Home Office Consultation on Alcohol – 8 Sept 2010

Backdated from previous BA website

The Bloomsbury Association has responded to this consultation as follows:

Response to Home Office Alcohol Consultation.

1. What do you think the impact would be of making relevant licensing authorities responsible
authorities?

We believe that the impact will be positive as it means that the Licensing Authority (LA) will be able to make representations on its own account rather than have to rely on others, even if part of the same Council, to do so. This will particularly help in the case of areas of Cumulative Impact.

However we believe that there should ALSO be a duty placed on ALL Responsible Authorities to fully consider the likely impact of a licence application on the Licensing Objectives.

Our experience is that in many cases none of the Responsible Authorities seem to regard this as
important. For example Environmental Health in one of our Councils frequently fail to make
representations on applications for extensions of licences in residential areas because they assume
that a lack of nuisance complaints with the current 23:00 terminal hour means that an extension to 03:00 can take place without any problem. This is patently not the case. It should be clear to all of the Responsible Authorities that they have a duty to fully consider the impact on the Licensing Objectives of the new or varied Licence being applied for.

There is one other critical change required regarding the Licensing Authority which we believe
should be made as part of these amendments.

Currently the Act and Guidance allow Licensing
Committees to form Panels of 3 members to consider Licensing Applications. Within at least some Local Authorities (eg London Borough of Camden) these Panels have been allowed to regard
themselves as quorate with only 2 members. This means that decisions can effectively be made by
one member (the Chair). We believe that this is contrary both to the intent of the Act and Guidance and to Natural Justice. If the effective power of the Licensing Authority is be increased with the objective of empowering them and the people that they represent it is also critically important that the Licensing Panels which take the final decisions on Licence Applications and Reviews are required to be constituted in an appropriate way. We strongly believe that allowing a Panel of 2 members to be quorate is not appropriate and believe that the Act and Guidance should be amended to make the requirement for a minimum of 3 members to be present explicit.


2. What impact do you think reducing the burden of proof on licensing authorities will have?

We believe that the impact will be positive because it will mean that less evidence will need to be provided by Responsible Authorities and Interested Parties. This is particularly important because a new or varied licence will often be likely to cause problems for which there is, as yet no solid evidence.

As an example we have had cases where an application has been made to add recorded music to a
licence. Under the current regime the Licensing Authority asks for evidence from the Interested
Parties that there is an existing problem with noise in the form of noise complaints. No such
evidence is available because there is no recorded music and the licence is granted.

Reducing the burden of proof required will allow the Licensing Authority to be less hesitant about imposing conditions or refusing the licence than is currently the case.


3. Do you have any suggestions about how the licence application process could be amended
to ensure that applicants consider the impact of their licence application on the local area?

The current application includes a section for the operating schedule which is intended to be the
steps which the applicant will take to meet the Licensing Objectives.

However there is no obligation for the applicant to fill this in. Nor is there any need for them to make sure that the steps which they include have any relationship to the likely impact which they will have on the Licensing Objectives.

There should be a requirement in Guidance that the applicant carries out an assessment of the likely impacts and that the Operating Schedule is linked to this assessment. We believe that it would be appropriate to have a rebuttable presumption to refuse a licence solely on the grounds that such an assessment has not carried out to the satisfaction of the Licensing Authority.

This would encourage licensees to take account of the needs of the local area – the LA could design the assessment appropriately for its own area.


4. What would the effect be of requiring licensing authorities to accept all representations, notices and recommendations from the police unless there is clear evidence that these are not relevant?

Whilst we welcome the idea of making sure that Police representations are taken seriously we
believe that requiring the Licensing Authority to accept them means that legitimate concerns of
other interested parties may not be dealt with appropriately. If faced with 2 proposed conditions to address an issue, one from the Police and a similar, but more strongly worded, one from the Interested Parties the LA may decide the use the once from the Police in order to comply with this requirement. This would not assist with promoting the Licensing Objectives.

