Guidance issued under section
182 of the Licensing Act 2003
Consolidated version published 28 January 2010
Our aim is to improve the quality of life for all
through cultural and sporting activities, support
the pursuit of excellence, and champion the
tourism, creative and leisure industries.
1
Guidance issued under section
182 of the Licensing Act 2003
Issued by
The Secretary of State for
Culture, Media and Sport
This document represents the Guidance and is issued by the Secretary
of State for Culture, Media and Sport. The Guidance has been
published on the DCMS website and on UK Online. Any local authority
or other organisation is free to publish the Guidance on its own
website or provide an appropriate link to either of these websites.
The Guidance has been prepared in consultation with other
Government Departments, executive agencies and an Advisory
Group comprising stakeholder representatives.
It will be kept under constant review in consultation with key
stakeholder groups and will be amended or supplemented as
necessary at any time.
2
Foreword 7
1. Introduction 9
1.1 The Licensing Act 2003
9
1.2 Licensing objectives and aims
9
1.5 The Guidance 10
1.9 Licensing policies 11
1.11 Licensable activities 11
1.13 Authorisations 11
1.14 General principles 11
1.23 Related legislation and strategies 13
2. The licensing objectives
16
2.1 Crime and disorder
16
2.19 Public safety
19
2.32 Public nuisance
21
2.41 Protection of children from harm
23
3. Licensable activities
26
3.1 Summary
26
3.2 Wholesale of alcohol
26
3.6 Internet and mail order sales
26
3.8 Regulated entertainment
27
3.9 Entertainment
27
3.10 Entertainment facilities
27
3.15 Pub games
28
3.16 Private events 28
3.20 Incidental music 29
3.24 Spontaneous music,
singing and dancing 30
3.25 Small venues providing dancing
and amplified or unamplified m
usic 30
3.32 Late night refreshment 31
4. Personal licences 33
4.2 Requirements for a personal licence 33
4.3 Who can apply 33
4.5 Criminal record 34
4.11 Issuing of personal licences
by
Welsh licensing authorities 35
4.12 Licensing qualifications 35
4.14 Relevant licensing authority 35
4.15 Changes in name or address 35
4.17 Central licensing register 35
4.18 Renewal 35
4.19 Specification of new designated
premises supervisors 36
4.25 Police objections to new supervisors 36
4.31 Police objections to
existing supervisors 37
4.32 Convictions and liaison
with the courts 37
4.34 Relevant offences 38
4.35 Disapplication of certain mandatory
conditions for community premises 38
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Guidance issued under section 182 of the Licensing Act 2003
Contents
4
5. Who needs a premises licence? 42
5.2 Relevant parts of the Act
5.4 Premises licensed for gambling
5.5 Designated sports grounds,
designated sports events and
major outdoor sports stadia
5.10 Sports stadia with roofs that
open and close
5.11 Vessels
5.18 International airports and ports
5.20 Vehicles
5.22 Trains and aircraft
5.23 Garages
5.26 Large scale temporary events
requiring premises licences
5.29 Additional fees for large scale events
6 . Club premises certificates
42
43
43
44
44
45
45
45
46
46
47
48
6.2 General
6.9 Qualifying conditions
6.10 Associate members and guests
6.11 Applications for the grant or
variation of club premises certificates
6.13 Steps needed to promote the
licensing objectives
6.16 Sex equality
6.17 Temporary event notices
48
49
49
50
50
51
51
7. Temporary event notices 52
7.2 General
7.5 Limitations
7.9 Who can give a temporary event notice?
7.14 Notified premises
7.15 Notification arrangements
7.20 Role of the licensing authority
7.26 Police intervention
8. Applications for premises licences
52
52
53
54
54
55
56
57
8.1 Relevant licensing authority
8.3 Authorised persons
8.5 Interested parties
8.9 The Role of Local Councillors
8.16 Responsible authorities
8.22 Who can apply for a premises licence?
8.28 Application forms
8.40 Plans
8.41 Steps to pr
omote the licensing objectives
8.46 Variations
8.81 Relaxation of opening hours for local,
national or international occasions
8.85 Advertising applications
8.95 Applications to change the
designated premises supervisor
8.96 Provisional statements
8.108 Transfers of premises licences
8.112 Interim authorities
8.119 Right of freeholders to be notified
of licensing matters
57
57
57
58
59
60
61
63
63
64
69
70
71
71
73
74
75
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Guidance issued under section 182 of the Licensing Act 2003
9. Determining applications 76
9.1 General 76
9.2 Where no representations are made 76
9.3 Where representations are made 76
9.8 Relevant, vexatious and frivolous
representations 77
9.14 Disclosure of personal details
of interested parties 78
9.19 Hearings 79
10. Conditions attached to premises licences
and club premises certificates 81
10.1 General 81
10.7 Proposed conditions 81
10.9 Consistency with steps described
in operating schedule 81
10.11 Imposed conditions 82
10.13 Proportionality 82
10.15 Duplication with other
statutory provisions 83
10.19 Hours of trading 83
10.22 Workers rights 84
10.23 Disabled people 84
10.29 Race equality 85
10.30 The performance of plays 85
10.31 Censorship 85
10.32 Copyright and royalties 85
10.33 Major art and pop festivals,
carnivals, fairs and circuses 86
10.38 Discounting and sales
promotions 87
10.41 Large capacity venues used
exclusively or primarily for
‘vertical’ consumption
of alcohol (HVVDs) 87
10.44 Mandatory conditions 88
10.45 Designated premises supervisor 88
10.48 Authorisation by personal
licence holders 88
10.54 Exhibition of films 90
10.58 Door supervision 90
11. Reviews 92
11.1 The review process 92
11.12 Repetitious representations 93
11.16 Powers of a licensing authority
on the determination of a review 94
11.23 Reviews arising in connection
with crime 95
11.29 Review of a premises licence
following closure order 96
12. Appeals 97
12.2 General 97
12.7 Licensing policy statements
and section 182 Guidance 97
12.9 Giving reasons for decisions 98
12.10 Implementing the determination
of the magistrates’ courts 98
12.11 Provisional statements 98
6
13. Statements of licensing policy 99
13.2 General 99
13.6 Consultation on policies 99
13.13 Fundamental principles 100
13.19 Duplication 101
13.20 Standardised conditions 101
13.21 Enforcement 102
13.23 The need for licensed premises 102
13.24 The cumulative impact of a
concentration of licensed premises 102
13.24 What is cumulative impact? 102
13.26 Evidence of cumulative impact 103
13.29 Effect of special policies 103
13.33 Limitations on special policies
r
elating to cumulative impact
104
13.39 Other mechanisms for controlling
cumulative impact
105
13.40 Licensing hours
106
13.43 Children
106
13.52 Responsible authority and children
108
13.53 Children and cinemas
108
13.55 Integrating strategies
109
13.56 Crime prevention
109
13.57 Cultural strategies
109
13.61 Transport
110
13.62 Tourism and employment
110
13.64 Planning and building control
110
13.69 Promotion of racial equality
111
13.70 Live music, dancing and theatre
111
13.76 A
dministration, exercise and
delegation of functions 112
13.79 Recommended delegation
of functions 114
Annexes
A Schedule 1 to the Licensing Act 2003
(regulated entertainment) 115
B Schedule 2 to the Licensing Act 2003
(late night refreshment) 120
C Schedule 4 to the Licensing Act 2003
(relevant offences) 125
D Pools of
conditions 127
E Useful information and contacts 144
Index 149
7
Guidance issued under section 182 of the Licensing Act 2003
Foreword
By the Secretary of State for Culture, Media and Sport
When this Guidance was first published in July 2004, we were on the brink of the
introduction of a wholly new and exciting approach to licensing. The purpose of the
regime was about to be given much needed clarity by four statutory objectives
becoming paramount when any relevant matters were considered. The objectives are:
the prevention of crime and disorder;
public safety;
the prevention of public nuisance; and
the protection of children from harm.
Thanks to the exceptional efforts of many officers and councillors in local authorities,
the Licensing
Act 2003 came into force on 24 November 2005 and it immediately
began to give local people a bigger voice in licensing decisions and to help local
authorities’ broader efforts to create safer and more civilised evening and night-time
economies.
It also began to add impetus to our aims of providing a better system of regulation for
business, greater choice for consumers and where possible, help for areas in need of
economic regeneration.
We were criticised by some for our conviction that these major changes would have a
positive impact on and support our wider strategy for tackling crime and disorder,
under-age drinking, public nuisance and anti-social behaviour.
We now have a clearer picture of how the Act is working in practice and I am greatly
encouraged by the very positive feedback we are receiving from licensing authorities,
local residents, the police and the licensed trade.
There is evidence that licensees have made good progress towards taking seriously their
responsibilities under the Act and are actively working with the police and each other to
eliminate sales of alcohol to underage drinkers and to combat alcohol related crime and
disorder.
There is widespread evidence of good and effective partnership working. In many areas,
local authorities have set up licensing forums that bring together residents, licensees,
responsible authorities such as the police and others to discuss and try to resolve
licensing issues. Enforcement has also benefited from this partnership approach with
improved targeting of problem premises and better co-ordination and cooperation to
clamp down on the irresponsible minority of retailers. The new closure and review
powers are working.
8
Local people are starting to show a much greater understanding of their rights to make
objections and seek reviews and are becoming more aware of and engaged in the
licensing process. Representations from residents have resulted in new conditions being
placed on thousands of licences and often this has been achieved through mediation
without the need to go to a formal hearing.
We will continue to monitor and evaluate the impact of the 2003 Act on the
prevention of crime and disorder and the other licensing objectives. The Licensing Act in
isolation cannot provide a remedy to many of the ills of society associated with alcohol
misuse. It must be part of a broader strategy to achieve better management of the
night-time economy and a better balance between the rights and responsibilities of
everyone living and working in each community.
We realise too that we are at the beginning of a long road towards the cultural change
that must ev
entually underpin the modernisation of the law.
While this revised version of the Guidance is my advice to licensing authorities, it is
the product o
f partnership between central Government and a wide range of
stakeholders including, local authorities, the police, industry, the voluntary sector, the
club movement, musicians and other performers, representatives of the community
and a wider public consultation. I am grateful to all those who have participated and
look forward to further work together to promote the four licensing objectives.
I am confident that this revised version of the Guidance will encourage the spread
of best pr
actice and help to ensure even greater consistency of approach across
licensing authorities.
We will, of course, continue to monitor the impact of the Act on the licensing
objectives and if necessary
, consider the introduction of further legislation with the
consent of Parliament to strengthen or alter any provisions.
Tessa Jowell MP
Secretary of State for Culture, Media and Sport
9
Guidance issued under section 182 of the Licensing Act 2003
1. Introduction
THE LICENSING ACT 2003
1.1 The 2003 Act, the associated explanatory
notes and any statutory instruments made
under its provisions may be viewed on the
OPSI website www.opsi.gov.uk. All statutory
instruments may also be viewed on the
DCMS website www.culture.gov.uk. The main
statutory instruments are:
The Licensing Act 2003 (Transitional
pr
ovisions) Order 2005
The Licensing Act 2003 (Personal licences)
R
egulations 2005
The Licensing Act 2003 (Premises
licences and club premises certificates)
Regulations 2005
The Licensing Act 2003 (Licensing
authority’s register) (other information)
Regulations 2005
The Licensing Act 2003 (Hearings)
Regulations 2005
The Licensing Act 2003 (Hearings)
(Amendment) R
egulations 2005
The Licensing Act 2003 (Permitted
Temporary Activities) (Notices)
Regulations 2005
The Licensing Act 2003 (Transitional
conversions fees) Order 2005
The Licensing Act 2003 (Fees) (Amendment)
R
egulations 2005
LICENSING OBJECTIVES AND AIMS
1.2 The legislation provides a clear focus on the
promotion of four statutory objectives which
must be addressed when licensing functions
are undertaken:
The licensing objectives
The prevention of crime and disorder.
Public safety.
The prevention of public nuisance.
The protection of children from harm.
1.3 Each objective is of equal importance. It is
impor
tant to note that there are no other
licensing objectives, so that these four objectives
are paramount considerations at all times.
1.4 But the legislation also supports a number of
other ke
y aims and purposes. These are vitally
important and should be principal aims for
everyone involved in licensing work. They include:
the necessary protection of local residents,
whose lives can be blighted by disturbance
and anti-social behaviour associated with
the behaviour of some people visiting
licensed premises of entertainment;
the introduction of better and more
propor
tionate regulation to give business
greater freedom and flexibility to meet
customers’ expectations;
greater choice for consumers, including
tourists,
about where, when and how they
spend their leisure time;
the encouragement of more family friendly
premises w
here younger children can be free
to go with the family;
the further development within
communities o
f our rich culture of live
music, dancing and theatre, both in rural
areas and in our towns and cities; and
the regeneration of areas that need the
increased in
vestment and employment
opportunities that a thriving and safe
night-time economy can bring.
10
THE GUIDANCE.
1.5 Section 182 of the Licensing Act 2003 (“the
2003 Act”) provides that the Secretary of State
must issue and, from time to time, may revise
guidance to licensing authorities on the
discharge of their functions under the 2003 Act.
Purpose
1.6 The Guidance is provided for licensing
authorities carrying out their functions. It also
provides information for magistrates hearing
appeals against licensing decisions and has
been made widely available for the benefit of
operators of licensed premises, their legal
advisers and the general public. It is a key
mechanism for promoting best practice,
ensuring consistent application of licensing
powers across the country and for promoting
fairness, equal treatment and proportionality.
1.7 The police remain key enforcers of licensing
law. The Guidance has no binding effect on
police officers who, within the terms of their
force orders and the law, remain operationally
independent. However, the Guidance is
provided to support and assist police officers in
interpreting and implementing the 2003 Act in
the promotion of the four licensing objectives.
Legal status
Section 4 of the 2003 Act provides that in
carrying out its functions a licensing authority
must ‘have regard to’ guidance issued by the
Secretary of State under section 182. The
requirement is therefore binding on all licensing
authorities to that extent.
However, the guidance cannot anticipate every
possible scenario or set of circumstances that
may arise and as long as licensing authorities
have properly understood the Guidance they
may depart from it if they have reason to do so
as long as they are able to provide full reasons.
Departure from the Guidance could give rise
to an appeal or judicial re
view, and the reasons
given will then be a key consideration for the
courts when considering the lawfulness and
merits of any decision taken.
1.8 Nothing in this Guidance should be taken as
indicating that any r
equirement of licensing
law or any other law may be overridden
(including the obligations placed on the
authorities under human rights legislation).
The Guidance does not in any way replace
the statutory provisions of the 2003 Act or add
to its scope and licensing authorities should
note that interpretation of the Act is a matter
for the courts. Licensing authorities and others
using the Guidance must take their own
professional and legal advice about its
implementation.
11
Guidance issued under section 182 of the Licensing Act 2003
LICENSING POLICIES
1.9 Section 5 of the Act requires a licensing
authority to prepare and publish a statement
of its licensing policy every three years.
The policy must be published before the
authority carries out any licensing function in
relation to applications made under the Act.
1.10 However, making a statement is a licensing
function and as such the authority must have
regard to the Secretary of State’s Guidance
when making and publishing its policy.
A licensing authority may depart from its own
policy if the individual circumstances of any
case merit such a decision in the interests of
the promotion of the licensing objectives.
But once again, it is important that they
should be able to give full reasons for departing
from their published statement of licensing
policy. Where revisions to this Guidance are
issued by the Secretary of State, there may be
a period of time when the local policy
statement is inconsistent with the Guidance,
for example, during any consultation by the
licensing authority. In these circumstances, the
licensing authority should have regard, and give
appropriate weight, to the Guidance and its
own licensing policy statement.
LICENSABLE ACTIVITIES
1.11 For the purposes of the Act, the following are
licensable activities:
Licensable activities
The sale by retail of alcohol.
The supply of alcohol by or on behalf of a club
to, or to the order of, a member of the club.
The provision of regulated entertainment.
The provision of late night refreshment.
1.12 Further explanation of these terms is provided
in Chapter
3.
AUTHORISATIONS
1.13 The Act provides for four different types of
authorisation, as follows:
Authorisations
Personal licences – to sell or supply alcohol
and/or authorise the sale/supply.
Premises Licences – to use a premises for
licensable activities.
Club Premises Certificates – to allow a qualifying
club to engage in qualifying club activities as set
out in Section 1 of the Act.
Temporary Event Notices – to carry out
licensable activities at a temporary event.
GENERAL PRINCIPLES
1.14 If an application for a premises licence or club
premises certificate has been made lawfully
and there have been no representations from
responsible authorities or interested parties,
the licensing authority must grant the
application, subject only to conditions that are
consistent with the operating schedule and
relevant mandatory conditions.
Each application on its own merits
1.15 Each application must be considered on its
own merits and any conditions attached to
licences and certificates must be tailored to
the individual style and characteristics of the
premises and events concerned. This is
essential to avoid the imposition of
disproportionate and overly burdensome
conditions on premises where there is no need
for such conditions. Standardised conditions
12
should be avoided and indeed, may be
unlawful where they cannot be shown to be
necessary for the promotion of the licensing
objectives in any individual case.
Avoiding duplication of other legal
requirements
1.16 The licensing authority should only impose
conditions on a premises licence or club
premises certificate which are necessary and
proportionate for the promotion of the
licensing objectives. If other existing law
already places certain statutory responsibilities
on an employer or operator of premises, it
cannot be necessary to impose the same or
similar duties on the premises licence holder
or club. It is only where additional and
supplementary measures are necessary to
promote the licensing objectives that
necessary, proportionate conditions will need
to be attached to a licence.
Hours of opening
1.17 The Government strongly believes that, prior
to the introduction of the Licensing Act 2003,
fixed and artificially early closing times
(established under the Licensing Act 1964)
were one of the key causes of rapid binge
drinking prior to closing times; and one of the
causes of disorder and disturbance when large
numbers of customers were required to leave
the premises simultaneously.
1.18 The aim through the promotion of the
licensing objectiv
es should be to reduce the
potential for concentrations and achieve a
slower dispersal of people from licensed
premises through flexible opening times.
Arbitrary restrictions that would undermine
the principle of flexibility should therefore
be avoided.
1.19 The four licensing objectives should be
paramount consider
ations at all times and
licensing authorities should always consider
the individual merits of a case.
Partnership working
1.20 Licensing functions under the Act are only
one means of promoting the delivery of the
objectives described. They can make a
substantial contribution in relation to licensed
premises, but are not the panacea for all
community problems.
1.21 Licensing authorities should work with all
partners to deliver the licensing objectives,
including responsible authorities, the licensed
trade, local people and businesses, town centre
managers, Crime and Disorder Reduction
Partnerships, performers and local transport
authorities and operators. For example, local
businesses and a local authority may develop a
Business Improvement District (BID), a
partnership arrangement to take forward
schemes that are of benefit to the community
in that area, subject to the agreement of
business rate payers.
1.22 The private sector, local residents and
community gr
oups in particular have an equally
vital role to play in promoting the licensing
objectives in partnership with public bodies.
The Secretary of State strongly recommends
that licensing authorities form licensing liaison
groups and forums that bring together all the
interested parties on a regular basis to monitor
developments and propose possible solutions
to any problems that may arise. The Secretary
of State also recommends that licensing
authorities should hold well publicised open
meetings where local people and businesses
can give their views on how well they feel the
licensing objectives are being met.
13
Guidance issued under section 182 of the Licensing Act 2003
RELATED LEGISLATION AND
STRATEGIES
1.23 The Licensing Act is part of a wider
Government strategy to tackle crime, disorder
and anti-social behaviour and reduce alcohol
harm. Licensing authorities should develop
effective strategies with the police, and the
other enforcement agencies as appropriate, for
the management of the night-time economy.
Central to this would be the enforcement of
the law relating to the sales of alcohol to
drunk and underage people and drunkenness
or disorder on, or in the immediate vicinity of
licensed premises. Targeted enforcement of this
kind, in line with the recommendations in the
‘Hampton’ report
1
should have a positive
impact on the immediate vicinity of the
licensed premises concerned.
1.24 Local authorities are also empowered under
section 13 of the Criminal Justice and Police
Act 2001 to make designated public place
orders’ (DPPOs) to control the consumption of
alcohol in a public place outside of licensed
premises.
1.25 In addition there is nothing to prevent the
police, licensing authorities and the hospitality
industry reaching agreement about best
practice in areas where problems are likely
to arise.
1.26 Licensing law is not the primary mechanism
for the general control of individuals once
they are away from a licensed premises and
therefore beyond the direct control of
individual licensees or certificate holders.
However, licensees and certificate holders
should take reasonable steps to prevent the
occurrence of crime and disorder and public
nuisance immediately outside their premises,
1 ‘Reducing administrative burdens: effective inspection and enforcement’
by Philip Hampton. March 2003
for example on the pavement, in a beer garden, or
(once the smoking ban comes into force)
in a smoking shelter, where and to the extent
that these matters are within their control.
1.27 In addition, when considering a new premises
licence or following reviews that have
identified problems with a particular premises,
licensing authorities may consider imposing
conditions as appropriate, such as preventing
customers from taking open containers outside
the premises or installing CCTV. However, any
conditions imposed must not be aspirational
and must be within the control of the licensee.
For example, a condition may require a
premises to adopt a particular dispersal policy,
but a licensee cannot force customers to abide
by it.
Crime and Disorder Act 1998
1.28 All local authorities must fulfil their obligations
under section 17 of the Crime and Disorder Act
1998 when carrying out their functions as
licensing authorities under the 2003 Act.
1.29 Section 17 is aimed at giving the vital work of
crime and disorder reduction a focus across the
wide range of local services and putting it at
the heart of local decision-making. It places
a duty on certain key authorities, including
local authorities and police and fire and rescue
authorities to do all they reasonably can to
prevent crime and disorder in their area.
1.30 The Government believes that licensing
authorities should, as a matter of good
practice, involve Crime and Disorder Reduction
Partnerships (CDRPs) in decision-making in
order to ensure that statements of licensing
policy include effective strategies that take full
account of crime and disorder implications.
14
Alcohol Harm Reduction Strategy
1.31 Licensing authorities should familiarise
themselves with the relevant government’s
alcohol harm reduction strategy. In England
this is Safe. Sensible. Social. The next steps in
the National Alcohol Strategy published in June
2007 and in Wales the Welsh Assembly
published Tackling Substance Misuse in Wales: A
Partnership Approach in September 2000,
which is currently being further developed.
Licensing authorities should ensure that their
licensing policies complement the relevant
strategy, and subsequent measures, where
these may help to promote one or more of the
licensing objectives.
