Attention to detail is critical, of course, and there is often a great deal of legal work that may precede an application, for example due diligence enquiries on an existing premises licence prior to it being transferred, in order to ensure that you are not about to acquire a licence that is completely inappropriate for your business purposes.
However, when that legal legwork is done the actual process itself is fairly straight forward.
Almost all applications under the Licensing Act 2003, particularly applications to vary licences, or for new licences, or for a Review of the licence, can end up in a hearing before the licensing sub-committee. This is when the humans take over from the machines, and this is where we always advise our clients that the risks increase exponentially.
For the first time in the licensing process for your application – it might be to increase your hours or, indeed, it might be that the Police are trying to reduce your hours, or environmental health want to add a condition regarding a noise limiter – local politicians who have been appointed to the licensing committee will be deciding your fate.
This is a wholly different order of magnitude of risk when compared to dealing with professional authorities like the police, environmental health or the licensing officers at the council themselves. These officers understand the licensing process, usually intimately, and by and large can be persuaded (or sometimes threatened!) to take a reasonable stance on matters like extending hours, or the nature of conditions that are imposed on a licence.
Councillors on licensing sub-committees are there because they represent the local population. They are advised by a lawyer but ultimately the decision on any hearing rests with them and them alone. Their decisions can be influenced by many factors, and so long as those decisions are fair, proportionate, and based upon the evidence and the licensing objectives they are likely to be lawful. However, you never really know as an advocate what the licensing sub-committee are thinking. This isn’t helped by the fact that many hearings are now conducted virtually. In the olden days when all hearings were in person, you could get a real feel for how the hearing was going by the body language of the committee alone. Online, this is much more difficult.
Some lawyers do a lot of research into the councillors who are sitting on their particular committee, like checking their background and particularly their political hue. Personally, I have never found this makes much of a difference. I think the vast majority of committee-members are simply seeking to find the right balance.
Another concern with virtual hearings particularly is the matter of documentation. In a physical hearing you can direct the councillors to a particular page in the bundle and watch them turn to that page and wait for them to read the particular paragraph to which you are referring, or to have a closer look at the layout plans, for example. Online, it’s more difficult to lead the committee carefully through your evidence.
Many of my clients don’t realise that when the councillors go away to deliberate and then return with their decision, that is pretty much it. This can be quite a fraught time for us lawyers, as even with the best will in the world Councillors may impose conditions which have sought to reach a middle ground but which have an unintended and negative effect on the client. Examples spring to mind of polycarbonate glasses and additional door staff, neither of which were raised during the course of the hearing itself. To avoid expensive and unnecessary appeals one needs to be able to anticipate these possibilities and comment upon them during the hearing to gently guide the committee away from any of these unintended consequences.
It is critical in hearings to be acquainted with the council’s own statement of licensing policy, which is their local interpretation of the licensing laws as applied in their area. This is very persuasive, if you can use their own policy to guide them in the direction you want them to go. Equally, some councils or individual councillors have particular preferences or concerns, for example customers drinking on the street, proxy sales of alcohol to children or even the risk of crush injuries from barriers used to help queuing. You often never know whether these questions arise from some personal experience or are more general of nature.
Time limits on speaking can be an issue – just make sure you know how long you’re likely to be allowed to speak before being cut off unceremoniously by the dreaded ‘timer’ (and ask for longer if necessary).
The simple fact is, if your application has got to the point where a hearing is necessary then that in itself is an additional risk. You really don’t know what the outcome is going to be until you get that decision. That is why we work so hard to resolve representations, even with residents (who often don’t withdraw their representation once it is put in) prior to an application being issued. Time pressures don’t always allow for in depth pre-application consultation with the authorities and residents but it is often money and time extremely well spent.
For all I have said above, the vast majority of hearings that I have been involved in at more than 100 different licensing authorities over the years is their decisions have been pretty much spot on.
- Jonathan Smith is partner at alcohol and gambling legal licensing specialists Poppleston Allen.
