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LICENSING COMMITTEE
4 JULY 2012
LICENSING ACT 2003 – INFORMATION UPDATE
Fir Vale Road in Bournemouth the sixth most violent street in the UK
A Bournemouth street has been revealed as the sixth most violent in the country by a thinktank.
Fir Vale Road is home to Bournemouth’s biggest nightclub, Lava Ignite, and other clubs like Bliss and Walkabout are yards away on adjoining roads. The figures come from UKCrimeStats, which carries out research for the Economic Policy Centre and the statistics showed there were 203 violent crimes on or near Fir Vale Road between January, 2011 and November, 2011. The country’s worst street was Albert Road South in Watford, another nightclubbing hotspot, which had 306 violent crimes.
UKCrimeStats said it analysed data partly from the new crime information website police.uk. Dan Lewis, director of UkCrimeStats, said the data was not precise but he said the research enabled people to compare areas around the country. Businesses operating in the area were unsurprised by the news.
Sunny Sharma, owner of the restaurant Ciao in Old Christchurch Road, said: “I can sum up this area in one word – disgusting. “I could tell you some horrific stories about the things we see here. We are forever having to hand over our CCTV footage to the police. “It’s got to the point now where I cannot leave a female here on her own at night. It’s not safe. “We get reviews on Trip Advisor which praise our food but say this is the worst street in Bournemouth. They are intimidated by what’s going on outside – the yobs fighting, the police wagons. “It’s a shame. When we opened eight years ago there were lots of nice restaurants here, now it is all kebab houses.”
And a taxi driver who works weekend nights in Bournemouth said: “It’s madness down here. The police are at full stretch and there is all sorts of nonsense going on. “Over on the other side of town, people are that bit older and better behaved. All the trouble is concentrated in one spot. “The students get a bad press but I don’t think they deserve it, generally they are well behaved. It’s the stag and hen parties I think that cause most of the trouble.”
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AGENDA ITEM
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Bournemouth Council has longstanding concerns about night-time violence and the image it gives Bournemouth. Cllr Dave Smith, cabinet member for communities, recently ordered a review of the night time economy.
He said: “Nearly all the violent crime referred to in this research occurs between midnight and 6am as a result of excess drinking. “Bournemouth is generally safe but the problems associated with the night time and economy and excessive drinking need to be addressed.” The council is considering using Early Morning Restriction Orders, which can stop the sale of alcohol during the early hours, to stagger closing times in different areas of the town.
A Dorset Police spokesperson said: “We continue to work hard with our partners to reduce crime in Bournemouth town centre and there has been a 9.3 per cent reduction so far this year. “A large number of crimes that take place in Fir Vale Road are alcohol related. We use taxi marshals in the town centre and we deliver hard-hitting training to licensed premises to make them aware of action they can take.”
Jon Shipp, Bournemouth’s night-time economy co-ordinator, said: “According to the latest police statistics we know that the numbers of violent crime incidents taking place in Bournemouth town centre are falling and has continued to do so over the last two years. We are all committed to reducing the numbers of incidents further. “The Bournemouth By Night study that was recently commissioned will also play an important part in the process of developing Bournemouth’s nightlife.”
Backlash against chuggers as Gloucester latest city to ban 'charity Muggers'
The backlash against so-called “chuggers” has gathered pace with Gloucester becoming the latest city to ban the charity street fund-raisers after numerous complaints that they are “intimidating” shoppers. Gloucester City Council wants to follow the example of Burnley, Lancs, which has entered into a voluntary agreement with charities to stop the fund-raisers collecting five days a week. More than 40 other councils also want to limit “charity muggers” to certain days of the week or ban them completely.
Proposed Ban on Low Price Alcohol
Another hugely important topic for the trade relates to the proposed ban on low price alcohol and the Sunday Times on the 4th March confirmed that “David Cameron is to introduce a minimum price for alcohol of 40p a unit despite fierce opposition from cabinet colleagues and the drinks industry”.
The Sunday Times reported that “Downing Street is braced for a year of legal
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battles with drinks manufacturers, particularly the beer and cider sector whose products will be hardest hit”. The article notes that the price of super strength cider may well double while the price of low cost supermarket lager could raise by a third and it appears that there is internal debate within the cabinet as Andrew Lansley, the Health Secretary, believes it will hit those on low incomes the hardest whereas the Liberal Democrats who have campaigned for many years for a minimum alcohol unit price are delighted at the decision.
