Fact Files

Licensing and Gambling

i. The Licensing Act

The Licensing Act gained Royal Assent in July 2003 and came into force on 24th November 2005.

The Act establishes a single integrated scheme for licensing premises, which are used for the supply of alcohol, to provide regulated entertainment or to provide late night refreshment. Permission to carry on some or all of these licensable activities will now be contained in a single licence – the Premises Licence, and the Government’s view is that the Act has accordingly swept away considerable red tape at a stroke.

The Act also provides a balanced package of freedoms and safeguards. It has an important role in the prevention of crime and disorder and public nuisance perpetrated by a minority and gives the responsible majority more freedom and choice about how they spend their leisure time.

The Act provides certain rights of appeal to the Magistrates’ Court for those who feel aggrieved by decisions made by licensing authorities. So a right of appeal is not only afforded to applicants where their application has been rejected, or has been granted subject to conditions, but is also afforded to those who made relevant representations in relation to an application. For example, a local resident has a right to appeal against the decision of the licensing authority to grant a premises licence if they made relevant representations as an interested party in relation to the application where he considers the application should not have been granted.

The main administrative implications are:-

The local council, not the Magistrates’ Court, now deals with licences.

A Premises Licence is required where licensable activities are going to take place.

A Personal Licence is required by anyone who wants to allow the sale of alcohol as part of his or her business.

Councils, in terms of Section 5 of the Act, have the ability to produce a Local Licensing Policy, which requires to be reviewed on a regular basis.

Councils and other agencies have the opportunity to work together to promote four new Licensing Objectives.

The four Licensing Objectives referred to above are:-

1. The prevention of crime and disorder
2. The prevention of public nuisance
3. The protection of public safety
4. The prevention of harm to children

As a result of the provisions contained within the 2003 Act, all licences previously obtained from the courts for people and places relating to the sale of alcohol are now obsolete. Similarly licences obtained from the Council for Theatres, Cinemas, places of public entertainment and for late night refreshment houses are obsolete and have been replaced by new Premises Licences.

The Act also introduced new licences as follows:-

• Premises Licence
• Club Premises Certificate
• Temporary Event Notice

The Licensing Act also requires that any person authorising the sale of alcohol must hold:-

• A Personal Licence (The authority to supply alcohol)

New licences are required for premises used as:-

• Pubs, clubs and nightclubs
• Venues for indoor sporting events
• Off-Licences
• Restaurants that serve alcohol
• Businesses offering hot food or drink between 11.00 pm and 5.00 am
• Hotels, guesthouses and other places that sell alcohol
• Private member’s clubs and social clubs
• Theatres and amateur dramatic facilities
• Cinemas
• Regulated Entertainment. For example – cabaret or karaoke in hotels/guest houses
• Locations for occasional or temporary entertainment events or alcohol provision

In addition, the Act introduced the concept of Temporary Event Notices. Such Notices relate to temporary events where the maximum number of persons present at any one time is to be limited to less than 500 and the premises user (who must be at least 18 years old) proposes to carry on a “Licensable Activity” for not more than 96 hours. The Notice is referred to as a TEN.

The premises user must serve copies of a Temporary Event Notice to the Council and to the Chief Superintendent of Police at least ten clear working days prior to the event.

The Notice must include:-

• Details of proposed licensable activities
• The period during which it is proposed to use the premises for those activities
• The times that the licensable activities will take place
• The maximum number of persons to be allowed on the premises at any one time
• Where it is intended to supply alcohol, whether such supplies are proposed on or off the premises or both and other matters as prescribed by the

Government on the form.

Other conditions relating to Temporary Events

• Personal Licence holders may make up to 50 applications per year
• Non Personal Licence holders may make up to 5 applications per year
• Each event may last no more than 96 hours and there must be at least 24 hours between events
• No premises may be used more than 12 times per year
• No premises may be used for more than 15 days per year in total
• Premises for which a Premises Licence is in force may also hold temporary events.

What is a Personal Licence?

This Licence authorises a specified person to supply alcohol or allow the supply of alcohol, in accordance with any Premises Licence. Personal Licences are valid for 10 years, unless revoked, suspended or forfeited and are ‘portable’ between premises.

Personal licence applications must be sent to the licensing authority in whose area the applicant normally resides.

Before being eligible to apply, applicants must comply with the following:

• They must be 18 years of age or older
• They must have passed an approved licence qualification
• They must not have any relevant criminal convictions as specified within the Licensing Act 2003
• They must not have forfeited a Personal Licence in the previous 5 years

Who can object to a Personal Licence application?

The Police can object to any application for a Personal Licence from a person who is currently a non-licence holder, if the person has a relevant criminal conviction as defined in the Act.

In such a case, unless the Council, the applicant and the Police agree otherwise, the Council’s Licensing Sub-Committees will hold a hearing and a decision will be made to either reject or grant the application.

Personal Licences can be revoked, suspended for up to 6 months, or forfeited.

A Premises Licence application must be supported by appropriate plans, the content of which will be detailed by the Local Authority in its licensing procedures. The application must be advertised in the local paper and Public Notices erected at the locus. The application for a new Premises Licence or variation to an existing Premises Licence must be made to the Licensing Department of the Local Authority and copies sent the same day to the following responsible authorities – Fire Service, Police, Environmental Health, Trading Standards, Social Services and Planning – for comment.

As stated above, a Local Authority is empowered to produce a Statement of Licensing Policy. This document enables the Council to spell out its proposals and to work in partnership with business and the community giving them an opportunity to contribute to the new licensing regime. A Local Authority will wherever and whenever possible seek to achieve a balance between the potential for limited neighbourhood disturbance and the benefits of leisure and cultural activities, and will not allow the views of vocal minorities to predominate over the general interests of the community.