The Anti-Social Behaviour Act 2003
1.32 Licensing authorities need to be aware of new
powers that will be available to local
authorities under sections 40 and 41 of the
Anti Social Behaviour Act 2003. The Act
provides that if the noise from any licensed
premises is causing a public nuisance, an
authorised environmental health officer would
have the power to issue a closure order
effective for up to 24 hours. Under this
provision, it is for the Chief Executive of the
local authority to delegate their power to
environmental health officers within their
authority. If after receiving a closure order the
premises remain open, the person responsible
may upon summary conviction receive a fine
of up to £20,000 or imprisonment for a term
not exceeding three months, or both.
This complements the police powers under
Part 8 of the 2003 Act to close licensed
premises for temporary periods.
Violent Crime Reduction Act 2006
1.33 The Violent Crime Reduction Act 2006 received
Royal Assent on 8 November 2006. The Act
introduces new measures to ensure that police
and local communities have the powers they
need to tackle guns, knives and alcohol-related
violence. Relevant measures include:
– (from 3 May 2007) an amendment to
the Licensing Act to introduce a new offence
of persistently selling alcohol to children.
The offence will be committed if, on three
or more different occasions in a period of
three consecutive months, alcohol is unlawfully
sold to a minor on the same premises
- new powers for local authorities and the
police to designate Alcohol Dis
order Zones
(ADZs) as a last resort to tackle alcohol related
crime and disorder. The designation of an area
as an ADZ will empower local authorities to
charge licensees for additional enforcement
activity affecting all licensed premises within
the zone. The earliest date for commencement
of ADZs is 1 October 2007. On
commencement, relevant guidance and
regulations will be placed on the Home Office
website (www.homeoffice.gov.uk).
– an amendment to the Licensing Act which
will enable licensing authorities,
on the
application of a senior police officer in cases of
serious crime and disorder, to attach interim
conditions to licences pending a full review.
The earliest date for commencement of these
powers is 1 October 2007.
15
Guidance issued under section 182 of the Licensing Act 2003
LACORS Practical Guide to Test Purchasing
1.34 Licensing authorities should also familiarise
themselves with the LACORS Practical Guide
to Test Purchasing insofar as it relates to the
test purchasing of alcohol by trading standards
officers. LACORS continues to fulfil an
important co-ordinating role in advising and
informing licensing authorities about the
requirements of the 2003 Act. LACORS’
website may be viewed at www.lacors.gov.uk.
1.35 Details of other relevant industry initiatives
can be f
ound at Annex E.
The Health Act 2006 – workplace smoking ban
1.36 The ban on smoking in all enclosed workplaces
and public spaces will come into force on
1 July 2007. The ban will include smoking in
pubs, restaurants and members’ clubs where
bar or other staff are employed. In this context
‘enclosed’ will mean anywhere with more than
50% of wall and ceiling space infilled.
The Clean Neighbourhoods and Environment
Act 2005
1.37 This provides local authorities with an
additional power to issue a fixed penalty
notice to any licensed premises emitting noise
that exceeds the permitted level between the
hours of 11pm and 7am.
The EU Services Directive
1.38 The EU Services Directive is a flagship
European Directive intended to develop the
single market for services by breaking down
barriers to cross border trade within the EU
and making it easier for service providers
within scope to set up business or offer their
services in other EU countries. The Directive
requires that all notices and authorisations in
scope are able to be completed electronically
and via a ‘point of single contact’. The Directive
was implemented in the UK on 28 December
by the Provision of Services Regulations 2009.
The UK point of single contact is the Electronic
Application Facility (EAF) which is part of the
www.businesslink.gov website (‘businesslink’)
1.39 Although only regulated entertainment is a
‘service’ as defined under the Dir
ective, the
Government has extended the electronic
application process to all regulated activities
under the 2003 Act and to all authorisations
and notices with the exception of applications
for, and renewals of, personal licences, reviews
and representations. Guidance on the new
electronic application process is provided in
paragraphs 8.27 – 8.35 and in relevant chapters.
Policing and Crime Act 2009
1.40 The Policing and Crime Act 2009 clarifies how
police forces and local authorities can work
together by placing an explicit duty on police
authorities to reflect their community’s
priorities in their work. The 2009 Act introduced
a number of measures which are relevant, or
made changes, to the 2003 Act, including:
a mandatory code of practice for alcohol
r
etailers;
elected members of licensing authorities
included as inter
ested parties;
reclassification of lap dancing clubs so they
require a sex establishment licence
16
2. The licensing objectives
CRIME AND DISORDER
2.1 The steps any licence holder or club might take
to prevent crime and disorder are as varied as
the premises or clubs where licensable
activities may be carried on. Licensing
authorities should therefore look to the police
as the main source of advice on these matters.
They should also seek to involve the local
CDRP, as recommended in paragraph 1.21
of this Guidance.
2.2 The Government’s expectation is that the
police will have a key role in undertaking the
following tasks:
developing a constructive working
r
elationship with licensing author
ity
licensing officers and bodies such as the
local authority social services department,
the Area Child Protection Committee or
another competent body;
developing a constructive working
relationship with designated pr
emises
supervisors and other managers of premises,
including premises providing late night
refreshment;
advising, where necessary, on the
development o
f a venue drug policy;
developing a constructive working
relationship with the Secur
ity Industry
Authority including joint visits and
enforcement action where appropriate;
agreeing the protocols for actions taken by
door supervisor
s in relation to illegal drugs
or violent behaviour, particularly when
police officers should be called immediately;
advising on and approving search procedures
and the storag
e procedures for confiscated
drugs;
gathering and sharing intelligence on drug
dealing and use with par
tner or
ganisations
and local venues;
advising on the installation and monitoring
of secur
ity devices such as CCTV;
advising on the provision of safe and
accessible tr
ansport home in consultation
with community safety colleagues, local
transport authorities and transport operators;
working with venue owners and managers
to resolve drug-related problems and
problems of disorder, drunkenness and anti-
social behaviour; and
advising on the protection of employees on
licensed premises w
ho may be targets for
attacks and reprisals.
2.3 The Security Industry Authority also plays an
important r
ole in preventing crime and disorder
by ensuring that door supervisors are properly
licensed and, in partnership with police and
other agencies, that security companies are not
being used as fronts for serious and organised
criminal activity and that door supervisors are
properly licensed. This may include making
specific enquiries or visiting premises through
intelligence led operations in conjunction with
the police, local authorities and other partner
agencies. In the exercise of their functions
licensing authorities should seek to co-operate
with the SIA as far as possible and consider
adding relevant conditions to licences where
necessary and appropriate.
2.4 The essential purpose of the licence or
certificate in this context is to r
egulate
behaviour on premises and access to them
where this relates to licensable activities and
the licensing objectives. Conditions attached to
licences cannot seek to manage the behaviour
of customers once they are beyond the direct
management of the licence holder and their
staff or agents, but can directly impact on the
behaviour of customers on, or in the
immediate vicinity of, the premises as they
seek to enter or leave.
17
Guidance issued under section 182 of the Licensing Act 2003
2.5 Licence conditions should not replicate
licensing offences that are set out in the 2003
Act. For example, a condition that states that
a licence holder shall not permit drunkenness
and disorderly behaviour on his premises
would be superfluous because this is already
a criminal offence. A condition that states that
a licence holder shall not permit the sale of
controlled drugs on the premises would be
similarly superfluous.
2.6 Conditions are best targeted on deterrence and
preventing crime and disorder. For example,
where there is good reason to suppose that
disorder may take place, the presence of
closed-circuit television cameras both inside
and immediately outside the premises can
actively deter disorder, nuisance and anti-social
behaviour and crime generally. Some licensees
may wish to have cameras on their premises
for the protection of their own staff and for
the prevention of crime directed against the
business itself or its customers. But any
condition may require a broader approach,
and it may be necessary to ensure that the
precise location of cameras is set out on plans
to ensure that certain areas are properly
covered and there is no subsequent dispute
over the terms of the condition.
2.7 Similarly, the provision of requirements for
door supervision may be necessary to ensur
e
that people who are drunk or drug dealers or
carrying firearms do not enter the premises,
reducing the potential for crime and disorder,
and that the police are kept informed.
2.8 Text and radio pagers allow premises licence
holders,
designated premises supervisors and
managers of premises and clubs to
communicate instantly with the local police
and facilitate a rapid response to any disorder
w
hic
h may be endangering the customers and
staff on the premises. The Secretary of State
recommends that text or radio pagers should
be considered appropriate necessary conditions
for public houses, bars and nightclubs
operating in city and town centre leisure areas
with a high density of licensed premises.
2.9 Some conditions primarily focused on the
prevention o
f crime and disorder will also
promote other licensing objectives. For example,
a condition requiring that all glasses used on
the premises for the sale of alcoholic drinks
should be made of plastic or toughened glass
or not allowing bottles to pass across a bar
may be necessary to prevent violence by
denying assailants suitable weapons, but may
also benefit public safety by minimising the
injury done to victims when such assaults take
place (for example, facial injuries resulting
from broken glass).
2.10 A condition must also be capable of being met.
For example,
while beer glasses may be
available in toughened glass, wine glasses may
not. Licensing authorities should carefully
consider conditions of this kind to ensure that
they are not only necessary but both practical
and achievable.
2.11 Similarly, although most commonly made a
condition of a licence on public saf
ety grounds,
licensing authorities should also consider
conditions which set capacity limits for licensed
premises or clubs where it may be necessary
to prevent overcrowding likely to lead to
disorder and violence. If such a condition is
considered necessary, the licensing authority
should consider whether door supervisors are
needed to control numbers.
2.12 In the context of crime and disorder and public
safety, the preservation of order on premises
may give rise to genuine concerns about the
competency of the management team charged
with the maintenance of order. This may occur,
for example, on premises where there are very
large numbers of people and alcohol is
supplied for consumption, or in premises where
there are public order problems.
2.13 The designated premises supervisor is the key
person who will usually be charged with day
to day management of the premises by the
premises licence holder, including the
prevention of disorder. However, conditions
relating to the management competency of
designated premises supervisors should not
normally be attached to premises licences.
A condition of this kind could only be justified
as necessary in rare circumstances where it
could be demonstrated that in the
circumstances associated with particular
premises, poor management competency
could give rise to issues of crime and disorder
and public safety.
2.14 It will normally be the responsibility of the
premises licence holder as an employer, and
not the licensing authority, to ensure that the
managers appointed at the premises are
competent and appropriately trained and
licensing authorities must ensure that they do
not stray outside their powers and duties
under the 2003 Act. This is important to ensure
the portability of the personal licence and the
offences set out in the 2003 Act ensure, for
example, that the prevention of disorder is in
sharp focus for all such managers, licence
holders and clubs.
2.15 Communications between the managers of the
premises and the police can also be crucial in
pr
eventing crime and disorder. Involvement by
operators and managers in voluntary schemes
and initiatives may be particularly valuable.
Conditions requiring dedicated text or pager
links between management teams and local
police stations can provide early warning of
disorder and also can be used to inform other
licence holders that a problem has arisen in
the area generally. For example, where a gang
of youths is causing problems in one public
house and their eviction will only result in
them going on elsewhere to cause problems
on other premises, there is advantage in
communication links between the police and
other licensed premises and clubs.
2.16 However, while this may be necessary and
effective in certain parts of licensing authority
areas, it may be less effective or even
unnecessary in others. Police views on such
matters should be given considerable weight
and licensing authorities must remember that
only necessary conditions, which are within the
control of the licence holder or club, may be
imposed.
2.17 The Indecent Displays Act 1981 prohibits the
public displa
y of indecent matter, subject to
certain exceptions. It should not therefore be
necessary for any conditions to be attached to
licences or certificates concerning such
displays in or outside the premises involved.
For example, the display of advertising material
on or immediately outside such premises is
regulated by this legislation. Similarly, while
conditions relating to public safety in respect
of dancing may be necessary in certain
18
19
Guidance issued under section 182 of the Licensing Act 2003
circumstances, the laws governing indecency
and obscenity are adequate to control adult
entertainment involving striptease and lap-
dancing which goes beyond what is lawful.
Accordingly, conditions relating to the content
of such entertainment which have no
relevance to crime and disorder, public safety,
public nuisance or the protection of children
from harm could not be justified. In this
context, however, it should be noted that it is
in order for conditions relating to the exclusion
of minors or the safety of performers to be
included in premises licence or club premises
certificate conditions where necessary. The
Local Government (Miscellaneous Provisions)
Act 1982 insofar as its adoptive provisions
relate to sex establishments – sex shops, sex
cinemas and in London sex encounter
establishments – also remains in force.
2.18 Guidance to the police on powers to close
premises (formerly Chapter 11 of this
Guidance) can now be found on the DCMS
website at www.culture.gov.uk.
PUBLIC SAFETY
2.19 Licensing authorities and responsible
authorities should note that the public safety
objective is concerned with the physical safety
of the people using the relevant premises and
not with public health, which is dealt with in
other legislation. There will of course be
occasions when a public safety condition could
incidentally benefit health, but it should not be
the purpose of the condition as this would be
ultra vires the 2003 Act. Accordingly,
conditions should not be imposed on a
premises licence or club premises certificate
which relate to cleanliness or hygiene.
2.20 From 1 October 2006 the Regulatory Reform
(Fire Safety) Order 2005 (‘the Fire Safety
Order’) replaced previous fire safety legislation.
As such any fire certificate issued under the
Fire Precautions Act 1971 will have ceased to
have effect. Licensing authorities should note
that under article 43 of the Fire Safety Order
any conditions imposed by the licensing
authority that relate to any requirements or
prohibitions that are or could be imposed by
the Order automatically cease to have effect,
without the need to vary the licence.
This means that licensing authorities should
not seek to impose fire safety conditions
where the Order applies.
2.21 The exception to this will be in cases where
the licensing authority and the enf
orcing
authority for the fire safety order are one and
the same body. For example, designated
sports-grounds and stands where local
authorities enforce the fire safety order. In such
circumstances fire safety conditions should not
be set in new licences, but conditions in
existing licences will remain in force and be
enforceable by the licensing authority.
2.22 The Fire Safety Order applies in England and
Wales.
It covers ‘general fire precautions’ and
other fire safety duties which are needed to
protect ‘relevant persons’ in case of fire in and
around ‘most premises’. The Order requires fire
precautions to be put in place ‘where necessary’
and to the extent that it is reasonable and
practicable in the circumstances of the case.
2.23 Responsibility for complying with the Order
rests with the
‘responsible person’, which may
be the employer, or any other person or people
who may have control of the premises. Each
responsible person must carry out a fire risk
20
assessment which must focus on the safety in
case of fire for all ‘relevant persons’. The fire
risk assessment is intended to identify risks
that can be removed or reduced and to decide
the nature and extent of the general fire
precautions that need to be taken including,
where necessary, capacity limits.
2.24 The local fire and rescue authority will enforce
the Order in most premises and have the power
to inspect the premises to check the responsible
person is complying with their duties under the
Order. They will look for evidence that the
responsible person has carried out a suitable
fire risk assessment and acted upon the
significant findings of that assessment. If the
enforcing authority is dissatisfied with the
outcome of a fire risk assessment or the action
taken, they may issue an enforcement notice
that requires the responsible person to make
certain improvements or, in extreme cases,
issue a prohibition notice that restricts the
use of all or part of the premises until
improvements are made.
2.25 Further information and guidance about the
Order and fir
e safety legislation is available
from the Communities and Local Government
website www.communities.gov.uk/fire.
2.26 Where there is a requirement in other
leg
islation for premises open to the public or
for employers to possess certificates attesting
to the safety or satisfactory nature of certain
equipment or fixtures on the premises, it
would be unnecessary for a licensing condition
to require possession of such a certificate.
However, it would be permissible to require
as a condition of a licence or certificate,
if necessary, checks on this equipment to
be conducted at specified intervals and for
evidence of these checks to be retained by the
premises licence holder or club provided this
does not duplicate or gold-plate a requirement
in other legislation. Similarly, it would be
permissible for licensing authorities, if they
receive relevant representations from
responsible authorities or interested parties,
to attach conditions which require equipment
of particular standards to be maintained on
the premises. Responsible authorities – such
as health and safety authorities – should
therefore make clear their expectations in this
respects to enable prospective licence holders
or clubs to prepare effective operating
schedules and club operating schedules.
2.27 “Safe capacities” should only be imposed
w
here necessary for the promotion of public
safety or the prevention of disorder on the
relevant premises. For example, if a capacity
has been imposed through other legislation,
it would be unnecessary to reproduce it in a
premises licence. Indeed, it would also be
wrong to lay down conditions which conflict
with other legal requirements. However, if no
safe capacity has been imposed through other
legislation, a responsible authority may
consider it necessary for a new capacity to
be attached to the premises which would
apply at any material time when the licensable
activities are taking place and make
representations to that effect. For example,
in certain circumstances, capacity limits may
be necessary in preventing disorder, as
overcrowded venues can increase the risks
of crowds becoming frustrated and hostile.
2.28 As noted above, a capacity limit should not be
imposed as a condition of the licence on fire
safety grounds (unless the licensing authority
and the enforcing authority for fire safety
purposes are the same) since, under article 43
of the Fire Safety Order, it would have no
effect and so would not be enforceable.
21
Guidance issued under section 182 of the Licensing Act 2003
2.29 The special provisions made for dancing,
amplified and unamplified music in section
177 of the 2003 Act apply only to premises
with a “permitted capacity” of not more than
200 persons. In this context, the capacity must
be where the fire and rescue authority has
made a recommendation on the capacity of
the premises under the Fire Safety Order.
For any application for a premises licence or
club premises certificate for premises without
an existing permitted capacity where the
applicant wishes to take advantage of the
special provisions set out in section 177 of
the 2003 Act, the applicant should conduct
their own risk assessment as to the appropriate
capacity of the premises. They should send
their recommendation to the fire and rescue
authority who will consider it and then decide
what the “permitted capacity” of those
premises should be.
2.30 Whilst the Cinematograph (Safety) Regulations
1955 (S.I 1995/1129) which contained a
significant number of regulations in respect of
fire safety provision at cinemas, no longer
apply, applicants taking advantage of the
grandfather rights” pursuant to Schedule 8 to
the 2003 Act will have been subject to
conditions which re-state those regulations in
their new premises licence or club premises
certificate. Any holders of a converted licence
seeking to remove these conditions and reduce
the regulatory burden on them (to the extent
to which that can be done while still promoting
the licensing objectives), would need to apply
to vary their converted licences or certificates.
When considering variation applications or
applications for new licences, licensing
authorities and responsible authorities should
recognise the need for steps to be taken to
assure public safety at these premises in the
absence of the 1995 Regulations.
2.31 Public safety includes the safety of performers
appearing at any premises.
PUBLIC NUISANCE
2.32 The 2003 Act requires licensing authorities
(following receipt of relevant representations)
and responsible authorities, through
representations, to make judgements about
what constitutes public nuisance and what is
necessary to prevent it in terms of conditions
attached to specific premises licences and club
premises certificates. It is therefore important
that in considering the promotion of this
licensing objective, licensing authorities and
responsible authorities focus on impacts of the
licensable activities at the specific premises on
persons living and working (including doing
business) in the vicinity that are
disproportionate and unreasonable. The issues
will mainly concern noise nuisance, light
pollution, noxious smells and litter.
2.33 Public nuisance is given a statutory meaning in
many pieces of legislation. It is however not
narrowly defined in the 2003 Act and retains
its broad common law meaning. It is important
to remember that the prevention of public
nuisance could therefore include low-level
nuisance perhaps affecting a few people living
locally as well as major disturbance affecting
the whole community. It may also include in
appropriate circumstances the reduction of the
living and working amenity and environment
of interested parties (as defined in the 2003
Act) in the vicinity of licensed premises.
2
2.34 Conditions relating to noise nuisance will
normally concern steps necessary to control
the levels of noise emanating from premises.
This might be achieved by a simple measure
such as ensuring that doors and windows are
2 It should also be noted in this context that it remains an offence under
the 2003 Act to sell or supply alcohol to a person who is drunk. This is
particularly important because of the nuisance and anti-social
behaviour which can be provoked after leaving licensed premises.
22
kept closed after a particular time in the
evening to more sophisticated measures like
the installation of acoustic curtains or rubber
speaker mounts. Any conditions necessary to
promote the prevention of public nuisance
should be tailored to the style and
characteristics of the specific premises.
Licensing authorities should be aware of the
need to avoid unnecessary or disproportionate
measures that could deter events that are
valuable to the community, such as live music.
Noise limiters, for example, are very expensive
to purchase and install and are likely to be a
considerable burden for smaller venues.
2.35 As with all conditions, it will be clear that
conditions relating to noise nuisance may not
be necessary in certain circumstances where
the provisions of the Environmental Protection
Act 1990, the Noise Act 1996, or the Clean
Neighbourhoods and Environment Act 2005
adequately protect those living in the vicinity
of the premises. But as stated earlier in this
Guidance, the approach of licensing authorities
and responsible authorities should be one of
prevention and when their powers are engaged,
licensing authorities should be aware of the
fact that other legislation may not adequately
cover concerns raised in relevant
representations and additional conditions may
be necessary.
2.36 Where applications have given rise to
representations, any necessary and appropriate
conditions should normally focus on the most
sensitive periods. For example, music noise
from premises usually occurs from mid-
evening until either late evening or early
morning when residents in adjacent properties
may be attempting to go to sleep or are
sleeping. In certain circumstances, conditions
relating to noise in the immediate vicinity
o
f the pr
emises may also prove necessary to
address any disturbance anticipated as
customers enter and leave.
2.37 Measures to control light pollution will also
requir
e careful thought. Bright lighting outside
premises considered necessary to prevent
crime and disorder may itself give rise to light
pollution for some neighbours. Applicants,
licensing authorities and responsible
authorities will need to balance these issues.
2.38 In the context of preventing public nuisance,
it is again essential that conditions ar
e focused
on measures within the direct control of the
licence holder or club. Conditions relating to
public nuisance caused by the anti-social
behaviour of customers once they are beyond
the control of the licence holder, club or
premises management cannot be justified and
will not serve to promote the licensing
objectives.
2.39 Beyond the vicinity of the premises, these are
matters f
or personal responsibility of
individuals under the law. An individual who
engages in anti-social behaviour is accountable
in their own right. However, it would be
perfectly reasonable for a licensing authority
to impose a condition, following relevant
representations, that requires the licence holder
or club to place signs at the exits from the
building encouraging patrons to be quiet until
they leave the area and to respect the rights of
people living nearby to a peaceful night.
2.40 The cumulative effects of litter in the vicinity
of pr
emises carrying on licensable activities
can cause public nuisance. For example, it may
be appropriate and necessary for a condition of
23
Guidance issued under section 182 of the Licensing Act 2003
a licence to require premises serving customers
from take-aways and fast food outlets from
11.00pm to provide litter bins in the vicinity
of the premises in order to prevent the
accumulation of litter. Such conditions may
be necessary and appropriate in circumstances
where customers late at night may have been
consuming alcohol and be inclined to
carelessness and anti-social behaviour.
