Licensing news England and Wales - October 2018
This month in summary
Licensing News
An important decision has been handed down by District Judge Rose in AEG's appeal against the decision of London Borough of Tower Hamlets to grant a licence for a limited 'probationary' period.
AEG had applied for a premises licence to last a period of five years to cover the All Points East Festival they would be running on behalf of the borough. At the licensing hearing however, the licensing sub-committee took the view that it would be proportionate for the licence to be granted for a two year period on the basis that: "This would allow the applicants the opportunity to demonstrate their event management plans and would then be able to apply for the remaining term of the contract."
On appeal, AEG argued that such a decision was wrong in law and that a committee should only grant a licence for the term applied for. They argued that the review process was created to allow for a premises licence to be called in, should problems arise, and changes made to the licence thereafter if proven to be necessary. They went on to suggest that if a committee considers a licence application should be granted, the length of the grant is not a material consideration.
The District Judge on appeal agreed with this submission. Whilst this decision is not binding on future courts, it raises a number of important points about the powers of licensing authorities and the nature of their role when determining licensing applications more generally.
Firstly, the submission of the council that a licence could be granted for a limited time to allow the applicants to show what they can do runs contrary to the Licensing Act 2003. District Judge Rose found nothing in the legislation that would allow such a decision. It is for the applicant to determine in the first instance what licence they require and frame it in their application. Only if representations are received that relate to the licensing objectives, can the licensing sub-committee step in and scrutinise the application; and then only insofar as the concerns raised are determined to undermine one or more of the objectives. Length of the licence is not in and of itself material, otherwise Parliament would have expressly said so and introduced a renewal process.
Secondly, a committee's role is to determine whether an application or a licence is likely or not to undermine the licensing objectives only where there is a dispute between parties. This is a matter of balancing all the relevant factors, such as the experience and track record of the operator and the robustness of the operating schedule against the potential for the licensing objectives to be undermined as set out in any representations. If the committee feels that granting an application or the operation of an existing licence undermines the licensing objectives, they should look to amend the application/ licence itself to redress the imbalance. Only then if they are unable to do so, must they refuse the licence or revoke it if already in existence. In this case, the applicant was an international events company, with an excellent track record, who had gone through a long and arduous process to devise and refine their operating proposals. This was something the committee themselves recognised when determining the application, but then seemed to set to one side when grating the probationary licence.
Thirdly, District Judge Rose sought to re-affirm the notion that the Licensing Act 2003 was intended to provide a light touch and not overburden applicants and licence holders. The Act sought to balance this right with a powerful new tool for responsible authorities and local residents affected by poorly managed premises: the licence review. The local authority went too far in trying to add an additional hurdle for the applicant to overcome by granting a probationary licence.
Finally, it is worth noting that this does not prevent an applicant time-limiting their own application. In this case, AEG were only applying for a five-year licence to fit the contract they had for putting on the All Points East Festival. It would be interesting had AEG applied for an indefinite licence, where they only held a five year contract with the council. In that case, could the licensing sub-committee have mounted a reasonable argument to defend imposing a five year limit on the licence? Possibly, but by no means certainly.
Whilst the applicant here was a major event organiser seeking a time-limited licence of five years, the principals above hold just as much for any other applicant or licence holder before a licensing sub-committee. Cases like this help to reinforce the message that Licensing sub-committees are the final stage in an administrative process specifically designed to balance a 'light touch' in terms of granting and regulating licences, with a heavy hand where necessary to deal with badly managed premises, by way of licence review.
Top Licensing Tip: Christmas Temporary Event Notice deadlines
TENs are often useful for licence holders to make the most of the festive season. Adding hours or licensable activities to the usual permissions can be profitable, but good planning is essential.
Submission must be made at least 10 working days before the event for a TEN to be valid. As such, the key final dates for submission are:
- Last Friday before Christmas (21 December): Thursday 6 December
- Christmas Eve: Friday 7 December
- Boxing Day: Monday 10 December
- New Year's Eve: Wednesday 12 December
You can apply for late TENs up to five working days before an event, but it is not recommended. Late TENs can be refused if the police or environmental health officer object.
Gambling News
New rules from the Gambling Commission come into force from 31 October 2018. The changes to the Licence conditions and codes of practice are designed to provide stronger protection for consumers to ensure they are treated fairly by gambling businesses.
The new rules will make it easier for the Gambling Commission to take action and impose fines against gambling businesses that break advertising rules, such as using advertising that appeals particularly to children or glamourises gambling. This will include action taken against companies where third-party affiliates are responsible for advertising failings on their behalf.
The Commission are also looking at making it quicker and easier to take action for breaches of consumer law, such as unfair and misleading practices or unreasonable restrictions on withdrawals by customers.
As part of the changes, firms will have to provide effective complaints processes, including an eight week deadline for complaints to be resolved.
In addition, action can be taken by the Gambling Commission against gambling firms that send ‘spam’ marketing emails or texts.
The changes build on the Gambling Commissions stated aims to focus on ensuring customers of betting companies are treated fairly. Whilst the Commission expressed frustration at the reports they had received of betting restrictions being used to limit winnings of successful gamblers, they also recognised that individual businesses need to manage their commercial liabilities. As part of this, they acknowledged that the introduction of a 'right to bet' could have significant impact on the odds and markets offered to the majority of gamblers who do not face restrictions on their gambling activities. However, given that complaints by gamblers who have been restricted in their betting seem to be growing in number and strength, expect this issue to rumble on.
Out and about
September and October have seen a number of high profile openings of premises, including Tracks and Records- Usain Bolts first restaurant outside of the Caribbean and Pizza Pilgrims new venture in the City of London. Autumn is also traditionally when operators and advisers begin the long run up to Christmas with events, conferences and social gatherings, at which TLT have been in attendance or otherwise organised. This year TLT's Commercial Leases Seminars in London, Manchester and Bristol featured advice on licensing in relation to insolvency and we recently hosted the Shop Agent's society at our London offices where the panel and guests discussed 'What are the methods to regenerate the retail landscape'. Some very interesting proposals to what is widely seen as a malaise in the high street were put forward and debated during the evening. No doubt more discussions of this kind will dominate such events whilst there is uncertainty surrounding leisure and retail in our towns and cities.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.
