Legal advice: You may influence licensing policy

Under section 5 of the Licensing Act 2003, local authorities are obliged to review their licensing policy every three years.

The content of this policy can have a massive impact on premises licence- holders. There is a period of consultation prior to the determination of a policy and later this year you may well want to have your say.

Consultation process

The consultation process is a statutory requirement. The local authority has to consult, among others, "such persons as the licensing authority considers being representative of holders of existing licences".

It is unclear who authorities will choose to be 'representative', however, a council will have to be careful to select a cross-section of licence-holders and make sure they are not seen to be selecting consultees in order to influence a desired policy or outcome.

There is nothing to stop licence-holders requesting to be consulted and the council will have to have a good reason not to accede to that request.

Why would I want to get involved?

The council is also obliged to consult "such other persons as the licensing authority considers are representative of business and residents in its area". While councils will, again, have to try to select a cross-section of residents, undoubtedly those who respond will be those who make representations to applications.

Some councils will seek the opinion of the larger, more vocal, residents associations, so you may find that unless you and your fellow licence-holders make your feelings clear to the council, the only voice they hear other than that of the responsible authorities will be that of the residents.

Potential changes to policy

The licensing authorities have to consider all aspects of their policies, which include those relating to cumulative impact.

A significant number of Cumulative Impact Zones (CIZs) have been created in the past three years by councils exercising their powers under Section 5(4) of the Licensing Act which entitles them to revise their policy without having to wait for the three-year period after which they are obliged to review the policy. However it seems certain that more CIZs will be introduced as a result of this tri-annual review.

Another consideration is that the smoking ban will have had time to bed in prior to the consultation period.

Premises may be trying to deal with the potential outcry from residents caused by customers spending more time on the streets. This again may galvanise the vocal minority into complaining and making their voices heard during the consultation on revisions to policies. These are issues that the council will have to deal with and balance will need to be provided by the premises licence-holders.

Content of the policy

The content of a local authority's licensing policy is dictated by three factors:

• The requirement to produce a statement contained in Section 5 of the Licensing Act 2003
• The guidance issued under section 182 of the Licensing Act and the decision in the Canterbury judicial review case
• Part 3 of the guidance relates to statements of licensing policy and it is worth reading this section prior to submitting any responses to the consultation.

The guidance sets out the factors that can be taken into account in creating the policy, including that old favourite, cumulative impact. It is worth remembering that cumulative impact is not a creature of the Licensing Act 2003, merely a product of the guidance issued.

Councils must consider all factors when coming up with their policy and not just the voices of the vocal minority demanding more CIZs.

The Canterbury case

This was an important landmark case because it stipulated how far a licensing policy was entitled to go in prescribing the actions of applicants for premises licences or variations of licences.

Canterbury Council's licensing policy contained a number of 'expectations' for applicants for licences, including the fact that operating schedules should consider and address a number of key issues.

The point was made that applicants are entitled to apply for whatever they want and that only if representations are received could there be any fetter on the application. A licensing policy cannot require a party making an application to detail measures in their operating schedule. This is a point that perhaps needs to be reiterated to councils.

Conclusion

In the never-ending litany of paperwork that appears to be the modern publican's lot, there comes a time, every three years, when a challenge has to be faced, sinews steeled and the fray entered.

The changes to licensing policies will be driven by the licensing authorities' experiences in hearings garnered over the past three years and the responses it receives to the statutory consultation.

The battle lines will be drawn throughout town and city centres, where moral indignation against the perceived British binge-drinking culture meets a licensee's right to try to make a living.

The ante will be raised by the smoking ban and the troubles that will bring and a new cold war between the parties could ensue.

It is important to make sure that your voice is heard when the licensing authorities seek to hear the views of concerned parties.

You can be sure that the people who have made representations in the past to applications will be asked… and in all likelihood they will respond.