Our other concern is that the main concern of the Police is Crime and Disorder. Giving priority to
recommendations with an impact on this Licensing Objective means that the other Objectives may
be regarded as less important in some way. Also the absence or withdrawal of a Police
representation will be used to argue that there is no problem. Whilst this may mean that Crime and
Disorder issues have been addressed the issue of Public Nuisance, which is not a Police concern, may not be.

If these issues can be addressed whilst allowing the Police Recommendations to be accepted then
we would support making this change.


5. How can licensing authorities encourage greater community and local resident
involvement?

Our experience is that local residents only get involved in Licensing when there is an application
which has a direct impact on them. Whilst it is very important that they get involved in these it is also important that they get involved in Policy development.

This is a complex process and it requires a high level of commitment to get involved. We believe that our Amenity Groups have played a significant role in the development of Licensing Policy Statements however we estimate that this has involved many months of effort from volunteers. This is a huge amount of resource to invest.

In order to encourage more Community involvement in Policy matters the Licensing Authority
should ensure that it collects contact details for all those who make representations as Interested Parties and then use these to circulate information and consultations on Licensing Policy reviews.

It should also ensure that it regularly communicates with this group rather than only at the last stage of the consultation on Policy Statements.

In order to encourage more residents to get involved in Licensing Applications which may have an impact on them the Licensing Authority needs to publicise these more widely. The current system of notices on the premises and an advertisement are not sufficient.

Currently our Licensing Authorities send letters to people living within a small radius of the premises. Whilst this means that immediate
neighbours are informed it does not inform all those likely to be impacted. One authority also sends email alerts to people who have signed up for this service. More could be done to make sure that people are aware of this service.

Another option would be to make the applicant responsible for sending letters or delivering notices to all residential properties within a certain radius of the premises. As in most cases the premises already operate requiring the applicant to circulate a notice to all properties within a set radius (say 100m) would not be too much of a burden on the applicant and could replace the obligation to advertise.


6. What would be the effect of removing the requirement for interested parties to show
vicinity when making relevant representations?

Whilst we agree that in some cases the concept of “in the vicinity” has been interpreted too
narrowly we are not sure that allowing anyone to make a representation, no matter where they live,
is the best approach. It would be better to ensure that anyone who can show that they have a
legitimate interest in ensuring that the Licensing Objectives are promoted by the application is defined as an interested party. If anyone can make a representation then there is the scope for huge numbers of “protest” representations, or for that matter the applicant can ask many people to write in support even though they are not directly impacted by the application.

The impact of the change could be to increase the number of representations and make the job of
the Licensing Panel more difficult because it will need to decide how much weight to attach to each representation. It could then be difficult to make sure that enough weight is placed on
representations from those Interested Parties most directly affected.


7. Are there any unintended consequences of designating health bodies as a responsible
authority?

We cannot see any unintended consequences of this move and believe that it is appropriate to do
this.


8. What are the implications in including the prevention of health harm as a licensing
objective?

We support the idea of adding a 5th Licensing Objective but also believe that the scope of health harm should not be restricted to the direct impact of alcohol. The impact of Public Nuisance caused by licensed premises has an impact on the health of residents living in the vicinity. For example noise from patrons of licensed premises keeps local residents awake and this has a significant on their health. The need for these impacts to be considered should be an explicit part of this Licensing Objective.



9. What would be the effect of making community groups interested parties under the Licensing Act, and which groups should be included?

As a group representing residents we have always been treated as an interested party by our LA’s.
Any move which reinforces the ability of groups representing those impacted by Licensing
Applications to make representations should be supported.

All groups which claim to represent people who have a legitimate interest in ensuring that the Licensing Objectives are promoted by the
application should be recognised as Interested Parties.

Whilst it is reasonable for applicants to be
able to challenge groups on whether the people they represent have a legitimate interest they
should not have to show that particular individuals have requested them to be involved.

It is sufficient that the interests of those who are members of the group will be impacted by the
application.


10. What would be the effect of making the default position for the magistrates’ court to remit the appeal back to the licensing authority to hear?