PROTECTION OF CHILDREN
FROM HARM
2.41 The protection of children from harm includes
the protection of children from moral,
psychological and physical harm, and this
would include the protection of children from
too early an exposure to strong language and
sexual expletives, for example, in the context
of film exhibitions or where adult
entertainment is provided.
2.42 However, in the context of many licensed
premises such as pubs, restaurants, café bars
and hotels, it should be noted that the
Secretary of State recommends that the
development of family-friendly environments
should not be frustrated by overly restrictive
conditions in relation to children.
2.43 The Secretary of State intends that the
admission of c
hildren to premises holding a
premises licence or club premises certificate
should normally be freely allowed without
restricting conditions unless the 2003 Act itself
imposes such a restriction or there are good
reasons to restrict entry or to exclude children
completely. Licensing authorities, the police
and other authorised persons should focus on
enforcing the law concerning the consumption
of alcohol by minors.
2.44 Conditions relating to the access of children
whic
h are necessary to protect them from
harm are self evidently of great importance.
As mentioned in connection with statements
of licensing policy in Chapter 13 of this
Guidance, issues will arise about the access
of children in connection with premises:
where adult entertainment is provided;
where there have been convictions of the
curr
ent manag
ement for serving alcohol to
minors or with a reputation for allowing
underage drinking (other than in the context
of the exemption in the 2003 Act relating to
16 and 17 year olds consuming beer, wine
and cider in the company of adults during
a table meal);
where requirements for proof of age cards
or other age identification to combat the
pur
chase of alcohol by minors is not the
norm;
with a known association with drug taking
or dealing;
where there is a strong element of gambling
on the pr
emises (but not small numbers of
cash prize machines);
where the supply of alcohol for
consumption on the premises is the
exclusive or primary purpose
of the services provided at the premises.
2.45 It is also possible that activities, such as adult
enter
tainment, may take place at certain times
on premises but not at other times. For
example, premises may operate as a café bar
during the day providing meals for families but
also provide entertainment with a sexual
content after 8.00pm. Such trading practices
should be obvious from the operating schedule
or club operating schedule provided with the
relevant application allowing the framing of an
appropriate, time-limited condition.
24
2.46 Similarly, gambling may take place in part of
a leisure centre but not in other parts of those
premises. This means that the access of
children will need to be carefully considered
by applicants, licensing authorities and
responsible authorities. In many respects, it
should be possible to rely on the discretion
and common sense of licence and certificate
holders. However, licensing authorities and
responsible authorities should still expect
applicants when preparing an operating
schedule or club operating schedule to state
their intention to exercise discretion and where
they are necessary, to set out the steps to be
taken to protect children from harm when on
the premises.
2.47 Conditions, where they are necessary, should
r
eflect the licensable activities taking place on
the premises and can include:
where alcohol is sold, requirements for the
production of pr
oof of age cards or other
age identification before sales are made, to
ensure that sales are not made to
individuals under 18 years (whether the age
limit is 18 or 16 as in the case of the
consumption of beer, wine and cider in the
company of adults during a table meal);
limitations on the hours when children
may be pr
esent;
limitations on the presence of children
under cer
tain ages when particular specified
activities are taking place;
limitations on the parts of the premises to
which children may have access;
age limitations (below 18);
limitations or exclusions when certain
activities are taking place;
requirements for accompanying adult
(including for example, a combination of
requirements which provide that children
under a particular age must be accompanied
by an adult); and
full exclusion of people under 18 from the
premises
when any licensable activities are
taking place
2.48 The Secretary of State considers that
repr
esentations made by the child protection
bodies and the police in respect of individual
applications should be given considerable
weight when they address necessary issues
regarding the admission of children.
2.49 The 2003 Act provides that where a premises
licence or club premises cer
tificate authorises
the exhibition of a film, it must include a
condition requiring the admission of children
to films to be restricted in accordance with
recommendations given either by a body
designated under section 4 of the Video
Recordings Act 1984 specified in the licence
(the British Board of Film Classification is
currently the only body which has been so
designated) or by the licensing authority itself.
Further details are given in Chapter 10.
2.50 The admission of children to theatres, as with
other licensed premises,
should not normally
be restricted. However, theatres may present a
range of diverse activities. The admission of
children to the performance of a play should
normally be at the discretion of the licence
holder and no condition restricting their access
to plays should be attached. However, theatres
may also present a wide range of
entertainment including, for example, variety
shows incorporating adult entertainment. A
condition restricting the admission of children
in such circumstances may be necessary.
Entertainments may also be presented at
theatres specifically for children. It may be
necessary to consider whether a condition
25
Guidance issued under section 182 of the Licensing Act 2003
should be attached to a premises licence or
club premises certificate which requires the
presence of a sufficient number of adult staff
on the premises to ensure the well being of the
children during any emergency.
Offences relating to the sale and supply of
alcohol to children
2.51 Licensing authorities are expected to maintain
close contact with the police, young offenders’
teams and trading standards officers (who can
carry out test purchases under s.154 of the
Act) about the extent of unlawful sales and
consumption of alcohol by minors and to be
involved in the development of any strategies
to control or prevent these unlawful activities
and to pursue prosecutions. For example,
where as a matter of policy, warnings are given
to retailers prior to any decision to prosecute
in respect of an offence, it is important that
each of the enforcement arms should be aware
of the warnings each of them has given.
Table of relevant offences under the 2003 Act
Section Offence
Section 145 Unaccompanied children prohibited from certain premises
Section 146 Sale of alcohol to children
Section 147 Allowing the sale of alcohol to children
Section 147A Persistently selling alcohol to children
Section 148 Sale of liqueur confectionery to children under 16
Section 149 Purchase of alcohol by or on behalf of children
Section 150 Consumption of alcohol by children
Section 151 Delivering alcohol to children
Section 152 Sending a child to obtain alcohol
Section 153 Prohibition of unsupervised sales by children
26
3. Licensable activities
SUMMARY
3.1 A premises licence authorises the use of any
premises (which is defined in the Act as a
vehicle, vessel or moveable structure or any
place or a part of any premises) for licensable
activities described and defined in section 1 (1)
of and Schedules 1 and 2 to the 2003 Act.
The licensable activities are:
the sale by retail of alcohol;
the supply of alcohol by or on behalf of a club
to
, or to the order of, a member of the club;
the provision of regulated entertainment; and
the provision of late night refreshment.
WHOLESALE OF ALCOHOL
3.2 The wholesale of alcohol to the general public
was not licensable prior to the coming into
force of the 2003 Act. Licensing authorities will
want to have particular regard to the definition
of “sale by retail” given in section 192 of the
2003 Act. This section makes clear that to be
excluded from the meaning of “sale by retail”
a sale must be:
made from premises owned by the person
making the sale, or occupied under a lease
with security of tenure, and
for consumption off the premises.
3.3 In addition, to be excluded, they must be sales
whic
h are made to:
traders for the purpose of their trade
(including
, for example, another wholesaler);
holders of club premises certificates,
premises licences, or personal licences; or
premises users who have given temporary
event notices in order to make sales.
3.4 However, any other sale made to a member
of the public in wholesale quantities is a
licensable activity and subject to the
provisions of the 2003 Act. This affects many
wholesale businesses, cash and carries and
bonded warehouses across England and Wales.
3.5 If an employee were buying alcohol as an
“ag
ent”
for their employer and for the
purposes of their employer’s trade (i.e. selling
alcohol), this could be treated as a sale to a
trader. If, however, an employee were buying
for their own consumption, this would be a
retail sale, and would require a licence.
INTERNET AND MAIL ORDER SALES
3.6 The place where the sale of alcohol takes place
may be different to the place from which it is
appropriated to the contract, i.e. specifically
and physically selected for the particular
purchaser. Section 190 provides that the sale
of alcohol is to be treated as taking place
where the alcohol is appropriated to the
contract and this will be the premises that
needs to be licensed. So, for example, a call
centre receiving orders for alcohol would not
need a licence, but the warehouse where the
alcohol is stored and specifically selected for,
and despatched to, the purchaser would need
to be licensed.
3.7 In such circumstances a licensing authority will
wish to carefully consider the distance selling
supply chain in deciding where the alcohol is
appropriated to the contract. Any premises
where alcohol is supplied under a premises
licence must have a designated premises
supervisor. This will normally be the person
in charge of the day to day running of the
premises, and they will need to hold a
27
Guidance issued under section 182 of the Licensing Act 2003
‘personal licence’. In addition to this, all sales
of alcohol must be made or authorised by a
personal licence holder (see paragraphs 10.48 –
10.53 of this Guidance).
REGULATED ENTERTAINMENT
3.8 Schedule 1 to the 2003 Act (Annex A), sets out
what activities are regarded as the provision of
regulated entertainment (entertainment and
entertainment facilities) and those which are
not and are therefore exempt from the
regulated entertainment aspects of the
licensing regime (including incidental music –
see 3.20-3.23 below).
ENTERTAINMENT
3.9 Subject to the conditions, definitions and the
exemptions in Schedule 1, the types of
entertainment regulated by the 2003 Act are:
a performance of a play;
an exhibition of a film;
an indoor sporting event;
a boxing or wrestling entertainment;
(indoor and outdoor)
a performance of live music;
any playing of recorded music;
a performance of dance;
entertainment of a similar description to
that f
alling within the performance of live
music, the playing of recorded music and
the performance of dance.
but only where the entertainment takes place in the
pr
esence of an audience and is provided at least
partly to entertain that audience.
ENTERTAINMENT FACILITIES
3.10 Subject to the conditions, definitions and the
exemptions in Schedule 1, entertainment
facilities means facilities for enabling persons
to take part in entertainment consisting of:
making music;
• dancing;
entertainment of a similar description to
making m
usic or for dancing.
3.11 These facilities must be provided for the use of
and to entertain customers. Entertainment
facilities include, for example:
a karaoke machine provided for the use of
and entertainment o
f customers in a public
house;
a dance floor provided for use by the public
in a nightclub;
musical instruments made available for use
by the public to enter
tain others at licensed
premises.
3.12 In carrying out their functions, licensing
authorities will need to consider w
hether an
activity constitutes the provision of regulated
entertainment. The following activities, for
example, are not regulated entertainment:
education – teaching students to perform
music or to dance;
activities which involve participation as acts
o
f worship in a religious context;
the demonstration of a product – for
example, a guitar – in a music shop; or
the rehearsal of a play or rehearsal of a
performance of music to which the public
are not admitted.
28
3.13 Much of this involves the simple application of
common sense and this Guidance cannot give
examples of every eventuality or possible
activity. It is only when a licensing authority
is satisfied that activities are entertainment
or the provision of entertainment facilities that
it should go on to consider the qualifying
conditions, definitions and exemptions in
Schedule 1 to see if a provision of regulated
entertainment is involved and, as a result,
if there is a licensable activity to be governed
by the provisions of the 2003 Act.
3.14 There are a number of other entertainments,
which are not themselves licensable activities,
for which live or recorded music may be
incidental to the main attraction or
performance and therefore not licensable (see
below). For example, stand-up comedy is not a
licensable activity and musical accompaniment
incidental to the main performance would not
make it a licensable activity.
PUB GAMES
3.15 Games commonly played in pubs and social
and youth clubs like pool, darts, table tennis
and billiards may fall within the definition of
indoor sports in Schedule 1, but normally they
would not be played for the entertainment of
spectators but for the private enjoyment of the
participants. As such, they would not normally
constitute the provision of regulated
entertainment, and the facilities provided (even
if a pub provides them with a view to profit) do
not fall within the limited list of entertainment
facilities in that Schedule (see paragraph 3.10
above). It is only when games take place in the
presence of an audience and are provided to, at
least in part, entertain that audience, for
example, a darts championship competition,
that the activity would become licensable.
PRIVATE EVENTS
3.16 Entertainment at a private event to which the
public are not admitted becomes regulated
entertainment and therefore licensable, only if
it is provided for consideration and with a view
to profit. So, for instance, a charge made to
people attending a private event to cover the
costs of the entertainment, and for no other
purpose, would not make the entertainment
licensable. The fact that a profit might
inadvertently be made would be irrelevant as
long as there had not been an intention to
make a profit.
3.17 Schedule 1 to the 2003 Act also makes it clear
that before entertainment or entertainment
facilities are regarded as being provided for
consideration, a charge has to be made by, or
on behalf of, a person concerned with:
the organisation or management of the
entertainment
; or
the organisation or management of the
f
acilities who is also concerned with the
entertainment;
and paid by or on behalf of some or all of the
persons for whom the entertainment/facilities
are, provided.
3.18 This means that a private event for invited
guests held in a hired pr
ivate room with a live
band and dancing and no charge for admission
intended to make a profit is not a regulated
entertainment unless the person who hires out
the room (for example, the owner of the house
in which the room is situated) is also involved
in the organisation or management of the
entertainment. An owner may become so
involved by, for example, hiring a dancefloor,
sound equipment and/or smoke machine along
with the room, or by arranging for a DJ or band
to play at the event. In this case, the provision
by the owner of the room (and any other
29
Guidance issued under section 182 of the Licensing Act 2003
entertainment facilities they provide) for a
charge and with a view to profit will itself be
a provision of regulated entertainment.
By contrast, if the owner simply hires out the
room for an event and is not further involved
with the entertainment at the event, they will
not be providing a regulated entertainment,
and the event would need to be looked at
separately from the hire of the room in order
to determine whether it was itself an instance
of regulated entertainment.
3.19 Similarly, a party organised in a private house
by and for friends, (and not open to the public)
with music and dancing, and where a charge or
contribution is made solely to cover the costs
of the entertainment and not with a view to
profit would not be an instance of regulated
entertainment. In the same vein, any charge
made by musicians or other performers or their
agents to the organiser of a private event does
not of itself make that entertainment
licensable unless the guests attending are
themselves charged for the entertainment with
a view to achieving a profit.
3
INCIDENTAL MUSIC
3.20 The incidental performance of live music and
incidental playing of recorded music may not
be regarded as the provision of regulated
entertainment activities under the 2003 Act in
certain circumstances. This is where they are
incidental to another activity which is not
itself entertainment or the provision of
entertainment facilities. This exemption does
not extend to the provision of other forms of
regulated entertainment.
3.21 Whether or not music of this kind is
“incidental” to other activities is expected to
be judged on a case by case basis and there is
no definition in the 2003 Act. It will ultimately
be f
or the courts to decide whether music is
“incidental” in the individual circumstances of
any case.
3.22 The operator of the premises concerned must
fir
st decide whether or not they need a
premises licence. In considering whether or
not music is incidental, one factor will be
whether or not, against a background of the
other activities already taking place, the
addition of music will create the potential
to undermine the four licensing objectives
of the Act. Other factors might include some
or all of the following:
Is the music the main, or one of the main,
r
easons for people attending the premises?
Is the music advertised as the main
attr
action?
Does the volume of the music disrupt or
predominate over other activities or could it
be described as ‘background’ music?
Conversely, factors which would not normally
be relevant include:
Number of musicians, e.g. an orchestra may
p
rovide incidental music at a large exhibition.
Whether musicians are paid.
Whether the performance is pre-arranged.
Whether a charge is made for admission to
a pr
emises.
3.23 Stand-up comedy is not regulated
entertainment and musical accompaniment
incidental to the main performance would not
make it a licensable activity. But there are
likely to be some circumstances which occupy
a greyer area. In cases of doubt, operators
should seek the advice of the licensing
authority, particularly with regard to their
policy on enforcement.
3 Entertainment facilities falling within paragraph 1(2)(b) of
Schedule 1 of the Act (club premises) are not covered by this section
of the Guidance.
30
SPONTANEOUS MUSIC, SINGING
AND DANCING
3.24 The spontaneous performance of music, singing
or dancing does not amount to the provision of
regulated entertainment and is not a licensable
activity. The relevant part of the 2003 Act to
consider in this context is paragraph 1(3) of
Schedule 1 to the Act. This states that the
second condition which must apply before an
activity constitutes the provision of regulated
entertainment is that the premises (meaning
“any place”) at which the entertainment is, or
entertainment facilities are, provided are made
available for the purpose, or purposes which
include the purpose, of enabling the
entertainment concerned to take place.
In the case of genuinely spontaneous music
(including singing) and dancing, the place
where the entertainment takes place will not
have been made available to those taking part
for that purpose.
SMALL VENUES PROVIDING DANCING
AND AMPLIFIED OR UNAMPLIFIED MUSIC
3.25 In addition, section 177 of the 2003 Act
applies to suspend most licensing conditions
relating to music entertainment in certain
small venues when the conditions specified in
the licence are met. The section is directed at
premises with a capacity of 200 or less and
which are licensed for the provision of music
entertainment such as, for example, some pubs
with entertainment licences. A detailed
description of section 177 follows below.
3.26 Subsections (1) and (2) of section 177 of the
2003 Act provide that where,
a premises licence or club premises
cer
tificate authorises the supply of alcohol
for consumption on the premises and the
provision of “music entertainment” (live
music or dancing or facilities enabling
people to take part in those activities),
the relevant premises are used primarily for
the supply of alcohol for consumption on
the premises, and
the premises have a permitted capacity limit
of not mor
e than 200 persons (see
paragraph 2.29).
any conditions relating to the provision of the
music enter
tainment imposed on the premises
licence or club premises certificate by the
licensing authority, other than those set out by
the licence or certificate which are consistent
with the operating schedule, will be suspended
except where, under subsection (5), they were
imposed as being necessary for public safety or
the prevention of crime and disorder or both.
3.27 Examples of premises used “primarily” for the
suppl
y o
f alcohol for consumption on the
premises would include some public houses
and some qualifying club premises, but would
not normally include, for example, a restaurant.
3.28 In addition, subsection (4) of section 177
provides that w
here
a premises licence or club premises
cer
tificate authorises the provision of music
entertainment, and
the premises have a permitted capacity limit
of not more than 200 persons
then, during the hours of 8am and midnight, if
the premises ar
e being used for the provision
of unamplified live music or facilities enabling
people to take part in such entertainment, but
no other type of regulated entertainment, any
conditions imposed on the licence by the
licensing authority, again other than those
which are consistent with the operating
schedule, which relate to the provision of that
music entertainment will be suspended.
31
Guidance issued under section 182 of the Licensing Act 2003
3.29 The “unamplified” music exemption covers any
premises appropriately licensed, including, for
example restaurants.
3.30 The area to which the 200 “permitted capacity
limit” applies concerns the area covered by the
terms of the premises licence or club premises
certificate. In this context, the capacity must
be where the fire and rescue authority has
made a recommendation on the capacity of
the premises under the Fire Safety Order (see
paragraph 2.29). The permitted capacity limit is
only applicable to part of the premises where
that part has been separately and accordingly
licensed.
3.31 Section 177 can be disapplied in relation to an
y
condition of a premises licence or club premises
certificate following a review of the licence or
certificate. This means that conditions attached
to the existing premises licence relating to the
provision of music entertainment can be given
effect at the relevant times or that new
conditions may also be imposed as an
outcome of the review process.
LATE NIGHT REFRESHMENT
3.32 Schedule 2, (Annex B) sets out what activities
are regarded as the provision of late night
refreshment and those which are not and are
therefore exempt from the late night
refreshment aspects of the licensing regime.
3.33 Schedule 2 to the 2003 Act provides a definition
of what constitutes the provision of late night
refreshment. It involves only the supply of ‘hot
food and hot drink’. For example, shops, stores
and supermarkets selling cold food and cold
drink that is immediately consumable from
11.00pm are not licensable as providing late
night refreshment. The legislation impacts on
those premises such as night cafés and take
away food outlets where people may gather at
any time fr
om 11.00pm and until 5.00am with
the possibility of disorder and disturbance. In
this case, supply takes place when the hot food
or hot drink is given to the customer, not when
it is paid for. For example, when a table meal is
served in a restaurant or when a takeaway is
handed to a customer over the counter.
3.34 Some premises provide hot food or hot drink
between 11.00pm and 5.00am by means o
f
vending machines established on the premises
for that purpose. The supply of hot drink by a
vending machine is not a licensable activity
and is exempt under the 2003 Act so long as
the public have access to and can operate the
machine without any involvement of the staff.
3.35 However, this exemption does not apply to hot
food.
Premises supplying hot food for a charge
by vending machine are licensable if the food
has been heated on the premises, even though
no staff on the premises may have been
involved in the transaction.
3.36 It is not expected that the provision of late
night refr
eshment as a secondary activity in
licensed premises open for other purposes such
as public houses, cinemas or nightclubs or
casinos should give rise to a need for
significant additional conditions. The Secretary
of State considers that the key licensing
objectives in connection with late night
refreshment are the prevention of crime and
disorder and public nuisance, and it is expected
that both will normally have been adequately
covered in the conditions relating to the other
licensable activities on such premises.
3.37 The supply of hot drink which consists of or
contains alcohol is exempt under the 2003
Act
as late night refreshment because it is caught
by the provisions relating to the sale or supply
of alcohol.
32
3.38 The supply of hot food or hot drink free of
charge is not a licensable activity. However,
where any charge is made for either admission
to the premises or for some other item in
order to obtain the hot food or hot drink, this
will not be regarded as “free of charge”.
Supplies by a registered charity or anyone
authorised by a registered charity are also
exempt. Similarly, supplies made on vehicles –
other than when they are permanently or
temporarily parked – are also exempt.
3.39 Supplies of hot food or hot drink from
11.00pm are exempt from the provisions
of the 2003 Act if there is no admission to
the public to the premises involved and they
are supplies to:
a member of a recognised club supplied by
the club;
persons staying overnight in a hotel, guest
house, lodging house, hostel, a caravan or
camping site or any other premises whose
main purpose is providing overnight
accommodation.
an employee supplied by a particular
employer (eg
. a staff canteen).
a person who is engaged in a particular
pr
ofession or who follows a particular
vocation (eg. a tradesman carrying out work
at particular premises).
a guest of any of the above.
33
Guidance issued under section 182 of the Licensing Act 2003
4. Personal licences
4.1 This Chapter provides advice about best practice
in administering the process for issuing personal
licences to sell or supply alcohol. It also contains
guidance for decision-making on applications
from community premises (church and village
halls etc.) to disapply the usual mandatory
conditions that relate to personal licences and
Designated Premises Supervisors (DPSs).
