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What's New in Licensing?

Here are the latest news releases from the Licensing Team:

British Summertime

British Summertime officially starts on Sunday 29th March at 1am.  That's a fact; though what is rather less certain is whether the British weather chooses to reflect this! Something else that's also a fact is that if you are normally licensed to trade until 2am then on the face of it, you have a problem. 1am immediately becomes 2am unless there is something on your licence which deals with this particular point, so you lose an hour's trading.  During the transition period, we dealt with this on every licence we converted. We included a special provision to the effect that British Summertime should be ignored for the purpose of calculating the hours the premises traded.  On this basis, 1am remains 1am for the purpose of the licence only, even though the clock will say it is 2am.  This means that the premises could trade until the new 2am. If there is nothing in your licence to that effect, you are obliged to close one hour early.  This can obviously cause problems: your customers may have arranged transport home at the old 2am, which will be the new 3am.

Remember, it's a Saturday night and it may well be worth using a Temporary Event Notice if your licence doesn't cover this point. Next year, perhaps a variation?

Legislative Reform Delays

Regular visitors to our website will know that a legislative reform order has been laid before parliament to introduce a simplified procedure for making minor variations to premises licences and club premises certificates under the Licensing Act 2003.

A second order has also been laid to allow community premises, church halls and similar premises to be exempt from the need to have a named premises supervisor if they wish to sell alcohol.

These orders have hit slight delays, and the House of Lords has required the minor variations order to go through a new ‘super-affirmative’ procedure. Peers were concerned that changes to licensed premises were going to be made without any public consultation, and so an initial sixty day scrutiny period will be undertaken instead of the normal thirty. This means the common commencement date in April is unlikely to be met, but it is hoped the order will be in force for the October date.

The second order has been made subject to the affirmative procedure, which requires a thirty-day consultation and this is more likely to be in force by the spring.

Both measures will also need approval by the Commons once it has been passed by the upper chamber.

January 2009 Taxi Newsletter

Our latest Taxi Newsletter  (38.62 KB) is now out and provides important information about forthcoming changes that will affect the Taxi and Private Hire trade.  Please make time to read the newsletter.

New Mandatory Alcohol Code Proposed in Parliament

The Policing and Crime Bill was introduced into Parliament yesterday. The Bill seeks to introduce a mandatory Code of Practice for alcohol retailers. This Code will consist of a set of up to nine mandatory licensing conditions for all alcohol retailers. It will also provide a set of licensing conditions licensing officers can choose to apply to premises in an area with an identifiable alcohol related problem. There will also be best practice guidelines which Licensing Authorities will have a duty to regard when making their decisions.

The Bill also seeks to introduce a set of four new offences to deal with street drinking including increased fines, new confiscation powers and removing the need to prove intent to drink when dealing with underage drinkers in possession of alcohol. It will also amend the Violent Crime Reduction Act 2005 to reduce the number of underage sales for the persistently selling alcohol to children from three strikes to two strikes.

The Bill will have its second reading on the 19 January

Minor changes to Licensing Act published

The first order – which parliament may reject in the next forty days and which will then come into immediate effect – deals with the current requirement for a nominated person to be named as a premises supervisor when alcohol is sold in church and village halls.

Critics have called the measure disproportionate, and the legal liabilities attached to being a premises supervisor has deterred many volunteers in community buildings from coming forward.

The second order deals with a new procedure to make minor variations to licences and club premises certificates under the Licensing Act 2003. At present, even minor variations (such removal of a redundant condition where all parties are in agreement) require a full variation application entailing the right of statutory agencies and local residents to comment.

Both of these proposals have been subject to public debate and featured in the Department for Culture, Media and Sport’s current Simplification Plan.

NEW PREMISES LICENCE

In future, management committees which apply for alcohol licences for community premises will be able to ask for an alternative licence condition to be included in their licence rather than the existing mandatory conditions in section 19(2) and (3) of the Licensing Act 2003, which requires there to be a named premises supervisor who holds a personal licence to sell alcohol.

Community premises are defined in the Act as: a church hall, chapel hall or other similar building, or a village hall, parish hall, community hall or other similar building.

A management committee means a committee or board of individuals with responsibility for the management of the premises.

The new alternative condition – inserted in section 25A of the Act – is that every supply of alcohol under the premises licence must be made or authorised by the management committee instead. Where valid representations are made, a licensing authority must include the alternative licence condition unless it feels after a hearing that the crime prevention objective would be undermined and therefore a premises supervisor should be named instead.

