Best to keep mum

By Poppleston Allen

- Last updated on GMT

Mini rant: Mistakes happen but the latest legislation could stifle sensible discussion and resolution
Mini rant: Mistakes happen but the latest legislation could stifle sensible discussion and resolution
Mistakes happen but the most recent legislation could be said to make sensible discussions and rectification more difficult

No, this is not an article about Mother’s Day or Mothering Sunday (as my mother insists on calling it). It is not even a rant because there is too much of that at the moment, but perhaps a more measured ‘mini rant’.

In licensing, as in other walks of life, no one is perfect and we all make mistakes, but the system sometimes creaks for operators at these times.

This is a problem when the same body (the local authority) both administers and enforces, and is exacerbated by the fact that breaches of many sections of the Licensing Act 2003 have a risk of potentially criminal activity.

I have been involved in several cases recently where the operator of licensed premises has carried out works without first obtaining the consent of the local authority. Ideally, in these circumstances, a frank discussion with a helpful licensing officer would be beneficial, to explain what had happened, an oversight, etc... but that we would like to discuss the best way forward by way of a potentially post-work minor variation or indeed, if the works were substantial, full variation. This sounds straightforward but, in one case, the premises were surrounded by rather large houses with an active residents’ association and a council with a large and ‘enthusiastic’ enforcing team. The temptation for the client is to press on and take the risk on the basis that this is more favourable than contacting the council.

The council’s licensing officer is put in a difficult position because as soon as this conversation takes place, he has been informed of a potential breach of the Licensing Act 2003 if the premises are to trade with inaccurate plans attached to them. He may insist or recommend informing the residents’ association and then the cat is out of the bag and the client is on the defensive.

Readers will be familiar with my reference to what is still the ‘old’ pre-2005 legislation but the advantage then was that the courts did not have the same enforcing role and, therefore, frank and helpful discussions could take place in an effort to sort out mistakes, such as unauthorised alterations, without putting the operator at risk of potentially criminal activity. There was often an understanding of the situation without a judgment as to ‘fault’.

This is no longer the case and although usually, with reasonable officers, there is a resolution, this is an illustration of where a dual administrator and enforcer role can cause difficulties, and there can be an understandable reluctance to engage with the council which other sections of the Licensing Act and guidance actively encourage.

For any legal enquiries please visit Poppleston Allen's website​.

Related topics: Licensing law

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