REQUIREMENTS FOR A PERSONAL
LICENCE
4.2 The sale and supply of alcohol, because of its
impact on the wider community and on crime
and anti-social behaviour, carries with it greater
responsibility than the provision of regulated
entertainment and late night refreshment. This
is why individuals who may be engaged in
making and authorising the sale and supply of
alcohol require a personal licence. Not every
person retailing alcohol at premises licensed for
that purpose needs to hold a personal licence,
but every sale or supply of alcohol must be at
least authorised by such a licence holder (see
paragraphs 10.48 -10.53 of this Guidance). The
only exception is for community premises in
respect of which a successful application has
been made to disapply the usual mandatory
conditions set out in sections 19(2) and 19(3)
of the 2003 Act. (Guidance on such
applications is set out in paragraphs 4.32 to
4.47 of this Guidance). Any premises where the
personal licence holder requirements do apply
at which alcohol is sold or supplied may
employ one or more such licence holders. For
example, there may be one owner or senior
manager and several junior managers holding a
personal licence.
WHO CAN APPLY?
4.3 In the case of an application for a personal
licence under Part 6 of the 2003 Act, the
requirements are that the applicant:
must be aged 18 or over;
possesses a licensing qualification accredited
by the Secretary of State (or one which is
certified as if it is such a qualification or is
considered equivalent) or is a person as
prescribed by the Secretary of State by
regulations,
must not have forfeited a personal licence
within five year
s of their application;
has paid the appropriate fee to the licensing
authority
,
and that the police:
have not given an objection notice about
the grant o
f a personal licence following
notification of any unspent relevant offence
or foreign offence, or
have given an objection notice because of a
conviction f
or an unspent relevant offence or
a foreign offence, but the licensing authority
has not considered it necessary to reject the
application on crime prevention grounds.
4.4 Any individual may apply for a personal licence
whether or not the
y are currently employed or
have business interests associated with the use
of the licence. The issues which arise when the
holder of a personal licence becomes
associated with particular licensed premises
and the personal licence holder is specified as
the designated premises supervisorfor those
premises are dealt with in paragraphs 4.19 –
4.28 below. Licensing authorities may not
theref
ore take these matters into account when
considering an application for a personal licence.
34
CRIMINAL RECORD
4.5 In the context of applications made under Part
6 of the 2003 Act, the Act itself does not
prescribe how any individual should establish
whether or not they have unspent convictions
for a relevant offence or foreign offence.
Regulations require that, in order to substantiate
whether or not an applicant has a conviction
for an unspent relevant offence, an applicant
must produce a criminal conviction certificate
or a criminal record certificate or the results of
a subject access search of the police national
computer by the National Identification
Service to the licensing authority. This applies
whether or not the individual has been living
for a length of time in a foreign jurisdiction.
4.6 It does not follow that such individuals will
not have recorded offences in this country.
All applicants are also required to make a clear
statement as to whether or not they have
been convicted outside England and Wales
of a relevant offence or an equivalent foreign
offence. This applies both to applicants
ordinarily resident in England and Wales and
any person from a foreign jurisdiction. Details
of relevant offences as set out in the 2003 Act
should be appended to application forms for
the information of applicants, together with
a clear warning that making any false
statement is a criminal offence liable to
prosecution. Relevant offences are listed in
Annex C to this Guidance.
4.7 Licensing authorities are required to notify
the police when an applicant is f
ound to have
an unspent conviction for a relevant offence
defined in the 2003 Act or for a foreign
offence. The police have no involvement or
locus in such applications until notified by
the licensing authority.
4.8 Where an applicant has an unspent conviction
for a r
elevant or foreign offence, and the police
object to the application on crime prevention
grounds, the applicant is entitled to a hearing
before the licensing authority. If the police do
not issue an objection notice and the
application otherwise meets the requirements
of the 2003 Act, the licensing authority must
grant it.
4.9 The Secretary of State recommends that,
wher
e the police have issued an objection
notice, the licensing authority should normally
refuse the application unless there are
exceptional and compelling circumstances
which justify granting it. For example, certain
offences can never become spent. However,
where an applicant is able to demonstrate that
the offence in question took place so long ago
and that they no longer have any propensity to
re-offend, a licensing authority may consider
that the individual circumstances of the case
are so exceptional and compelling and any risk
to the community so diminished that it is right
to grant the application.
4.10 If an application is refused, the applicant will
be entitled to appeal against the decision.
Similarl
y, if the application is granted despite
a police objection notice, the chief officer of
police is entitled to appeal against the licensing
authority’s determination. Licensing authorities
are therefore expected to record in full the
reasons for any decision that they make.
35
Guidance issued under section 182 of the Licensing Act 2003
ISSUING OF PERSONAL LICENCES BY
WELSH LICENSING AUTHORITIES
4.11 Licensing authorities in Wales should consider
issuing personal licences in bilingual format, in
line with their own Welsh language schemes.
LICENSING QUALIFICATIONS
4.12 Details of licensing qualifications currently
accredited by the Secretary of State will be
notified to licensing authorities and the details
may be viewed on the DCMS website.
4.13 From time to time, licensing authorities may
also be concerned that documents and
certificates produced as evidence of the
possession of a licensing qualification may be
forged or improperly amended. Contact points
for issuing authorities regarding the possible
forgery of qualifications are also given on the
DCMS website. It also provides information
about the core content of licensing
qualification courses.
RELEVANT LICENSING AUTHORITY
4.14 Personal licences are valid for ten years unless
surrendered or suspended or revoked or
declared forfeit by the courts. Once granted,
the licensing authority which issued the licence
remains the “relevant licensing authority” for it
and its holder, even though the individual may
move out of the area or take employment
elsewhere. The personal licence itself will give
details of the issuing licensing authority.
CHANGES IN NAME OR ADDRESS
4.15 The holder of the licence is required by the
2003 Act to notify the licensing authority of
any changes of name or address. These
changes should be recorded by the licensing
authority. The holder is also under a duty to
notify any convictions for relevant offences to
the licensing authority and the courts are
similarly required to inform the licensing
authority of such convictions, whether or not
they have ordered the suspension or forfeiture
of the licence. The holder must also notify the
licensing authority of any conviction for a
foreign offence. These measures ensure that a
single record will be held of the holders
history in terms of licensing matters.
4.16 Licensing authorities should maintain easily
accessible r
ecords and a service which can
advise the police in any area and other
licensing authorities promptly of any details
they require about the holder of the personal
licence in relation to their licensing functions.
The 2003 Act authorises the provision and
receipt of such personal information to such
agencies for the purposes of the Act.
CENTRAL LICENSING REGISTER
4.17 The Government, supported by licensing
authorities, aims to develop a central licensing
register which will, among other things, include
details of all personal licence holders. Future
developments relating to the creation of a
central licensing register will be reported on
the DCMS website.
RENEWAL
4.18 Renewal of the personal licence every ten years
provides an opportunity to ensure that the
arrangements ensuring that all convictions for
relevant and foreign offences have been
properly notified to the relevant licensing
authority have been effective, and that all
convictions have been properly endorsed upon
the licence. It also provides an opportunity to
ensure that the photograph of the holder on the
personal licence is updated to aid identification.
36
SPECIFICATION OF NEW DESIGNATED
PREMISES SUPERVISORS
4.19 In every premises licensed for the supply of
alcohol, a personal licence holder must be
specified as the designated premises
supervisor, as defined in the 2003 Act. This will
normally be the person who has been given
day to day responsibility for running the
premises by the premises licence holder. The
only exception is for community premises
which have successfully made an application
to disapply the usual mandatory conditions set
out in sections 19(2) and 19(3) of the 2003
Act. Guidance on such applications is set out in
paragraphs 4.32 to 4.47 of this Guidance.
4.20 The Government considers it essential that
police officers, fire officers or officers of the
licensing authority can identify immediately
the designated premises supervisor so that any
problems can be dealt with swiftly. For this
reason, the name of the designated premises
supervisor and contact details must be
specified on the premises licence and this must
be held at the premises and displayed in
summary form.
4.21 To specify a new designated premises
supervisor
, the premises licence holder –
perhaps a supermarket chain or a pub
operating company – should normally submit
an application to the licensing authority
(which may include an application for
immediate interim effect) with:
a form of consent by the individual
concerned to show that the
y consent to
taking on this r
esponsible role, and
the relevant part (Part A) of the licence.
4.22 If they are applying in writing, they must also
notify the police of the application.
4.23 If the application is made electronically via
businesslink or the licensing authority’
s own
electronic facility, the licensing authority must
notify the police no later than the first working
day after the application is given.
4.24 The premises licence holder must notify the
existing designated premises supervis
or
(if there is one) of the application on the same
day as the application is given to the licensing
authority. This requirement applies regardless
of whether the application was given by means
of an electronic facility, or by some other means.
4.25 The general guidance in paragraphs 8.27 – 8.35
on electronic applications applies in r
espect of
new applications.
4.26 Only one designated premises supervisor may
be specified in a single premises licence,
but a
designated premises supervisor may supervise
more than one premises as long as they are
able to ensure that the four licensing
objectives are properly promoted and the
premises complies with licensing law and
licence conditions.
4.27 Where there are frequent changes of
supervisor
, the premises licence holder may
submit the form in advance specifying the date
when the new individual will be in post and
the change will take effect.
POLICE OBJECTIONS TO NEW
SUPERVISORS
4.28 The police may object to the designation of a
new premises supervisor where, in exceptional
circumstances, they believe that the
appointment would undermine the crime
prevention objective. The police can object
where, for example, a particular designated
premises supervisor is first appointed or
transfers into particular premises and their
37
Guidance issued under section 182 of the Licensing Act 2003
presence in combination with particular
premises gives rise to exceptional concerns.
For example, where a personal licence holder
has been allowed by the courts to retain their
licence despite convictions for selling alcohol to
minors (a relevant offence) and then transfers
into premises known for underage drinking.
4.29 Where the police do object, the licensing
authority must arrange for a hearing at which
the issue can be considered and both parties
can put their arguments. The 2003 Act
provides that the applicant may apply for the
individual to take up post as designated
premises supervisor immediately and, in such
cases, the issue would be whether the
individual should be removed from this post.
The licensing authority considering the matter
must restrict its consideration to the issue of
crime and disorder and give comprehensive
reasons for its decision. Either party would be
entitled to appeal if their argument is rejected.
4.30 The portability of personal licences from one
pr
emises to another is an important concept
within the 2003 Act. The Secretary of State
expects that police objections would arise in
only genuinely exceptional circumstances.
If a licensing authority believes that the police
are routinely objecting to the designation of
new premises supervisors on un-exceptional
grounds, they should raise the matter with the
chief officer of police as a matter of urgency.
POLICE OBJECTIONS TO EXISTING
SUPERVISORS
4.31 The 2003 Act also provides for the suspension
and forfeiture of personal licences by the
courts following convictions for relevant
offences, including breaches of licensing law.
The police can at any stage after the
appointment of a designated premises
supervisor seek a review of a premises licence
on any grounds relating to the licensing
objectives if anxieties arise about the
performance of a supervisor. The portability of
personal licences is also important to industry
because of the frequency with which some
businesses move managers from premises to
premises. It is not expected that licensing
authorities or the police should seek to use the
power of intervention as a routine mechanism
for hindering the portability of a licence or use
hearings of this kind as a fishing expedition to
test out the individual’s background and
character. The Secretary of State therefore
expects that such hearings should be rare and
genuinely exceptional.
CONVICTIONS AND LIAISON WITH
THE COURTS
4.32 Where a personal licence holder is convicted
by a court for a relevant offence, the court is
under a duty to notify the relevant licensing
authority of the conviction and of any decision
to order that the personal licence is suspended
or declared forfeit. The sentence of the court
has immediate effect despite the fact that an
appeal may be lodged against conviction or
sentence (although the court may suspend the
forfeiture or suspension of the licence pending
the outcome of any appeal).
4.33 When the licensing authority receives such
a notification, it should contact the holder
and request the licence so that the necessary
action can be taken. The holder must then
produce their licence to the authority within
14 days. It is expected that the chief officer of
police for the area in which the holder resides
would be advised if they do not respond
promptly. The licensing authority should record
the details of the conviction, endorse them on
the licence, together with any period of
38
suspension and then return the licence to the
holder. If the licence is declared forfeit, it
should be retained by the licensing authority.
RELEVANT OFFENCES
4.34 Relevant offences are set out in Schedule 4 to
the 2003 Act (see Annex C of this Guidance).
DISAPPLICATION OF CERTAIN
MANDATORY CONDITIONS
FOR COMMUNITY PREMISES
4.35 The Legislative Reform (Supervision of Alcohol
Sales in Church and Village Halls &c.) Order
2009 (SI 2009/1724) amends the 2003 Act to
allow certain community premises which have,
or are applying for, a premises licence that
authorises alcohol sales to also apply to
include the alternative licence condition in
sections 25A(2) and 41D(3) (“the alternative
licence condition”) of the 2003 Act in the
licence instead of the usual mandatory
conditions in sections 19(2) and 19(3) of the
2003 Act. Such an application may only be
made if the licence holder is, or is to be, a
committee or board of individuals with
responsibility for the management of the
premises (the “management committee”).
If such an application is successful, the effect
of the alternative licence condition will be that
the licence holder (i.e. the management
committee) is responsible for the supervision
and authorisation of all alcohol sales made
pursuant to the licence. All such sales will have
to be made or authorised by the licence holder.
There will be no requirement for a Designated
Premises Supervisor or for alcohol sales to
be authorised by a personal licence holder.
The Order defines community premises as
premises that are or form part of a church hall,
chapel hall or other similar building or a village
hall, parish hall or community hall or other
similar building. While there may be issues
relating to whether a premises is a community
premises with a proper management committee,
there should not be many disputed cases and
many will self evidently meet the definition of
a community premises and have an
appropriate management structure in place.
There is more detailed commentary on what
constitutes community premises in paragraphs
4.35 to 4.40 of this Guidance.
4.36 The process requires the completion of a new
f
orm w
hich is set out in The Licensing Act
2003 (Premises Licences and Club Premises
Certificates) (Miscellaneous Amendments)
Regulations 2009/1809. Where the
management committee of a community
premises is applying for authorisation for the
sale of alcohol for the first time, it should
include the form with the new premises
licence application or the premises licence
variation application. No extra payment is
required beyond the existing fee for a new
application or a variation.
4.37 Where a community premises already has a
premises licence to sell alcohol
, but wishes to
include the alternative licence condition in
place of the usual mandatory conditions in
sections 19(2) and 19(3) of the 2003 Act, it
should submit the form on its own together
with the required fee. The work required to
process such an application is expected to be
similar to that required to process an
application for a variation of a Designated
Premises Supervisor.
39
Guidance issued under section 182 of the Licensing Act 2003
Definition of community premises
4.38 In most instances, it should be self evident
whether a premises is, or forms part of a
church hall, chapel hall or other similar
building or a village hall, parish hall,
community hall or other similar building.
4.39 Many licensing authorities will already have
taken a view on how to determine whether a
premises meets the definition of community
premises for the purpose of the fee exemptions
set out in regulation 9(2)(b) of the Licensing
Act 2003 (Fees) Regulations 2005 (SI
2005/79). As the criteria are the same,
premises that qualify for these fee exemptions
for regulated entertainment will also be
community premises” for present purposes.
4.40 However, there may be types of premises
seeking disapplication of the per
sonal licence
and Designated Premises Supervisor
requirements which have not previously
sought exemption from the fee as a
community premises. This might be because
they had previously included alcohol or late
night refreshment in their licence and
therefore had to pay a fee regardless, or may
have qualified for the exemption from the
fee for regulated entertainment licences as
an educational institution.
4.41 Where it is not clear whether premises are
comm
unity premises”, licensing authorities will
need to approach the matter on a case-by-case
basis. The main consideration in most cases
will be how the premises are predominately
used. If they are genuinely made available for
community benefit most of the time, and
accessible by a broad range of persons and
sectors of the local community for purposes
which include purposes beneficial to the
community as a whole, the premises will be
likely to meet the definition. This could feasibly
include educational premises, such as school
halls, but only where they are genuinely and
widely used f
or the benefit of the community
as a whole, and not just for the particular school
in question. As such, community premises are
usually multi-purpose and a variety of activities
can be expected to take place in them, such
as playschools, senior citizens’ clubs, indoor
sports, youth clubs and public meetings.
4.42 Many community premises such as school and
priv
ate halls are available for private hire by
the general public. This fact alone would not be
sufficient for such halls to qualify as community
premises”. Although availability of premises
for hire might be seen as providing a facility
for the community, licensing authorities will
want to consider whether halls used largely
for private hire by individuals or private entities
are genuinely by their nature community
premises”. The statutory test is directed at the
nature of the premises themselves, as reflected
in their predominant use, and not only at the
usefulness of the premises for members of the
community for private purposes.
4.43 If the general use of the premises was
contingent upon member
ship of a particular
organisation or organisations, this would
strongly suggest that the premises in question
were not community premises” within the
definition. However, the hire of the premises to
individual organisations and users who restrict
their activities to their own members and
guests would not necessarily conflict with the
status of the premises as community
premises”, provided the premises are generally
available for use by the community in the
sense described above. It is not the intention
that ‘qualifying’ clubs which are able to apply
for a club premises certificate should instead
seek a premises licence with the disapplication
of the usual mandatory conditions in sections
19(2) and 19(3) of the 2003 Act relating to the
supply of alcohol.
40
Management of the premises
4.44 Sections 25A(1) and 41D(1) and (2) of the
2003 Act allow applications by community
premises to apply the alternative licence
condition rather than the usual mandatory
conditions in sections 19(2) and 19(3) of the
2003 Act only where the applicant for the
licence is the management committee of the
premises in question. In addition, sections
25A(6) and 41D(5) require the licensing
authority to be satisfied that the arrangements
for the management of the premises by the
committee or board are sufficient to ensure
the adequate supervision of the supply of
alcohol on the premises.
4.46 The reference to a committee or board of
individuals” is intended to cover any formally
constituted, transparent and accountable
management committee or structure. Such a
committee should have the capacity to
provide sufficient oversight of the premises to
minimise any risk to the licensing objectives
that could arise from allowing the
responsibility for supervising the sale of alcohol
to be transferred from a personal licence
holder/designated premises supervisor. This
could include management committees,
executive committees and boards of trustees.
The application form requires the applicants to
provide the names of the management
committee’s key officers e.g. the Chair,
Secretary, Treasurer.
4.47 The application form requires applicants to set
out how the premises is manag
ed, its
committee structure and how the supervision
of alcohol sales is to be ensured in different
situations (e.g. when the hall is hired to private
parties) and how responsibility for this is to be
determined in individual cases and discussed
and reviewed within the committee procedure
in the event o
f any issues arising. The
application form requires that the community
premises submit copies of any constitution or
other management documents with their
applications and that they provide the names
of their key officers e.g. the Chair, Secretary,
Treasurer. Where the management
arrangements are less clear, licensing
authorities may wish to ask for further details
to confirm that the management board or
committee is properly constituted and
accountable before taking a decision on
whether to grant the application (subject to
the views of the police). Community premises
may wish to check with the licensing authority
before making an application. The management
committee is strongly encouraged to notify the
licensing authority if there are key changes in
the committee’s composition e.g. to the Chair,
Secretary, Treasurer and to submit a copy to
the Chief Officer of Police. A failure to do so
may form the basis of an application to review
the premises licence, or be taken into account as
part of the consideration of such an application.
4.48 As the premise licence holder, the
management committee will collectiv
ely be
responsible for ensuring compliance with
licence conditions and the law (and may
remain liable to prosecution for one of the
offences in the Licensing Act) although there
would not necessarily be any individual
member always present at the premises. While
overall responsibility will lie with the
management committee, where the premises
are hired out the hirer may be clearly identified
as having responsibility for matters falling
within his or her control (e.g. under the
contract for hire offered by the licence holder),
much in the same way that the event
41
Guidance issued under section 182 of the Licensing Act 2003
organiser may be responsible for an event held
under a Temporary Event Notice. Where hirers
are provided with a written summary of their
responsibilities under the 2003 Act in relation
to the sale of alcohol, the management
committee is likely to be treated as having
taken adequate steps to avoid liability to
prosecution if a licensing offence is committed.
4.49 As indicated above, sections 25A(6) and
41D(5) of the 2003 Act require the licensing
authority to consider whether the
arrangements for the management of the
premises by the committee are sufficient to
ensure adequate supervision of the supply
of alcohol on the premises. Where private hire
for events which include the sale of alcohol is
permitted by the licence, it would be necessary
to have an effective hiring agreement.
Licensing authorities should consider
arrangements for the use of hiring agreements
in the light of recommendations for best
practice made by organisations such as ACRE
and Community Matters. Model hire
agreements are available from these bodies.
The model agreements can also be revised to
cater for the circumstances surrounding each
hire arrangement e.g. to state that the hirer is
aware of the licensing objectives and offences
in the 2003 Act and will ensure that it will take
all necessary steps to ensure that no offences
are committed during the period of the hire.
Police views
4.50 An additional safeguard is that in exceptional
circumstances the Chief Officer of Police for
the area in which the community premises is
situated can object to a request for inclusion
of the alternative licence condition on the
grounds of crime and disorder, and any
responsible authority and/or interested party
can seek reinstatement of the mandatory
conditions through a review of the licence
(as provided in section 52A of the 2003 Act).
The police will want to consider any history
of incidents at an establishment in light of the
actual or proposed management arrangements,
including the use of appropriate hire
agreements. If the Chief Officer of Police issues
a notice seeking the refusal of the application
to include the alternative licence condition,
the licensing authority must hold a hearing in
order to reach a decision on whether to grant
the application.
Appeals
4.51 Where the Chief Officer of Police has made
relevant representations against the inclusion
of the alternative licence condition, or given
a notice under section 41D(6) which was not
withdrawn, the Chief Officer of Police can
appeal the decision of the licensing authority
to allow the inclusion of the alternative licence
condition. Similarly, a community premises
can appeal a decision by the licensing
authority to refuse to include the alternative
licence condition following a hearing triggered
by relevant representations or by a notice
given under section 41D(6). Following a review
of the licence in which the mandatory
conditions are reinstated, the licence holder
may appeal against the decision. If the
alternative licence condition is retained on
review, the applicant for the review or any
person who made relevant representations
may appeal against the decision.
42
5. Who needs a premises licence?
5.1 A premises licence authorises the use of any
premises, (which is defined in the 2003 Act as
a vehicle, vessel or moveable structure or any
place or a part of any premises), for licensable
activities described and defined in section 1(1)
of and Schedules 1 and 2 to the 2003 Act.
RELEVANT PARTS OF ACT
5.2 In determining whether any premises should
be licensed, the following parts of the 2003
Act are relevant:
Relevant part of Act Description
Section 1 Outlines the licensable activities
Part 3 Provisions relating to premises licences
Part 4 Provisions for qualifying clubs
Section 173 Activities in certain locations which are not licensable
Section 174 Premises that may be exempted on grounds of national security
Section 175 Minor raffles and tombolas
Section 175 Prizes of alcohol not to be treated as licensable if certain
conditions ar
e fulfilled
Section 176 Prohibits the sale of alcohol at motorway service areas; and
restr
icts the circumstances in which alcohol may be sold at garages
Section 189 Special provision regarding the licensing of vessels,
vehicles and mov
eable structures
Section 190 Where the place where a contract for the sale of alcohol is made is
diff
erent from the place where the alcohol is appropriated to the
contract, the sale of alcohol is to be treated as taking place where
the alcohol is appropriated to the contract.
