The fact that up to one third of variation applications are going to a hearing does not surprise me, given the stance taken not just by local residents, fired up by the media, but by certain other authorities.
In particular, the police and environmental health officers (EHOs) have taken the opportunity of preparing a set of 'standard conditions'' which they want to impose on all premises in the area. It is claimed that these conditions are in line with the licensing objectives, in that they cut the risk of public nuisance or disorder. But the extent of the conditions appears to be entirely at the whim of the proposers, not necessarily based on any specific response from neighbours.
In many cases I have found that the only objector has been the environmental health office. Without prior discussion, they have launched a formal objection, with the proviso at the end of the document that if the applicant agrees to the conditions, the representation will be withdrawn and there will be no need for a hearing.
Quite rightly, this position has been rejected by a number of applicants, who see this as opportunistic. In certain cases, there is undoubtedly a curfew being imposed on activities, not because there has been any kind of disturbance in the past, but because it is 'neater' to have all premises in a certain area agreeing to the same conditions and hours.
How is this flexibility? How does this conform with the Guidance? Each case should be judged on its own merits, says the Guidance and, in many cases, the local licensing authority policy. Yet without even visiting the premises, both the police and the environmental health office are putting out formulaic documents which they expect all applicants to agree to.
The inference to be drawn from this is that any activity which goes past 11.30pm should be curtailed in some way, even before it has been put to the test. The irony is that some premises which are already open until 2am by virtue of an existing extension, and have had little or no trouble in the past, are being put through the same standard procedures if they have applied for a variation.
The conditions sought are mainly concerned with preventing disturbance to neighbours, whether or not they themselves have raised any objections. In the majority of examples I have seen, there has never been a previous complaint, and the neighbours have not put in representations, but the EHO has, in a standard form which bears no relation to the actual operation of the premises.
Remember that these conditions, if accepted, have the force of law. Breach of them renders you liable to prosecution and a fine of up to £20,000. For example, if the conditions are that when live or recorded music is being played, the windows and doors must be kept shut, a single instance of a window found open during a performance could land you in the magistrates' court, with a further potential impact on your licence if it is reviewed.
So it is vital to ensure at this first stage that conditions are kept within reasonable bounds, and are not added to the licence simply because an officer thinks it would be a good idea. I know that pressure has been placed on some licensees to accept, on the grounds that 'everyone else has. Well, that is entirely against the spirit of the new law, which says that any conditions should be 'proportionate. This means out with the raft of standard conditions that so bedevilled public entertainment licensing, and in with a better regime that fits the licence to individual premises.