Covent Garden London
The heart of London's West End
A Good Night Out!5. THE COMPLEXITIES OF THE CURRENT LICENSING SYSTEM5.1 LIQUOR LICENSING 5.2 TOWN AND COUNTRY PLANNING 5.3 ENTERTAINMENT LICENSING 5.1 LIQUOR LICENSING The liquor licensed trade operates under a variety of systems of legal control which are often uncoordinated, complex, bureaucratic and overlapping. The Consumers' Confusion There is a perception that procedure is heavily weighted in favour of the trade, its legal advisors, statutory agencies and the court who all use the system regularly. The public in whose name the whole process is said to be necessary are seldom mentioned and they are uncertain as to how to participate effectively when an application is being decided. Nor were the laws framed to take into account the cumulative effect of granting a large number of licences in one area on the rest of that environment. An ineffective System This process of regulation and control, although placing legal pitfalls in the way of the trade does not seem to adequately protect the public from the potentially adverse effects of licensed premises e.g. noise, nuisance, rowdyism, violence, litter and public urination. At a time when supermarkets have made alcohol freely available, offering a bewildering display of alcoholic drinks; when advertising brings new alco-products to the market and promotes them heavily in all media; reading the Licensing Acts is like being drawn into some ancient, dark, cobweb strewn labyrinth controlling access to a dangerous beast. Who Grants Permission? The sale of alcohol, the type, the Licensee, the place, the hours and the circumstances within which it can be sold are governed by Justices of the Peace (voluntary magistrates) sitting either in Petty Sessions or as a Licensing Committee. They operate within the Licensing Act 1964 as amended by the Licensing Act 1988. They are advised by professional Justices Clerks. While there are five basic types of licence, there are at least 19 different types of liquor licence, order or certificate that can be granted! See Appendix 6. [currently unavailable on-line ] Archaic Licensing Laws Liquor Licensing legislation has had no thorough going review since 1964 and is built up from many outdated concepts e.g. "an old beerhouse" and case law going back to the middle of the last century. The Licensing Act 1964 is a long and complex act of 204 sections. Given the complexities of the system it is a tribute to the justices, the courts and the licensed trades' legal representatives that it works as smoothly as it does. The general presumption is in favour of a liquor licence being granted, subject to the physical suitability of the premises and the applicant being a 'fit and proper' person, unless good reasons are given by an objector, based on evidence. So, unless residents have substantial grounds for opposing them, new licences can continue to be granted 'ad infinitum'. Conditions and Undertakings 'On' licences can be granted with conditions (e.g. beer glasses must be of unshatterable glass). However, if the conditions are broken there only seems to be one sanction, the somewhat draconian power to revoke the complete licence which closes the premises. 'On' licences may have attached to them 'undertakings' which have been offered by potential licensees setting out what they will or will not do (e.g. to employ a door supervisor on Saturday nights). In this case it is the view of one Metropolitan Police Solicitor working for the Charing Cross Division that such undertakings are virtually unenforceable by the court. This clearly is not a very satisfactory situation. Part IV Restaurant Licences can not have conditions attached to them. Other procedural hurdles There are strict procedures for renewing, transferring, removing, extending and protecting licences. If the procedures are not followed precisely it can have grave consequence for a licensee or for objectors. 'A fit and proper person' A person holding a licence must be 'a fit and proper person' according to the legislation. While Licensing Justices may enquire into the 'character' of a licensee to decide if they are 'fit and proper', the track record of an existing licence holder is not specified as being a factor which must be taken into account in granting a renewal or further licences. It is difficult to obtain hard evidence on the numbers of licensees the police and other statutory consultees object to on the basis of the way premises have been conducted in the past but the numbers in the West End Central and Charing Cross police divisions appear to be very few. Most potential objections are sorted out by negotiation so that it is rare for formal police objections to be lodged with the court. The Limitation of Appeal There are only limited ways and times for the public to object to the granting of a licence. They also cannot appeal in many cases because they are not 'immediately aggrieved' (as would be a licensee whose application had failed), only consequentially aggrieved (e.g. they have to live with the consequences of the licence being granted). Appeals by applicants against Licensing Committee decisions are heard in the Crown Court, usually by a Judge sitting with two Magistrates. Once a licence has been granted the only remedy open to a complainant is to go for revocation of the licence. As this effectively causes the licensee to lose his livelihood Licensing Justices are reluctant to grant this so it is largely an ineffective remedy except in extreme cases. Revocation However, in the public's favour, it is worth noting that one amendment of the Licensing Act 1988 now allows any person to apply for the revocation of a justices' licence at any transfer session throughout the year, rather than having to wait until the licence is up for renewal. On the other hand, revocation proceedings are not to be undertaken lightly as costs can be awarded against an objector if the revocation order is successfully challenged. Also in the case of an application for a new licence a member of the public can turn up at the hearing and object to it being granted there and then. Licences held on behalf of Companies Where the premises are operated by a chain of restaurants/pubs it is often the practice for the manager of the premises to hold the licence. S/he may give undertakings to the court as to how the premises will be run, but managers leave and also companies can change their policies. If policy changes are to the detriment of amenity, the reliance on an undertaking given by a licensee will, in effect, be worthless. The Role of the JP The Justices' Clerks Society's Good Practice Guide on Licensing summarises the way they see the role of JPs. 