A Local Authority will only attach licence conditions that are reasonable, proportionate and necessary for the promotion of the licensing objectives.

The Policy will provide guidance to applicants, objectors and residents on the approach that the Licensing Authority will take. Its purpose will be to guide officers and members in reaching decisions, and it will set out the issues that will normally be taken into account when determining applications. In addition the Policy Document will seek to provide clear and transparent guidance for applicants, residents, other occupiers of property and potential investors to enable them to make plans to move to or invest in a Local Authority area with a degree of confidence.

Every application must be considered having regard solely to the licensing objectives, the Secretary’s of State’s guidance and the statements contained in the Licensing Policy document.

Each licensing objective is of equal importance.

Need is a question of commercial demand, and is not a matter for the licensing committee to take into account when discharging its licensing functions.

The licensing authority’s Policy will apply to the following “licensable activities”:

1. The retail sale of alcohol
2. The supply of alcohol to club members
3. The Provision of regulated entertainment
1. An exhibition of a film
2. A performance of a play
3. An indoor sporting event
4. A boxing or wrestling entertainment
5. A performance of live music
6. Any playing of recorded music
7. A performance of a dance
8. Entertainment similar to 5 or 7 above
4. The provision of late night refreshment (This means the supply of hot food or drink to members of the public for consumption on or off the premises between 11.00 pm and 5.00 am

A Council Committee must consider any application, which is the subject of an objection. The Licensing Committee will consist of a number of Councillors as specified in the Council’s Standing Orders. Whilst the full Committee may hear applications, it is accepted practice that hearings will take place before a sub-committee, consisting of three members of the Licensing Committee.

Ward Councillors will not sit on a licensing sub-committee involving an event or premises application within their ward.

It is normal practice in routine, uncontested decisions for the Council to authorise a senior officer to deal with the matter on their behalf. In this way the Authority can discharge its functions in an efficient manner and avoid delay to business development and entrepreneurial activity. The majority of Councils will ensure that the administrative systems, the licence service and procedures will be subject to programmed review and powers will wherever possible be delegated to officers and licensing panels.

Wherever possible hearings will normally be conducted by a sub-committee and will only be taken before a full committee where required by the Act etc. or by agreement with the applicant to expedite the matter for consideration.

A hearing will be arranged to deal with any applications that have attracted relevant objections from a Responsible Authority or an interested party and cannot be dealt with under delegated powers. The Licensing Authority will usually seek to resolve the objections by means of agreement between the applicant and the interested parties and/or Responsible Authorities by actively seeking responses to each other’s submissions. Discussion between parties should minimise the number of hearings and speed the application process.

Hearings will be held during business hours at the earliest possible date coincidental with the requirements of natural justice and the licensing panel will conduct a quasi-judicial consideration of the application, objections and representations.

A legal advisor, an advocate or a friend can represent applicants and/or objectors, or they may choose to represent themselves. The Licensing Authority will endeavour to assist applicants in preparing for and participating in a hearing.

Whilst the committee and panels will usually meet in public, they do have power to hear certain applications in private. A public announcement of the decision will be made at the end of the hearing. The decision determined by the committee or panel will be accompanied with clear reasons for the decision, having regard to the Human Rights Act 1998, the four licensing objectives, the Licensing Authority’s Policy and the Secretary of State’s guidance and all other relevant legislation.

Necessary and proportionate conditions may be attached to licences when a relevant representation is received. A list of standard conditions will be maintained by the vast majority of Licensing authorities and will be published. Any condition may be drawn from the list, or be based upon such a condition or may be devised having regard to the particular circumstances of the application and the physical characteristics of the premises as detailed in the application.

Any condition attached to a licence will be related to one or more of the licensing objectives, and will be focused on matters within the control of the individual licensees and others in possession of relevant authorisations.

Conditions will not relate to matters, which are the subject of imposition or enforcement under other statutes. The Licensing Authority will not impose conditions, which duplicate the requirements of other regulatory regimes.

The Licensing Authority will address the rationale for its decision with regard to the licensing objectives, its statement of licensing policy and the guidance issued by the Secretary of State under Section 182 of the Act.

Following a hearing, the Licensing Authority will notify the applicant and other parties of their decision and any conditions, which they have imposed in relation to matters identified in the objection. There is a right of appeal against the decision and conditions. An appeal must be lodged with the Justices Chief Executive of the Magistrates’ Court within a period of 21 days.

On determining an appeal, the Court may:

• Dismiss the appeal
• Substitute for the decision any other decision which could have been made by the Licensing Authority
• Remit the case to the Licensing Authority to dispose of it in accordance with the direction of the Court.

As soon as the determination of the Magistrates’ Court has been promulgated, the Licensing Authority must not delay its implementation and necessary action will be taken forthwith unless ordered by a higher Court to suspend such action (for example, as a result of a judicial review). The Act provides for no further appeal against the determination of the Magistrates’ Court.

If one or more of the licensing objectives are not being satisfied, the Licensing Authority will consider a request for a review of a Premises Licence made in the appropriate form.

Save for exceptional circumstances it will be unusual for the Licensing Authority to consider more than one review of a Premises Licence in any period of twelve months.

Whenever a closure order has been made in respect of licensed premises, a review must be undertaken. Reviews must not be capable of being considered as frivolous, vexatious or repetitive.

Any review of a licence will take place before the licensing committee or one of its sub-committees.

A Licensing Authority will be expected to be prepared to enforce its decisions, but to do so in a reasonable and appropriate manner, taking into account published enforcement policies.

A Licensing Authority will be expected to monitor and review its Licensing Policy and consult upon its content, impact and effect on a regular basis.

The Policy will remain in force for not more than three years. As part of the triennial review, the Licensing Authority will formally consult the Police, Fire Service, the Trade and business representatives.