If the proposals go through then the gap between the price of alcohol in supermarkets and the price in pubs will narrow, although the introduction of a minimum unit price will require primary legislation. We have already seen the difficulties such legislation can encounter in Scotland when despite Alex Salmond’s administrations attempt to introduce a similar policy, it has been constantly delayed by opposition. Some examples reported in The Times suggest that the increase may not be too dramatic. It reports the current price of four 440ml cans of Stella to be £3.50 and the cost of those drinks with the minimum price of 40p per unit would be £3.52. A bottle of Sauvignon Blanc at £6.49 would remain the same although a two litre bottle of premium cider which has a current reported price of £2.27 will cost £4.24.
How to Win New Licences in Cumulative Impact Zones
Legal advisors have recently been involved in a significant number of applications for new Premises Licences in cumulative impact/stress areas. These have been for new bars, off licences and a Kentucky Fried Chicken. All of these have been applications in areas where the local policy has said there should be no more licences granted. Representations were received leading to the applications going before the Licensing Sub Committee.
Cumulative impact zones are not a creature of statute - you won't find them in the Licensing Act.
They are in existence because they are contained in the Guidance document which the Department of Culture, Media and Sport and now Home Office are duty bound to produce due to Section 182 of the Licensing Act. They are created in chapter 13 of the Guidance document which deals with localised Statements of Licensing Policy. The Government has introduced these in this document because they believe that “the cumulative impact of licensed premises on the promotion of the licensing objectives is a proper matter for a Licensing Authority to consider in developing its Licensing Policy Statement”.
The policy will come into existence in a local area after evidence is produced to the authority to show that there is a need for its introduction. This will be evidenced through crime statistics and incident mapping to show where the hotspot areas are and at what times they impact on the licensing objectives.
The practical effect of the policy is to create a rebuttable presumption that new applications for Premises Licences (and variations which could have a significant impact) will be refused unless the applicant can satisfy the authority
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that they will not add to the difficulties that already exist in an area.
Barristers have recently been instructed to make an application in the cumulative impact/stress area for central Nottingham by Tesco. Nottingham's Statement of Licensing Policy has a particularly stringent city centre saturation zone and the wording of the policy states that “the authority will refuse applications for premises in the city centre saturation zone where representations about cumulative impact, crime and disorder and or nuisance are received.” The policy goes on to state that for an applicant to be successful he will need to satisfy the Licensing Authority that there are exceptional reasons for granting a new licence. It highlights that an applicant is “not likely to be classed as exceptional merely on the grounds that the premises have been or will be operated within the terms of its licence or that they are or will be well managed”. It is particularly difficult to overcome such a policy when representations are made by the police, other responsible authorities, ward councillors and interested parties.
In this case it was decided to produce expert evidence to overcome the issue of exceptional reasons to grant.
Part of the evidence was to instruct a senior ex-police officer who had previously held a licensing function in another authority area, to undertake investigations of other premises in the stress area.
In the case it was stressed that there were six exceptional reasons to the grant of the licence as follows:-
The client's track record nationally - operating in other stress areas without having a negative impact.
The client's track record in Nottingham - having successfully been granted a licence against Police representations outside the stress area.
The nature and style of the operation Tesco were to offer. The training and due diligence packages that Tesco operate with. The likely impact of the premises judged against the licensing
objectives. The negative impact that some of the other operators where having in
the area compared to Tesco's other units.
After very careful consideration of the evidence from the legal representatives and the police, the Licensing Authority granted the new Premises Licence accepting that the six reasons were exceptional reasons for the grant of the Licence.
These cases are not to be entered lightly and need to be strategically assessed with expert evidence being called to overcome particular difficulties. Localised issues need to be carefully considered and preparation is critical. There is a real concern that these policies can stifle the introduction of better operators than maybe exist in the particular area which is in no ones' interests.
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Do you know where your child is?
Only a minority of 15 year olds say they have been out after 9.00pm without their parents knowing where they were in the last month, but for those that did, it is associated with problematic behaviour:
14 per cent of boys and 11 per cent of girls who have frequently stayed out late without their parents knowing in the last month (3 or more times) were visiting pubs or bars once a week or more.
25 per cent of girls who stayed out once in the last month without parents knowing admitted to consuming alcohol more than once in the last month. Alcohol consumption rises to 64per cent for girls who stayed out past 9.00pm without telling their parents where they are more than three times in the last month.
