1 LICENSING ACT 2003 Presented by: Roger Butterfield

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LICENSING ACT 2003

Presented by:Roger Butterfield

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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 200This number is shortly to be increased to 500

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LIVE MUSIC ACT 2012

Any conditions relating to live music will be suspendedHowever, 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

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WHO CAN OBJECT?

Other PersonsResponsible authoritiesOther persons replaced “Interested Parties” who used to have to live “in the vicinity” of the premises concernedAuthorities must still decide if the representation from the “other person” is relevant, or is it frivolous or vexatious

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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?

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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.

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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.”

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VEXATIOUS

UnjustifiedInappropriateImproperWithout good cause

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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 openingRepresentations 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

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ADJOURNMENTS

The committee varied the licence but did not allow 24 hour openingRegulation 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

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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 waitThe 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)

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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

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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 licenceRepresentations were made by residents and the Company revised their application after the timescale for making representations had expired

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The authority granted the application as amendedMr 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

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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 StreetRepresentations were made in respect of increase in opening hours and access from Richmond StreetNo representations were made about the proposed division of the premises

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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 premisesResidents 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

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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.”

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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.

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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.

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IN EXERCISING A LICENSING FUNCTION THE FOCUS IS ON THE PUBLIC INTEREST

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REASONS FOR DECISIONS

Little France Ltd v Ealing London Borough Council – 15 February 2013 –Authority imposed restrictions on a premises licence without giving reasonsOperator appealed to the Magistrates who upheld the decisions giving as their reasons that the authority's decision was “proportionate”

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REASONS FOR DECISIONS

The High Court quashed the Magistrates decision remitted the matter back to the authority to give the matter proper considerationThe High Court also ordered the authority to pay substantial costs

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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 authorityThe Magistrates had awarded costs because the appellant had made an offer of a compromise just before the appeal was to be heard

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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)

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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.”

Documents

1 LICENSING ACT 2003 Presented by: Roger Butterfield