Problems arising as pubs seek variations

As we come towards the end of the first years of the new system of licensing, holders are beginning to look at small variations to their existing operation.

It may be an extra hour at weekends. It may be the addition of some revived activity. In all cases, they need to put in a multi-page form to the responsible authorities and let the neighbours know by means of advertisements.

But there is a problem emerging at the same time. Some licensing authorities are allowing the variation application to turn into a complete review of the operation of the licence.

There have even been examples of new conditions being added to the licence that have nothing whatever to do with what has been requested. In the case of one applicant, for example, who had asked for that extra hour, a new condition was imposed concerning children. The question of young people had not even been discussed at the hearing.

This raises the whole question of what a variation application actually is. As its name suggests, it is a proposal to vary what already exists. This means that only those parts of the form that apply to the variation need to be completed, together with an indication of how the applicant proposes to meet the licensing objectives as a result of the variation.

Some licence-holders mistakenly fill in the form with all their details, incorporating the new proposal as part of it. This effectively means they are putting their whole operation on the line once again, as if they were asking for a new licence.

There are even advisers to local authorities who suggests that the wording of the Act allows the licensing committee to add any new condition they like. It does not have to be relevant to the actual variation request, but can cover any issue that is raised at the hearing by objectors.

This clearly rules out the children condition referred to above. But it is also, in my view, a wrong reading of the Act.

First of all, what can the committee consider? It is up to officers in the first instance to rule on whether objections from local people are "frivolous or vexatious" (they cannot do this with objections from responsible authorities). But they must also consider at that stage whether the objections are "relevant", according to the Act.

Now this is where an important distinction has to be made. According to the Act, representations are only relevant if they are about "the likely effect of the grant of the application on the promotion of the licensing objectives".

So what the Act is saying is that objectors must stick to the effect of the request being made, and so must the committee. Because the application, in this instance, is for a specific change to the operating schedule, and it is the effect of that which has to be considered, not anything else.

I have heard of "plea bargaining" going on - where a responsible authority will ask for a trade-off in order to let a certain extension past. There is no real provision for this in the Act, but I know it goes on.

However I am mightily concerned that

some licensing committees are stepping entirely outside the ring to land a knock-out blow on an operator under pressure from their colleagues.

Of course, there is an appeal to the

magistrates. But that can be costly and time-consuming. Which is one reason why I think the magistrates should be bold and award costs to the applicant where they think, quite rightly, that the council has overstepped the mark.