VARIATIONS TO LICENCES

Management committees may apply for the licensing authority to vary their licence to include the alternative licence condition rather than the mandatory conditions in section 19(2) and (3).

In considering whether to add the alternative licence to a new or varied licence, the licensing authority must be ‘satisfied that the arrangements for the management of the premises by the applicant are sufficient to ensure adequate supervision of the supply of alcohol on the premises’.

However – unlike a typical variation application that is open to responsible authorities and interested parties – only the police may make representations against varying a licence to include the alternative licence condition. Their representation must include a statement that, due to the exceptional circumstances of the case, they are satisfied the alternative condition would undermine the crime prevention objective.

PREMISES LICENCE REVIEWS

If a community premises licence with the alternative licence condition is brought to review, then the licensing authority will have the power to re-impose the requirement for a premises supervisor to be included; or they can remove a premises supervisor and impose the alternative licence condition instead (but not both).

MINOR VARIATIONS

A new section 41A of the Act will allow premises licence holders to apply for a minor variation, under a procedure to be laid down in regulations. This will avoid the need for public notices and copying applications to a number of statutory agencies involved in more detailed changes to premises.

Some applications will still have to be made under the full variation procedure:

• extend the period for a licence has effect
• vary substantially the premises to which it relates
• specify an individual as the premises supervisor
• add the sale by retail or supply of alcohol as an activity authorised by the licence
• authorise the sale supply of alcohol at any time between 11pm and 7am, or an increase in the amount of time on any day during which alcohol may be sold supplied, or
• include the new alternative licence condition for community premises.

Licensing authorities will be responsible for consulting those responsible authorities it considers appropriate, and take their comments into account, when determining the application.

In the light of those comments, it would appear licensing authorities will only be able to reject the application or recommend that an amended variation be submitted.

If the authority considers there would be no adverse effect on the promotion of the licensing objectives by one (or more) minor variation, it must grant the application.

Licensing officers will have effectively sixteen working days from receipt of the application to make a determination. If it fails to do so, the application is deemed to have been rejected and it must be returned together with the £73 fee that has been paid. The authority and the applicant may agree instead for the application to be treated as a new minor variation application, giving another fifteen working days for determination.

If the view is the proposed variation(s) would have an adverse effect, the application must be rejected and the applicant must submit a formal, full variation application.

A minor variation determination notice (as opposed to an amended licence) shall be issued by the licensing authority, specifying the variation and the time at which it takes effect (which may be the time referred to in the application).

Rejected applications must also be accompanied by a notice giving the licensing authority’s reasons.

Similar provisions will be introduced in relation to club premises certificates.

The draft orders and the accompanying explanatory memoranda are in the Institute library under Alcohol and Entertainment/regulations

Court rejects noisy pub complaint

In a judgement against St Albans council, Mr Justice Forbes held that courts were entitled to take into consideration the fact that residents would usually know a pub was there before they moved to the area.

The garden of Jane Lockley’s new house was next to the grounds of Mokoko on Verulam Road (pictured). She complained to the council that she could hear drinkers chatting in the beer garden – a common complaint, particularly with the advent of the ban on smoking inside licensed premises.

The council’s investigation found evidence of a statutory noise nuisance and served an abatement notice. Jass Patel, who only opened the up-market spirits in April, was acquitted by the city’s magistrates in the summer.

He said at the time that Mrs Lockley had not been prepared to meet with him, and he had tried to address the issue by putting signs up, increasing door supervisors and even offering to double-glaze his neighbour’s home.

He also shut the garden at 9pm during the summer rather than at 11pm, saying: ‘We have suffered financially from shutting the garden early – people went home and the bar was empty. If we can’t use the garden, we will go out of business’.

His acquittal was challenged by the council, whose spokesman said the magistrates were wrong to conclude the defence of ‘best practicable means’ – under the Environmental Protection Act 1990 - had been established by Mr Patel.

He denied Mr Patel’s allegation that the council was picking on him rather than owners of larger city centre pubs and bars because he could not afford a protracted legal battle; the council had a duty to serve a notice regardless of the nature of the perpetrator.

Mr Justice Forbes said: ‘I am satisfied that none of the matters raised by the council had called into question the correctness of the decision reached by the magistrates’. He added that it would be too far to say Mrs Lockley had brought the nuisance on herself, but the court could take cognisance of the fact she knew the pub was there before she moved in.

