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Licensing Act 2003: 2012 update

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licensing act 2003

26 April 2012: Licensing application conditions: Changes to the Licensing Act 2003

In the third of our series, I will consider the burden of proof that Licensing Authorities will have to apply when determining Licensing applications and imposing conditions on Licences.

Currently, Licensing Authorities are only able to take a particular action if it is deemed “necessary” for the promotion of licensing objectives.  This wording is being amended so the Licensing Authority can make a decision if it is deemed “appropriate” for the promotion of the licensing objectives.

This has lead to a lot of debate about what in practical terms that difference will mean for example can it be appropriate to impose a condition on a Licence if it is not necessary?  Doubtless, these finer points of the Law will be ironed out by the Courts in due course.  The Governments thinking about this amendment, however, is that Licensing Authorities should be able to apply a lower evidential burden when deciding what conditions should be imposed on Licences.

For more information, please contact our Alcohol & Entertainment Licensing team on 01332 340 211.

24 April 2012: Temporary event notices: Changes to the Licensing Act 2003

Under the reforms being introduced, it will now be possible for all four licensing objectives i.e. crime and disorder, public nuisance, public safety and the protection of children from harm to be considered when assessing the likely impact of a temporary event notice.  Previously it was only the crime and disorder licensing objective that could be considered.  Both the Police and Environmental Health Officers as responsible authorities will now be able to object to a temporary event notice under any one of these licensing objectives whereas previously it was just the Police who could only object on the grounds of crime and disorder.

When an objection is received in relation to a temporary event notice conditions may now be applied to the event if the authority considers it appropriate for the promotion of the licensing objectives to do so.  This can however only be done if those conditions are also on the Premises Licence or Club Premises Certificate and have effect in respect of the same premises as the temporary event notice.  Previously, it was not possible for conditions to be attached to a temporary event notice which leads to temporary event notices being used as a mechanism for getting round conditions on a Premises Licence.

At the moment, licensees frequently run into difficulties with temporary event notices by failing to appreciate when they may be required and then making application for them out of time sometimes leading to events having to be cancelled.

Time limits relating to the submission of temporary event notices may now be relaxed.  As well as the “standard” temporary event notice which must be served on the licensing authority, the Police and Environmental Health ten working days before the first day of the event there will also be a “late” temporary event notice.  The “late temporary event notice” may be submitted between five and nine working days before the first day of the event.  However, if objections are received the event will not be permitted to go ahead and there will not be any right of appeal against this decision.    The number of late notices which can be given in any one year will be limited to 10 for Personal Licence Holders.

The permitted duration of activities under a temporary event notice will be increased.  A single event will be permitted to run for a maximum of 168 hours (seven days) as opposed to the current 96 hours and the maximum number of days a single premise can be used for events over a calendar year will be increased to 21 from the current 15.  Other restrictions relating to temporary event notices such as only being permitted to hold 12 events at premises in a calendar year will remain unchanged.

There will be a new form of application.

For more information, please contact our Alcohol & Entertainment Licensing team on 01332 340 211.

13 March 2012: Licensing Act 2003 changes due in 2012

Live music

The much-anticipated deregulation of live music comes into effect today. This means that performances of live music between 08.00 and 23.00 will not require permission. For amplified music, the audience can be a maximum of 200.  For unamplified music, there is no restriction.  The final revised guidance is not yet out but it seems, possibly unintentionally, that karaoke may also become deregulated.

Early Morning Restriction Orders

This is the power for Local Authorities to consider a restriction on opening hours of anywhere between 12.00 midnight and 06.00 in a particular area.  The rules are complex and will be difficult for Local Authorities to implement.

Late Night Levy

This is the power to charge an additional levy to premises which open late at night with an estimated cost of £768.00 for a typical pub.  The Local Authority can choose a levy period between 12.00 midnight and 06.00.  The aim of the measure is to pay for the additional costs of policing.  Again the regulations are complex and will be difficult to implement and the incentive on Local Authorities to introduce the levy given that they have to give most of the money raised by the Police is not great.  Some Authorities are known to be giving this matter some thought, for example, Nottingham where the Leader of the Council is also Chair of the Police Authority.

Smoke-free signs regulations

The regulations have changed so that the only obligation now is to display one legible no smoking sign.

Minimum wage

The minimum wage will rise to £6.19 for workers aged 21 and over.  The rate for 18 to 20-year-olds of £4.98 remains the same as does the rate for 16 to 17-year-olds, £3.68.

For more information, please contact our Alcohol & Entertainment Licensing team on 01332 340 211.

