When it comes to new off-licences (it is unlikely that this term will disappear for many years), the change in the licensing system puts them under greater scrutiny in the initial stages, but may eventually leave the retail sale of alcohol to market forces rather than “demand”.
At the heart of this regime are the “licensing objectives”. These are the four key areas mentioned in the section on licensing policies, which underpin the new. But the idea is that sales of alcohol in suitable premises should be permitted unless there are clear reasons within those objectives why they should be controlled or rejected.
This should mean that applications for new licences are as easy as they have been in the past. However, the Government has indicated that it wants local people to have a greater say in what goes on in their district, so opponents of licensed premises are likely to have more influence than previously in what is allowed in their own areas.
A. Premises licences
The revised system provides for new entrants to the trade to make application to licensing authorities, but with the right to object given to a number of different bodies and individuals. These are now laid down in the Licensing Act 2003.
Objections are known as “representations”. When a new licence is applied for, they may come from the following people or organisations:
“Interested party” means any of the following:
a. a person living in the vicinity of the premises
b. a body representing persons who live in that vicinity
c. a person involved in a business in that vicinity
d. a body representing persons involved in such businesses.
“Responsible authority” means any of the following:
a. the chief officer of police for any police area in which the premises are situated
b. the fire authority for any area in which the premises are situated
c. the enforcing authority within the meaning given by section 18 of the Health & Safety at Work etc Act 1974 for any area in which the premises are situated
d. the local planning authority
e. the local environmental health department
f a body which –
(i) represents those who, in relation to any such area, are responsible for,
or interested in, matters relating to the protection of children from harm, and
(ii) is recognised by the licensing authority for that area for the purposes of this
section as being competent to advise it on such matters (see your local licensing
policy for this)
g. any licensing authority (other than the relevant licensing authority) in whose area part of the premises is situated
h. in relation to a vessel, certain relevant authorities.
An applicant must advertise in the usual way not only that an application has been made, but also the licenseable activities which are to take place, so that people know exactly what is proposed. It will therefore be clear from the way the application is worded that the requirement is for new off-licensed premises of some kind.
The process depends on these submissions so, if no representations are lodged, in general the licensing authority has no right to refuse the application as it stands. The only exception to this is where there is a valid saturation policy, but it is most unlikely that such a policy will be applied to off-licensed premises. It is clearly intended for those areas where a large number of on-licensed premises aimed at young drinkers are situated. However, if there is any form of blanket policy, potential off-licence applicants have to be aware of it.
Once representations have been received, the council must hold a hearing to determine the issue, unless matters can be resolved without a hearing. For example, if the police object on the basis of hours of operation, the applicant may agree to reduce these, so causing the police to withdraw their objection and allow the council to process the application in the normal way.
If agreement cannot be reached, a hearing must be held. It is likely that the applicant will be represented, as well as the police or other objectors. The council can only make representations through the “responsible authorities” listed above – it cannot raise its own objections and must act fairly and judicially in reaching a decision. If the applicant does not agree with that decision they can appeal to the magistrates or to the Administrative Court on a point of law.
Where premises are about to be built or are in the course of construction, the new Licensing Act provides for the licensing authority to issue a provisional statement, which will be the equivalent of the current provisional grant of a licence. As now, it is a form of safeguard for those committed to an investment, so that they can be reasonably secure that their money will not be wasted by a last-minute rejection. The application must be advertised and representations may be made by interested parties, but if the authority then decides to issue a statement, the applicant is protected by the Act from facing the same objections when s/he comes to apply for the premises licence.
Similar procedures will apply to the holders of existing premises licences who wish to vary their operation. If there are representations, it will be necessary for the council to hold a hearing, unless those representations are found to be frivolous, vexatious or repetitious, in which case it can reject them at once, giving written reasons to the person who made them.
Each case has to be judged on its own merits and in accordance with the licensing policy originally laid down by the council or amended from time to time. This means that there can be no blanket policies or summary rejections of an application, but new applicants will still have to overcome several hurdles in obtaining a new licence in areas which are already well served with similar licensed premises.
B. Personal licence
The Government has now published the Regulations for personal licences. The intention is to have one form of personal licence, containing the holder’s full name, a photograph, a unique number and the name of the issuing licensing authority, so that it can be used anywhere in England and Wales. It is to be produced in a “durable” (which may mean laminated) form, in a size no larger than 70mm by 100 mm, which is slightly larger than a credit card. However, it will not be centrally controlled and each local authority will produce its own version of the licence. According to the Regulations, a secondary document must also contain details of any relevant offence or foreign offence which is not spent.
Application will normally be made to the licensing authority where the applicant resides. It is likely that, at the time of application, the applicant is not directly linked to a set of licensed premises, although he or she may already work there. Where the applicant is not normally resident in England and Wales, it can be sent to any licensing authority.
The applicant must be aged over 18 and, with one or two exceptions, must hold a recognised licensing qualification (eg. from the BII). On the application form, relevant offences or foreign offences which are not spent must be declared. This will not necessarily be fatal to the application, because it is up to the police to object if they think it is necessary and they may not do so in all cases.
A personal licence will not be granted to anyone who has forfeited such a licence in the past five years. The application must be accompanied by the following:
1. Two photographs of the applicant, one of which must be endorsed
2. A copy of any licensing qualification held
3. A criminal conviction certificate or a criminal record certificate or the results of a subject access search of the police national computer by the National Intelligence Service (details from your local police licensing officer).
4. A completed disclosure of criminal convictions and declaration form, which should be provided with the application form by your local council
5. The fee for the application itself.
If there are no relevant convictions and all the enclosures are correct, then the licensing authority has no discretion and must grant the licence forthwith. This is also true if the police decide not to object within the 14-day period from the time they receive a copy of the application.
The new licence lasts for 10 years from the date of grant. It may be renewed during a period of two months beginning exactly three months before it is due to expire. This means a licence granted on Jan 6 2006 may be renewed between Oct 6 2015 and Dec 6 2015. By this time there may well be a central licensing system for all personal licences.