However, family income has little effect on whether a child stays out late without telling their parents
Living in social housing or with a single mother increases the probability, but living in a step-family does not
Over-45s tend to drink more often, says ONS survey
Adults aged over 45 are three times as likely to drink alcohol every day
as those aged under 45, results of a lifestyle survey suggest.
More than 22% of men aged 65 and over, but just 3% of men aged 16 to 24
drank almost every day - though younger adults were more likely to binge
drink. More than 13,000 people across Britain completed the Office for
National Statistics survey. Experts recommend three alcohol-free days a
week.
The findings of the General Lifestyle Survey 2010 cover a range of topics
including people's drinking and smoking habits. On alcohol consumption, the
survey found that 54% of adults drank alcohol at least once a week and 26%
did so more than twice a week. It also found that adults tended to drink more
often as they got older. Some 12% of women aged 65 and over drank alcohol
almost every day compared with 1% of the 16 to 24 age group.
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For men and women combined, 2% of the 16 to 24 age group, 5% of the 25 to
44 age group, 10% of the 45 to 64 age group and 16% of the 65 and over age
group consumed alcohol almost every day in 2010.
The government recommends that men should not drink more than three to
four units of alcohol per day and women should not drink more than two to
three units per day. Many people are unaware that they are putting
themselves at risk by drinking more than they think. Although younger adults
were less likely to drink every day, the survey suggests that they were more
likely to binge drink than older adults. The survey results show that 24% of
men aged 16 to 24 and 25% aged 25 to 44 drank more than eight units of
alcohol in a single day. This compared with 20% of men aged 45 to 64 and
7% of men aged over 65 drinking a similar amount on one day.
The survey also found that men tended to drink more often than women - 16%
of men consumed alcohol on five or more days a week compared with 10 per
cent of women. In addition, 12% of men had an alcoholic drink almost every
day compared with 6% of women. Overall, 87% of adults averaged at least
three alcohol-free days a week. Earlier this year the Royal College of
Physicians said that people should have two to three alcohol-free days a
week.
When it comes to smoking, the lifestyle survey found a fall in the prevalence
of cigarette smoking over the past four decades - from 45% of adults smoking
in 1974 to 20% in 2010. But there has been a large increase in the proportion
of smokers who roll their own cigarettes. In 2010 39% of male smokers rolled
their own compared with 18% in 1990.
Illegal poker clubs closed
Local authorities working in five different areas have achieved great success in closing down the activities of a chain of allegedly illegal poker clubs which appeared, initially in one local authority area, and then spread to four more, namely Basingstoke, Southampton, Bournemouth, Slough and Reading. The poker organiser initially claimed that these were members’ clubs (and
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therefore entitled to club gaming permits allowing unlimited stakes and prizes poker), and then later claimed that it was offering poker as private gaming and was therefore exempt from the licensing provisions of the Gambling Act 2005 (the Act). The local authorities worked together, with expert advice and support from the Gambling Commission, to deter the operation and as a result, the clubs in all five areas have closed down. The case raises two important issues the status of ‘voluntary’ contributions in private gaming the meaning of private versus public in the context of private gaming played by members of an allegedly private club. First, it is a condition of private gaming that no charge (by whatever name called) is made for participation and Schedule 15 to the Act makes it clear that a deduction from or levy on sums staked or won by participants in gaming is a charge for participation in the gaming. It is irrelevant whether the charge is expressed to be voluntary or compulsory, particularly if customers are prevented from playing if they do not make the ‘voluntary’ donation, or there is strong peer pressure to make the donation. A relevant decided case in another licensing field is that of Cocks v Mayner (1893) 58 JP , in which it was found that an omnibus said to be available free of charge but whose passengers who were invited to (and in some cases did) make a voluntary contribution was “plying for hire” without the appropriate licence. Second, the decided cases of Panama (Piccadilly) Ltd -v- Newberry [1962] 1WLR 610 and Lunn v Colston-Hayter (1991) 155 JP 384 are helpful in guiding local authorities in deciding whether a person ceases to be a member of the public merely because they have agreed to become a member of a club. In the first of these cases (which related to a strip show), the court said that an applicant for membership of the club and admission to the show was, and remained, a member of the public, as the whole purpose (of membership) was to get members of the public to see the show and there was no sufficient segregation or selection to cause an applicant to cease to be a member of the public and to acquire a different status as a member of a club on signing his application form and paying the charge.