We are unclear that the real impact will be of making this the default position. The Courts currently has the right to send the case back. We are concerned that if this becomes the default position then this will happen most of the time and unless the Court gives clear directions the result at the rehearing will usually be the same. In order to be able to give clear direction the Court will have to hear much of the evidence, and this will then have to be repeated at the rehearing.

We are also unclear how this will reduce the number of appeals, although it may reduce the length of time they take to hear in the Court. In fact it might increase the number because it will, by perhaps reducing the expenses incurred in making an appeal, reduce the risk taken by an applicant in challenging a decision of the LA. An increase in the number of appeals would place an increased burden on LA’s, Responsible Authorities, Interested Parties and the organisations which represent
them.

In addition this change might encourage Interested Parties to appeal more decisions of the Licensing Authority as the costs of failing in the appeal would be reduced .


11. What would be the effect of amending the legislation so that the decision of the licensing
authority applies as soon as the premises licence holder receives the determination?

We agree with this amendment. It is unreasonable that premises can continue to trade if they are
harming the Licensing Objectives as determined by a hearing of the Licensing Authority. However it
would also be reasonable in this case that if they win their appeal they should be able to claim some compensation from the Licensing Authority. The Licensing Authority should therefore, when determining the review, also determine whether the decision is to close immediately or whether the premises can continue to trade whilst an appeal is heard.

In this case we also believe that appeals need to be expedited, and take place within 28 days so that the effect on the applicant, if successful at appeal, is minimised.


12. What is the likely impact of extending the flexibility of Early Morning Restriction Orders to
reflect the needs of the local areas?
From the point of view of residents any measure which increases the ability of the Licensing
Authority to restrict alcohol sales is to be encouraged and so we support this measure. However we can see from the point of view of Licensees that this would be a major change. If the Licensing Authority is able to introduce an EMRO at any time in order to be beneficial to the Licensing Objectives we believe that it can easily be argued, at least within areas such as Central London, that the EMRO should start at 23:00 and that all late night premises should close. This would certainly be beneficial to the Licensing Objectives of Public Nuisance and Crime and Disorder.

We believe that it is appropriate for the EMRO to be available from 01:00 to 07:00 and that any
decision to widen the timing beyond this should be based on evidence in a similar way to that
currently required for Cumulative Impact Special Policy Areas. The start time of 01:00 is appropriate because this is typically the time (at least in Central London) when the level of anti-social behaviour increases substantially.


13. Do you have any concerns about repealing Alcohol Disorder Zones?

We are not concerned about this provided that the EMRO powers exist and the Late Night Levy is
introduced.


14. What are the consequences of removing the evidential requirement for Cumulative Impact
Policies?

Before responding to this question we wish to make a point about the existing Policy which needs to be dealt with whether or not this change is implemented.

We believe that the biggest benefit of the Cumulative Impact Policies is that it allows a presumption to refuse new licences. It is, we understand, not entirely clear whether it allows a presumption to refuse Licence Variations. We believe that it would be illogical if it did not and that the legislation should be amended to ensure that it is clear that the presumption should apply to applications for new licenses and variations to existing ones within a designated Cumulative Impact Policy Area.

A significant issue with the evidential requirement is that it requires the Licensing Authority to show that there is an existing nuisance. This means that the presumption to refuse only comes into play after there is an issue and there is clear evidence of harm to the Licensing Objectives.

This harm could be prevented if the presumption to refuse could be applied wherever the Licensing Authority believes that there is a risk that the cumulative impact of new and varied licences will fail to be beneficial to the Licensing Objectives. We therefore support this proposal.

The objection of Licensees to this change is that it will result in nearly every part of every town
centre being designated in this way and effectively make the presumption to refuse universal.

We believe however that this is an appropriate step to take to rebalance the legislation to protect local residents. New and varied licences should only be allowed where the applicant can show that there will be no impact on the Licensing Objectives.

We have an additional point to make regarding premises selling alcohol for consumption off the
premises. The current S182 guidance states that a CIP cannot be adopted based on these premises.
We believe that this should not be the case. A concentration of these premises can lead to the
issues a CIP is designed to resolve and so it should be possible to adopt a CIP based on these issues.