Section 191 Defines “alcohol” for the purposes of the Act
Section 192 Defines the meaning of “sale by retail”
Section 193 Defines among other things “premises”, “vehicle”, “vessel” and “wine”
Schedules 1 and 2 Provision of regulated entertainment and Provision of
late night r
efr
eshment
43
Guidance issued under section 182 of the Licensing Act 2003
5.3 Section 191 provides the meaning of “alcohol”
for the purposes of the 2003 Act. It should be
noted that a wide variety of foodstuffs contain
alcohol but generally in a highly diluted form
when measured against the volume of the
product. For the purposes of the Act, the sale
or supply of alcohol which is of a strength not
exceeding 0.5 per cent ABV (alcohol by
volume) at the time of the sale or supply in
question is not a licensable activity. However,
where the foodstuff contains alcohol at greater
strengths, for example, as with some alcoholic
jellies, the sale would be a licensable activity.
PREMISES LICENSED FOR GAMBLING
5.4 Gambling is the subject of separate legislation.
The Gambling Act 2005 will come into force in
September 2007, when the current law (the
Betting Gaming and Lotteries Act 1963, the
Gaming Act 1968 and the Lotteries and
Amusements Act 1976) will be repealed.
Licensing authorities should not duplicate any
conditions imposed by such legislation when
granting, varying or reviewing licences that
authorise licensable activities under the
Licensing Act 2003. When making a licence
application, the applicant may, in detailing the
steps to be taken in promoting the licensing
objectives, refer to the statutory conditions in
respect of their gaming licence where relevant.
In addition, any conditions which are attached
to premises licences should not prevent the
holder from complying with the requirements
of gambling legislation or supporting
regulations. Further information about the
Gambling Act 2005 can be found on the DCMS
website at www.culture.gov.uk.
DESIGNATED SPORTS GROUNDS,
DESIGNATED SPORTS EVENTS AND
MAJOR OUTDOOR SPORTS STADIA
5.5 Outdoor sports stadia are regulated by
separate legislation in relation to health and
safety and fire safety, so licensing authorities
should avoid any duplication when granting,
varying or reviewing premises licences.
5.6 The sports events taking place at outdoor
stadia do not fall within the definition of the
provision of regulated entertainment under the
2003 Act; with the exception of boxing and
wrestling matches. Licensing authorities should
therefore limit their consideration of
applications for premises licences to activities
that are licensable under the 2003 Act.
5.7 Major stadia will often have several bars and
restaur
ants, including bars generally open to all
spectators as well as bars and restaurants to
which members of the public do not have free
access. Alcohol will also be supplied in private
boxes and viewing areas. A premises licence
may make separate arrangements for public
and private areas or for restaurant areas on the
same premises. It may also designate areas
where alcohol may not be consumed at all or
at particular times.
5.8 History demonstrates that certain sports
events ar
e more likely than others to give rise
to concerns about the safety of, and disorder
among, spectators. Licensing authorities should
take this into account in determining premises
licence conditions. Because of the issues of
crowd control that arise in and around sports
grounds, licensing authorities are expected to
give considerable weight to the views of the
local chief officer of police when representations
are made concerning licensable activities.
44
5.9 Licensing authorities should be aware that
paragraphs 98 and 99(c) of Schedule 6 to the
Act and the repeals of section 2(1A) and
section 5A of the Sporting Events (Control of
alcohol etc.) Act 1985 have not been
commenced with the remaining provisions of
the 2003 Act, since the effect would have been
different from that which Parliament had
intended. The Government is likely to seek to
introduce the intended policy by alternative
means and any future developments on this
will be available on the DCMS website.
SPORTS STADIA WITH ROOFS
THAT OPEN AND CLOSE
5.10 Major sports grounds with roofs that open and
close, such as the Millennium Stadium in
Cardiff, do not fall within the definition of an
“indoor sporting event” under the 2003 Act.
As a result events taking place in these stadia
are not ‘regulated entertainment’ as defined
and are not licensable under the 2003 Act.
VESSELS
5.11 The 2003 Act applies to vessels (including
ships and boats) as if they were premises.
A vessel which is not permanently moored
or berthed is treated as if it were premises
situated in a place where it is usually moored
or berthed. The relevant licensing authority for
considering an application for a premises
licence for a vessel is therefore the licensing
authority for the area in which it is usually
moored or berthed.
5.12 However, an activity is not a licensable activity
if it takes place aboard a vessel engaged on an
international journey. An “international
journey” means a journey from a place in the
United Kingdom to an immediate destination
outside the United Kingdom or a journey from
outside the United Kingdom to an immediate
destination in the United Kingdom.
5.13 If a vessel is not permanently moored and
carries mor
e than 12 passengers it is a
passenger ship and will be subject to safety
regulation by the Maritime and Coastguard
Agency (MCA).
5.14 When a licensing authority receives an
application for a pr
emises licence in relation to
a vessel, it should consider the promotion of
the licensing objectives, but should not focus
on matters relating to safe navigation or
operation of the vessel, the general safety of
passengers or emergency provision, all of which
are subject to regulations which must be met
before the vessel is issued with its Passenger
Certificate and Safety Management Certificate.
5.15 If the MCA is satisfied that the vessel complies
with Merc
hant Shipping standards for a
passenger ship, the premises should normally
be accepted as meeting the public safety
objective. In relation to other public safety
aspects of the application, representations
made by the MCA on behalf of the Secretary
of State should be given particular weight.
5.16 If a vessel, which is not permanently moored
and carries no mor
e than 12 passengers, goes
to sea, it will be subject to the code for the
safety of Small Commercial Vessels. This code
sets the standards for construction, safety
equipment and manning for these vessels and
MCA will be able to confirm that it has a valid
safety certificate.
45
Guidance issued under section 182 of the Licensing Act 2003
5.17 If a vessel carries no more than 12 passengers
and does not go to sea, it may be regulated or
licensed by the competent harbour authority,
navigation authority or local authority.
The recommended standards for these vessels
are set out in the (non-statutory) Inland Waters
Small Passenger Boat Code, which provides
best-practice guidance on the standards for
construction, safety equipment and manning.
Some authorities may use their own local rules.
MCA has no direct responsibility for these
vessels and will not normally comment on
a premises licence application.
INTERNATIONAL AIRPORTS AND PORTS
5.18 Under the 2003 Act, the Secretary of State
may designate’ a port, hoverport or airport
with a substantial amount of international
traffic so that an activity carried on there is
not licensable. The Secretary of State may also
preserve existing designations made under
earlier legislation. Details of designated ports,
hoverports and airports can be viewed on the
DCMS website.
5.19 Areas at designated ports which are “airside”
or
“wharfside” are included in the exemption in
the 2003 Act from the licensing regime.
The non-travelling public does not have access
to these areas and they are subject to
stringent bye-laws. The exemption allows
refreshments to be provided to travellers at all
times of the day and night. Other parts of
designated ports, hoverports and airports are
subject to the normal licensing controls.
VEHICLES
5.20 Under the 2003 Act, alcohol may not be sold
on a moving vehicle and the vehicle may not
be licensed for that purpose. However, licensing
authorities may consider applications for the
sale of alcohol from a parked or stationary
vehicle. For example, mobile bars could sell
alcohol at special events as long as they were
parked. Any permission granted would relate
solely to the place where the vehicle is parked
and where sales are to take place.
5.21 The provision of any entertainment or
entertainment facilities on premises consisting
of or forming part of any vehicle while it is in
motion and not permanently or temporarily
parked is not regulated entertainment for the
purposes of the 2003 Act. For example, a band
performing on a moving float in a parade
would not require a premises licence if
performances only take place while the vehicle
is in motion.
TRAINS AND AIRCRAFT
5.22 Railway vehicles and aircraft engaged on
journeys are exempted from the licensing
regime. However, licensing authorities should
note that some defunct aircraft and railway
carriages remain in a fixed position and are
used as restaurants and bars. These premises
are subject to the provisions of the 2003 Act.
46
GARAGES
5.23 Section 176 of the 2003 Act prohibits the sale
or supply of alcohol from premises that are
used primarily as a garage, or are part of
premises used primarily as a garage. Premises
are used as a garage if they are used for one or
more of the following:
the retailing of petrol;
the retailing of derv;
the sale of motor vehicles; and
the maintenance of motor vehicles.
5.24 The licensing authority must decide whether or
not an
y premises is used primarily as a garage.
The approach endorsed so far by the courts is
based on intensity of use to establish primary
use. For example, if a garage shop in any rural
area is used more intensely by customers
purchasing other products than by customers
purchasing the products or services listed
above, it may be eligible to seek authority to
sell or supply alcohol.
5.25 Where there is insufficient evidence to
establish primary use,
it is for the licensing
authority to decide whether to grant the
licence and deal with any issues through
enforcement action or to defer granting the
licence until the primary use issue can be
resolved to their satisfaction.
LARGE SCALE TIME-LIMITED EVENTS
REQUIRING PREMISES LICENCES
5.26 Licensing authorities should note that a
premises licence may be sought for a short,
discrete period. The 2003 Act provides for the
giving of temporary event notices which are
subject to various limitations (see Chapter 7 of
this Guidance). Any temporary event which is
not within these limits, would require the
authority of a premises licence if the premises
or place is currently unlicensed for the
activities involved. For example, this would
arise if the event would involve more than 499
attending or if a temporary event notice were
given and would result in the limit for
individual premises of 12 notices in a calendar
year being exceeded.
5.27 The procedures for applying for and granting
such a licence are identical to those for an
unlimited duration premises licence except
that it should be stated on the application
that the applicant’s intention is that the period
of the licence should be limited. Licensing
authorities should clearly specify on such
a licence when it comes into force and when
it ceases to have effect. If the sale of alcohol
is involved, a personal licence holder must be
specified as the designated premises supervisor.
5.28 Temporary events may range from relatively
small local events,
like traditional
performances of a play, which may last for five
days, to major pop festivals lasting only one
day. The largest temporary events may attract
huge crowds of over 100,000 people and the
risks to public safety and to crime and disorder
as well as public nuisance may be considerable.
47
Guidance issued under section 182 of the Licensing Act 2003
Licensing authorities are expected to make
clear in local publicity that they should be
given very early notice of such major events
to allow responsible authorities to discuss
operating schedules with the organisers well
before a formal application is submitted.
Many of these events will give rise to special
considerations in respect of public safety.
Operating schedules should therefore reflect
an awareness of these matters and in
particular, advice given in the following
documents will be relevant:
The Event Safety Guide – A guide to health,
safety and welfare at music and similar
events (HSE 1999)(“The Purple Book”)
ISBN 0 7176 2453 6
Managing Crowds Safely (HSE 2000)
ISBN 0 7176 1834 X
5 Steps to Risk Assessment: Case Studies
(HSE 1998) ISBN 07176 15804
The Guide to Safety at Sports Grounds
(
The Stationery Office, 1997) (“The Green
Guide”) ISBN 0 11 300095 2
Safety Guidance for Street Arts, Carnival,
Processions and Large Scale Performances
published by the Independent Street Arts
Network, copies of which may be obtained
through www.streetartsnetwork.org.uk/
pages/publications.htm
Fire Safety Risk Assessment – Open Air
Ev
ents and Venues (ISBN 978 1 85112 823
5) is available from the Communities and
Local Government website
www.communities.gov.uk/fire
ADDITIONAL FEES FOR LARGE SCALE
EVENTS
5.29 It should be noted that premises licences for
large scale temporary events do not
automatically attract the higher fee levels set
out in the relevant fee Regulations, which must
be paid in addition to the standard application
or variation fees when the premises licence
relates to activities attracting the attendance
of 5,000 or more.
5.30 Venues that are permanent or purpose built or
structurally altered for the activity are exempt
from the additional fee.
5.31 Regulations prescribe that the additional fee
for lar
ge scale events would not be payable
where the premises is a structure which is not
a vehicle, vessel or moveable structure, and has
been constructed or structurally altered to allow:
the proposed licensable activities to take
place;
the premises to be modified temporarily,
from time to time,
if relevant for the
proposed licensable activities;
the proposed number of people on the
premises at an
y one time;
the premises to be used in a manner which
complies with the oper
ating schedule.
The full details of where the additional fee
is applicable can be found in Regulation 4(5)
of The Licensing Act 2003 (Fees) Regulations
2005 which may be viewed on the DCMS
website.
48
6. Club premises certificates
6.1 This Chapter provides advice about best
practice for the administration of the processes
for issuing, varying, and reviewing club premises
certificates and other associated procedures.
GENERAL
6.2 Clubs are organisations where members have
joined together for particular social, sporting or
political purposes and then combined to buy
alcohol in bulk as members of the organisation
to supply in the club. They commonly include
Labour, Conservative and Liberal Clubs, the
Royal British Legion, other ex-services clubs,
working men’s clubs, miners welfare
institutions, social and sports clubs.
6.3 Technically the club only sells alcohol by retail
at suc
h premises to guests. Where members
purchase alcohol, there is no sale (as the
member owns part of the alcohol stock) and
the money passing across the bar is merely a
mechanism to preserve equity between
members where one may consume more than
another. This explains why the 2003 Act often
refers to the supply of alcohol in the context
of clubs and not just to the sale by retail.
6.4 Only ‘qualifying’ clubs may hold club premises
certificates.
In order to be a qualifying club, a
club must have at least 25 members and meet
the conditions set out in paragraph 6.9 below.
The grant of a club premises certificate means
that a qualifying club is entitled to certain
benefits. These include:
the authority to supply alcohol to members
and sell it to guests on the pr
emises to
w
hich the certificate relates without the
need for any member or employee to hold a
personal licence;
the absence of a requirement to specify a
designated premises supervis
or (see
paragraphs 4.19 and 4.20 of this Guidance);
more limited rights of entry for the police
and authorised per
sons because the
premises are considered private and not
generally open to the public;
exemption from police powers of instant
closure on gr
ounds of disorder and noise
nuisance (except when being used under the
authority of a temporary event notice or
premises licence) because they operate
under their codes of discipline and rules
which are rigorously enforced ; and
exemption from orders of the magistrates’
cour
t f
or the closure of all licensed premises
in an area when disorder is happening or
expected.
6.5 Qualifying clubs should not be confused with
pr
oprietary clubs, which are clubs run
commercially by individuals, partnerships or
businesses for profit. These require a premises
licence and are not qualifying clubs.
6.6 A qualifying club will be permitted under the
terms of a club premises certificate to sell and
supply alcohol to its members and their guests
only. Instant membership is not permitted and
members must wait at least two days between
their application and their admission to the
club. Any qualifying club may choose to obtain
a premises licence if it decides that it wishes
to offer its facilities commercially for use by
the general public, including the sale of alcohol
to them. However, an individual on behalf of a
club may give temporary event notices in
respect of the premises to cover a period of up
to 96 hours on up to 12 occasions each
calendar year, so long as no more than 499
people attend the event and subject to an
overall maximum duration in the year of 15
days, and on such occasions may sell alcohol
to the public or hire out their premises for use
by the public.
49
Guidance issued under section 182 of the Licensing Act 2003
6.7 The 2003 Act does not prevent visitors to a
qualifying club being supplied with alcohol as
long as they are ‘guests’ of any member of the
club or the club collectively, and nothing in the
2003 Act prevents the admission of such
people as guests without prior notice. For the
sake of flexibility, the Act does not define
guest” and whether or not somebody is a
genuine guest would in all cases be a question
of fact. The term can include a wide variety of
people who are invited by the qualifying club
or any individual member to use the club
facilities. The manner in which they are
admitted as ‘guests’ would be for the club to
determine and to consider setting out in their
own club rules.
6.8 There is no mandatory requirement under the
2003
Act for guests to be signed in by a
member of the club. However, a point may be
reached where a club is providing commercial
services to the general public in a way that is
contrary to its qualifying club status. It is at
this point that the club would no longer be
conducted in “good faith” and would no longer
meet “general condition 3” for qualifying clubs
in section 62 of the 2003 Act . Under the 2003
Act the licensing authority must decide when a
club has ceased to operate in “good faithand
give the club a notice withdrawing the club
premises certificate. The club is entitled to
appeal against such a decision to the
magistrates’ courts. Unless the appeal is
successful, the club would need to apply for a
full premises licence to cover any licensable
activities taking place there.
QUALIFYING CONDITIONS
6.9 Section 62 of the 2003 Act sets out five
general conditions which a relevant club must
meet to be a qualifying club. Section 63 also
sets out specified matters for licensing
authorities to enable them to determine
whether a club is established and conducted in
good faith – the third qualifying condition.
Section 64 sets out additional conditions
which only need to be met by clubs intending
to supply alcohol to members and guests.
Section 90 of the 2003 Act gives powers to the
licensing authority to issue a notice to a club
withdrawing its certificate where it appears
that it has ceased to meet the qualifying
conditions. There is a right of appeal against
such a decision.
ASSOCIATE MEMBERS AND GUESTS
6.10 As well as their own members and guests,
qualifying clubs are also able to admit
associate members and their guests (i.e.
members and guests from another ‘recognised
club’ as defined by section 193 of the 2003
Act) to the club premises when qualifying club
activities are being carried on without
compromising the use of their club premises
certificate. This reflects traditional
arrangements where such clubs make their
facilities open to members of other clubs
which operate reciprocal arrangements.
50
APPLICATIONS FOR THE GRANT
OR VARIATION OF CLUB PREMISES
CERTIFICATES
6.11 The arrangements for applying for or seeking
to vary club premises certificates are extremely
similar to those for a premises licence. Clubs
may also use the minor variation process to
make small changes to their certificates as
long as these could have no adverse impact on
the licensing objectives. Licensing authorities
should refer to Chapter 8 of this Guidance on
the handling of such applications. In that
Chapter most of the references to the premises
licence, premises licence holders, and
applicants can be read for the purposes of this
Chapter as club premises certificates,
qualifying clubs and club applicants.
6.12 In addition to a plan of the premises and a
club operating schedule, clubs must also
include the rules of the club with their
application. On notifying any alteration to
these rules to the licensing authority, the club
is required to pay a fee set down in
regulations. Licensing authorities may wish to
consider returning a certified copy of the rules
to the applicant with the certificate. Licensing
authorities should bear in mind that they
cannot require any changes to the rules to be
made as a condition of receiving a certificate
unless relevant representations have been
made. However, if a licensing authority is
satisfied that the rules of a club indicate that it
does not meet the qualifying conditions in the
Act, a club premises certificate should not be
granted.
STEPS NEEDED TO PROMOTE THE
LICENSING OBJECTIVES
6.13 Club operating schedules prepared by clubs, as
with operating schedules for premises licences,
must include the steps the club intends to take
to promote the licensing objectives. These will
be translated into conditions included in the
certificate, unless the conditions have been
modified by the licensing authority following
consideration of relevant representations.
Guidance on these conditions is given in
Chapter 10 of this Guidance.
6.14 The Secretary of State wishes to emphasise
that non-profit making clubs make an
important and traditional contribution to the
life of many communities in England and Wales
and bring significant benefits. Their activities
also take place on premises to which the
public do not generally have access and they
operate under codes of discipline applying to
members and their guests.
6.15 Licensing authorities should bear these matters
in mind w
hen consider
ing representations and
should not attach conditions to certificates
unless they can be demonstrated to be strictly
necessary. The indirect costs of conditions will
be borne by individual members of the club
and cannot be recovered by passing on these
costs to the general public.
51
Guidance issued under section 182 of the Licensing Act 2003
SEX EQUALITY
6.16 The Secretary of State believes that all
qualifying clubs should adopt fair and equal
procedures for admitting people to
membership, electing club officials and on
voting rights. However, although equal
treatment on the grounds of gender is
important to society generally, it is not a
licensing objective. Conditions should not
therefore be imposed which interfere with the
arrangements for granting membership or
voting within the club. It would also be
inappropriate to apply one set of rules to
qualifying clubs and another set of rules to
clubs that do not engage in qualifying club
activities and do not therefore require club
premises certificates. Licensing authorities
should not therefore seek to challenge the
bona fides of any qualifying club on these
grounds.
TEMPORARY EVENT NOTICES
6.17 Licensing authorities should note paragraph
7.13 of this Guidance in connection with
permitted temporary activities in club
premises.
52
7. Temporary event notices
7.1 This Chapter describes best practice in
administering the arrangements in the 2003
Act for the temporary carrying on of licensed
activities at premises which are not authorised
by a premises licence or club premises certificate.
GENERAL
7.2 The most important aspect of the system
of permitted temporary activities is that
events do not have to be authorised as such
by the licensing authority. Instead the premises
user notifies the event to the licensing
authority and the police, subject to fulfilling
certain conditions.
7.3 In general, only the police may intervene to
prevent such an event taking place or to agree
a modification of the arrangements; and it is
characterised by an exceptionally light touch
bureaucracy. The licensing authority may only
ever intervene of its own volition if the
statutory limits on the number of temporary
event notices that may be given in various
circumstances would be exceeded. Otherwise,
the licensing authority is only required to issue
a timely acknowledgement.
7.4 It should be noted that giving a temporary
ev
ent notice does not relieve the premises
user from any requirements under planning
law for appropriate planning permission where
it is required.
LIMITATIONS
7.5 Such a light touch is possible because of the
limitations directly imposed on the use of the
system by the 2003 Act. The limitations apply to:
the number of times a person (the “premises
user”) may give a temporary event notice
(50 times per year for a personal licence
holder and 5 times per year for other people);
the number of times a temporary event
notice may be g
iven for any particular
premises (12 times in a calendar year);
the length of time a temporary event may
last (96 hours);
the maximum total duration of the periods
cov
ered by temporary event notices at any
individual premises (15 days); and
the scale of the event in terms of the
maximum number of people attending at
any one time (less than 500).
7.6 In any other circumstances, a full premises
licence or club premises cer
tificate would be
required for the period of the event involved.
A person may also choose to apply for a
premises licence or club premises certificate
if they do not wish to take advantage of the
light touch arrangements.
7.7 In determining whether the maximum total
duration o
f the periods covered by temporary
event notices at any individual premises has
exceeded 15 days, licensing authorities
should be aware that any event beginning
before midnight and continuing into the next
day would count as two days towards the
15 day limitation.
7.8 Many premises users giving temporary event
notices will not have commer
cial backgrounds
or ready access to legal advice, including for
example, people acting on behalf of charities,
community and voluntary groups, etc who
may hold public events involving licensable
activities to raise funding. Licensing authorities
should therefore ensure that local publicity
about the system of permitted temporary
activities is clear and understandable and
should strive to keep the arrangements
manageable and user-friendly for these groups.
