One of the more intentionally dramatic changes under the Licensing Act 2003 was the additional power given to residents and other "interested parties" when opposing applications for new premises licences or variations to existing licences. Are we any further down the line now in understanding who these interested parties are and therefore who can exercise this power?
Interested parties include residents and businesses "in the vicinity" of the premises.
How is this defined? The Guidance to the Licensing Act leaves it up to the licensing authority to determine whether the likelihood is that the person making the representation would be directly affected by disorder or disturbance occurring or potentially occurring on or immediately outside the premises. The authorities are asked to make their decision based on common sense. So how do you make sense of this if you are considering making an application?
Firstly, without case law on what should be accepted as a relevant representation, all councils are interpreting the guidance in their own way. You will need to check your local authority's licensing policy to see if it discloses its approach. For instance, some councils use a distance rule to distinguish who is "in the vicinity" (for instance 200 meters surrounding a premises), while others try to consider the nature of the representation and whether it can be applied to the applicant premises.
It seems very difficult to argue that a strict distance rule is, in fact, what was intended. This does not allow for the flexibility that the Act envisioned to allow those people affected by the premises to have their say. Similarly, it would appear to allow for representations to be accepted from people who are not, in actual fact, affected by the premises.
A resident on the other side of a busy dual carriageway, for instance, would be able to make representations against a pub, even though there would be no possible way that they could be directly affected due to the noise of the road and/or a lack of places to cross.
On the other hand, to expect each representation to be properly investigated and to filter out those not directly affected by the premises places an additional burden on the licensing authority to make possibly lengthy checks. In any event, if there is any doubt, the representation has to be accepted.
Until case law establishes how to interpret the guidance, it seems that if you receive any representations to your application, you should take the time to find out exactly where they come from and consider whether that person is directly affected. You never know what you may find through a little investigation...