In the second (which related to an ‘acid house’ party) the judge said that it was impossible, merely because of the existence of a formal scheme of club membership enforced to the extent of requiring tickets to be obtained 24 hours in advance of the event, to regard those who obtained such membership and tickets as having ceased to be members of the public. This means that people joining a club to attend and take part in a ‘private’ event are likely to remain members of the public, particularly if ‘club membership’ is acquired only a short time before, and in order to, attend the event. The courts will not readily allow ‘membership’ status to be abused in order to circumvent the law in this way.
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Child alcohol awareness 'higher than for some foods'
Children as young as 10 are more familiar with some alcohol brands and
adverts than those for popular foods and snacks, research shows. The
Alcohol Concern survey of 401 children found twice as many children
recognised Carlsberg as an alcoholic brand than Mr Kipling cakes as foods.
The campaigning group said it showed the power of marketing, prompting it to
renew its call for tougher rules. But ministers and the industry said the current
regulations were strong enough. The research forms part of the group's long-
running campaign to get the UK to follow the lead of France when it comes to
regulating the advertising of alcohol. French rules place substantial
restrictions on broadcast alcohol advertising as well as banning alcohol
industry sponsorship of cultural and sporting events.
Mark Leyshon, from Alcohol Concern, said: "Research shows that children
who are exposed to alcohol advertising and promotion are more likely to start
to use alcohol, have positive expectations about alcohol, and to drink more if
they are already using alcohol. It's clear that more effective controls are
needed."
However, the group admitted alcohol awareness could also be influenced by
seeing parents and friends drinking as well as marketing.
The research - carried out with 10- and 11-year-olds in Wales - found 79% of
children recognised Carlsberg as an alcoholic drink, compared to 74% who
knew Ben and Jerry's produced ice creams and 41% who recognised Mr
Kipling as a food producer. Eight in 10 also recognised the Smirnoff vodka
label as an alcohol product. Meanwhile, three-quarters of children associated
the image of fictional characters Brad and Dan from a Fosters advert with
alcohol, compared to 42% who recognised Cadbury's drumming gorilla was
for a food product.
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A spokesman for the Department of Culture, Media and Sport said there were
already rules in place which prevented alcohol marketing being targeted at
children. But he added: "We will continue to monitor the effectiveness of the
UK's regulatory regimes to ensure that there is sufficient protection for the
public, particularly children and young people, including the regulation of new
digital media."
Henry Ashworth, chief executive of the Portman Group, which represents the
drinks industry, dismissed the findings, saying there were already strict rules
in place that were being "rigorously enforced".
Home Office Guidence on the use of closure notices unlawful
The Home Secretary has today submitted to a Judgment in the High Court which confirms what many of us had been saying for a long time - that the original Home Office Guidance on Closure Notices was unlawful. The Guidance was used by the Home Office and the Police to justify the immediate closure of The Bank in Wakefield allegedly trading in breach of conditions on its licence. In what is thought to be a first, both the Home Office and West Yorkshire Police have agreed to pay damages.
The case centred on Guidance issued by the Home Office in November 2010 entitled 'Practical Guide for Preventing and Dealing with Alcohol Related Problems: What You Need to Know' (3rd edition), which stated that when a Closure Notice under Section 19 of the Criminal Justice and Police Act 2001 had been issued all licensable activity must cease immediately and, secondly, that if anyone sells alcohol after a Closure Notice has been issued they can be arrested or summonsed under Section 136 of the Licensing Act 2003.
Relying on this Guidance, in February 2011 West Yorkshire Police issued several Section 19 Closure Notices and on each occasion the bar closed, resulting in loss of profits. The owners brought a Judicial Review against West Yorkshire Police and the Home Office claiming both that the Guidance and the Police action was wrong in law.
Essentially the claim was twofold. Firstly, it asserted that Closure Notices are not Closure Orders, and are merely warnings to the Licensee to rectify any breach within 7 days, failure of which to do may result in an application to the Magistrates' Court for a Closure Order under Section 20 of the same Act. Secondly, the Claimant alleged that breach of a licensing condition does not automatically give rise to a power of arrest, such powers being strictly circumscribed by Section 24(5) of the Police and Criminal Evidence Act 1984.
The Claimant also claimed that his human right to trade had been abused by
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the Police actions, and that threats to arrest the Designated Premises Supervisor if the premises did not immediately close amounted to an unlawful interference with that right.
Despite West Yorkshire Police conceding these points, and the Home Office withdrawing the on-line version of the Guidance and writing to all Chief Constables pointing out the legal errors in the Guidance, the Claimant pressed for a formal Court Judgment.
