Legal advice: Filling the gaps
Have you completed your licensing application forms correctly?
By David Clifton of thePublican.com's team of legal experts from London solicitors Joelson Wilson.
The champagne glasses came out as we celebrated sending off our first application on behalf of clients for a premises licence under the new Licensing Act. As I write this, it has yet to be rejected by the licensing authority. We have great hopes that it won't, having spent ages poring over the form, trying to work out exactly how the government intended the various boxes to be filled in.
Perhaps you are doing the same. All of the specialist licensing lawyers we know have been doing so. Despite their best efforts, stories are coming in about licensing authorities rejecting applications:
- Because it is claimed a wrong fee has been paid
- Because something as trivial as a postcode or telephone number for the premises was not given
- Because plans served with the application do not absolutely comply with the regulations, for example showing the areas in which the licensable activities are to take place
- Even for reasons known only to the council which they are not prepared to share with the applicant.
Other applications have been rejected because applicants used the draft forms of application published by the Department for Culture, Media & Sport as part of the consultation process, rather than the final authorised versions of the forms - which themselves originally contained very basic and glaring mistakes.
In the case of applications to vary (as well as to convert), applicants are being put to the expense of having to re-advertise the application in a newspaper - not a cheap process to begin with.
No wonder local authorities have not been inundated with premises licence applications as yet. Stories abound of council buildings awash with staff employed to process applications, the first of which has yet to arrive.
Why have they not arrived? This has happened because the government:
- Left it so late to confirm the forms and procedural requirements
- Produced forms so ambiguous and lacking in clear guidance that some of the finest legal brains in the country cannot work out exactly what is required
- Has changed the fee structure once already during the transition period.
It has even provoked comment in the House of Lords. Lord Walpole commented on February 22: "Whether the forms are appallingly badly designed, or we are incredibly stupid or the local authorities cannot cope, I am not clear.
The government quite rightly wanted to simplify the licensing system to remove the need for lawyers' involvement in routine licensing applications. How do they square that with forms of application for conversion and variation that are causing mass confusion on the part of applicants and licensing authorities alike, with massive inconsistency of approach across the country?
An application form for conversion will need to set out embedded restrictions and rights under relevant current legislation. With the greatest of respect to all reading this article, how can a licensee with no legal training understand what those might be?
The latest episode in this fiasco appears to be the government view that if your justices licence is transferred after February 7 so as to change the licensees, it cannot be converted under the transitional provisions of the Licensing Act 2003. There are legal arguments that can be raised on both sides of that particular question but the government view makes a complete nonsense of the whole process.
Add to this very sorry state of affairs that we still have no means of applying for a machine permit for AWPs to take effect when the Act comes into full force and effect (on a date which the government has still not announced) and one wonders how on earth Tessa Jowell can claim, as she has, that the new Act "will cut out significant amounts of red tape at a stroke".
Let us hope that local authorities realise it is in their interests to work together with the industry to make this new legislation work.
