Legal advice: Variations enigma

Advice on applying for variation as well as your licence conversion.

By Piers Warne of thePublican.com's team of legal experts from London solicitors Joelson Wilson.​

For those of you brave enough to run the gauntlet of applying for variation alongside conversion of your existing licences, here is a little advice which may be of use should you find standard representations to your application from responsible authorities.

Section 35(5) of the Licensing Act 2003 gives the grounds on which representations can be made. Relevant representations "are about the likely effect of the grant of the application on the promotion of the licensing objectives".

The representations have to detail the effect of the application on the licensing objectives (prevention of crime and disorder, public safety, prevention of nuisance, protection of children). This means that the representations have to relate to those parts of the variation which it is alleged specifically would cause the effect. Any part of a variation application not specifically addressed in a representation should be granted.

Taking the easy option...​

Unfortunately, there seems to be a welter of "standard" or "sample" representations being submitted by responsible authorities which do not provide any indication of the likely effect of the variation sought or go into more detail than "we object on the such and such objective ground". Whether authorities are permitted to allow representations of such dubious legality is a matter on which the Department of Culture, Media and Sport needs to give firm guidance. As matters stand, many licensing authorities are only too willing to allow representations which, in my view, fail the statutory test.

Standard representations seem to be given too much credence by some licensing authorities. It would appear that some authorities resent the fact that the new Licensing Act does not give them power to influence the outcome of applications which are procedurally correct. They have to wait for relevant representations from a responsible authority or interested party before they have any authority to add any conditions they consider necessary for the promotion of the licensing objectives.

Representations with a twist​

Slightly more sinister is the suspicion that some licensing authorities seem to have got one of the responsible authorities to make a "stock" representation to all variation applications. Such representations are by their very nature "generic representations" and cannot therefore be relevant on a proper interpretation of Section 35. I have been before committees who accept as relevant representations that those clearly do not fall within the Section 35 definition. Some council legal officers will not allow representations to be withdrawn, even if conditions have been agreed with the responsible authority. This goes entirely against the spirit of the legislation. It allows a licensing committee to hear an application and therefore potentially reject it, despite all responsible authorities being satisfied.

I have also had discussions with authorities that have taken the view that until such generic representations are challenged in the High Court, they will be allowed - even though I can often get the licensing officer to accept privately that the representations cannot be regarded as relevant under the Act. I have seen jellyfish with stronger spines.

More detail required​

What these licensing authorities may fail to realise is that in allowing such representations they are giving the impression that the responsible authorities can get what they want without having to consider precisely what the applicant is applying for. This clearly defeats the purpose of the Act and inhibits negotiation, since no operator can properly address a representation that says "the application sought is contrary to the licensing objectives". More detail is required. Below is a list of representations I have experienced that I think you should protest to your authority are contrary to S.35 and therefore should be rejected for being irrelevant:

• The applicant does not provide sufficient information to allow us to determine if the application is contrary to the licensing objectives
• The variation sought is contrary to one (or all) of the licensing objectives
• The variation will have an effect on neighbouring amenity as the proposal would not be in line with the opening hours of other premises
• The premises may be looking to change its nature of operation which may affect the planning class it is currently in
• The variation does not disclose a risk assessment
• Pubs in the area cause problems.