53
Guidance issued under section 182 of the Licensing Act 2003
WHO CAN GIVE A TEMPORARY
EVENT NOTICE?
Personal licence holders
7.9 A personal licence holder can give a temporary
event notice for licensable activities, at any
premises on up to 50 occasions in each year
for up to four days on each occasion (subject
to the limitations for each premises – see
paragraph 7.11 below), subject to informing
the licensing authority and the police for the
area in which the event is to take place of
relevant details. The relevant information is
itemised in the prescribed notice contained in
regulations made by the Secretary of State,
which may be viewed on the DCMS website.
7.10 A personal licence holder may also use their
allocation of 50 temporary event notices at
premises which have a premises licence or club
premises certificate. This might be, for
example, to hold an event involving live music,
to extend the hours when alcohol may be sold
for an ad hoc occasion or to provide late night
refreshment after a quiz night. However, if the
ad hoc event is something that is predictable
and anticipated to occur on a number of
occasions it is expected that the licensable
activities would form part of the application
for a premises licence.
7.11 Only 12 notices may be granted for the same
premises up to an overr
iding maximum total
duration of 15 days.
Non-personal licence holders
7.12 The 2003 Act provides that any individual
person aged 18 or over may give a temporary
event notice whether or not they hold a
personal licence. They will not therefore have
met the tests and qualifications described in
Part 6 of the Act. Where alcohol is not to be
sold, this should not matter. However, many
events will involve combinations of licensable
activities. In the absence of a premises user
holding a personal licence, the Act limits the
number of notices that may be given by any
non-personal licence holder to 5 occasions
per year. In every other respect, the Guidance
and information set out in the paragraphs
above applies.
7.13 Temporary event notices may also be given
by non-personal licence holders for club
premises covered by club premises certificates.
This means, for example, that a club which
under its certificate is normally only permitted
to supply alcohol to its members and their
guests may during the period covered by a
temporary event notice (subject to the
limitation on numbers and occasions) under
the authority of the notice and the
responsibility of the individual giving the
notice (the premises user) admit members
of the public and sell alcohol to them as
well as provide regulated entertainment.
Only 12 notices may be given for the same
club premises in any calendar year and the
maximum total duration of 15 days will
also apply.
54
NOTIFIED PREMISES
7.14 A temporary event notice may be given for
part of a building such as a single room within
a village hall, a plot within a larger area of
land, or a discrete area within a marquee as
long as it includes a clear description of the
area where the licensable activities will take
place and the premises user intends to restrict
the number of people present in the notified
area at any one time to less than 500. If the
premises user fails to restrict the numbers to a
maximum of 499, they would be liable to
prosecution for carrying on unauthorised
licensable activities.
NOTIFICATION ARRANGEMENTS
7.15 Premises users notifying a temporary event are
required to send a temporary event notice, in
the form prescribed in the regulations, to the
licensing authority at least 10 working days
before an event. Premises users applying in
writing must also send the notice to the police
at least 10 working days before an event.
The police have a period of no later than 48
hours from when they are given the notice to
object to the temporary event on crime
prevention grounds.
7.16 If the notice is sent electronically via
businesslink or the licensing authority’s own
facility, the licensing authority must notify the
police no later than the first working day after
the notice is given. Otherwise the general
guidance in paragraphs 8.27 – 8.35 on
electronic applications applies.
7.17 There is nothing to prevent notification of
mul
tiple events at the same time so long as
the first event is at least ten days away.
For example, an individual personal licence
holder wishing to exhibit and sell beer at a
series of country shows may wish to give
several notices simultaneously. However, this
would only be possible where the events are
to take place in the same licensing authority
(and police area) and the premises to be used
at the show would be occupied by no more
than 499 people at any one time.
7.18 Although 10 working days is the minimum
possible notice that may be g
iven, licensing
authorities should publicise locally their
preferences in terms of forward notice and
encourage notice givers to provide the earliest
possible notice of events likely to take place.
Licensing authorities should also consider
publicising a preferred maximum time in
advance of an event that applications should
be made. For example, if an application is
made too far in advance of an event, it may
be difficult for the police to make a sensible
assessment and could lead to objections that
could be otherwise avoided.
7.19 Section 193 of the Act defines “working day”
as an
y day other than a Saturday, a Sunday,
Christmas Day, Good Friday, or a day which is
a bank holiday under the Banking and Financial
Dealings Act 1971 in England and Wales.
“Ten working days” notice means ten working
days exclusive of the day on which the event
is to start, and exclusive of the day on which
the notice is given.
55
Guidance issued under section 182 of the Licensing Act 2003
ROLE OF THE LICENSING AUTHORITY
7.20 One reason for the notification requirement is
to enable the licensing authority to check that
the limitations set down in Part 5 of the 2003
Act are being observed and to intervene if they
are not. For example, a temporary event notice
would be void unless there is a minimum of 24
hours between events notified by the same
premises user, or an associate, or someone
who is in business with the relevant premises
user, in respect of the same premises. This is to
prevent evasion of the 96 hour limit on such
events and the need to obtain a full premises
licence or club premises certificate for more
major or permanent events. In addition, for
these purposes, a notice is treated as being
from the same premises user if it is given by
an associate. The 2003 Act defines an associate
as being:
the spouse or civil partner of that person;
• child, parent, grandchild, grandparent,
br
other or sister of that person;
an agent or employee of that person;
the spouse or civil partner of a person listed
in either of the two pr
evious bullet points.
7.21 A person living with another person as their
husband or wif
e is treated for these purposes
as their spouse. ‘Civil partneris defined by the
Civil Partnership Act 2004.
7.22 Where the application is not within the
statutory par
ameters described earlier, the
licensing authority will issue a counter notice
to the person giving the notice – the premises
user. Where the temporary event notice is in
order, the fee prescribed by the Secretary of
State paid, the event falls within the limitations
in the Act, and there has been no police
intervention on crime prevention grounds,
the licensing authority will record the notice in
its register and send an acknowledgement to
the premises user.
7.23 Licensing authorities may not seek to attach
any terms,
conditions, limitations or
restrictions on the carrying on of licensable
activities at such events under the authority
of a temporary event notice. It is however
desirable for licensing authorities to provide
local advice about proper respect for the
concerns of local residents; of other legislative
requirements regarding health and safety, noise
pollution or the building of temporary
structures; of other necessary permissions, for
example, with regard to road closures or the
use of pyrotechnics in public places; with
regard to local bye-laws; and the need to
prevent anti-social behaviour by those
attending. Premises users are not required
to be on the premises for the entire duration
of the event, but they will remain liable to
prosecution for certain offences that may
be committed at the premises during the
temporary event if the event is not adequately
managed/supervised including the laws
governing sales of alcohol to minors. These
matters may be covered in the licensing
authority’s statement of licensing policy.
7.24 In the case of an event proceeding under the
authority o
f a temporary event notice, failure
to adhere to the requirements of the 2003 Act,
such as the limitation of no more than 499
being present at any one time, would mean
that the event was unauthorised. In such
circumstances, the premises user would be
liable to prosecution.
56
7.25 Section 8 of the Act requires licensing
authorities to keep a register containing
certain matters, including a record of
temporary notices received. Licensing
authorities should be aware that there is no
requirement to record all the personal
information given on a temporary event
notice, and should avoid recording certain
details, such as national insurance numbers,
which may give rise to identity fraud.
POLICE INTERVENTION
7.26 The second and more important reason for
the notification requirement is to give the
police the opportunity to consider whether
they should object to the event taking place
on the grounds that it would undermine the
crime prevention objective.
7.27 Such cases might arise because of concerns
about the scale, location or timing of the
event. However, in most cases, where alcohol is
supplied away from licensed premises at a
temporary bar under the control of a personal
licence holder, (e.g. at weddings or small social,
community, charitable or sporting events) this
should not give rise to the use of these police
powers. If the police do not intervene, they will
still be able to rely on their powers of closure
under Part 8 of the 2003 Act should disorder
or noise nuisance arise subsequently.
7.28 The police may issue an objection notice
within 48 hours o
f being notified. This 48 hour
period includes weekends and other non
“working days” such as bank holidays.
The licensing authority must consider the
objection at a hearing before a counter notice
can be issued, but it must restrict its
consideration to the crime prevention
objective. It may not, for example, uphold
a police objection notice on grounds of public
nuisance or an objection notice given more
than 48 hours after the temporary event
notice is given. At the hearing, the police
and the premises user may be heard by the
relevant licensing committee. A hearing would
not be necessary if the objection notice is
withdrawn by the police.
7.29 The possibility of police intervention is another
reas
on why event organisers should be
encouraged by local publicity not to rely on
giving the minimum amount of notice and to
contact local police licensing officers at the
earliest possible opportunity about their
proposals.
7.30 The police may withdraw their objection
notice at any stag
e if the proposed premises
user agrees to modify the proposal to meet
their concerns. For example, if the premises
user agrees to modify the period during which
alcohol may be sold. The licensing authority
will then be sent or delivered a copy of the
modified notice by the police as proof of their
agreement, but they can subsequently
withdraw it.
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Guidance issued under section 182 of the Licensing Act 2003
8. Applications for premises licences
RELEVANT LICENSING AUTHORITY
8.1 Premises licences are issued by the licensing
authority in which the premises are situated
or in the case of premises straddling an area
boundary, the licensing authority where the
greater part of the premises is situated. Where
the premises is located equally in two or more
areas, the applicant may choose but, in these
rare cases, it is important that the licensing
authorities involved maintain close contact.
8.2 In section 13, the 2003 Act defines three key
gr
oups that have important roles in the
context of applications, inspection,
enforcement and reviews of premises licences.
AUTHORISED PERSONS
8.3 The first group – “authorised persons” – are
bodies empowered by the Act to carry out
inspection and enforcement roles. The police
are not included because they are separately
empowered by the Act to carry out their duties.
For all premises, the authorised persons include:
officers of the licensing authority;
fire inspectors;
inspectors locally responsible for the
enforcement of the Health and Safety
at Work etc Act 1974; and
environmental health officers.
8.4 Local authority officers will most commonly
have r
esponsibility for the enforcement of
health and safety legislation, but the Health
and Safety Executive is responsible for certain
premises. In relation to vessels, authorised
persons also include an inspector or a surveyor
of ships appointed under section 256 of the
Merchant Shipping Act 1995. These would
normally be officers acting on behalf of the
Maritime and Coastguard Agency.
The Secretary of State may also prescribe other
authorised per
sons by means of regulations,
but has not currently prescribed any additional
bodies. If any are prescribed, details will be
made available on the DCMS website.
INTERESTED PARTIES
8.5 The second group – “interested parties” – are
the bodies or individuals who are entitled to
make representations to licensing authorities
on applications for the grant, variation or
review of premises licences. In addition,
interested parties may themselves seek a
review of a premises licence. This group includes:
a person living in the vicinity of the
pr
emises in question;
a body representing persons living in that
vicinity
, for example, a residents’ association,
or a parish or town council;
a person involved in a business in the
vicinity of the premises in question;
a body representing persons involved in
suc
h businesses, for example, a trade
association; and
a member of the relevant licensing
authority, i.e. elected councillors of the
licensing authority for the area in which a
premises is situated (see paragraph 8.1).
8.6 It is expected that “a person involved in
business”
will be given its widest possible
interpretation, including partnerships, and need
not be confined to those engaged in trade and
commerce. It is also expected that the
expression can be held to embrace the functions
of charities, churches and medical practices.
8.7 Any of these individuals or groups may
specifically request a representative to make
a representation on their behalf. For example,
a legal representative, a friend, a Member of
58
Parliament, a Member of the National
Assembly for Wales, or a local ward or parish
councillor could all act in such a capacity.
8.8 Further information on the role of interested
parties is available in “Guidance for interested
parties: applying for a review” which can be
found on the DCMS website.
THE ROLE OF LOCAL COUNCILLORS
8.9 Local councillors play an important role in
their local communities. They can make
representations in writing and at a hearing on
behalf of an interested party such as a resident
or local business if specifically requested to do
so. They can also make representations as an
interested party in their own right if they live,
or are involved in a business, in the vicinity of
the premises in question. Local councillors can
also, as elected members of the licensing
authority, make representations in their own
right if they have concerns about any premises,
regardless of whether they live or run a
business in the vicinity of those premises. For
example, councillors may apply for a review of
a licence if problems at a specific premises
which justify intervention are brought to their
attention.
8.10 Local councillors councillors are subject to the
Local Authorities (Model Code of Conduct)
Order 2007 which restricts their involvement
in matters, and participation in meetings to
discuss matters, in which they have a
‘prejudicial’ interest (i.e. an interest that a
member of the public would reasonably regard
as so significant that it is likely to prejudice
the member’s judgement of the public
interest). In cases where a local councillor
makes a representation as an interested party,
they will be considered to have a ‘prejudicial’
interest in the local authority’s decision on a
resulting review and in the local authority’s
representation to any appeal on this decision.
8.11 According to the Model Code of Conduct,
councillors with a
‘prejudicial’ interest must
not exercise executive functions in relation to
that business and must not seek improperly to
influence a decision about that business.
Councillors with a prejudicial interest are
allowed to attend relevant meetings to make
representations, answer questions or give
evidence, provided that the public are also
allowed to attend for the same purpose,
whether under the licensing legislation or
otherwise and as long as they withdraw from
the meeting immediately afterwards. It must
be emphasised that councillors have a duty to
act in the interests of all of their constituents.
Their role as a community advocate must
therefore be balanced with their ability to
represent specific interests.
8.12 The Code applies to any elected council
member whether or not the
y are a member of
the licensing committee. A member of a
licensing committee, representing others or
acting in their own right, would need to
consider carefully at a committee meeting
whether they had a prejudicial interest in any
matter affecting the licence of the premises in
question which would require them to
withdraw from the meeting when that matter
is considered. For example, where a councillor
has made representations in their capacity as
an elected member of the licensing authority.
In addition, a member with a prejudicial
interest in a matter should not seek to
influence improperly a decision on the licence
in any other way.
8.13 In addition, councillors may wish to be kept
informed o
f licensing related matters within
the area, such as applications and reviews.
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Guidance issued under section 182 of the Licensing Act 2003
8.14 The Act does not prevent licensing authorities
from providing this information to councillors,
for instance by way of regular updates, as long
as it is done in a neutral way that could not be
seen as ‘soliciting’ representations. It should be
remembered that the ‘licensing authority’ in
most cases is the full council, including all
ward councillors, and each is therefore entitled
to information required to inform that role.
8.15 Where an officer of the authority, such as a
licensing officer, has information that raises
concerns about a licensed premises, they are
entitled to bring that information to the
attention of an elected councillor. For example,
in the case of underage alcohol sales, they may
wish to alert the child protection portfolio
holder or the chair of the licensing committee,
who may then wish to consider calling for a
licence review (subject to the points raised
above).
RESPONSIBLE AUTHORITIES
8.16 The third group – “responsible authorities”
– are public bodies that must be fully notified
of applications and that are entitled to make
representations to the licensing authority in
relation to the application for the grant,
variation or review of a premises licence. All
representations made by responsible authorities
are relevant representations if they concern the
effect of the application on the licensing
objectives. For all premises, these include:
the chief officer of police;
the local fire and rescue authority;
the local enforcement agency for the
Heal
th and Saf
ety at Work etc Act 1974
(see paragraph 8.4 above).
the local authority with responsibility for
envir
onmental health;
the local planning authority;
a body that represents those who are
responsible f
or, or interested in, matters
relating to the protection of children from
harm;
the local weights and measures authority
(trading standar
ds); and
any licensing authority, other than the
r
elevant licensing authority, in whose area
part of the premises are situated.
8.17 The licensing authority should indicate in its
licensing policy which body it has recognised
to be competent to advise it on the protection
of children from harm. This may be the local
authority social services department, the Area
Child Protection Committee, or another
competent body. This is important as
applications for premises licences have to be
copied to the responsible authorities by the
applicant in order for them to make any
representations they think are relevant.
8.18 In relation to a vessel, responsible authorities
also include na
vigation authorities within the
meaning of section 221(1) of the Water
Resources Act 1991 that have statutory
functions in relation to the waters where the
vessel is usually moored or berthed or any
waters where it is proposed to be navigated
when being used for licensable activities; the
Environment Agency; the British Waterways
Board; and the Secretary of State. The Secretary
of State in this case means the Secretary of
State for Transport who in practice acts through
the Maritime and Coastguard Agency (MCA).
In practice, the Environment Agency and British
Waterways only have responsibility in relation
to vessels on waters for which they are the
navigation statutory authority.
8.19 The Maritime and Coastguard Agency (MCA) is
the lead responsible author
ity for public safety,
including fire safety, issues affecting passenger
60
ships (those carrying more than 12 passengers)
wherever they operate and small commercial
vessels (carrying no more than 12 passengers)
which go to sea. The safety regime for
passenger ships is enforced under the Merchant
Shipping Acts by the Maritime and Coastguard
Agency which operates certification schemes
for these vessels. Fire and rescue authorities, the
Health and Safety Executive and local authority
health and safety inspectors should normally
be able to make “nil” returns in relation to
such vessels and rely on the MCA to make any
necessary representations in respect of this
licensing objective.
8.20 Merchant Shipping legislation does not,
however, apply to permanently moored vessels.
So, for example, restaurant ships moored on
the Thames Embankment, with permanent
shore connections should be considered by the
other responsible authorities concerned with
public safety, including fire safety. Vessels
carrying no more than 12 passengers which do
not go to sea are not subject to MCA survey
and certification, but may be licensed by the
local, port or navigation authority.
8.21 The Secretary of State for Culture, Media and
Sport may prescribe other responsible
authorities by means of regulations. Any such
secondary legislation may be viewed at the
DCMS website.
WHO CAN APPLY FOR A PREMISES
LICENCE?
8.22 Any person (if an individual aged 18 or over)
who is carrying on or who proposes to carry on
a business which involves the use of premises
(any place including one in the open air) for
licensable activities may apply for a premises
licence either on a permanent basis or for a
time-limited period.
8.23 A person” in this context includes, for example,
a business or a partnership. Licensing authorities
should not require the nomination of an
individual to hold the licence or decide who is
the most appropriate person to hold the
licence. For example, for most leased public
houses, a tenant may run or propose to run the
business at the premises in agreement with a
pub owning company. Both would be eligible to
apply for the appropriate licence and it is for
these businesses or individuals to agree
contractually amongst themselves who should
do so. However, in the case of a managed public
house, the pub operating company should apply
for the licence as the manager (an employee)
would not be entitled to do so. Similarly, with
cinema chains, the normal holder of the
premises licence would be the company
owning the cinema and not the cinema
manager (an employee of the main company).
8.24 In considering joint applications (which is likely
to be a rar
e occurrence), it must be stressed
that under section 16(a) of the 2003 Act each
applicant must be carrying on a business which
involves the use of the premises for licensable
activities. In the case of public houses, this
would be easier for a tenant to demonstrate
than for a pub owning company that is not
itself carrying on licensable activities. The
Secretary of State recommends that where
licences are to be held by businesses, it is
desirable that this should be a single business
to avoid any lack of clarity in terms of
accountability.
8.25 A public house may be owned or a tenancy
held,
jointly by a husband and wife or other
partnerships of a similar nature, both actively
involved in carrying on the licensable activities.
In these cases, it is entirely possible for the
husband and wife or the partners to apply
jointly as applicant for the premises licence,
61
Guidance issued under section 182 of the Licensing Act 2003
even if they are not formally partners in
business terms. This is unlikely to lead to the
same issues of clouded accountability that
could arise where two separate businesses
apply jointly for the licence. If the application
is granted, the premises licence would identify
the holder as comprising both names and any
subsequent applications, for example for a
variation of the licence, would need to be
made jointly.
8.26 A wide range of other individuals and bodies
set out in section 16 of the 2003 Act may
apply for premises licences. They include, for
example, Government Departments, local
authorities, hospitals, schools, charities or
police forces. In addition to the bodies listed in
section 16, the Secretary of State may
prescribe by regulations other bodies that may
apply and any such secondary legislation may
be viewed on the DCMS website.
8.27 There is nothing in the 2003 Act which prevents
an application being made for a pr
emises
licence at premises where a premises licence is
already held. For example, one individual may
hold a premises licence authorising the sale of
alcohol and another individual could apply for a
premises licence for the same premises or part
of those premises to authorise regulated
entertainment. This also ensures that one
business could not seek premises licences, for
example, for all potential circus sites in England
and Wales, and prevent other circuses from
using those sites even though they had the
permission of the landowner.
APPLICATION FORMS
8.28 An application for a premises licence may be
made in writing, or electronically via
businesslink or the licensing authority’s own
electronic application facility (if one exists).
Written applications
8.29 A written application for a premises licence
must be made in the prescribed form to the
relevant licensing authority and be copied to
each of the appropriate responsible authorities.
For example, applications for premises which
are not vessels should not be sent to the
Maritime and Coastguard Agency. The
application must be accompanied by:
the required fee (details of fees may be
viewed on the DCMS website);
an operating schedule (see below);
a plan of the premises in a prescribed form;
and
if the application involves the supply of
alcohol
, a form of consent from the
individual who is to be specified in the
licence as the designated premises
supervisor.
8.30 The Government recommends that forms
should not be returned if the
y contain obvious
and minor factual errors that can easily be
amended. Regulations containing provisions on
fees and the prescribed form of applications,
operating schedules and plans may be viewed
on the DCMS website.
Electronic applications
8.31 Applicants may apply using the licensing forms
available on the Electronic Application Facility
(EAF) which is part of businesslink, or will be
re-directed from businesslink to the licensing
authority’s own electronic facility if one is
available. Applicants may also apply directly to
the licensing authority’s facility without going
through businesslink.
62
Electronic applications using forms
on businesslink
8.32 Businesslink will send a notification to the
licensing authority when a completed
application form is available for it to download
from the ‘Electronic Licensing Management
System(ELMS). This is the day that the
application is taken to be ‘given’ to the
licensing authority, even if it is downloaded
at a later stage, and the application must be
advertised from the day after that day
(as for a written application). The Government
recommends that licensing authorities request
at least daily notification of completed
application forms available on the ELMS to
ensure that applications are processed
promptly. The licensing authority must
acknowledge the application as quickly as
possible, specifying the statutory time period
and giving details of the appeal procedure.
8.33 The period of 28 consecutive days during
which the application must be advertised on a
notice outside the premises is, effectively, the
statutory timescale by which the application
must be determined (unless representations
are made). This will be published on
businesslink and must also be published on
the licensing authority’s own electronic facility
if one exists. If no representations are made
during this period, the licensing authority must
notify the applicant as quickly as possible that
the licence has been granted. The licensing
authority must send the licence to the
applicant as soon as possible after this, but the
applicant may start the licensed activity as soon
as they have been notified that the application
is granted. The licence may be supplied in
electronic or written format as long as the
applicant is aware which document constitutes
‘the licence’. If representations are made, the
guidance in paragraph 8.35 below applies.