Today, Mr Justice Edwards-Stuart has granted their wish, approving a Consent Order requiring the Police and the Home Office to pay 'substantial' undisclosed damages for loss of profit. The Order also records that West Yorkshire Police and the Home Office accept that:
'The service of a Closure Notice pursuant to Section 19 of the Criminal Justice and Police Act 2001 does not:
a. Require the premises to close or cease selling alcohol immediately; or
b. Entitle the Police to require it to do so; or
c. Entitle the Police to arrest a person on the sole ground of non-compliance with the Notice'
If there was any lingering doubt about the interpretation of Sections 19 and 20 of CJPA 2001 this surely has now dissipated.
The Claimant was represented by Michael Kheng of Kurnia Licensing Consultancy, and Sarah Clover and Philip Kolvin QC, Counsel.
The Government Goes Public with Alcohol Strategy
On Friday, 23 March 2012 the Government released a 28 page document setting out its alcohol strategy.
The Government has launched the alcohol policy with a personal forward by the Prime Minister. “My message is simple. We can’t go on like this. We have to tackle the scourge of violence caused by binge drinking. And we have to do it now.” He further states “this isn’t about stopping responsible drinking, adding burdens on business or some new kind of stealth tax – it is about fast, immediate action where universal change is needed.”
The document is critical of the previous Government’s approach to licensing legislation and highlights that the Licensing Act 2003, in its view, has failed to live up to the billing of the previous Government and is a contributing factor to negative use of over consumption and resultant crime, disorder and anti-social behaviour. It is worth reading the whole document to get a clear indication of how there has been a sea change in thinking around the sale and
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distribution of alcohol. The Government sets out its strategy and suggests it “signals a radical change in the approach and seeks to turn the tide against irresponsible drinking.”
In the introductory section the Government states as follows:-
“Our ambition is clear – we will radically reshape the approach to alcohol and reduce the number of people drinking to excess. The outcomes we want to see are:-
A change in behaviour so that people think it is not acceptable to drink in ways that could cause harm to themselves or others.
The reduction in the amount of alcohol fuelled violent crime. The reduction in the number of adults drinking above the NHS
guidelines. Reduction in the number of people binge drinking. A reduction in the number of alcohol related deaths. A sustained reduction in both the numbers of eleven to fifteen year olds
drinking alcohol and the amounts consumed.”
The implication of the document is clear: that the Government feels that the availability of alcohol has gone too far and the ability to sell it at reduced prices are contributing factors to the above problems.
The document has a chapter entitled “Turning the Tide.” In this section the Government highlights its desire to introduce minimum pricing and a reduction on alcohol advertising.
It is clear, therefore, that the Government is keen to bring about its minimum pricing for alcohol with an estimated minimum unit price of 40 pence. The Government have highlighted that they wish to introduce this measure as soon as possible but the weekend has seen a significant cry that this falls foul of European competition legislation. It will be interesting to see how this particular issue pans out.
A further chapter is headed “Taking the Right Action Locally.” As well as reaffirming the introduction of early morning restriction orders and the late night levy the document highlights interaction of the NHS into the licensing function, Local Authorities becoming responsible authorities in the licensing system and the introduction of Police and Crime Commissioners as being key changes to the system.
The Government highlights that a key element of its strategy is to target public houses who are continuing to sell alcohol to people who are already drunk and promise new tougher measures to deal with these issues.
In addition the multi-buy promotions in the supermarkets and the off trade are also going to be targeted.
The Government expects the alcohol industry to buy into this process and
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highlights this in Chapter 4 of the document entitled “Shared Responsibility with Industry.” The document leaves no doubt that central Government expects the drinks industry to buy into their vision of change and whilst there is the carrot of reducing red tape suggested in the document there is also the stick of further measures should the industry not contribute to the change.
A further section of the document headed “Supporting Individuals to Change” at Chapter 5 talks about the piloting of innovative sobriety schemes to challenge alcohol related offending. Plymouth, Westminster, St Helen’s, Hull and Cardiff have, therefore, been chosen to pilot a scheme where conditional cautions will be given, focused on offences such as drunk and disorderly, criminal damage and public disorder where a period of sobriety need to be exhibited to ensure that individual does not receive further sanction for the action of these offences.
We will have to see how the Government implements the suggestions raised in the alcohol strategy document but it is clear that this will lead to greater powers to local areas to deal with problems and even greater need for the trade to work with enforcement agencies to eradicate some of the key problems raised by central Government.
Suits for cabbiesAshford Borough Council is reportedly considering plans to require taxi drivers to wear a shirt and trousers.
