The legal view

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For many, licensing reform represents the biggest change for the last 30 years. Anna Mathias and Niall McCann from licensing lawyers Joelson Wilson,...

For many, licensing reform represents the biggest change for the last 30 years. Anna Mathias and Niall McCann from licensing lawyers Joelson Wilson, which compiles our legal page, offer a personal perspective on the new Act.

Niall McCann says most councils are fulfilling their duties effectively.

"I am not a trainspotter. Having said that I am now well acquainted with the services of the major rail operators in my pursuit of longer hours, condition removal and the like. Given the ridiculous hype in the press I feel lucky that I have (so far at least) avoided being pelted with rotten fruit, nor been given a damn good kicking. Indeed, some people making representations have even smiled at me.

As is to be expected, my experiences of the new regime have been mixed. As a whole, whilst the transitional legislation has been found wanting the committee hearings have been positive. They have tended to be far less formal than court applications with pomp and ceremony being replaced with reasoned debate. The more relaxed procedural approach has also been refreshing. Committees have got 'up to speed' with the new legislation quickly and initial uncertainty has now generally been replaced with a more structured approach which benefits everyone.

Having said that, I do have my gripes:

Committees have generally been reluctant to dismiss representations, even when they are blatantly irrelevant.

This has lead to countless hearings that were not required and the misguided belief, especially with regard to local residents, that these committee hearings can solve the world's problems in their entirety.

For example, leasehold covenants; falling house prices; high council tax and problems caused by other premises are all irrelevant representations which I have had to deal with. Even the government's immigration policy was raised by one local resident! I also question the 'fudged' nature of some decisions. Perhaps I am being cynical, but I have walked out of hearings with the impression that the variation has been granted, not because of specific concerns relating to the government's four key objectives, but to avoid the added time and expense of appeal. Often decisions appear to be predetermined. Although no doubt with more experience, committees will trust their own judgements.

The majority of councils have been professional and friendly and recognise that a certain amount of common sense is required to ensure that the Licensing Act 2003 transition does not collapse into a shambles.

However, there are a few notable exceptions. Some councils are simply ignoring the government guidelines and 'shutting up shop' when the workload reaches breaking point. This lack of co-operation will only result in further paperwork by way of appeals and variation applications at a later date.

The media coverage, on the whole, has not been constructive. I know that it has been the silly season but the media's continued tub thumping has been at best annoying, and at its worst prejudicial. There have been very few articles in the national press which give the industry's view point. Column issues concerning 'binge-drinking' have been dominating newspapers, but where is the debate concerning the high level of council fees, the added bureaucracy and the uncertainty facing licensees? There are two sides to every debate, but faced with the media onslaught, it is surely putting pressure on interested parties and committees when considering licensing applications on their merits.

No doubt my views of this new legislation will change over the forthcoming months. We still await with trepidation what impact reviews of licences will have and the enforcement measures taken after the Second Appointed Day for those premises which have failed to obtain a premises licence.

One thing is almost certain though - the Licensing Act 2003 is here to stay and ideally all parties should work together to ensure that the positive aspects are embraced and the negative ones are not exacerbated."

Anna Mathias says inconsistency is hampering the trade.

"Experience of the Act has varied widely around the country; indeed, one of the more difficult aspects of the new system has been getting used to the fact that each council likes to do things differently.

I have attended a hearing where the maximum time limit for addressing the committee was three minutes and others where there have been no time limits imposed at all!

Some licensing authorities allow each person who has made a representation to speak, others impose upon groups of residents the appointment of a single spokesperson.

The quality of the administrative support for these hearings differs. Some authorities send out Notices of Hearing and agendas in good time; others unfortunately give only very short notice, in flagrant breach of the hearings regulations. This makes life difficult for representative and client alike.

I know of at least two instances (and I am off to attend a hearing in one of them tomorrow morning) where the time of hearing given in the Notice is completely wrong.

In tomorrow's example, the council concerned (which shall remain nameless) has told me that it is completely impossible for them to hold the hearing at the time they advised, despite all my protestations that I have been unable to take instructions and that extreme prejudice will be caused to my client.

Licensing authorities have also been extremely slow in sending out written notification of their decisions, this despite the requirement in the regulations that they notify parties of the result "forthwith".

I had my first hearing a fortnight ago where the committee did not announce the outcome at the end of proceedings. We were told that a letter would be despatched within five days - and we have yet to hear!

I understand that councils are under a great deal of pressure (as are we all), but I must confess that the speed at which councils are dealing with hearings leads to frustration.

Today, for example, I was informed that, instead of my usual 15 minutes, I would have only 10. The representations needed some addressing and this could not be done in that time.

Worse still, I got the distinct impression that the committee was bored (mine was the last hearing of the day), had predetermined the issue and was not really listening. The client is considering an appeal.

As far as working hours at the moment are concerned, well they did speak of "24-hour licensing". I now understand what they meant…"

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