Some Licensing Authorities also believe that the S182 Guidance prevents them applying the
Presumption to Refuse to these types of premises. We believe that this view is incorrect as these
premises do add to the Cumulative Impact within an adopted CIP. The Guidance should be amended
to make this clear.


15. Do you agree that the late night levy should be limited to recovery of these additional costs?
Do you think that the local authority should be given some discretion on how much they can
charge under the levy?

We agree with a late night levy being introduced but do not agree that it should be limited to the
recovery of policing costs. Policing is currently focussed on managing the crime and disorder
associated with late night opening. However late night opening also has a significant impact on
Public Nuisance, which has a huge impact on local residents which the Police do not have the
resources to address.

Managing public nuisance means increasing resources for street cleaning, Environmental Health resources such as noise teams and also Street Wardens or similar to deal with
the fact that people, when drunk, fail to take responsibility for their actions. These costs should also be recoverable.


16. Do you think it would be advantageous to offer such reductions for the late night levy?
There should be discretion on how much can be charged because different types of premises have
different levels of impact on the Licensing Objectives. A nightclub for 500 people open until 03:00 has a very different impact from a restaurant with 50 covers which is open until 01:00 and sells alcohol only with food.
This differential charging should also benefit because it will reduce the incentive for applications to be made for hours when premises do not intend to be open. If the charge is based on the capacity and hours of opening after 00:00 as well as the type of premises there will be more thought given to which nights of the week they should be opening, rather than remaining open and causing a nuisance for the benefit of relatively few customers.


17. Do you agree that the additional costs of these services should be funded by the late night
levy?

Yes, see answer to 15 above


18. Do you believe that giving more autonomy to local authorities regarding closing times would
be advantageous to cutting alcohol-related crime?

We agree that allowing local authorities to set fixed or staggered closing times would assist in
cutting crime and disorder related to alcohol, as well as reducing public nuisance. However there
are also risks associated with this where setting staggered times in order to reduce crime actually
allows premises to open later than appropriate for preventing nuisance.

We believe that a better approach is that the Licensing Authority is allowed to introduce a presumption to refuse outside certain hours, in the same way as Cumulative Impact Special Policy Areas allow it within certain areas.


19. What would be the consequences of amending the legislation relating to TENs so that:
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?

We believe that this amendment does not go far enough. Interested Parties should also be able to
object to a TEN on any of the Licensing Objectives.

We certainly support the increase in the time available for objections and that this should be
different for existing premises. It also makes complete sense to add existing licence conditions to the TEN unless the applicant can argue that removing them will cause no additiional harm to the objectives on this occasion.

We also believe that the Licensing Authority should be able to add additional conditions if required
to avoid harm to the Licensing Objectives. For example if a TEN is made to add recorded music for a disco the Licensing Authority should be allowed to require conditions which minimise the impact on local residents such as the use of a Sound Limiting Device.


20. What would be the consequences of
a. Reducing the number of TENs that can be applied for by a personal licence holder to 12 per
year?
b. Restricting the number of TENs that could be applied for in the same vicinity (e.g. a field)?

We are unclear why it is necessary to limit the number of TENS which a Personal Licence Holder can
apply for as the benefit is not stated in the consultation.

We agree that it does not make sense to allow numerous TENS in the same vicinity. This restriction
would not only assist in the situation given in the consultation but also avoid the situation where applications can be made for TENS for different rooms in a building, allowing the building to be used 4 days a week as long as it has at least 6 rooms.


21. Do you think 168 hours (7 days) is a suitable minimum for the period of voluntary closure
that can be flexibly applied by police for persistent underage selling?

Our view is that whilst the current 48 hours is too short to be an effective deterrent we believe that extending this to 7 days as a minimum period may be too long. Giving the Police the power to
decide on the appropriate period between 2 limits would seem to be more proportionate. In this
case we believe that 3 days as a minimum and 3 months as a maximum would be more
proportionate.


