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LICENSING UPDATE Cardiff City Hall, Monday 17 September 2007

LICENSING UPDATE Cardiff City Hall, Monday 17 September 2007. by Alun Alesbury. Introduction. Local Authorities in Wales and England have a number of licensing functions under various statutes – some of them obscure.

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LICENSING UPDATE Cardiff City Hall, Monday 17 September 2007

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  1. LICENSING UPDATECardiff City Hall, Monday 17 September 2007 by Alun Alesbury

  2. Introduction Local Authorities in Wales and England have a number of licensing functions under various statutes – some of them obscure. But there is little doubt that the two most important and topical nowadays relate to: Alcohol and Public Entertainment – LICENSING ACT 2003 Gambling in most of its forms – GAMBLING ACT 2005 Both these licensing regimes involve a relationship between local authorities and the owners or occupiers of the relevant properties in their areas – in common with the other themes of today’s seminar.

  3. LICENSING ACT 2003GAMBLING ACT 2005 Both are UK-national in application. There is no devolution of these matters to the Assembly Government. The same legislation and guidance from the DCMS (and in the latter case the Gambling Commission as well) applies here in Wales as it does in England. Both areas have experienced new and significant development in the last few months:- LICENSING ACT – New revised statutory guidance . issued 28th June 2007 GAMBLING ACT – Entirely new regime in effect from 1st September 2007.

  4. LICENSING ACT 2003 Let’s briefly recall what it covers, as it affects premises or land: Alcohol sales – “on” or “off” type licences, with or without food Theatres Cinemas Indoor sporting venues – but not most events in “outdoor stadia” (which include ones with sliding roofs like in Cardiff) Boxing and wrestling venues – indoor or outdoor Live or recorded music venues Dance venues Other analogous entertainment venues Late night refreshment (after ll pm), even without alcohol

  5. LICENSING ACT 2003 ‘New’ system fully in operation now for almost 2 years. Is the general feeling that, in spite of much fevered speculation and press ‘hysteria’ before it came in, it has for the most part bedded down and operated not too badly? What is the view in Wales? Some parts of the new system nevertheless probably haven’t been used enough yet to know how they will really work, e.g. – • Powers to review (and possibly reduce) scope of licences in light of actual experience at or outside particular premises. One such area of experience might of course be Alcohol Related Disorder, e.g. on city streets (and at later hours than before) – still a matter of public and media comment.

  6. LICENSING ACT 2003 • What does the new (28th June 2007) Statutory Guidance have to say? • Not revolutionary – does not for example try to change the four statutory “Licensing Objectives” – • prevention of crime and disorder • public safety • prevention of public nuisance • protection of children from harm • But it does have new things to say relevant to some of them.

  7. LICENSING ACT 2003 DCMS Guidance 2007 N.B. Licensing authorities must have regard to the new Guidance in exercising their functions, and notably in considering and reviewing their own licensing policies. Cumulative impact/Licensing hours – there has been a change of emphasis here. Even before the new system was up and running in autumn 2005 the politicians in DCMS were forced to issue a qualification to what was being taken (probably wrongly) by the media as a ‘free for all’ approach to licensing hours and premises under the new legislation. Now the formal guidance adopts elements of a new approach – but in quite a measured way – on the two emotive topics of Cumulative Impact and Licensing hours

  8. LICENSING ACT 2003 DCMS Guidance 2007 Cumulative Impact: Although the original guidance did address Cumulative Impact as a concept, it was very insistent on the mantra that flexible hours would assist dispersal and tend to reduce the problems associated with old fashioned standard ‘closing times’. The 2007 Guidance (e.g. at 13.25) recognises that in spite of flexible hours there may still be problems arising from a multiplicity of licensed premises, leading to problems of conflict and disorder, possibly at some distance from individual premises. It recognises that this is more likely in town/city centres.