9 February 2012: Government response to the report from the House of Lords Select Committee on the Licensing Act 2003

Their report acknowledges that in the eleven years since the Licensing Act 2003 came into force there have been positive trends in drinking habits and culture but that many of the challenges associated with excessive alcohol consumption remain. They acknowledge the strong link between alcohol and violent crime and that some alcohol-related health indicators have increased. A growing body of evidence shows excessive alcohol consumption affects different socioeconomic groups differently with half of all annual hospital admissions occurring in the lowest three socioeconomic deciles.

They acknowledge a continuing shift in the way we consume alcohol with people visiting pubs less frequently and more than two-thirds of all alcohol sold through the off trade. Since 2009 there has been a 17% expansion in the number of premises Licensed for off sales only compared with a 9% increase in the number of Licences for on trade sales only.

They also identified that more alcohol is being bought online with one survey suggesting around a fifth of all alcohol purchased is bought online.

The implications of the changes suggest we are drinking more of our alcohol at home, a change that brings a fresh set of challenges with a third of domestic violence incidents being perceived by victims as alcohol-related and a study that identifies that an increase of eleven off sales premises per kilometre square was associated with 8% higher incidence of alcohol-related hospitalisation and a 19% higher incidence of alcohol-related mortality.

It is acknowledged that the Government needs to strike the right balance between promoting trade and investment on the one hand and ensuring an effective regulatory framework that minimises the risk of harm on the other.

Mention is made of the modern crime prevention strategy, local alcohol action areas, a treasury consultation and chief medical officer guidelines all working towards minimising the risk of harm.

Whilst the House of Lords report required a radical comprehensive overhaul of the Licensing Act 2003 the Government has stated it does not intend to be hasty in instigating such an overhaul. The Government states it is committed to working with partners including the Local Government Association, Institute of Licensing, the Licensed trade and Licensing Solicitors and Barristers to ensure that the system operates as effectively as possible.

They have advised that minimum unit pricing remains under review and advise the Government is continuing to consider a range of measures available to control excessive alcohol consumption through taxation and pricing. For example, they have recently consulted on the introduction of a new duty band for still cider just below 7.5% ABV to target white ciders and the impacts of introducing a new duty band for still wine and made wine between 5.5% and 8.5% ABV to encourage the production and consumption of lower strength wines.

The Government have clarified they have no plans to revisit the requirement for an applicant to publish a notice in a local newspaper.

They have advised they are giving further consideration to the impact of introducing a community and ancillary sellers notice meaning these will not be bought into force in the near future, if at all.

The House of Lords Committee supported the move to put cumulative impact policies on a statutory footing in order to provide greater clarity, transparency and legal certainty about their use. The changes introduced by the Police and Crime and Act 2017 were put on hold while the Government awaited the recommendations of the Committee. Their report states that these measures will now be commenced at the next available opportunity.

It is also worth noting that the Government intends to make no change to the existing fee structure in the immediate future. A revaluation of business rates came into effect in 2017 which resulted in increased rates for many Licensed premises. Accordingly, the Government considers now is not the time to make changes to Licensing fees but the policy is set to be reconsidered in due course.

The Government states it sees merits in the creation of a central register limited to records of refused, suspended and revoked Personal Licences to facilitate more effective enforcement of the Act and the Government intends to work with the Local Government Association, the Institute of Licensing and the National Anti-fraud network to examine the prospects of adding records of refused, suspended and revoked Personal Licences to the National Register of Taxi and Privately hired vehicle refusals and revocations in order to address the problem of individuals making applications in different Licensing Authority areas following a refusal or revocation elsewhere. The Government do not consider it sensible to create an administrative database of all Personal Licences, there being over 650,000 in existence at the 31 March 2016.

The Government are not recommending that Licensing Committees be given the power to suspend or revoke a Premises Licence for non-payment of business rates given that there are already enforcement remedies available to local Councils.

The House of Lords Committee recommended that Section 173  of the Licensing Act 2003 be revoked to ensure the Licensing Act 2003 applies fully airside at airports. The Government has recently published its call for evidence as part of its work to develop a new UK aviation strategy and this will be followed by a series of consultations during 2017 and 2018. The consultation is to seek amongst other things views on how to limit the impact of disruptive passengers on the travelling public.

They have advised that working closely with the planning department is recommended but are not in favour of joining the two regimes or having Licensing appeals go to the Planning Inspectorate. Neither are they in favour of introducing legislation based on part 1 of the Alcohol (Scotland) Act 2010.

There is also contained in the Government’s response a considerable number of matters that are to be reiterated and reinforced by amendments to the statutory guidance. There are also a number of matters which the Government are said to work with various bodies to ensure best practice.

The basic conclusion, however, is that very little is going to change.

For more information, please contact our Alcohol & Entertainment Licensing team on 01332 340 211.

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