Requirement to copy application
to responsible authorities
8.34 The licensing authority must copy electronic
applications, made via businesslink or its own
facility, to responsible authorities no later than
the first working day after the application is
given. However, if an applicant submits any
part of their application in writing, the
applicant will remain responsible for copying it
to responsible authorities.
Applications via the local authority electronic
application facility
8.35 Where applications are made on the licensing
authority’s own electronic facility, the
application will be taken to be ‘given’ when the
applicant has submitted a complete
application form and paid the fee. The
application is given at the point at which it
becomes accessible to the authority by means
of the facility. The licensing authority must
acknowledge the application as quickly as
possible, specifying the statutory time period
and giving details of the appeal procedure.
‘Holding’ and ‘deferring’ electronic applications
8.36 The Government recommends (as for written
applications) that electronic applications
should not be returned if they contain obvious
and minor errors such as typing mistakes, or
small errors that can be rectified with
information already in the authority’s
possession. However, if this is not the case and
required information is missing or incorrect,
the licensing authority may ‘hold’ the
application until the applicant has supplied all
the required information. This effectively resets
the 28 day period for determining an
application and may be done any number of
times until the application form is complete.
63
Guidance issued under section 182 of the Licensing Act 2003
Licensing authorities must ensure that they
notify the applicant as quickly as possible of
any missing (or incorrect) information, and
explain how this will affect the statutory
timescale and advertising requirements.
8.37 If an application has been given at the
weekend, the notice advertising the application
(where applicable) may already be displayed
outside the premises by the time that the
licensing authority downloads the application.
The Government therefore recommends that if
a licensing authority holds an application, it
should inform the applicant that the original
(or if necessary, amended) notice must be
displayed until the end of the revised period.
The licensing authority should also advise the
applicant that they should not advertise the
application in a local newspaper until they
have received confirmation from the LA that
the application includes all the required
information. To ensure clarity for applicants,
the Government recommends that licensing
authorities include similar advice on their
electronic application facilities (where these
exist) to ensure that applicants do not incur
any unnecessary costs.
8.38 If an applicant persistently fails to supply the
requir
ed information, the licensing authority
may refuse the application and the applicant
must submit a new application.
8.39 Licensing authorities may also defer’ electronic
applications once if the application is
par
ticularly complicated, for example if
representations are received and a hearing is
required. This allows the licensing authority to
extend the statutory time period for the
determination of the application by such time
as is necessary, including, if necessary,
arranging and holding a hearing. Licensing
authorities must ensure that applicants are
informed as quickly as possible of a decision to
defer, and the reasons for the deferral, before
the original 28 days has expired.
PLANS
8.40 Plans, for written and electronic applications,
will not be required to be submitted in any
particular scale, but they must be in a format
which is clear and legible in all material
respects, i.e. they must be accessible and
provides sufficient detail for the licensing
authority to be able to determine the
application, including the relative size of any
features relevant to the application. There is no
requirement for plans to be professionally
drawn as long as they clearly show all the
prescribed information.
STEPS TO PROMOTE THE LICENSING
OBJECTIVES
8.41 In preparing an operating schedule, the
Secretary of State expects applicants to have
had regard to the statement of licensing policy
for their area. They should also be aware of the
expectations of the licensing authority and the
responsible authorities about the steps that are
necessary for the promotion of the licensing
objectives. Licensing authorities and
responsible authorities are therefore expected
so far as possible to publish material about the
promotion of the licensing objectives and to
ensure that applicants can readily access
advice about these matters.
8.42 All parties are expected to work together in
partnership to ensure that the licensing
objectives are promoted collectively. Applicants
are not required to seek the views of the key
responsible authorities before formally
submitting applications, but may find them
a useful source of expert advice. Licensing
authorities should encourage co-operation in
64
order to minimise the number of disputes
which arise. Where there are no disputes,
the steps that applicants propose to take to
promote the licensing objectives, as set out
in the operating schedule, will very often
translate directly into conditions that will be
attached to premises licences with the
minimum of fuss.
8.43 Where permission is to be sought for regulated
entertainment involving the provision of live
music or other cultural activity, licensing
authorities may wish to advise applicants to
consider consulting the local authority arts
officer or local representatives of the
Musicians’ Union before completing their
operating schedule.
8.44 The steps to be taken should be both realistic
and within the contr
ol of the applicant and
management of the premises. If a licence is
granted with conditions attached requiring the
implementation of such steps, the conditions
will be enforceable in law and it will be a
criminal offence to fail to comply with them
(under section 136 of the 2003 Act). As such,
it would be wholly inappropriate to impose
conditions outside the control of those
responsible for the running of the premises.
8.45 For some premises, it is entirely possible that
no measur
es will be needed to promote one or
more of the licensing objectives, for example,
because they are adequately dealt with by
other existing legislation. It is however
important that all operating schedules should
be precise and clear about the measures that it
is proposed to take to promote each of the
licensing objectives and in particular, the
protection of children from harm.
VARIATIONS
Introduction
8.46 This Guidance revises and replaces the
Guidance on variations of premises licences
published on 28 June 2007
4
. Where a premises
licence holder wishes to amend the licence the
Act allows, in most cases, for an application to
vary to be made rather than requiring an
application for a new premises licence. The
process to be followed will depend on the
nature of the variation and its potential impact
on the licensing objectives. Applications to vary
can be made electronically via the businesslink
or the licensing authority’s own electronic
facility following the procedures set out in
paragraphs 8.27 – 8.35 above.
Simplified processes
8.47 There are simplified processes for making
applications in the following cases:
a change of the name or address of
someone named in the licence (section 33);
an application to vary the licence to specify
a new individual as the designated premises
supervisor (section 37);
a request to be removed as the designated
pr
emises supervisor (section 41);
an application in relation to a licence in
r
espect of community premises that
authorises the sale of alcohol to disapply
the usual mandatory conditions in sections
19(2) and 19(3) of the 2003 Act concerning
the supervision of alcohol sales by a
personal licence holder and the need for a
Designated Premises Supervisor who holds a
personal licence (sections 25A and 41D); and
an application for minor variation of a
pr
emises licence (sections 41A to 41C) or
club premises certificate.
4 http://www.culture.gov.uk/reference_library/publications/3667.aspx
65
Guidance issued under section 182 of the Licensing Act 2003
8.48 If an application to specify a new DPS or to
disapply the mandatory conditions concerning
the supervision of alcohol sales is made
electronically via businesslink or the licensing
authority’s own electronic facility, the authority
must notify the police no later than the first
working day after the application is given.
8.49 Where a simplified process set out in
paragraph 8.43 requires the applicant
(if they are not also the personal licence
holder) to copy the application to the
licence holder for information, this will apply
regardless of whether the application is made
in writing or electronically.
8.50 Otherwise the general guidance set out in
paragr
aphs 8.27 – 8.35 on electronic
applications applies.
Minor variations process
8.51 The Licensing Act 2003 has been amended by
the insertion of sections 41A to 41C relating
to minor variations. These sections were
commenced on 29 July 2009. Small variations
that will not impact adversely on the licensing
objectives are subject to a simplified ‘minor
variations’ process. Under this process, the
applicant is not required to advertise the
variation in a newspaper or circular or copy it
to responsible authorities. However, they must
display it on a white notice (to distinguish it
from the blue notice used for full variations and
new applications). The notice must comply with
the requirements set out in regulation 26A of
the Licensing Act 2003 (Premises licences and
club premises certificates) Regulations 2005
(SI 2005/42). In accordance with those
Regulations, the notice must be displayed for
a period of ten working days starting on the
working day after the minor variation
application was given to the licensing authority.
8.52 On receipt of an application for a minor
variation, the licensing authority must consider
whether the variation could impact adversely
on the licensing objectives. The Government
recommends that decisions on minor variations
should be delegated to licensing officers.
8.53 In considering the application, the licensing
author
ity m
ust consult relevant responsible
authorities (whether the application is made in
writing or electronically) if there is any doubt
about the impact of the variation on the
licensing objectives and they need specialist
advice, and take their views into account in
reaching a decision. For instance, they may
need to consult the environmental health
officer on an application with possible public
nuisance implications. But there is no
requirement to consult all responsible
authorities on each application and in many
cases the licensing authority may be able to
make a decision without consultation.
8.54 The licensing authority must also consider any
relev
ant representations received from
interested parties within the time limit referred
to below. As stated earlier in this Guidance,
representations are only relevant if they clearly
relate to the likely effect of the grant of the
variation on the promotion of at least one of
the licensing objectives. In the case of minor
variations, there is no right to a hearing (as for
a full variation or new application), but licensing
authorities must take any representations into
account in arriving at a decision.
8.55 Interested parties have ten working days from
the ‘initial da
y’, i.e. the day after the application
is received by the licensing authority, to submit
representations. The licensing authority must
therefore wait until this period has elapsed
before determining the application, but must
do so at the latest within 15 working days,
beginning on the first working day after the
66
authority received the application, with effect
either that:
the minor variation is granted; or,
the application is refused.
8.56 If the licensing authority fails to respond to the
applicant within 15 working days (see section
193 of the Act for the definition of working
day) the application will be treated as refused
and the authority must return the fee to the
applicant forthwith. However, the licensing
authority and the applicant may agree instead
that the undetermined application should be
treated as a new application and that the fee
originally submitted will be treated as a fee for
the new application.
8.57 Where an application is refused and is then
re
-submitted through the full variation process,
the full 28 days notification period will apply
from the date the new application is received
and applicants should advertise the application
and copy it to all responsible authorities (in
accordance with the regulations applicable to
full variations).
8.58 Minor variations will generally fall into four
categor
ies: minor changes to the structure or
layout of a premises; small adjustments to
licensing hours; the removal of out of date,
irrelevant or unenforceable conditions or
addition of volunteered conditions; and the
addition of certain licensable activities.
In all cases the overall test is whether the
proposed variation could impact adversely
on any of the four licensing objectives.
Changes to structure/layout
8.59 Many small variations to layout will have no
adverse impact on the licensing objectives.
However, changes to layout should be referred
to the full variation process if they could
potentially have an adverse impact on the
promotion of the licensing objectives, for
example by:
increasing the capacity for drinking on the
premises ;
affecting access between the public part of
the pr
emises and the rest of the premises or
the street or public way, e.g. block emergency
exits or routes to emergency exits;
impeding the effective operation of a noise
reduction measure such as an acoustic lobby;
8.60 Licensing authorities will also need to consider
the combined eff
ect of a series of applications
for successive small layout changes (for
example, as part of a rolling refurbishment of
a premises) which in themselves may not be
significant, but which cumulatively may
impact adversely on the licensing objectives.
This emphasises the importance of having an
up to date copy of the premises plan available.
8.61 An application to remove a licensable activity
should normall
y be appr
oved as a minor
variation.
8.62 Variations to add the sale by retail or supply of
alcohol to a licence are ex
cluded from the
minor variations process and must be treated
as full variations in all cases.
8.63 The Act covers a wide range of other licensable
activities and licensing author
ities will need to
consider each application on a case by case
basis and in light of any licence conditions put
forward by the applicant.
8.64 For example, the addition of live or recorded
music to a licence may impact on the public
nuisance objective, but this will depend on
many factors. Licensing authorities will need to
consider factors such as proximity to
residential areas and any noise reduction
conditions volunteered by the applicant. It is
67
Guidance issued under section 182 of the Licensing Act 2003
very much the Government’s intention that
applications to vary a licence for live music
should benefit from the minor variations
process unless there is likely to be an adverse
impact on the licensing objectives.
8.65 Similarly, in some circumstances, the addition
of other types of regulated entertainment,
such as the performance of plays or exhibition
of films, to a licence may have no adverse
impact on the licensing objectives.
8.66 In considering applications to add licensable
activities, licensing author
ities and officers may
find it helpful to consider the following factors:
the nature of the licensable activity;
proximity of the premises to residential areas;
any licence conditions volunteered by the
applicant to mitigate the impact o
f the
activity;
whether alcohol is sold at the premises when
the licensable activity is taking place;
and
whether it will continue to be sold during
the extended period. For example, a pub that
applies to stay open an extra hour after the
sale of alcohol has ended to sell hot drink
and food could be considered to benefit the
promotion of the licensing objectives;
track record of the premises – whether
positive or neg
ative. For example, any
complaints or enforcement action related to
the licensing objectives, or conversely any
evidence of good practice in carrying on the
licensable activity, e.g. under temporary
event notices;
proximity and density of public houses,
nightclubs,
etc
. if customers from these
premises are likely to be attracted to the
proposed licensable activity in large
numbers. For example, people visiting a
takeaway after leaving a public house.
This is not an exhaustive list and licensing officers
should bring their own exper
ience and knowledge of
licensing to bear when considering applications.
Licensing hours
8.67 Variations to:
extend licensing hours for the sale or supply
of alcohol for consumption on or off the
premises between the hours of 23.00 and
07.00; or
to increase the amount of time on any day
during w
hich alcohol may be sold or supplied
for consumption on or off the premises
are excluded fr
om the minor variations process and
must be treated as full variations in all cases.
Applications to reduce licensing hours for the sale
or supply of alcohol or to move (without increasing)
the licensed hours between 07.00 and 23.00 will
normally be processed as minor variations.
8.68 Applications to vary the time during which
other licensable activities take place should be
considered on a case b
y case basis with
reference to the likely impact on the licensing
objectives. In arriving at a decision, licensing
authorities may wish to consider the following
factors:
the nature of the licensable activity;
the extent of additional hours sought and
w
hether it will in
volve later opening or
opening between 23.00 and 07.00;
proximity of the premises to residential
areas;
any licence conditions already in place
to mitig
ate the impact of the activity;
any additional conditions volunteered by
the applicant;
arrangements for dispersal, i.e. when people
leave the premises is there potential for
68
noise and disturbance near the venue?
Is the only means of dispersal a single route
through residential areas?
whether the proposed extension applies only
on the weekend or also during week days;
whether there will be new admittances
dur
ing that period;
track record of the establishment whether
positive or negative, e.g. complaints related
to the licensing objectives, any enforcement
action or conversely any evidence of good
practice in carrying on the licensable
activity, e.g. under temporary event notices;
whether the premises is already open
during the extended period for other
licensable activities;
proximity and density of public houses,
nightclubs, etc
. if customers from these
premises are likely to be attracted to the
proposed licensable activity in large
numbers. For example, people visiting a
takeaway after leaving a public house.
8.69 These factors are not an exhaustive list and
licensing authorities and o
fficers should bring
their own experience and knowledge of
licensing to bear when considering applications.
Licensing conditions
a) Imposed conditions
8.70 Licensing authorities cannot impose their own
conditions on the licence through the minor
variations process. If the licensing officer
considers that the proposed variation would
impact adversely on the licensing objectives
unless conditions are imposed, they should
refuse it.
b) Volunteered conditions
8.71 Applicants may volunteer conditions as part of
the minor application pr
ocess.
These conditions
may arise from their own risk assessment of
the variation, or from informal discussions with
responsible authorities or the licensing authority.
8.72 For instance, there may circumstances when
the licence holder and a responsible author
ity
such as the police or environmental health
authority, agree that a new condition should
be added to the licence. For example, that a
nightclub adds the provision of late night
refreshment to its licence to ensure a longer
period of dispersal. Such a change would not
normally impact adversely on the licensing
objectives and could be expected to promote
them by preventing crime and disorder or
public nuisance. In these circumstances, the
minor variation process may provide a less
costly and onerous means of amending the
licence than a review, with no risk to the
licensing objectives. However, this route should
only be used where the agreed variations are
minor and the licensee and the responsible
authority have come to a genuine agreement.
The licensing authority should be alive to any
attempts to pressure licensees into agreeing to
new conditions where there is no evidence of a
problem at the premises and, if there is any
doubt, should discuss this with the relevant
parties.
c) Amending or removing existing conditions
8.73 Licence or club certificate conditions will
normally ha
ve been volunteered or imposed to
mitigate any possible adverse impact on the
licensing objectives. In most cases therefore,
any application to remove or change the
wording of a condition should be treated as a
full variation.
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Guidance issued under section 182 of the Licensing Act 2003
8.74 However, there may be some circumstances
when the minor variation process is
appropriate. Premises may change over time
and the circumstances that originally led to
the condition being attached or volunteered
may no longer apply. For example, there may
be no need for door supervision if a bar has
been converted into a restaurant. Equally some
embedded conditions may no longer apply.
8.75 Changes in legislation may invalidate certain
conditions. For instance, the recent Regulatory
Reform (Fire Safety) Order 2005 annulled all
fire safety related conditions imposed on
licences purely for fire safety reasons. Although
the conditions do not have to be removed
from the licence, licensees and licensing
authorities may agree that this is desirable to
clarify the licensee’s legal obligations.
8.76 There may also be cases where it is necessary
to r
evise the wor
ding of a condition that is
unclear and/or unenforceable. This would be
acceptable as a minor variation as long as the
purpose of the condition and its intended effect
remain unchanged. Such a change could be
expected to promote the licensing objectives
by making it easier for the licensee to
understand and comply with the condition and
easier for the licensing authority to enforce it.
Full variations process
8.77 Any other changes to the licence require an
application to vary under section 34 of the Act.
8.78 Licensing authorities will wish to consider
whether there is any likely impact on the
promotion of the licensing objectives in
deciding whether there is a need for an
application to vary in relation to features
which are not required to be shown on the
plan under section 17 of the Act, but have
never
theless been included, for example,
moveable furniture (altering the position of
tables and chairs) or beer gardens (installation
of a smoking shelter that will not affect the
use of exits or escape routes).
8.79 However, it should be noted that a section
34 application cannot be used to v
ary a licence
s
o as to:
extend a time limited licence; or to
transfer the licence from one premises to
another
.
8.80 If an applicant wishes to make these types of
changes to the premises licence they should
make a new premises licence application under
section 17 of the Licensing Act 2003.
RELAXATION OF OPENING HOURS
FOR LOCAL, NATIONAL AND
INTERNATIONAL OCCASIONS
8.81 It should normally be possible for applicants
for premises licences and club premises
certificates to anticipate special occasions
which occur regularly each year – such as bank
holidays and St George’s or St Patrick’s Day –
and to include appropriate opening hours in
their operating schedules. Similarly temporary
event notices should be sufficient to cover other
events which take place at premises that do
not have a premises licence or club certificate.
8.82 However, exceptional events of local, national
or international significance may arise which
could not have been anticipated when the
application was first made. In these
circumstances, the Secretary of State may
make a licensing hours order to allow premises
to open for specified, generally extended, hours
70
on these special occasions. This avoids the
need for large numbers of applications to vary
premises licences and club certificates. Typical
events might include a one-off local festival,
a Royal Jubilee, a World Cup or an Olympic
Games.
8.83 Such events should be genuinely exceptional
and the Secr
etary of State will not consider
making such an order lightly. Licensing
authorities (or any other persons) are advised
that they should approach the Secretary of
State about making an order at least six
months before the celebration. Before making
an order, the Secretary of State is required to
consult as appropriate and this would generally
enable a wide range of bodies to make
representations to her for consideration. In
addition, an order must be approved by both
Houses of Parliament. Nine months would be
the minimum period in which such a process
could be satisfactorily completed.
8.84 Licensing authorities should note that the
Secretary o
f State has not made a licensing
hours order in relation to New Year’s Eve. As
such applicants for new licences or certificates
would need to include in their applications the
hours that they propose for New Years Eve,
if these are different from the standard hours
applied for.
ADVERTISING APPLICATIONS
8.85 Regulations governing the advertising of
applications for the grant or variation or review
of premises licences are contained in secondary
legislation made by the Secretary of State and
can be viewed on the DCMS website.
8.86 Applicants are required to:
publish a notice in a local newspaper or, if
there is none, in a local newsletter, circular
or similar document circulating in the
vicinity of the premises; and
display a brief summary of the application
on an
A4 size notice immediately on or
outside the premises
8.87 The summary of the application should set out
matters such as the proposed licensable
activities and the proposed hours of opening
and should be clearly displayed for the period
during which representations may be made,
together with information about where the
details of the application may be viewed.
8.88 Licensing authorities in Wales should consider
encourag
ing applicants to provide details in
the alternative language (Welsh or English) to
that of the main advertisement itself where
the application may be viewed. Therefore, if an
applicant publishes a notice in English they
should be encouraged to provide a statement
in Welsh as to where the application may be
viewed, and vice versa. This would allow the
reader of the notice to make enquiries to the
licensing authority and find out the nature of
the application.
8.89 Notices of applications to vary a premises
licence should include a brief descr
iption of the
proposed variation, e.g. details of extra hours
applied for, hours varied from/to.
8.90 In the case of applications for premises
licences in
volving internet or mail order sales,
notices should be conspicuously displayed at
the place where the alcohol is appropriated to
the contract in accordance with the relevant
regulations (see paragraph 3.6).
8.91 A vessel which is not permanently moored or
berthed is treated as if it were a premises
situated in a place where it is usually moored
or berthed. The newspaper advertisement
notice for such a vessel would need to be in
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Guidance issued under section 182 of the Licensing Act 2003
relation to this place (where it is usually
moored or berthed) and there is no provision
requiring such advertising in other areas, for
instance, if the vessel journeys through other
licensing authority areas.
8.92 So far as possible, as well as putting in place
arrangements for interested parties to view a
record of the application in the licensing
register as described in Schedule 3 to the 2003
Act, it is expected that licensing authorities
will also include these details on their
websites. Charges made for copies of the
register should not exceed the cost of
preparing such copies.
8.93 Licensing authorities may wish to conduct
r
andom and unannounced visits to pr
emises to
confirm that notices have been clearly
displayed and include relevant and accurate
information.
8.94 It is open to licensing authorities to notify
residents living in the vicinity o
f premises by
circular of premises making an application, but
this is not a statutory requirement.
APPLICATIONS TO CHANGE THE
DESIGNATED PREMISES SUPERVISORS
8.95 Paragraphs 4.19 – 4.28 above cover designated
premises supervisors and applications to vary a
premises licence covering sales of alcohol by
specifying a new designated premises
supervisor. Paragraphs 4.32 to 4.47 cover
applications by community premises to
disapply the usual mandatory conditions in
sections 19(2) and 19(3) of the 2003 Act
concerning the authorisation of alcohol sales
by a personal licence holder and the need for a
Designated Premises Supervisor who holds a
personal licence.
PROVISIONAL STATEMENTS
8.96 Where premises are being or are about to be
constructed, extended or otherwise altered for
the purpose of being used for one or more
licensable activities, investors may be unwilling
to commit funds unless they have some
assurance that a premises licence covering the
desired licensable activities would be granted
for the premises when the building work is
completed.
