Licensing applications: Don't roll over if your application has been rejected

“I am sending it back in the post tonight,” is the licensing equivalent of being sent plunging down into the Mines of Moria, particularly when your client has a grand opening in exactly 29 days time and he is now going to miss it. 

There has always been a tension between the licensing officer’s role as administrator of applications and the parallel task of considering the substance of that application.

Notwithstanding their new additional role as a responsible authority capable of objecting to an application based upon the licensing objectives, licensing authorities themselves have never been permitted to return or reject an application simply because they don’t think it is ‘good enough’. This is a subtle but vital difference; a licensing officer exercising delegated powers in his capacity as licensing authority can reject an application only if the statutory requirements — completing the form, advertising it correctly etc — are not satisfied.

In other words, you can fill a new licence application with mumbo jumbo, but if the boxes are completed and the fee paid, it is still a valid application. Doubtless you would receive objections to the substance of your application by various authorities, but that is the whole point of the representations and hearings procedure.

What a licensing officer cannot do is reject out of hand an application that, for example, doesn’t state the occupancy figure or include locally accepted standard CCTV conditions. The licensing authority cannot dictate the content of your operating schedule — a point made by the High Court in the Canterbury case back in 2005. Nothing’s changed since then.

Muddying the waters​
However, I am concerned by two sections of the newly amended statutory guidance, which are at risk of muddying the waters yet again. The first relates to “late TENs” (temporary event notices, those that can only be issued between nine and five working days before the event). The new guidance states: “Late TENs are intended to be used by premises users who are required for reasons outside their control to, for example, change the venue at short notice. They should not be used save in exceptional circumstances.”

We have already had one licensing authority try to reject a late TEN because it didn’t conform to their interpretation of this paragraph. With respect, their interpretation is irrelevant. The TEN was completed correctly and within the limits — barring an objection from the police or environmental health (which with a late TEN would mean the event could not go ahead) the TEN must be issued, regardless of the licensing authority’s interpretation. After a short email correspondence this one was.

Secondly, the new guidance makes it clear that applicants are “expected” to demonstrate in their operating schedule their local knowledge and how their application may impact on local issues such as crime hot spots, proximity to residents and local initiatives such as crime reduction schemes, taxi marshalling and street pastors; and to refer to such diverse sources in the application as the crime-mapping website, neighbourhood statistics website and other local publications.

In essence, the Government wants new applicants to show that they know the local area and to have done a bit of homework before submitting their application. Standard or “template” applications from multiple operators are discouraged.

The temptation for some licensing authorities will be to reject applications if they do not include chapter and verse from whatever local sources the licensing authority recommends, whereas an application that does not contain such information but is otherwise properly made out should always be accepted — although again, if the applicant has not adequately consulted he is likely to face a barrage of representations and possibly have the application refused at a hearing.

I am not proposing that bare-bones applications, or, in the case of multiple operators, standard, or vaguely–worded operating schedules are acceptable — those days are probably gone. But don’t roll over if your TEN is returned because it isn’t ‘exceptional’ or that your new licence application doesn’t have an appendix full of pretty pie charts.

You may wish to include these, but that is your choice — and your risk. If you don’t you might have your application refused at a hearing, but it should not be rejected before you get there. Gandalf isn’t that powerful.