Legal advice: Applying for a licence under the new regime

The legal steps required to open a pub, bar or restaurant are, in parts, perplexing and often cause frustration and annoyance to those new to the industry.

New clients, for example, find trade objections made to licence applications particularly galling.

When informed about the possibility of trade objections the comment is usually: "Why the blazes is my application being delayed and potentially rejected because some nasty little person wants to protect their business and is scared of competition?" I have, of course, toned down the typical language!

While I can sympathise with such sentiments, the impact of trade objections for those applying for - or varying - premises licences under the Licensing Act 2003 is considerably reduced compared with the Licensing Act 1964.

In the old days pretty much anyone could (and often did) object to an application for a new on-licence, a variation, a special hours certificate or a public entertainment licence.

Applications would often take days to hear as large operators did battle with each other. Professional 'independent' witnesses would be called to discuss matters such as noise levels and transport links.

Company representatives at senior level would explain the concept of the proposed operation and give reassurances that levels of disturbance would not increase.

Once local residents both in support and opposition were thrown into the mix the travelling circus was complete.

Applications which once took several days to hear are now considered in a few hours, if not minutes. There are a number of reasons for this now being the case:

Time restrictions

Pursuant to the Hearings Regulations under the Licensing Act 2003, local authorities may limit the time permitted for submissions to the licensing application by various parties.

Licensing policies across the country set out time limits for submissions. It is not uncommon for each party to have only 10 or 15 minutes to argue its case.

While common sense usually prevails, I have been in hearings where the chairman of the committee has a stopwatch running.

However, submissions have been severely reduced and evidence that was once given verbally is now submitted in writing prior to the hearing. Hence the importance of documentary evidence being of the highest quality.

The requirement of relevance

The Licensing Act 2003 requires that a representation be relevant - that is, concerned with the likely effect of the grant on the promotion of the licensing objectives, and not frivolous or vexatious.

A representation which is simply a blatant attempt to suppress competition should therefore be discounted. While these requirements stifle many trade objections, you would not be abusing the system if you were to make a representation concerning a nearby off-licence seeking to open or extend its hours, say, when there are genuine concerns that underage sales would be made.

The power of review

Under the Licensing Act 1964, once you secured additional hours, provided you operated sensibly, you kept them. Powers to revoke a licence were rarely used.

Now you are continually on trial. No matter how well a licensed premises is managed, if its operation has a detrimental impact on one or more of the four licensing objectives, a local resident or a responsible authority can successfully seek a review.

In my view this has lead to incidents of a 'suck it and see' approach with trade competitors taking a pragmatic approach to objecting.

The change of approach to obtaining or varying a licence has necessitated a different mindset from an applicant.

With less time to present the merits of the application, greater consideration has to be given to preparing written evidence and ensuring that the key points are raised in a clear and succinct manner.

In addition, while it is intended that councils take a disinterested approach to each application, the wording of their policy does mean that you are sometimes on the back foot. All things considered it is no easier to obtain a licence under the new Act than it was under the old. Rather than battling trade objections it is now necessary to appease a raft of relevant authorities in addition to a far more savvy public.