Presentation on theme: "1 LICENSING ACT 2003 Presented by: Roger Butterfield."— Presentation transcript:
1 LICENSING ACT 2003 Presented by: Roger Butterfield
2 LIVE MUSIC ACT 2012 Live music is no longer a licensable activity on premises licensed for the sale of alcohol where : 1) It is unamplified and takes place between the hours of 8a.m. and 11p.m. 2) If it amplified, takes place between 8a.m. and 11p.m. and the audience does not exceed 200 This number is shortly to be increased to 500
3 LIVE MUSIC ACT 2012 Any conditions relating to live music will be suspended However, on a review the authority can determine that the conditions relating to live music will apply irrespective of the type of music or size of the audience
4 WHO CAN OBJECT? Other Persons Responsible authorities Other persons replaced “Interested Parties” who used to have to live “in the vicinity” of the premises concerned Authorities must still decide if the representation from the “other person” is relevant, or is it frivolous or vexatious
5 REPSONSIBLE AUTHORITIES The Police Reform and Social Responsibility Act 2011 adds Licensing Authorities as a Responsible Authority. Who will decide to make a representation to an application or ask for a review of a licence?
6 FRIVOLOUS R v North West Suffolk (Mildenhall) Magistrates’ Court ex parte Forest Heath District Council (2013) LLR 69 – An application for Judicial Review was dismissed as being “frivolous.” What does “frivolous” mean in legal terms.
7 FRIVOLOUS Lord Bingham of Cornhill LCJ – “To the man or woman in the street “frivolous” is suggestive of light-heartedness or a propensity to humour and these are not qualities associated with most appellants or prospective appellants. What the expression means in this context is that the court considers the application to be futile, misconceived, hopeless or academic.”
8 VEXATIOUS Unjustified Inappropriate Improper Without good cause
9 ADJOURNMENTS Hammersmith & Fulham London Borough Council v Food City Express Ltd (2010) LLR 292 – Company applied for variation of their premises licence to allow 24 hour opening Representations were made and the hearing was fixed for 4 July. The company’s representative had not arrived at the fixed time – sub-committee waited for 10 minutes then went ahead with the hearing
10 ADJOURNMENTS The committee varied the licence but did not allow 24 hour opening Regulation 20(2) – if a party who has not so indicated fails to attend or be represented at a hearing the authority may – (a) where it considers it to be necessary in the public interest adjourn the hearing to a specified date; or (b) hold the hearing in the party’s absence
11 ADJOURNMENTS Company appealed to the Magistrates Court – District Judge decided the committee had acted lawfully but there had not been a fair hearing because 10 minutes was too short a time to wait The High Court allowed the authority’s appeal holding: The Committee did take into account whether it was necessary in the public interest to adjourn the hearing as specified in Regulation 20(2)
12 ADJOURNMENTS Although the District Judge had a discretion and a power to remit the case to the authority to dispose of in accordance with his directions, on the facts of this case he exercised the discretion unlawfully by taking into account a matter which was an irrelevant matter, namely his own personal view that 10 minutes was to short a period to wait
13 VARIATION OF AN APPLICATION Matthew Taylor v Manchester City Council & TCG Bars Limited (7 December 2012) Question – when and to what extent can an application to vary a licence under the 2003 Act be amended? TCG Bars applied to vary their licence Representations were made by residents and the Company revised their application after the timescale for making representations had expired
14 VARIATION OF AN APPLICATION The authority granted the application as amended Mr Taylor appealed and argued that the authority had acted unlawfully because the Company had amended their application after the 28 day period so local residents and responsible authorities had no proper opportunity to make representations
15 VARIATION OF AN APPLICATION The original variation application was to extend the opening hours; divide the premises to create a new self-contained bar with access to the new bar via a door in Richmond Street Representations were made in respect of increase in opening hours and access from Richmond Street No representations were made about the proposed division of the premises
16 VARIATION OF AN APPLICATION As a result of the representations the Company informed the authority that they would drop the extension to the hours and make access to the new bar via the V2 doorway which had previously been used as an access to the premises Residents submitted the change in the application required the Company to start again as they had been denied the right to make representations about the use of the V2 door
17 VARIATION OF AN APPLICATION The High Court dismissed the residents challenge holding: “With regard to the modification of the licence conditions, the statutory scheme gives the authority the full scope to add, subtract or vary any conditions to accommodate the variation in the context of the licence as a whole.”
18 VARIATION OF AN APPLICATION The scheme requires the authority to modify the conditions if and to the extent that it considers modifications appropriate to promote the licensing objectives. Promoting the licensing objectives requires the balancing of various strands of public interest and, in performing that balance it is possible, if not inevitable, that one of the objectives may be demoted in order to benefit another.
19 VARIATION OF AN APPLICATION Where that is so the scheme simply does not require further consultation of local residents and other interested parties in the form of re- advertisement with a fresh opportunity to make the relevant representations.
20 VARIATION OF AN APPLICATION IN EXERCISING A LICENSING FUNCTION THE FOCUS IS ON THE PUBLIC INTEREST
21 REASONS FOR DECISIONS Little France Ltd v Ealing London Borough Council – 15 February 2013 – Authority imposed restrictions on a premises licence without giving reasons Operator appealed to the Magistrates who upheld the decisions giving as their reasons that the authority's decision was “proportionate”
22 REASONS FOR DECISIONS The High Court quashed the Magistrates decision remitted the matter back to the authority to give the matter proper consideration The High Court also ordered the authority to pay substantial costs
23 APPEALS Tower Hamlets LBC v Ashburn Estates t/a The Troxy (2012) LLR 400 – This case mainly revolved the High Court overturning an order of costs being made by the Magistrates against the local authority The Magistrates had awarded costs because the appellant had made an offer of a compromise just before the appeal was to be heard
24 APPEALS Giving his decision the Judge made an obiter comments about who should make a decision when an offer is made to settle an appeal Foskett J said “It was a committee of the local authority that took the view it did. While it is not, of course, impossible for arrangements to be made to delegate responsibility for agreeing to a different view on behalf of the committee within the local authority structure, it is possible necessary for the committee to consider some alternative suggestions put to it rather than some delegated individual to do so. This may (con)
25 APPEALS be the way democracy works. It is clear that counsel for the licensing authority took instructions each time she was invited to do so but it would be difficult to believe there would be someone at the end of the telephone who would have sufficient authority to agree to something less than that which the committee had decided. Again, the question of the consideration of the wider community interests has to be borne in mind in that context.”