22. What do you think would be an appropriate upper limit for the period of voluntary closure
that can be flexibly applied by police for persistent underage selling?

3 months as stated above.


23. What do you think the impact will be of making licence reviews automatic for those found
to be persistently selling alcohol to children?

If the Licensing Authority is defined as a Responsible Authority then it will have the power to apply for a Licence Review itself. We believe that it is more appropriate that this issue is tacked this way.

Otherwise there may be a conflict between the Police power to make a voluntary closure order and
the requirement for an automatic Licence Review.


24. For the purpose of this consultation we are interested in expert views on the following.
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.

As we are not experts in this area we will not comment. However we support any measures that can
reduce the amount that people consume as “pre-loading” before they go out.


25. Would you be in favour of increasing licence fees based on full cost recovery, and what
impact would this have?

We believe that premises holding Licenses should pay the cost to the community of the fact that
they exist. This includes administration, monitoring and enforcement as well as additional policing and cleaning costs. The total cost of this activity should be covered by the licence fee together with any late night levy.

It is also appropriate that the fee structure reflects the impact of the type of premises on these costs, in the same way as described in our response to question 16 above and it might also have the effect of reducing the extent to which applications are made for activities and times which do not cover their external costs.

We would also point out that many of the costs associated with Licensed premises are not borne by
local Councils but by the residents. Some of these costs are not monetary in nature but are in the form of sleep deprivation leading to health issues, time spent cleaning up outside residential
properties and a feeling of helplessness in the face of repeated anti-social behaviour.


26. Are you in favour of automatically revoking the premises licence if the annual fees have not
been paid?

We are in favour of this change


27. Have the first set of mandatory conditions that came into force in April 2010 had a positive
impact on preventing alcohol related crime?
We are unable to say whether these conditions have had an impact on alcohol related crime.
28. Would you support the repeal of any or all of the mandatory conditions (conditions (a) – (e)
above)?

We believe that all of the above conditions support the Licensing Objectives and therefore should remain.

One of the problems with the Licensing regime is that there are many conditions which can be imposed on Licenses in order to support the Licensing Objectives but whether or not they are
imposed depends on the level of knowledge of the Interested Parties and the involvement of the
Responsible Authorities.

In Central London we have experience of 2 different Licensing approaches. In Westminster the
Environmental Health Officers make epresentations to put appropriate conditions on all new and
varied licenses in order to minimise the public nuisance caused.

This approach works well and means that similar premises will tend to have similar conditions. By contrast in Camden the Environmental Health Officers seldom make representations and it is up to the Interested Parties to persuade the Panels to impose suitable conditions. This can lead to very similar premises having very different conditions to try and address the same issue.

We therefore believe that whilst providing a set of Mandatory Conditions can seem like overregulation it is very useful to ensure that all premises at least adhere to a minimum set of conditions which serve to promote the Licensing Objectives.


29. Would you support measures to de-regulate the Licensing Act, and what sections of the Act
in your view could be removed or simplified?

We do not know the Act well enough to know which bits can be simplified or removed. However we
believe that the following changes are desirable. For the avoidance of doubt we believe that the
requirement for a 3 yearly review of the Statement of Licensing Policy should remain in place, as it is the main route by which local residents can influence thinking on their needs in relation to those of Licensed premises.

Whilst we are sure many will argue that the Licensing Authority should only be required to keep the Policy “under review” we believe that if the obligation to review the Policy
every 3 years is removed then no Policy reviews will take place at all. This will reduce the impact that local people are able to have.

The forms could be simplified significantly. However it also needs to be modified so that it is easier to read, especially when variations are being proposed (eg it should show the current and proposed hours, and the current and new activities)

The requirement to send a hard copy representation as well as an electronic one should be removed.

The 28 day period for representation should start from the date of the validation of an application
by the Licensing Authority (and its publication in the Register) and not from the date of receipt.
Licensing Panels should have a minimum of 3 members and not be quorate with fewer than this (see answer to question 1)

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