Hearings – A salutary lesson

By James Anderson, partner, Poppleston Allen

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Case study: Poppleston Allen reflects on a hearing about loud music and people leaving a venue late at night (image: Getty/gilaxia)
Case study: Poppleston Allen reflects on a hearing about loud music and people leaving a venue late at night (image: Getty/gilaxia)

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About six months ago, a colleague of mine represented an independent bar operator facing a review of his premises licence for noise issues in relation to loud music and people leaving the premises late at night. This was in a reasonably affluent suburb of a city in the West Midlands.

It has always been harder to predict the outcome of hearings before local authority licensing committees than it used to be before the courts under the old system. This is because a lawyer can give a reasonably accurate assessment on the basis of the weight of evidence, which was the principal means by which magistrates decided licensing matters.

Local authority licensing committees are not courts and are undertaking an administrative, not a judicial, function. The roles governing them in terms of evidence are much more relaxed. They must not act unreasonably or their decisions could be challenged, but many of the strict rules of evidence which apply in the courts do not apply, or are not as strictly applied, in local authority hearings. When you throw into the mix the fact the councillors sitting in the licensing committee will probably have their own personal views on a range of matters (that is why they have become councillors) you can sometimes have a very unpredictable situation.

With training and experience my belief is that licensing committees have become much more professional, but there are still rogue councillors out there and sometimes the lawyer advising them who may keep them in check does not always work for the local authority (he or she may be outsourced) or experienced in licensing matters.

In the case my colleague had there were two residents against and a number of local people supportive of the bar.

Virtual hearings

On looking at the “evidence” there was some film taken on a camera, but it was all over three or four years ago and the advice was given that this was probably inadmissible and there was not too much to worry about.

The hearing was on Zoom, which brings its own issues. I do not like virtual hearings. At a live hearing it is possible to hand over documents, for example, indicate on a plan where things are, speak to the lawyer before the hearing and also most importantly to gauge the mood of the meeting because the three councillors are sitting together and it is possible to invite comments. On a Zoom hearing the councillors are often sitting separately, there is very little interaction and from the lawyer/advocate’s point of view the worry is that it is not possible to have any idea which way the committee are thinking.

I have for some time now, if I am unsure, asked the committee at the end whether they want any further information and, in effect, are they with us or not? I have started doing this because if the committee are the type who do not ask many questions then it is very, very difficult to know how the hearing is going and once they have decided to retire it is too late – all that you will get is the decision, which could be good or ill.

In my colleague’s case the committee clearly were in favour of the resident and in fact did reduce the hours on the premises licence.

It may well be that the “evidence” was not particularly strong, but the committee likely felt that here was a resident who was getting disturbed and it was incumbent upon them to take action “to promote the licensing objectives” and effectively to reduce or remove the noise nuisance caused by music and people leaving.

It seems on the face of it a harsh decision, but of course the committee on an appeal would be able to justify it on the basis that if they did not intervene there was nothing offered by the bar operator as to how the situation would get better.

Administrative world

In other words, the bar operator was bullish and his instructions were along the lines of the old classic comment, “It’s their fault for living near a bar” but I am afraid that these days that does not get you very far.

In an administrative world where local councillors are elected by local residents, if two local residents and indeed it only needs one, indicate that they are being disturbed and that is on the face of it genuine then measures are likely to be taken if it has reached a review hearing.

These circumstances probably reflect local councils where licensing hearings do not happen very often and let us not forget that many local councils do not have experienced licensing committee members.

In some areas the licensing sub-committees sit once a week and are very experienced, supported by good officers, lawyers and technology involving a live hearing, maps, google earth etc., which makes it much better and the decisions often more reasoned.

This is very different to a local authority where the councillors may be sitting sometimes for the first time on a licensing panel and are not particularly well advised. The feeling that it is something of a lottery I am afraid remains, but it would be a mistake to be too dependent on the old-fashioned strength of evidence before such an administrative tribunal.

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