Licences for rickshawsRickshaws and stretch limousines could be licensed under plans to improve road safety. Limousines, motorcycle taxis and bicycle rickshaws could be subjected to the same safety and driver training rules as taxis, according to the Law Commission for England and Wales.
Fred rocks localsA pub landlord was granted a live music licence from his council which included the condition that he could only let country and western acts on stage, following complaints from residents about a planned rock festival. The ban from West Lancashire Borough Council was overturned by magistrates who ruled it unlawful.
REGISTRATION OF NEWHAVEN PORT AS A TOWN OR VILLAGE GREEN INCOMPATIBLE WITH THE PORT'S STATUTORY POWERS
In December 2010 East Sussex County Council resolved that a sandy beach within the Port of Newhaven was a town or village green.
This decision was despite the fact that the sandy beach was covered by the sea for 42% of the time.
In Newhaven Port and Properties Limited v East Sussex County Council [1], Ouseley J has held
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that there is no requirement that a town or village green have the characteristics of a "traditional" village green and it was no impediment to registration under section 15 of the Commons Act 2006 that it was tidal
the fact that the tidal boundary was subject to variation was no impediment to registration
the fact that use was interrupted for 42% of the time was no impediment to registration: it was no different in law or rationality to the facts in the Trap Grounds case [2] where no more than 25% of the application site was accessible
the fact that the land was subject to byelaws was irrelevant if users of the land would not have known about them
there was no presumption that use of the foreshore was permissive there does not have to be public access to a claimed village green.
However he also held that it was reasonably foreseeable that the operational use of the port land would be compromised if it were to be registered as a town or village green. Land otherwise qualifying for registration could not be registered in these circumstances, and East Sussex County Council's decision had to be quashed.
A human rights challenge on the basis that the five year "grace period" contained in section 15 (4) of the Commons Act 2006 was incompatible with Article 1 of the First Protocol of EHCR failed.
The consequences of Ouseley J's judgment are potentially far reaching as regards all land held for statutory purposes.
Scrap Metal Dealers (Amendment) Bill
The Scrap Metal Dealers (Amendment) Act 2011 as it will be known has had its first reading in the Lords and has now been passed for printing. The bill proposed that following such consultation, the Secretary of State may, by order— (a) repeal section 1 of the Scrap Metal Dealers Act 1964; and
(b) establish a new registration and licensing scheme for scrap metal dealers.
In section 2 of the Scrap Metal Dealers Act 1964 (records of dealings), after subsection (2)(c) insert—
“(ca) the method used to pay for the scrap metal;”
(2) In section 5 of the Scrap Metal Dealers Act 1964 (other offences relating to scrap metal), after subsection (2) insert—
“(3) If any scrap metal dealer accepts or makes payment in cash that dealer shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.”
Urinating in public ‘is not a nuisance’Urinating in public is not a nuisance if no one sees it, a judge ruled yesterday.
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The ruling left a couple with a huge legal bill after they failed to get Somerset County Council to close a lay-by that was regularly used by motorists in need of a ‘comfort break’.
R (Hemming and Others) v Westminster City Council
In a seminal judgment, Mr. Justice Keith has ordered restitution of licence fees charged to sex shops by Westminster City Council.
A judicial review of Westminster’s sex licensing fees was brought by 7 owners of 13 sex shops in Soho and Covent Garden.
The essence of their claim was that while a duly authorised licensing committee had determined the annual fee for sex shops under the Local Government (Miscellaneous Provisions) Act 1982 for 2005-2006 at £29,102 per annum, it had failed to determine a fee for any year thereafter, until January 2012 when it determined that the renewal fee should be £18,737. The Council’s case was that the fee determined for 2005-2006 had been a rolling annual fee. The Court disagreed. The fee determined had been for 2005-2006 only. Thereafter, there had been a failure to determine a fee as the Act required.
The claimants then claimed that the Council was precluded from making a profit from the sex licensing fee regime, and so there should be an account of the fee income and expenditure, with the claimants credited for any surplus. Although the Council contended that it was permitted to budget for a surplus, Keith J agreed with the claimants’ case. The case therefore establishes the important principle that surpluses as well as deficits are to be carried forward.
Westminster City Council claimed that the vast majority of the fees collected were used to enforce the licensing regime against illegal third party operators, by way of prosecution and closure. The claimants stated that, while it was previously lawful to use (and calculate) licence fees in this way, it became unlawful upon the commencement of the Provision of Services Regulations 2009 on 28th December 2009. Thereafter, the only costs to be brought into account were those of the authorisation scheme itself.