  9. What can be done about it? The New Guidance (13.29) is much freer than the old in allowing for special policies which can have a rebuttable presumption against any new licences in a problem area, unless the would-be operator can demonstrate no negative cumulative impact. Licensing Hours Again the emphasis has changed (New Guidance 13.40 – 13.42). Flexible hours are now recognised as only ‘in some circumstances’ helping with dispersal. But the advantages they give to customers of greater choice and flexibility are now expressly to be ‘balanced carefully’ against the four licensing objectives and ‘the rights of local residents to peace and quiet’.

  10. How much effect will this have? We must wait and see. In practical terms it is only going to come up on new applications, or applications to vary existing conditions, unless licensing authorities embark on wholesale campaigns to change things in their town centres through the review process.

  11. THE GAMBLING ACT 2005 This is a major new piece of legislation – substantially changing all that went before. And it has just come fully into effect on 1st September 2007, with major new duties imposed on local government. Parliament, or the Government, borrowed heavily from the Licensing Act 2003 in framing the Gambling Act, with concepts like personal and premises licences, licensing objectives, interested parties, responsible authorities, etc. But there are some quite significant differences, as I go on to discuss.

  12. GAMBLING ACT 2005 First though, what does the Act apply to? Not just the ‘Super-Casino’ debacle, which received so much national publicity [and no doubt local too, in the places concerned]. Not even just other ‘less than super’ casinos. Also covered are: Bingo establishments Gaming Machines Arcades Lotteries Remote gambling Betting (shops and on track) Most (but not all) of these now involve the local authority as licensing authority – in respect of premises licences.

  13. GAMBLING ACT/LICENSING ACT Important Differences Under the Gambling Act, it is only premises licences which are issued by the local authority. Personal licences are isued by the Gambling Commission. And much more important, Operating Licences must be obtainedfrom the Commission by theorganisation or company running any gambling enterprise. This talk today however concentrates on the local regime which local authorities have to operate – i.e. premises licensing. But it is important to note that, under this Act, it is the Gambling Commission which is statutorily required to publish Guidance which local licensing authorities are required to take note of. This it has done – the latest (2nd) version being that of June 2007.

  14. THE GAMBLING ACT 2005 at the local level: Familiar features: Statutory ‘Licensing Objectives’ which have to be considered: • Gambling to be free from crime/disorder; • Gambling to be fair and open; • Protection of children and the vulnerable. But decisions on gambling licences only have to be ‘reasonably consistent’ with the objectives. Local authorities required to have produced a licensing policy statement, and to set up a licensing committee. Local licensing authorities must consult ‘responsible authorities’ about applications, and consider their representations, along with those of ‘interested parties’.

  15. THE GAMBLING ACT 2005 at the local level (cont’d): Key differences from the Licensing Act: 1. Licensing authority can reject a premises licence application, even if no one has objected to it or made representations about it. 2. The responsible authorities to be consulted include the licensing authority itself – i.e. the council as licensing authority is allowed to take a view on an application, not just to be an adjudicator. This is no different of course from what a council does as a planning authority (but very different from what is allowed under the Licensing Act). It remains to be seen how the courts will view these two conflicting roles of ‘adjudicator’ and ‘partisan’ in the (gambling) licensing context.

  16. Key differences (cont’d) ‘Interested Parties’ The slightly troublesome terms ‘living in the vicinity’ and ‘involved in a business in that vicinity’ (in the Licensing Act) have been replaced by: • “lives sufficiently close to the premises to be likely to be affected by the authorised activities” ; and • “has business interests that might be affected by the authorised activities”. These seem sensible changes, and could with advantage be used to amend the earlier (Licensing) Act.

  17. So how is the transition going? Any pre-existing operator requiring a premises licence under the new regime should have applied by 31st July – but if it did so will be able to carry on during the remaining currency of any relevant previous permit or licence until the Licensing Authority has determined the new Act application. Any new operator from 1st September 2007 onwards must go entirely through the new regime. It is too early to say how well this is all proceeding in practice – but it would be interesting to hear if anyone has any views (or news) on this. Alun Alesbury

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