Legal advice: Dealing with licensing committees

Licensing is an administrative process with limited discretion but, in truth, the issue of asking local councillors to resolve disputed matters in a part administrative, part judicial committee hearing is not always entirely satisfactory.

To give an operator 10 minutes to convince a licensing committee why it wants to spend more than £1m to improve and develop a pub, and also to try and assuage residents’ concerns at 9.30pm is not a good way of doing business. In truth, the system generally works. We muddle through and far more times than not a satisfactory conclusion is reached.

Many licensing committees are well trained, experienced and well advised and make reasoned and sensible decisions, but this is not true of all.

Politicisation

There are still some councillors out there (and I deliberately refer to councillors as individuals rather than councils), who have not been able to avoid the politicisation of the process, which has become more marked since the introduction of the Licensing Act 2003, in 2005. In must be difficult if a local councillor is a member of the licensing committee but is also asked to represent local residents and speak “on their behalf” before his or her own committee.

It must also be difficult for a local councillor who has, for example, voted in favour of the introduction of a cumulative impact policy in a certain area and then is asked to grant an application that is contrary to that policy, but which he or she must deal with “on its merits” despite the fact that the councillor is convinced that saturation is this area has been reached.

I last wrote about this roughly six months ago but I still feel that too often, the pub operator (and I specifically mean pub rather than bar or other licensed premises) is seen as ‘the enemy’ and not part of the community; I cannot recall a local councillor ever being prepared to speak ‘on behalf of’ a pub business that wishes to develop and improve a premises structurally with the same hours, and too often some councillors seem to have considerable empathy with residents, which can be expressed overtly by expressions of sympathy and concern and which is really contrary to the impartiality of their position.

Examples

I can think of several examples recently. In the south of England, I acted for a large pub operator wishing to develop a premises by making it larger and indeed by increasing the occupancy by about 50. This particular council carried out a consultation exercise itself and wrote to more than 750 residents in the vicinity.

Of this, 24 made representations, many of which expressed entirely reasonable concerns about the impact of making the premises bigger; (there were no changes proposed to the hours of operation). The chairman of the committee, who informed us that he was “very experienced in these matters”, indicated that it was “his view” that residents “don’t tend to complain when there are problems because they are concerned it will affect the value of their property”. It is difficult to know exactly how to comment when an expression, which shows a blatant misunderstanding of the impartial nature of the proceedings is made.

It is not satisfactory that a huge investment in a business and into the area is being considered late at night by a chairman who has such a fundamental misunderstanding of his role.

It is clear that, although the proceedings are partly administrative, they must be conducted fairly and a decision made on the evidence. The reasonable residents when they realised that there was actually not a lot of evidence against the development then “ratcheted up” their responses and ended up portraying the pub as one where you would be fortunate to leave unscathed.

All of this was received by the committee without any comment and although the operator can state exasperatingly and firmly that this is simply not true, I could not help but get the feeling that the councillors’ view was “well they would say that wouldn’t they?” This application was granted but with restrictions put in place and I suppose that the system (again) has worked, albeit it was rather an unsatisfactory way of doing business.

Ingrained attitudes

By way of contrast, I was involved in a hearing in central London when there had been a serious incident at a premises and the police issued a summary review; the licence was suspended and there was then considerable negotiation before the review.

Conditions were agreed, which dealt with the issue, and the councillors, who were clearly experienced, asked a number of entirely intelligent and relevant questions and ultimately endorsed, sensibly, the compromise position that was reached. They dealt with the issues and enabled the business to continue as a viable concern. A good example of the system working.

I suppose that there will never be a perfect system but there is still a wide divergence in attitude and competence in terms of licensing committees and it is still concerning for operators that ingrained political and prejudicial attitudes do remain with certain councillors in certain licensing committees.