The Council contested this interpretation but the claimants’ interpretation was upheld by Keith J. He held that the procedures the costs of which could be recharged to licensees are:
“… the steps which an applicant for a licence has to take if he wishes to be granted a licence or to have his licence renewed. And when you talk about the cost of those procedures, you are talking about the administrative costs involved, and the costs of vetting the applicants (in the case of applications for a licence) and the costs of investigating their compliance with the terms of their licence (in the case of applications for the renewal of a licence). There is simply no room for the costs of the “authorisation procedures” to include costs which are significantly in excess of those costs.”
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Hence, Keith J held that the claimants were entitled to be credited with the enforcement costs in the licensing years 2010-2011, 2011-2012 and 2012-2013. Of course, it is not unlawful for a licensing authority to enforce the law, but the costs of doing so, in this instance, fell to be met from general funds rather than licensing fees.
The claimants finally claimed that, upon taking an account, they ought to have restitution of the surplus of fees paid over outgoings incurred. While this was contested by Westminster City Council, the Learned Judge ordered Westminster City Council to determine the fees for the years 2006-2007 through to 2012-2013 and to refund the excess of fees collected over the fees as determined.
The learned Judge refused the claimants’ claim for an account of fee income and lawful expenditure to be taken by the court itself, holding that it was for the licensing authority to determine the fee, but noted that the claimants were entitled to challenge the fee if Westminster determined it unlawfully.
In brief summary, the case established the important principles:
(1) that where a Council profits from licence fees in that its expenditure is exceeded by its fee income, it must carry the surplus forward in determining the fee for future years;(2) that in authorisation schemes covered by the Provision of Services Regulations, enforcement costs may not be recharged to licensed operators.
Philip Kolvin QC, instructed by Gosschalks, acted for the claimants
Note: the precise form of relief remains to be determined.
Public Nightclub Loses Appeal
The well-known nightclub, “Public” on Kings Road in Chelsea has lost its appeal against a curtailment of hours imposed by the Royal Borough of Kensington and Chelsea.
The club was taken to review by local residents in 2011 following allegations of nuisance and disorder. The Royal Borough of Kensington and Chelsea’s Licensing Committee curtailed its terminal hours from 2 a.m. to midnight. The club appealed to Hammersmith Magistrates’ Court.
During an appeal lasting 6 days, the Appellant called evidence from a number of independent licensing consultants, staff and its director Guy Pelly. Its arguments included the suggestion that, in assessing whether the noise complained of amounted to public nuisance, the Court was obliged to take into account that this was a commercial area in which planning consent had been granted for late opening premises.
District Judge Williams, however, held that the test for nuisance was that set
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out in national Guidance and approved by the High Court in Hope and Glory, which included low level nuisance affecting a few people living locally. She held:
“These premises operate in building where there have been nightclubs for many years. King’s Road is a busy, vibrant mixed neighbourhood containing a variety of commercial and residential properties. It is a main thoroughfare for buses and taxis. That being said, those living nearby are entitled to a decent night’s sleep and to the quiet enjoyment of their homes without enduring levels of noise that amount to a nuisance. Licensed premises are required to conduct their business in accordance with the licensing objectives.”
In this case, the District Judge held that there was a continuing nuisance and that steps to abate it had been ineffective. If it were possible to find a solution, a solution would have been found. Since the real and genuine concerns of residents had not been properly addressed, so the appeal failed.
The club was ordered to pay the Royal Borough of Kensington and Chelsea £76,825 in costs.
Philip Kolvin QC represented the Royal Borough of Kensington and Chelsea
The High Court this month ordered Westminster City Council to repay licence fees to sex shops in Soho. Philip Kolvin QC explains the ruling.
