to come up on
new applications, or applications to vary existing
conditions, unless licensing authorities embark on
wholesale campaigns to change things in their
town centres through the review process.
THE GAMBLING ACT 2005
This is a major new piece of legislation – substantially changing all
that went before.
And it has just come fully into effect on 1st September 2007, with
major new duties imposed on local government.
Parliament, or the Government, borrowed heavily from the
Licensing Act 2003 in framing the Gambling Act, with concepts like
personal and premises licences, licensing objectives, interested
parties, responsible authorities, etc. But there are some quite
significant differences, as I go on to discuss.
GAMBLING ACT 2005
First though, what does the Act apply to?
Not just the ‘Super-Casino’ debacle, which received so much
national publicity [and no doubt local too, in the places concerned].
Not even just other ‘less than super’ casinos.
Also covered are:
Bingo establishments
Gaming Machines
Arcades
Lotteries
Remote gambling
Betting (shops and on track)
Most (but not all) of these now involve the local authority as
licensing authority – in respect of premises licences.
GAMBLING ACT/LICENSING ACT
Important Differences
Under the Gambling Act, it is only premises licences which are
issued by the local authority.
Personal licences are isued by the Gambling Commission.
And much more important, Operating Licences must be obtained
from the Commission by the organisation or company running any
gambling enterprise.
This talk today however concentrates on the local regime which
local authorities have to operate – i.e. premises licensing.
But it is important to note that, under this Act, it is the Gambling
Commission which is statutorily required to publish Guidance
which local licensing authorities are required to take note of. This
it has done – the latest (2nd) version being that of June 2007.
THE GAMBLING ACT 2005
at the local level:
Familiar features:
Statutory ‘Licensing Objectives’ which have to be considered:
a)
b)
c)
Gambling to be free from crime/disorder;
Gambling to be fair and open;
Protection of children and the vulnerable.
But decisions on gambling licences only have to be ‘reasonably
consistent’ with the objectives.
Local authorities required to have produced a licensing policy
statement, and to set up a licensing committee.
Local licensing authorities must consult ‘responsible authorities’
about applications, and consider their representations, along with
those of ‘interested parties’.
THE GAMBLING ACT 2005
at the local level (cont’d):
Key differences from the Licensing Act:
1. Licensing authority can reject a premises licence application,
even if no one has objected to it or made representations about
it.
2. The responsible authorities to be consulted include the licensing
authority itself – i.e. the council as licensing authority is allowed
to take a view on an application, not just to be an adjudicator.
This is no different of course from what a council does as a
planning authority (but very different from what is allowed under
the Licensing Act). It remains to be seen how the courts will
view these two conflicting roles of ‘adjudicator’ and ‘partisan’ in
the (gambling) licensing context.
Key differences (cont’d)
‘Interested Parties’
The slightly troublesome terms ‘living in the vicinity’ and
‘involved in a business in that vicinity’ (in the Licensing
Act) have been replaced by:
•“lives sufficiently close to the premises to be likely to be affected
by the authorised activities” ; and
•“has business interests that might be affected by the authorised
activities”.
These seem sensible changes, and could with advantage
be used to amend the earlier (Licensing) Act.
So how is the transition going?
Any pre-existing operator requiring a premises licence under the
new regime should have applied by 31st July – but if it did so will
be able to carry on during the remaining currency of any relevant
previous permit or licence until the Licensing Authority has
determined the new Act application.
Any new operator from 1st September 2007 onwards must go
entirely through the new regime.
It is too early to say how well this is all proceeding in practice – but
it would be interesting to hear if anyone has any views (or news) on
this.
Alun Alesbury