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Agenda Item No 4

The Vale of Glamorgan Council

 

Statutory Licensing Committee: 6 December 2016

 

Report of the Director of Environment and Housing

 

Licensing Act 2003: Community Involvement

 

Purpose of the Report

  1. To present a further report to Committee on community involvement in the Licensing process.

Recommendations

  1. To undertake social media campaigns to make the public aware of the licensing process, how to access information, and how to raise concerns regarding licensed premises.
  2. To retain the current practice of notifying Ward Members and Community Councils of applications received.

Reason for the Recommendations

  1. To ensure that the Licensing Authority acts within the powers available to it under the Licensing Act 2003 and complies with relevant government guidance on processing applications and recovery of costs.

Background

  1. At their meeting on 26 July 2016 the Statutory Licensing Committee considered the Council's draft Statement of Licensing Policy, and as part of the process discussed greater community participation in the licensing process, and resolved:
  2. T H A T a report be drafted in relation to how the Licensing Authority can encourage greater community involvement in the Licensing process, taking into account the approach of other Local Authorities, and the report be brought to a future meeting of the Statutory Licensing Committee for consideration.

Relevant Issues and Options

  1. This report sets out the findings of a short informal survey of other Local Authorities and review of recent case law.
  2. The Licensing Act 2003 (Premises Licences and Club Premises Certificates) Regulations 2005 sets out the prescribed methods of advertising certain applications and those applications which require giving public notice. These include applications for new premises licences or club premises certificates or major variations to this type of venue. When undertaking licensing functions, the Licensing Authority must have regard to the Guidance issued by the Home Office under Section 182 of the Licensing Act 2003. It is this Guidance which highlights at Section 1.5 that the Licensing Act 2003 supports a number of key aims and purposes in addition to the four licensing objectives, one of which is that the Act provides local residents with "the opportunity to have their say regarding licensing decisions that may affect them". The Statutory Guidance does not provide a framework for any additional consultation process other than that laid down in the Licensing Act 2003.
  3. The legislation places the onus on the person making the application, and not the Local Authority, to advertise the application. The applicant must advertise the application on site and in a local newspaper. Having assessed the applications received the average number of applications requiring public notice is twelve. This includes applications for new premises licences and variations to existing licences.
  4. The legislation was amended by The Licensing Act 2003 (Premises licences and club premises certificates) (Amendment) Regulations 2012 to require the Local Authority to publish applications for new premises licences/club premises certificates or major variations to these on its website.
  5. When considering how to increase community engagement in the licensing process, the Authority must remain within the provisions set out within the Licensing Act 2003 and regulations. There is case law and guidance relating to avoiding any additional actions which may be ultra vires, which includes the question of whether nearby residents should be informed of applications received. This was demonstrated in the Court of Appeal Judgement, Corporation of the Hall of Arts and Sciences v The Albert Court Residents' Association [2011] EWCA Civ 430. The background to this case was that Westminster Council had adopted the practice of notifying residents of applications received under the Licensing Act 2003. On one occasion, when an application was received to vary the licence for the Albert Hall in London, one group of residents did not receive a notification. The residents felt that they would be affected by the application and submitted representations, but these were received after the closing date specified by the regulations. That being the case, the representations were deemed invalid and Westminster Council granted the application. The Judgement outlined that neither the 2003 Act nor the Licensing Act (Hearings) Regulations 2005 impose any duty on a licensing authority to advertise such an application or to take any steps to notify anyone affected by it that it has been made, and that the sole duty to advertise and to give notice of the application is placed on the person making the application (in this case the Albert Hall). In any case, the term "immediate vicinity" as a concept relating to the potential impact of licensing premises was removed from the Licensing Act 2003 by the Police Reform and Social Responsibility Act 2012, and the practice of a Local Authority writing to only a chosen selection of residents is therefore no longer applicable.
  6. When the Home Office consulted on issuing guidance for proposed locally set fees for the Licensing Act 2003, it raised the concept of "gold-plating" (by which we mean that activities that go beyond the duties of the 2003 Act and are not justified by proportionality". The consultation document outlined that particular activities had been suggested where there may be a risk of excessive costs or "gold plating" and this included the example of "Notification of residents individually of licensing applications in their area by letter (given that the existing duties to advertise on the premises and on the Licensing Authorities' website enable the involvement of local residents, and that more cost efficient methods of further engagement may be available)".
  7. The proposal to introduce locally set fees did not proceed, and therefore the Authority continues to receive a fixed fee for premises licence and club premises certificate applications, irrespective of the complexity or contentious nature of the application.
  8. The Team Manager Licensing undertook an e mail survey of Welsh Authority contacts on the Licensing Technical Panel asking for information on their consultation process. Responses were received from: Caerphilly, Rhondda Cynon Taff, Conwy, Gwynedd, Carmarthenshire, Merthyr, Wrexham, Torfaen and Ceredigion.
  9. The majority of Authorities which responded said that local Members were notified of applications received. Only one Authority indicated that it carried out consultation above the statutory requirement but indicated that a review of this stance was likely.
  10. At the July Committee, Members also made reference to the Planning regime and the consultation process in place for applications. Officers were requested to examine whether the publicity protocols that exist for Planning applications could be adapted to Licensing applications. Article 12 of the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 (as amended) lays down the statutory process for how a Local Authority must publicise planning applications. The legislation prescribes the varying levels of publicity required, which depends on many factors. These include whether it is classified as a major or a minor application; whether it represents a departure from the development plan or has an environmental impact assessment as part of the application. Given that the publicity required is stipulated in detail by the legislation, there are no obvious parallels that exist with the Licensing Regime, where no such duties are prescribed.
  11. The Licensing Act 2003 has now been in operation for ten years and the use of social media has evolved during this time. This provides an opportunity for the Licensing Authority to put information into the public domain about the licensing process rather than individual applications. This could take the form of how to report complaints together with links to the Vale of Glamorgan website to access information. In addition, it would be timely to advise local residents that other agencies are involved in the licensing consultation process and can make representations on a range of issues from crime and disorder to noise nuisance and underage sales.
  12. In conclusion, this approach would enable the Authority to meet its obligations under the Act and major applications would continue to be accessible through public notices on site and in a local newspaper and via the Council's website. The use of targeted social media campaigns to bolster community awareness of the Licensing process would complement the existing processes where Local Members and Town Councils are made aware of applications in their local area.

