Capital punishment

External factors are influencing licensing decisions

by David Clifton, of thePublican.com's legal team​

Interesting to read of the yet further controversy attracted by the City of Westminster. This site has previously reported the challenges in the High Court to the council's public entertainment licensing policy and its request that licensees stop playing music that might encourage people to dance.

Now it is reported that a licensee has received a letter from the council telling him that he should stop car drivers from beeping their horns outside his premises.

He has said that he does what he can to ask customers to be considerate when leaving but cannot be expected to do anything more.

What this report throws into focus is what issues in relation to factors outside a licensee's immediate control can properly be taken into account in determining licensing applications.

What external factors can be taken into account on a licence application?​

In determining whether to grant a liquor or public entertainment licence (PEL), the relevant authority can take into account, among other things, whether the location of the premises are suitable.

For example, notwithstanding that it is more properly a planning issue, I have seen licensing applications refused because it has been thought that the car parking facilities are inadequate. Staying on the subject of cars, a growing concern of licensing authorities has been the potential noise nuisance in the vicinity of licensed premises caused by illegal mini-cabs. However, often the real issue is whether the local authority and the police are doing all they should be to enforce the law against illegal cabs.

Can the potential for public disorder be taken into account?​

The case most often referred to in connection with a potential risk to public order is a 1983 court of appeal decision in relation to a disco in Bournemouth.

In that case, it was decided that licensing authorities could refuse a licence for events which occur outside of the premises, as well as those which occur inside, if the presence of the premises is likely to contribute to aggravating public disorder.

Objectors to licensing applications often seize upon the case with glee saying that it means that a licence may be refused, even though the outlet is well-managed, if customers leaving create an unacceptable degree of public disorder.

However, the circumstances described in the 1983 case were exceptional and need to be considered very carefully against the actual circumstances of the particular case if reliance is sought to be placed upon the decision.

Another factor that is often relied on by the police in various parts of the country when objecting to licensing applications is the Crime and Disorder Act 1998, which requires the local authority and the police to act in partnership to prevent crime and disorder in their area.

All too regularly the easy answer, as far as the police are concerned, appears to be that a licensing application should be refused as the way of ensuring that there is absolutely no risk of crime and disorder occurring.

The most recent high court challenge to the City of Westminster policy.​

The sensible view is surely that the courts, the police and the local authorities should be focussed on premises that are causing problems that arise from and are directly related to the premises?

Not so, says the City of Westminster.

It maintains that it is entitled to adopt a policy of presumption against the granting of PELs in certain areas because of cumulative problems rather than those attributable to specific premises.

The council says that the cumulative effect of the late night licences in the West End of London is that a large number of people are present in the streets into the small hours, with consequential difficulties, including:

• criminal offences on and by visitors
• nuisance to residents by noise, litter and fouling
• attraction of unlicensed mini-cabs
• traffic congestion.

On May 29 2002, Mr Justice Scott Baker delivered his judgement in the latest round of judicial review proceedings between Chorion, operator of Tiger Tiger, and the City of Westminster.

My interpretation is that the real winner in the case has been the council, even though its application for judicial review was unsuccessful.

The high court judge decided that it is appropriate that Westminster should have a policy in the light of the problems that it has identified in the West End. However, he said that the existing document needs to be redrawn to eliminate current ambiguities and inconsistencies.

A new policy in the offing?​

In his judgement, Mr Justice Scott Baker made a number of specific recommendations on the content of a revised policy.

As a result, I can confidently predict that the City of Westminster will go out to fresh consultation and thereafter produce a new policy that makes it clear that:

• the policy is not directed at the quality of the proposed operation or the fitness of the licensee but on the global effect of the licences on the area as a whole
• it will only be overridden in exceptional circumstances and that the impeccable credentials of an applicant will not ordinarily be regarded as exceptional circumstances
• the kind of circumstances that might be regarded as exceptional would be where the underlying policy of restricting any further growth in late night licences would not be impaired, for example where premises in one place would replace those in another.

So all in all, bad news for anyone wanting to open new late night premises in the heart of the capital. Also, and even more worryingly, is that we may be being given a taste of what is to come elsewhere in the country when responsibility for liquor licensing passes to local authorities.

Related articles:​

Westminster City Council criticised for street-noise sham (23 May 2002)

Westminster City Council criticised for street-noise sham (23 May 2002)

Westminster council hits out at 'heavy-handed' PEL criticism (9 May 2002)

Westminster Council PEL action 'heavy-handed' (25 April 2002)

Westminster council attacked by BiSL as late-opening row continues (13 March 2002)