'The licensing function needs to maintain a delicate balance between (a) control and regulation and (b) allowing market forces to operate, only adjudicating when parties, including the statutory agencies, seek out the court.....' Original Reason for Licensing This perhaps epitomises the way that the licensing function has tended to become divorced from the original reasons why licences were required. In Victorian times it was felt that the sale of alcohol was an item with such potential danger to the public and the public peace that it should only be sold by fit and proper persons in specifically licensed premises. Protecting the Neighbours is the reason now If such licences are still required, it is regrettable that the procedures for ascertaining the views of the neighbouring public who will have to live with the effects of the licence are not given more weight. This is particularly important in areas like the West End which contain very strong concentrations of such premises. Licensing Justices v Planning Authority However Justices are placed in a difficult position when the local authority has already granted A3 Food and Drink planning consent for a premises to become a pub, bar, restaurant to club. Not to grant a licence without good grounds could be seen as a restraint of trade. Indeed, if the Magistrates are not happy with the granting of an 'on' licence they cannot refuse to grant a licence at all, but must grant a 'restaurant' licence provided the premises are suitable for the purpose and the applicant is a 'fit and proper person'. 5.2 TOWN AND COUNTRY PLANNING Licensing Policy in Local and Central Government Local planning policies and Government Planning Guidance circulars are therefore critical in setting the context to decide if a premises can be converted for use as a potential licensed premises or for a use to be extended. The actual use of a premises is decided upon by the local authority, Westminster City Council, under the Town and Country Planning Act 1990. It acts through its Environment and Planning Committee in accordance with policies set out in the City's Unitary Development Plan. The Use Classes Order Each premises falls into one of the uses defined in the Use Classes Order 1987 as amended by the General Development Order 1988. For example, A3 is the class for restaurants, pubs, snack bars, cafes, wine bars and shops for sale of hot food. Once a premises has A3 Food and Drink use a new owner can use it in any way that falls within that use class without needing planning consent. This makes it very difficult to distinguish statistically between those premises which may present the sort of problems this report is concerned about and premises which give rise to no concern. It also means that a premises can change from a non contentious cafe to a noisy bar without requiring further planning consent. Where Westminster City Council does refuse consent or impose restrictions on grounds of loss of residential amenity it often loses the decision on appeal to the DETR Planning Inspectorate. 5.3 ENTERTAINMENT LICENSING Other Licences Apart from liquor licensing there are a variety of other types of licence which premises may need. Premises providing public entertainment may need a music and dancing licence, a sex establishment licence, a plays licence, an indoor sports licence or a cinema licence. Restaurants or cafes and even some food shops staying open late may need a night cafe licence. Hostess bars may need a near beer licence. These licences are granted by the local authority under the London Government Act 1963. The procedures are complex and semi-judicial and there is much overlap between statutes. Streamlining and consolidation in this field is an urgent necessity. Even if a licence is refused by the relevant local authority sub committee, appeals to the Magistrates Court are often successful. The Effectiveness of Licensing It is worth noting that in regard to the control of sex shops, after many years of using ineffectual legislation which did not control the problems, the City of Westminster promoted a special Act of Parliament, the City of Westminster Act 1996, with powers to specifically target the problem. This is now working effectively although the procedures are time consuming and costly. Music and Dancing In the case of music and dancing licensing the exemption in Section 182 (1) of the Licensing Act 1964 was drafted before the effect of discotheques and electronic equipment was fully realised. In a licensed premises a Music and Dancing Licence is required by the Section if there are more than two live musicians. So putting on a classical violin trio needs a licence, but a state of the art restaurant sound system capable of blasting out many hundreds of watts needs none. Music and Dancing licences require substantial protected wiring, fire precautions and possibly sound insulation systems which are expensive. So the limit of two musicians seems unnecessarily low and tends to promote electronic music over live music without protecting the public from noise. We are aware that the Musicians Union has been lobbying to have the limit removed completely. We believe that this goes too far and that the limit should be reviewed to achieve the original intent of protecting amenity from noise nuisance without prejudicing live performances. Special Orders of Exemption Finally, one other body grants liquor licences. The Metropolitan Police Commissioner, through his Divisional Officers, can grant Special Orders of Exemption to an existing licensee for occasional extensions to permitted hours or to licence another place to cater for 'one off ' special occasions. A Good Night Out - Index A Good Night Out - 6. EXAMPLES OF THE PROBLEMS |
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