In a seminal judgment, Mr. Justice Keith has ordered restitution of licence fees charged to sex shops by Westminster City Council. A judicial review of Westminster’s sex licensing fees was brought by seven owners of 13 sex shops in Soho and Covent Garden.The essence of their claim in R (Hemming and Others) v Westminster City Council [2012] EWHC 1260 was that while a duly authorised licensing committee had determined the annual fee for sex shops under the Local Government (Miscellaneous Provisions) Act 1982 for 2005-2006 at £29,102 per annum, it had failed to determine a fee for any year thereafter, until January 2012 when it determined that the renewal fee should be £18,737. The Council’s case was that the fee determined for 2005-2006 had been a rolling annual fee. The Court disagreed. The fee determined had been for 2005-2006 only. Thereafter, there had been a failure to determine a fee as the Act required.The claimants then claimed that the Council was precluded from making a profit from the sex licensing fee regime, and so there should be an account of the fee income and expenditure, with the claimants credited for any surplus. Although the Council contended that it was permitted to budget for a surplus, Keith J agreed with the claimants’ case. The case therefore establishes the important principle that surpluses as well as deficits are to be carried forward.Westminster City Council claimed that the vast majority of the fees collected were used to enforce the licensing regime against illegal third party operators, by way of prosecution and closure. The claimants stated that, while it was previously lawful to use (and calculate) licence fees in this way, it became unlawful upon the commencement of the Provision of Services Regulations
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2009 on 28 December 2009. Thereafter, the only costs to be brought into account were those of the authorisation scheme itself.The Council contested this interpretation but the claimants’ interpretation was upheld by Keith J. He held that the procedures the costs of which could be recharged to licensees are: “… the steps which an applicant for a licence has to take if he wishes to be granted a licence or to have his licence renewed. And when you talk about the cost of those procedures, you are talking about the administrative costs involved, and the costs of vetting the applicants (in the case of applications for a licence) and the costs of investigating their compliance with the terms of their licence (in the case of applications for the renewal of a licence). There is simply no room for the costs of the 'authorisation procedures' to include costs which are significantly in excess of those costs.”Hence, Keith J held that the claimants were entitled to be credited with the enforcement costs in the licensing years 2010-2011, 2011-2012 and 2012-2013. Of course, it is not unlawful for a licensing authority to enforce the law, but the costs of doing so, in this instance, fell to be met from general funds rather than licensing fees.The claimants finally claimed that, upon taking an account, they ought to have restitution of the surplus of fees paid over outgoings incurred. While this was contested by Westminster City Council, the Learned Judge ordered Westminster City Council to determine the fees for the years 2006-2007 through to 2012-2013 and to refund the excess of fees collected over the fees as determined.The learned Judge refused the claimants’ claim for an account of fee income and lawful expenditure to be taken by the court itself, holding that it was for the licensing authority to determine the fee, but noted that the claimants were entitled to challenge the fee if Westminster determined it unlawfully.In brief summary, the case established the important principles that:
1. where a Council profits from licence fees in that its expenditure is exceeded by its fee income, it must carry the surplus forward in determining the fee for future years;
2. in authorisation schemes covered by the Provision of Services Regulations, enforcement costs may not be recharged to licensed operators.
The precise form of relief will be the subject of a further order by the Court. Westminster City Council has said it intends to appeal a High Court ruling that it must repay licence fees paid by sex shops in Soho.
Children exploit alcohol loophole
Teenagers are turning to the internet after a clamp down by shops selling alcohol.Dr Sarah Wollaston said research suggests websites are offering alcohol with "no discernible" identity check.
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In a report by Serve Legal, there is an indication of a rise in high street
retailers asking for ID.As a result however, teenagers have been switching to
the internet to buy alcohol, the report said. The research, analysed by
Plymouth University, showed the number of shops asking for proof of age had
gone up from 55% in 2007 to 71% by 2010.However, some smaller websites
selling alcohol simply asked users to tick a box accepting that they were
legally allowed to drink and then relied on delivery drivers checking ID when
the alcohol was dropped off.
The report also warned that purchasing by friends and family was "creating a
significant and emerging battleground in the fight against underage drinking".
Dr Wollaston, Conservative MP for Totnes, said she would be asking the
Home Office for tougher action against under-age sales of alcohol. She said:
"It's clearly unacceptable and we need to take action.”We should not allow
retailers to wriggle off the hook. But it will not work unless we tackle the issue
of parents and siblings supplying alcohol. "It really is not in anyone's interest
for teenagers to get blind drunk at parties when there is no supervision."
The British Retail Consortium said its members were "rigorously responsible"
and had a strict Challenge 25 policy - meaning people buying alcohol who
look under 25 are asked for ID - whether that was instore or on the doorstep.
Dr Adrian Barton, of Plymouth University, said: "Most underage drinkers
realise that it's now not that easy to walk into a shop to buy alcohol.”This
factor, added to more relaxed attitudes toward alcohol consumption by
parents and relatives, added to the growth of the internet, is creating a perfect
storm in the battle against underage drinking."
Contact Officer:
Frank Wenzel, Principal Licensing Officer
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