He also confirmed the magistrates’ view that whilst the pub had become livelier since Mrs Lockley moved next door, it was ‘the nature of things’ that the business at licensed premises changed and noted Mr Patel’s attempts at mitigating the situation, which including reducing by half the number of people allowed in the garden and paying for double-glazing for another neighbour.

Following this decision, it will be harder for local residents to make representations against pubs and clubs to council licensing committees if the venue operated prior to them moving into the area, and the operators are prepared to offer ‘best practicable means’ to alleviate any problems.

Independent research into licensing public charitable collections

The government aims to develop a new licensing scheme for public charitable collections that will facilitate responsible fundraising and at the same time deter bogus collections and prevent any nuisance to the public.

The Office of the Third Sector will work closely with the Charity Commission to develop the right licensing system based on the evidence provided by the research. The research will aim to:

- assess the costs and benefits of the new licensing scheme compared to the existing system of licensing

- inform the developmental and design phase of the new system of licensing building on the framework provided by the Charities Act 2006 and

- identify how best to take forward the implementation of cost-effective, risk-based and proportionate regulation of public charitable collections.

Campbell Robb, director general of the Office of the Third Sector, said: ‘The government recognises that public charity collections make an important contribution to charities and the good work they do. We want a simple consistent licensing system that will make it easier for charities that collect in more than one area to handle the paperwork.

‘Bogus collections as well as over-collecting in one area can seriously risk damaging public trust in charities. It is therefore important that there is a proper system in place to regulate fundraising.’

The Charities Act 2006 provides for a new, modern licensing and regulatory regime. However, much of the detail of how the scheme will operate will need to be set out in secondary legislation and guidance. The research that will assist this process will be conducted during 2009.

Public charitable collections in the street are currently regulated under the Police, Factories Etc Act 1916 (Miscellaneous Provisions), and a model of local regulations is contained in the Charitable Collections Order 1974 (Transitional Provisions), though local authorities are not obliged to introduce such a system of licensing in their area.

Public charitable collections conducted house-to-house are currently regulated by the House to House Collections Act 1939 and the House to House Collections Regulations 1947, which established a central licensing regime for such collections.

The Local Government Act 1972 transferred responsibility for both forms of licensing to local authorities from the police, except in London where responsibility remains with the Metropolitan Police and the Common Council of the City of London.

Part III of the Charities Act 1992 set out a new regime for the licensing of collections covering both house-to-house and street collections. However, it has never been brought into force because concerns were raised about whether it would work in practice.

Game Dealers - Changes to Game Licensing for taking or selling game and venison

We have updated our information for game dealers.  Please visit our Game Dealers page for more information.

BERR peddles new research

Local authorities have the power to control street traders within their area, but an historic exemption granted to pedlars often means that itinerant traders drive a coach and horses through them, to the consternation and often considerable cost to local communities.

Following a slew of private Acts of parliament promoted by local authorities giving them more power to deal with pedlars – including a power to confiscate their goods - MP Brian Iddon has presented a Bill to give national effect to the reforms. Whilst it is expected to have its second reading on 17 October, its chances of succeeding without government backing are limited.

Now, ministers in the Department for Business, Enterprise and Regulatory Reform have commissioned St Chad’s College at the University of Durham to conduct some research into the law surrounding street traders and pedlars, to be completed by the autumn.

Researchers are expected to contact all local and trading standards authorities in England, Wales and Scotland; street trader and pedlar representatives; the police (particularly to establish the numbers involved and identify issues with enforcement); and gathering statistics such as the numbers of prosecutions and costs entailed.

Pedlars require a certificate under the Pedlars Act 1871 from the police station for the area in which they are ordinarily resident in order to sell door-to-door and in the street anywhere in the UK, providing they do not sell from a stall or other fixed location. The legislation was originally designed to offer an opportunity for soldiers returning from the Napoleonic wars to earn a living, and is today still linked to economic migrants.

Caravan Sites & Control of Development Act 1960 - Model Standards for Caravan Sites in England

Government has today issued revised Model Standards for residential caravan sites. The new Model Standards update those issued in 1989 and reflect changes in legal requirements, most notably in relation to fire safety.

