Is it time to evaluate licensing review proceedings?

Under section 51 of the Licensing Act 2003, a review can be brought where it is relevant to one of the four licensing objectives. With such a wide remit and potentially severe outcomes, are the powers to bring reviews too generous and in need of reform?

The system is far from perfect and represents a quicker and cheaper alternative path measures such as criminal proceedings for breaches of licence or noise abatement proceedings.

Reviews are therefore a powerful weapon in the arsenal of responsible authorities in ensuring that premises are run in accordance with their licence and the four licensing objectives. Such authorities are held to high standards and are trusted to act in the best interests of the public when deciding how to deal with licensed premises.

However, under the 2003 Act, reviews can be brought by “other persons” effectively meaning that anyone can bring a review. Other persons are subject to the additional requirement that their application is not frivolous or vexatious.

Licensing Authorities have to use Government guidance on determining if a review is frivolous or vexatious have to err on the side of the applicant where it in unclear. Unlike other proceedings, the applicant does not expose themselves to the risk of legal costs if the application does not go their way. With such a low bar absence of risk, are review proceedings open to abuse by other persons?

Compelling case 

Government guidance also suggests that it is reasonable to expect responsible authorities to intervene[1]​ where the review falls within their remit but of course this does not always happen.

I have had experience with a review being brought by residents for noise issues and not being supported by the Environmental Health Officer. Could it be argued that if the authority is not in agreement, the application is frivolous? If the authority agrees that there is a nuisance, why did they not bring the review?

This really raises the question as to whether or not it is desirable for other persons to be able to bring reviews without the support of a responsible authority. Acting in the best interests of the public, what responsible authority would not support a review where there is evidence to show that the licensing objectives are not being promoted.

This of course brings us on to the low threshold of what constitutes evidence and the fact that decisions are reached on the balance of probabilities (i.e. more likely than not) that the applicant has made their case.

On the other hand, there is a compelling case to say that the current system is a vital mechanism for ensuring that anyone affected by licensed premises, despite any apparent power disparity can have their views heard.

Under the pre LA 2003 system, only the Police could apply for a licence to be revoked and it would no doubt be a controversial step to remove the ability of other persons to seek redress.

Severe measures 

So if bringing reviews might be troublesome to reform, what about the possible outcomes? The powers for the licensing committee are wide. They can amend the licence by adding conditions or alter activities and their hours.

They can remove the DPS as well as more severe measures such as suspending the licence for up to 3 months or revoking it all together. It is little wonder than when faced with a review, operators should take them very seriously.

Most sensible operators, when facing a review will recognise that the consequences can be severe and that their very business is at stake. Engaging a legal professional is their best chance of achieving a desirable outcome and this is likely to cost thousands of pounds all while the applicant faces no risk other than wasting their time.

There might be a case for changing the powers of the licensing committee in that the revocation of the premises licence is only available in cases of serious crime and disorder or where the premises has been previously reviewed in the last, say, 3 years.

Parties could also be encouraged to try and mediate the issue and avoid the need for a hearing all together. A mechanism could be put in place that where an agreement is reached by the applicant and the premises licence holder (i.e. the addition of some new conditions), the licence is amended accordingly and the hearing avoided thus saving significant time and money.

Whatever view you have on premises licence reviews, they are an essential step to ensuring that premises are run in a manner which properly promotes the licensing objectives and should not, in the first instance, replace good communication and relationships with responsible authorities and neighbours.

• Joe Harvey ​is an associate solicitor at Poppleston Allen ​​​