Licensing

The Licensing Act 2003

Background

Before the Licensing Act 2003 there were several different types of licence applying to places selling alcohol or offering entertainment. The alcohol controls sat with the magistrates and many of the others with the local authorities. It was said that there was a lot of duplication between different licensing regimes and the Government no longer wanted magistrates or local authorities to impose unnecessary or irrelevant conditions on licences. As such the Licensing Act 2003 was originally intended as a departure from the traditional command/control approach to licensing and would remove any duplication by introducing a single integrated licensing regime – 7 different licences consolidated into 1 simple permit.

The original ethos would allow the market to control itself and provide the public what it wants; giving them a say in what they want (largely determined through local elected politicians who make decisions on licensing applications at committee level).

It was said that lliberalisation would cure the nations binge culture by stopping fixed drinking periods. Everyone will be a little bit more relaxed and 24 hour opening will stop binge drinkers. Café culture was the buzzword used by the Act’s proposers.

After transition it was pretty clear that we were not going to become a nation of 24 hour establishments. Neither were the changes going to result in any form of cultural change. Applications were made, objections were presented and compromises took place. The outcome: most establishments succeeded in getting one or two extra hours trading time; thereby extending (or shifting) any anti-social problems to the midnight hour.

The System in a Nutshell

Licensing is a two tier system which is both proactive and reactive:

PROACTIVE
An application or variation to a license may be made; the operator being trusted to make their own market based judgments (producing variable results!). Interested parties (residents) and responsible authorities (environmental health and police) may make representations (objections) on those proposals if they feel that they will not promote one of the licensing objectives. In some circumstances conditions may be placed on licenses directing how regulated activities should be carried out.

REACTIVE
There is also some flexibility built into the system so that, if things went wrong (and the licensing objectives were not upheld), they may be put right.

Mechanisms are therefore put in place to enable interested parties and responsible authorities to react to problem premises if things go wrong. This is referred to as the review process. Ultimately, the licence may be taken away or amended.

Both tiers result, ultimately, in the Licensing Authority (made up of a sub-committee of Councillors) taking decisions on outcomes.

Licensable Activities

Certain activities may require a licence. These include:

  • the retail sale of alcohol,
  • the supply of alcohol in clubs,
  • the provision of late night refreshment, and
  • the provision of regulated entertainment

Regulated entertainment includes:

  • a performance of a play,
  • an exhibition of a film,
  • an indoor sporting event,
  • a boxing or wrestling entertainment (both indoors and outdoors),
  • a performance of live music,
  • any playing of recorded music, or
  • a performance of dance

However, there are a number exceptions; some of which have come about due to recent relaxations. Examples include the exclusion of live or recorded music played between the hours of 8am and 11pm to an audience of up to 500 persons.

In addition, there is a complicated temporary event notice (TEN) system where an operator may apply to run a temporary event on a number of days each year (maximum 12) for a maximum of 499 people. They may wish to apply for a temporary event for any number of reasons, including:

To exceed the permitted opening hours;

Where a valid premises licence or club certificate do not exist.

The police or environmental health department may object to the granting of a TEN.

Licensing Objectives

When an applicant completes his application and when a licensing authority makes a decision they must take into account the licensing objectives, which are:

  • the prevention of crime and disorder,
  • public safety,
  • prevention of public nuisance, and
  • the protection of children from harm

Most relevant to noise is the prevention of public nuisance which retains it’s common law definition. In order to be considered as relevant to the objective the noise should therefore have the potential to affect a number of people in the community (although one would not have to show that it actually has done).

So when you consider an application you should be looking to see whether the proposals seek to prevent public nuisance. In practice you are probably going to widen that scope somewhat and will be looking for the potential for noise issues that have real potential to cause interference with comfort rather than identifying mere irritations or minor disturbances.