The Model Standards represent what is normally to be expected as a matter of good practice on caravan sites (except holiday sites), and can be read here  (611.47 KB)

Noise at Work - New Responsibilites for Licensed Premises

From 6th April 2008 licensees will need to comply with The Control of Noise At Work Regulations 2005, which aim to protect workers from the effects of excessive noise. Other industry sectors have had to comply with the Regulations since April 2006, but all workplaces where live or recorded music is played in restaurants, bars, nightclubs etc were granted a two year transitional period; in recognition that the music in these venues is deliberately created for enjoyment and therefore different to other sectors. This "honeymoon period" for the licensed trade, however, is nearly over!

From April 2008 therefore, employers and employees working in pubs and clubs will have new responsibilities to protect the hearing of all employees, including bar staff, performers and crew, including guest performers.

Measures that may need to be taken include noise risk assessments, certain steps to reduce people's exposure to noise; acoustic controls; reducing the time employees spend in noisy areas; pointing the sound to where it is needed (e.g. the dance floor as opposed to the bar); volume control; training; hearing protection and health checks.
The primary responsibility for complying with the Noise Regulations rests with the employer. This doesn't necessarily mean only the publican or the night club owner - for example, event organisers or concert promoters may also share responsibility on a particular night at the premises. The duties revolve around so-called 'exposure action levels', the lower of which is an average of 80dBA, otherwise described as 'intrusive noise but normal conversation is possible.' So it's not just rock concerts that will need a risk assessment!

In summary, as an employer in the licensed trade, you will need to assess the risks to employees from noise at work; take action to reduce the noise that produces those risks; make sure the legal limits on noise exposure are not exceeded, and where necessary provide hearing protection if you can't reduce the noise by using other methods.

Noise exposure is a highly technical area. If you are concerned about the effect of the new Regulations on your business, then the government's Working Group on the Music and Entertainment sector has a useful website at www.soundadvice.info

The Licensing Act review offers more of the same, says the Institute of Licensing

The Licensing Act review offers more of the same, says the Institute of Licensing, in its comment this week on the government's proposals.

Many of the initiatives that have been announced amount to formalising the practise of many licensing authorities already, whilst risking penalising licensed premises that are sensibly run.

Of particular note, says the licensing practitioners' organisation, is the call for the wholesale withdrawal of licences in areas blighted by crime and disorder. The Licensing Act 2003 speaks loudly of the need for working in partnership and in consensus with all relevant parties, but this proposal seems to be an attempt to buttress the ill-fated alcohol disorder zone provisions which no licensing authority seems to want to consider.

Although communication and information-sharing is important, the Institute questions the need for another toolkit to be issued by the government to local councils and the police - at least the fourth within two years. A summit for police and local authorities risks replicating existing exchange mechanisms and also, as is often the case, risks excluding crucial partners in the debate - the alcohol industry and retailers themselves.

Other proposals are encouraging. The intention to make it easier to review premises where local intelligence suggests there is a problem doesn't necessarily sound like new powers, unless it is linked to the power for licensing authorities themselves to initiate licence reviews, which the Institute has long advocated.

The Institute believes there are already powers for enforcement authorities to close premises where there is disorder, and is not convinced there is a need for more. However, a formalised system of 'improvement' and 'prohibition' notices for licence- holders, based on those used under the Health and Safety at Work Act 1974 and the Food Safety Act 1990 could be more effective.

The 'Three Strikes and You're Out' regime introduced under the Violent Crime Reduction Act 2006 has been in force for less than a year. To switch this to immediate loss of a licence for two under-age sales seems to the Institute to be draconian and should only be implemented if the other measures are clearly not shown to be working. Greater awareness of the existing legislation amongst the off-trade would be better and more productive.

Animal Welfare Act - Current Defra Timetable for Secondary Legislation

DEFRA has shared a current proposed timetable for implementation of the Animal Welfare Act 2006.

Regulation	Proposed Implementation
Mutilations Tail Docking Order S 104 Order Commencement/Trans Provs	April 2007
Pet Shops Pet Fairs Wild animals in circuses Cat, dog and primate codes Greyhounds	2008
Riding Estabs Livery Yards Tethering Animal Boarding Estabs Animal Sanctuaries Performing Animals	No commitment to time

The primary differences between this and the timetable published in the Regulatory Impact Assessment (March 2006) are that it was anticipated that licensing of Riding Schools, Livery Yards, Animal Boarding Establishments, Pet Shops and Pet Fairs would be brought into force first, in 2007. It should be stressed that this is the current timetable and may be subject to revisions.