Resource Implications (Financial and Employment)

  1. Consultation over and above that required by law will place a greater financial burden upon the department for which no additional fee can be recovered.

Sustainability and Climate Change Implications

  1. None

Legal Implications (to Include Human Rights Implications)

  1. The Licensing Act 2003 (Premises Licences and Club Premises Certificates) Regulations 2005 sets out the prescribed methods of advertising certain applications and those applications which require giving public notice. The legislation was amended by The Licensing Act 2003 (Premises licences and club premises certificates) (Amendment) Regulations 2012 to require the Local Authority to publish applications for new premises licences/club premises certificates or major variations to these on its website. The Licensing Authority is not required by statute to undertaken any further consultation.

Crime and Disorder Implications

  1. Under Section 17 of the Crime and Disorder Act 1998 the Council has a statutory duty to consider crime, disorder and antisocial behaviour implications whilst regulating licensing activities. The application process enables responsible Authorities to advise on these implications and therefore there are no crime and disorder implications arising from this report.

Equal Opportunities Implications (to include Welsh Language issues)

  1. The Council is obliged to apply its licensing procedures on an equitable basis in the case of all applications.

Corporate/Service Objectives

  1. Regulatory Services contribute to the Well Being Outcome 1: "An inclusive and Safer Vale and Objective 2 Providing decent homes and safe communities".

Policy Framework and Budget

  1. This is a matter for decision for the Statutory Licensing Committee.

Consultation (including Ward Member Consultation)

  1. None

Relevant Scrutiny Committee

  1. Homes and Safe Communities.

Background Papers

EWCA Civ 430 2011 Court of Appeal judgement sourced from website

Home Office: A consultation on fees under the Licensing Act 2003 sourced from https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/279706/locally_set_fees_consultation_v4.pdf

Contact Officer

Yvonne Witchell Team Manager Licensing 01656 643643

Officers Consulted

Richard Price, Lawyer, Legal Services, 01446 709409

Responsible Officer:

Miles Punter - Director of Environment and Housing

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