8.97 The 2003 Act does not define the words
“otherwise al
tered”, but the alteration must
relate to the purpose of being used for one or
more licensable activities. For example, a
premises licence should indicate the whole of
or part of the premises which are licensed for
one or more licensable activity. If the building
is to be altered to allow a previously
unlicensed area to be used for a licensable
activity, a provisional statement may be
sought for the additional area.
8.98 Any person falling within section 16 of the
2003 A
ct can apply for a premises licence
before new premises are constructed, extended
or changed. This would be possible where clear
plans of the proposed structure exist and the
applicant is in a position to complete an
operating schedule including details of:
the activities to take place there;
the time at which such activities will
take place;
the proposed hours of opening;
where the applicant wishes the licence to
ha
ve ef
fect for a limited period, that period;
the steps to be taken to promote the
licensing objectiv
es; and
where the sale of alcohol is involved, whether
supplies are proposed to be for consumption
on or off the premises (or both) and the
72
name of the designated premises supervisor
the applicant wishes to specify.
8.99 In such cases, the licensing authority would
include in the licence the date upon which it
would come into effect. A provisional
statement will normally only be required when
the information described above is not available.
8.100 The 2003 Act therefore provides for a person,
if an individual aged 18 or ov
er, who has an
interest in the premises to apply for a
“provisional statement”. This will not be time
limited, but the longer there is a delay before
a premises licence is applied for, the more
likely it is that there will be material changes
and that the licensing authority will accept
representations.
8.101 “Person” in this context includes a business.
The applicant could be a firm o
f ar
chitects, a
construction company or a financier. The
application would include the particulars and
plans of the premises, describe the work to be
done and the licensable activities planned to
take place at the premises. The application
must be advertised and notified to responsible
authorities in a similar way to the
arrangements for applications for premises
licences and as set out in regulations. However,
where the application is made electronically
via businesslink or the licensing authority’s
electronic facility, the licensing authority must
copy the application to responsible authorities
no later than the first working day after it is
given and the general guidance on electronic
applications set out in paragraphs 8. 27 – 8.35
applies. Responsible authorities and interested
parties may make representations. Where no
representations are made, a provisional
statement must be issued. Where relevant
representations are made, the licensing authority
must arrange a hearing to consider them. The
need for a hear
ing can be dispensed with only
by agreement of the licensing authority, the
applicant for the provisional statement and all
the parties who made relevant representations.
8.102 When a hearing is held, the licensing authority
must decide w
hether, if the premises were
constructed or altered in the way proposed in
the schedule of works and if a premises licence
was sought for those premises, it would
consider it necessary for the promotion of the
licensing objectives to:
attach conditions to the licence;
rule out any of the licensable activities
applied f
or;
refuse to specify the person nominated as
pr
emises supervisor; or
reject the application.
8.103 It will then issue the applicant with a
provisional statement setting out the details
of that decision together with its reasons.
The licensing authority must copy the
provisional statement to each person who
made relevant representations and the chief
officer of police for the area in which the
premises is situated. The licensing authority
should give full and comprehensive reasons for
its decision. This is important in anticipation of
an appeal by any aggrieved party.
8.104 When a person applies for a premises licence in
respect of pr
emises (or part of the premises or
premises which are substantially the same) for
which a provisional statement has been made,
representations by responsible authorities and
interested parties will be excluded in certain
circumstances. These are where:
the application for a licence is in the same
f
orm as the licence descr
ibed in the
provisional statement;
73
Guidance issued under section 182 of the Licensing Act 2003
the work in the schedule of works has been
satisfactorily completed; and
given the information provided in the
application for a provisional statement, the
responsible authority or interested party
could have made the same, or substantially
the same, representations about the
application then but failed to do so without
reasonable excuse; and there has been no
material change in the circumstances
relating either to the premises or to the area
in the vicinity of those premises since the
provisional statement was made.
8.105 Licensing authorities should exclude
representations in these circumstances. It will
be important for investment and employment
opportunities in their areas for provisional
statements to function properly by providing a
limited assurance. But it should be recognised
that a great deal of time may pass between
the issue of a provisional statement and the
completion of a premises in accordance with
a schedule of works. Genuine and material
changes in circumstances may arise during the
intervening years.
8.106 It should be noted that any decision of the
licensing authority on an application for a
provisional statement would not relieve an
applicant of the need to apply for building
control.
8.107 A provisional statement may not be sought or
giv
en for a vessel, a vehicle or a moveable
structure (see section 189 of the 2003 Act).
TRANSFERS OF PREMISES LICENCES
8.108 The 2003 Act provides for any person who
may apply for a premises licence, which
includes a business, to apply for a premises
licence to be transferred to them. Where the
application is made in writing, the applicant
must give notice of the application to the chief
officer of police. Where it is made
electronically via businesslink or the licensing
authority’s electronic facility, the licensing
authority must notify the police no later than
the first working day after the application is
given. However, the responsibility to notify the
DPS remains with the applicant. Otherwise the
general guidance on electronic applications set
out in paragraphs 8. 27 – 8.35 applies.
8.109 In the vast majority of cases, it is expected
that a transfer will be a very simple
administrative process. Section 43 of the 2003
Act provides a mechanism which allows the
transfer to come into immediate interim effect
as soon as the licensing authority receives it,
until it is formally determined or withdrawn.
This is to ensure that there should be no
interruption to normal business at the
premises. If the police raise no objection about
the application, the licensing authority must
transfer the licence in accordance with the
application, amend the licence accordingly and
return it to the new holder.
8.110 In exceptional circumstances where the chief
o
fficer of police believes the transfer may
undermine the crime prevention objective, the
police may object to the transfer. Such
objections are expected to be rare and arise
because the police have evidence that the
business or individuals seeking to hold the
licence or business or individuals linked to such
persons are involved in crime (or disorder).
74
For example, the police would rightly seek to
prevent a company having a licence transferred
to it if they had evidence that the premises
might be used to launder money obtained
from drugs crime. Where an objection is made,
the licensing authority must hold a hearing at
which the authority will consider the objection.
The authority’s consideration would be
confined to the issue of the crime prevention
objective and the hearing should not be
permitted to stray into other extraneous
matters. The burden would be on the police to
demonstrate to the authority that there were
good grounds for believing that the transfer of
the licence would undermine the crime
prevention objective. The licensing authority
must give clear and comprehensive reasons for
its eventual determination in anticipation of a
possible appeal by either party.
8.111 It is stressed that such objections (and
therefore such hearings) should only arise in
truly exceptional circumstances. If the licensing
authority believes that the police are using this
mechanism to vet transfer applicants routinely
and to seek hearings as a fishing expedition to
inquire into applicants’ backgrounds, it is
expected that it would raise the matter
immediately with the chief officer of police.
INTERIM AUTHORITIES
8.112 The 2003 Act provides special arrangements
for the continuation of permissions under a
premises licence when the holder of a licence
dies suddenly or becomes bankrupt or
mentally incapable. In the normal course of
events, the licence would lapse in such
circumstances. However, there may also be
some time before, for example, the deceased
person’s estate can be dealt with or an
administrative receiver appointed. This could
have a damaging effect on those with interests
in the premises, such as an owner, lessor or
employees working at the premises in
question; and could bring unnecessary
disruption to customers’ plans. The Act
therefore provides for the licence to be capable
of being reinstated in a discrete period of time
in certain circumstances.
8.113 These circumstances arise only where a
premises licence has lapsed owing to the
death,
incapacity or insolvency of the holder.
In such circumstances, an “interim authority”
notice may be given to the licensing authority
within seven days beginning the day after the
licence lapsed. Where applications are made in
writing, the applicant must give notice of the
application to the chief officer of police. If an
application is made electronically via
businesslink or the licensing authority’s
electronic facility, the licensing authority must
notify the police no later than the first working
day after the notice is given. Otherwise the
general guidance on electronic applications set
out in paragraphs 8. 27 – 8.35 applies.
8.114 An interim notice may only be given either by
a pers
on with a prescribed interest in the
premises as set out by the Secretary of State
in regulations which may be viewed on the
DCMS website; or by a person connected to
the former holder of the licence (normally a
personal representative of the former holder or
a person with power of attorney or where
someone has become insolvent that persons
insolvency practitioner).
8.115 The effect of giving the notice is to reinstate
the premises licence as if the per
son giving the
notice is the holder of the licence and thereby
allow licensable activities to continue to take
place pending a formal application for transfer.
The maximum period for which an interim
authority notice may have effect is two months.
75
Guidance issued under section 182 of the Licensing Act 2003
8.116 The interim authority notice ceases to have
effect unless by the end of the initial 7 day
period a copy of the notice has been given to
the chief officer of police. Within 48 hours of
receiving the copy, and if satisfied that in the
exceptional circumstances of the case failure
to cancel the interim authority would
undermine the crime prevention objective,
the police may give a notice to that effect to
the licensing authority. In such circumstances,
the licensing authority must hold a hearing to
consider the objection notice and cancel the
interim authority notice if it decides that it is
necessary to do so for the promotion of the
crime prevention objective.
8.117 It is expected that licensing authorities will be
alert to the urgency of the circumstances and
the need to consider the objection quickly.
8.118 It should also be noted that, under section 50
of the 2003
Act, where the premises licence
lapses (because of death, incapacity or
insolvency of the holder etc) or by its
surrender, but no interim authority notice has
effect, a person who may apply for the grant
of a premises licence under section 16(1) may
apply within 7 days of the lapse for the transfer
of the licence to them with immediate effect
pending the determination of the application.
This will result in the licence being reinstated
from the point at which the transfer application
was received by the licensing authority.
Where the application is made in writing, the
person applying for the transfer must copy
their application to the chief officer of police.
If the application is made electronically the
licensing authority must copy the application
to the police in a similar manner to the
process referred to in paragraph 8.97.
RIGHT OF FREEHOLDERS ETC TO BE
NOTIFIED OF LICENSING MATTERS
8.119 A person (which will include a business or
company) with a property interest in any
premises situated in the licensing authority’s
area may give notice of their interest to the
authority using a prescribed form and on
payment of a fee prescribed by the Secretary
of State. The application may be made in
writing or electronically via businesslink or the
licensing authority’s own facility, in which case
the guidance in paragraphs 8.28 and 8.31
applies. Details of fees and forms are available
on the DCMS website. It is entirely at the
discretion of such persons whether they
choose to register or not. It is not a legal
requirement. Those who may take advantage
of this arrangement include the freeholder or
leaseholder, a legal mortgagee in respect of the
premises, a person in occupation of the
premises or any other person prescribed by the
Secretary of State.
8.120 The notice will have effect for 12 months but
a new notice can be given every year. Whilst
the notice has effect, if any change relating to
the premises concerned has been made to the
licensing register (which the licensing authority
has a duty to keep under section 8 of the
2003 Act), the licensing authority must notify
the person who registered an interest of the
matter to which the change relates. The person
will also be notified of their right under section
8 to request a copy of the information contained
in any entry in the register. In cases relating to
interim authority notices (see above), it is
important that such communications are dealt
with promptly.
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9. Determining applications
GENERAL
9.1 When a licensing authority receives an
application for a new premises licence or an
application to vary an existing premises
licence, it must determine whether the
application has been made properly in
accordance with section 17 of the 2003 Act,
and in accordance with regulations made by
the Secretary of State under sections 17(4),
17(5), 54 and 55 of the Act. This means that
the licensing authority must consider among
other things whether the application has been
properly advertised in accordance with the
regulations.
WHERE NO REPRESENTATIONS
ARE MADE
9.2 A hearing is not required where an application
has been lawfully made and no responsible
authority or interested party has made a
representation. In these cases, the licensing
authority must grant the application in the
terms sought, subject only to conditions which
are consistent with the operating schedule
and relevant mandatory conditions in the Act.
This should be undertaken as a simple
administrative process by the licensing
authority’s officials who should translate the
proposals contained in the operating schedule
to promote the licensing objectives into clear
and understandable conditions.
WHERE REPRESENTATIONS ARE MADE
9.3 Where a representation concerning the
licensing objectives is lodged by a responsible
authority about a proposed operating schedule,
it is relevant and the licensing authority’s
discretion will be engaged. It will also be
engaged if an interested party makes relevant
representations to the licensing authority,
i.e. those which are not frivolous or vexatious
and which relate to the licensing objectives
(see paragraphs 9.8 – 9.13 below).
Representations can be made in opposition
to, or in support of, an application.
9.4 It is for the licensing authority to decide in the
first instance w
hether or not representations
are relevant. This may involve determining
whether they have been made by an interested
party and whether or not, for example, an
individual making a representation resides or is
involved in business “in the vicinity” of the
premises concerned. However, licensing
authorities should be aware that their initial
decision on this issue could be subject to legal
challenge in the courts.
9.5 In making their initial decision on the question
of vicinity
, licensing authorities should consider
whether the individual’s residence or business
is likely to be directly affected by disorder and
disturbance occurring or potentially occurring
on those premises or immediately outside the
premises. In other words, it is the impact of
issues relating to the four licensing objectives
that is the key consideration. Elected
councillors of the relevant licensing authority
are, or course, interested parties regardless of
whether they reside or carry on a business in
the vicinity of the premises.
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Guidance issued under section 182 of the Licensing Act 2003
9.6 The Government recommends that, where
local authorities have chosen to define vicinity
as a fixed distance from a premises, they
should only ever use this as a guideline and
should indicate in their policy statements that
they will consider representations from those
who live or work outside that distance if they
can demonstrate that they are (or, in the case
of new premises, are likely to be), affected by
disorder and disturbance occurring (or
potentially occurring) on those premises.
9.7 Where a representation concerns cumulative
impact”, the licensing authority may be unable
to consider this factor and would probably
need to examine issues such as the proximity
of the residence or business. In essence, it is
expected that the decision will be approached
with common sense and individuals living and
working in the neighbourhood or area
immediately surrounding the premises will be
able to make representations.
RELEVANT, VEXATIOUS AND
FRIVOLOUS REPRESENTATIONS
9.8 A representation would only be “relevant” if it
relates to the likely effect of the grant of the
licence on the promotion of at least one of the
licensing objectives. For example, a
representation from a local businessman which
argued that his business would be
commercially damaged by a new licensed
premises would not be relevant. On the other
hand, a representation that nuisance caused by
the new premises would deter customers from
entering the local area and the steps proposed
by the applicant to control that nuisance were
inadequate would be relevant. There is no
requirement for an interested party or
responsible authority to produce a recorded
history o
f problems at a premises to support
their representations, and in fact this would
not be possible for new premises. Further
information for interested parties about the
process for making representations is available
in “Guidance for interested parties: Making
representations” which can be found on the
DCMS website.
9.9 The cumulative impact” on the licensing
objectives o
f a concentration of multiple
licensed premises may also give rise to a
relevant representation when an application for
the grant or variation of a premises licence is
being considered, but not in relation to an
application for review which must relate to an
individual premises.
9.10 It is for the licensing authority to determine
whether an
y representation by an interested
party is frivolous or vexatious on the basis of
what might ordinarily be considered to be
vexatious or frivolous. Vexatious circumstances
may arise because of disputes between rival
businesses and local knowledge will therefore
be invaluable in considering such matters.
Frivolous representations would be essentially
categorised by a lack of seriousness. An
interested party who is aggrieved by a
rejection of their representations on these
grounds may challenge the authority’s decision
by way of judicial review.
78
9.11 Licensing authorities should not take decisions
on whether representations are relevant on the
basis of any political judgement. This may be
difficult for councillors receiving complaints
from residents within their own wards. If
consideration is not to be delegated, contrary
to the recommendation in this Guidance, an
assessment should be prepared by officials for
consideration by the sub-committee before
any decision is taken that necessitates a
hearing. Any councillor who considers that
their own interests are such that they are
unable to consider the matter independently
should disqualify themselves.
9.12 The Secretary of State recommends that in
borderline cases, the benefit of the doubt
should be given to the interested party making
the representation. The subsequent hearing
would then provide an opportunity for the
person or body making the representation to
amplify and clarify it. If it then emerged, for
example, that the representation should not be
supported, the licensing authority could decide
not to take any action in respect of the
application.
9.13 Licensing authorities should consider providing
advice on their websites about how any
interested party can make representations to
them. This should include for example, whether
they are happy to accept electronic
representations and whether they will also
require a subsequent written version.
Amendments to the Regulations allow licensing
authorities to waive this requirement. However,
electronic representations are not included in
the formal electronic application process and
cannot be submitted via businesslink or the
licensing authority’s electronic facility.
DISCLOSURE OF PERSONAL DETAILS
OF INTERESTED PARTIES
9.14 Where a notice of a hearing is given to an
applicant, the licensing authority is required
under the Licensing Act 2003 (Hearings)
Regulations 2005 to provide to the applicant
with the notice and copies of the relevant
representations that have been made.
9.15 In some exceptional and isolated
circumstances interested parties may be
reluctant to make representations because
of fears of intimidation or violence if their
personal details, such as name and address,
are divulged to the applicant.
9.16 Where licensing authorities consider that the
interested par
ty has a genuine and well-founded
fear of intimidation and may be deterred from
making a representation because of this, they
may wish to consider alternative approaches.
9.17 For instance, they could advise interested
parties to pr
ovide the relevant responsible
authority with details of how they consider
that the licensing objectives are being
undermined so that the responsible authority
can make representations if appropriate and
justified.
9.18 The licensing authority may also decide to
withhold some or all o
f the interested party’s
personal details from the applicant, giving only
enough details (such as street name or general
location within a street) which would allow an
applicant to be satisfied that the interested
party is within the vicinity of the premises.
However, withholding such detail should only
be considered where the circumstances justify
such action and the licensing authority is
satisfied that the complaints are not frivolous
or vexatious.
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Guidance issued under section 182 of the Licensing Act 2003
HEARINGS
9.19 Regulations governing hearings may be viewed
on the DCMS website. If the licensing authority
decides that representations are relevant, it
must hold a hearing to consider them. The
need for a hearing can only be dispensed with
by the agreement of the licensing authority,
the applicant and all of the parties who made
relevant representations. In cases where only
‘positive’ representations are received, without
qualifications, the licensing authority should
consider whether a hearing is necessary.
To this end it may wish to notify the interested
parties concerned and give them the
opportunity to withdraw their representations.
This would need to be done in sufficient time
before the hearing to ensure that parties were
not put to unnecessary inconvenience.
9.20 Responsible authorities should try to conclude
any discussions with the applicant in good
time before the hearing. If the application is
amended at the last moment, the licensing
committee should consider giving interested
parties time to address the revised application
before the hearing commences.
9.21 The Regulations require that representations
must be withdr
awn 24 hours before the first
day of any hearing. If they are withdrawn after
this time, the hearing must proceed. However,
where discussions between an applicant and
those making representations are taking place
and it is likely that all parties are on the point
of reaching agreement, the licensing authority
may wish to use the power given within the
hearings regulations to extend time limits, if it
considers this to be in the public interest.
9.22 Applicants should be encouraged to contact
responsible author
ities before formulating their
applications so that the mediation process
may begin before the statutory time limits
come into effect after submission of an
application. The hearing process must meet the
requirements of Regulations made by the
Secretary of State. Where matters arise which
are not covered by the Regulations, licensing
authorities may make arrangements as they
see fit as long as they are lawful.
9.23 There is no requirement in the Act for
r
esponsible authorities that have made
representations to attend, but it is generally
good practice and assists committees to reach
more informed decisions. Where several
responsible authorities within a local authority
have made representations on an application,
a single local authority officer may represent
them at the hearing if the responsible
authorities and the licensing authority agree.
However, an officer of the licensing authority
may not perform this role which would
compromise the licensing authority’s
independence.
9.24 As a matter of practice, licensing authorities
should seek to focus the hearing on the steps
needed to promote the particular licensing
objective which has given rise to the specific
representation and avoid straying into
undisputed areas. A responsible authority or
interested party may choose to rely on their
written representation. They may not add
further representations to those disclosed to
the applicant prior to the hearing, but they
may expand on their existing representation.
80
9.25 In determining the application with a view to
promoting the licensing objectives in the
overall interests of the local community, the
licensing authority must give appropriate
weight to:
the steps that are necessary to promote
the licensing objectives;
the representations (including supporting
inf
ormation) presented by all the parties;
this Guidance;
its own statement of licensing policy.
9.26 The licensing authority should give its decision
at once, unless the Act itself states otherwise
and provide reasons to support it. This will be
important if there is an appeal by any of the
parties. Notification of a decision must be
accompanied by information on the right of
the party to appeal. After considering all the
relevant issues, the licensing authority may
grant the application subject to such
conditions that are consistent with the
operating schedule. Any conditions imposed
must be necessary for the promotion of the
licensing objectives; there is no power for the
licensing authority to attach a condition which
is merely aspirational. For example, conditions
may not be attached which relate solely to the
health of customers rather than their direct
physical safety.
9.27 Alternatively, the licensing authority may
refuse the application on the gr
ounds that this
is necessary for the promotion of the licensing
objectives. It may also refuse to specify a
designated premises supervisor and/or only
allow certain requested licensable activities.
In the interests of transparency, the licensing
authority should publish hearings procedures
in full on its website to ensure that interested
parties and others have the most current
information.
9.28 In the context of variations, which may involve
structur
al alteration to or change of use of the
building, the decision of the licensing authority
will not exempt an applicant from the need to
apply for building control or planning consent
where appropriate.
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Guidance issued under section 182 of the Licensing Act 2003
10. Conditions attached to premises
licences and club premises certificates
GENERAL
10.1 This chapter provides advice and
recommendations concerning best practice in
relation to conditions attached to premises
licences and club premises certificates.
10.2 Conditions include any limitations or
restrictions attached to a licence or certificate
and essentially are the steps or actions the
holder of the premises licence or the club
premises certificate will be required to take or
refrain from taking at all times when licensable
activities are taking place at the premises in
question.
10.3 All interests – licensing authorities, licence and
certificate holders, authorised persons, the
police, other responsible authorities and local
residents and businesses – should be working
together in partnership to ensure collectively
that the licensing objectives are promoted.
10.4 Under former licensing regimes, the courts
have made clear that it is par
ticularly
important that conditions which are imprecise
or difficult for a licence holder to observe
should be avoided. Failure to comply with any
conditions attached to a licence or certificate
is a criminal offence, which on conviction
would be punishable by a fine of up to
£20,000 or up to six months imprisonment or
both.
10.5 Annex D provides pools of conditions
(although not an exhaustiv
e list) which relate
to the four licensing objectives and could be
used where necessary and appropriate to the
particular circumstances of an individual
licensed premises. It is important that they
should not be applied universally and treated
as standard conditions irrespective of
circumstances.
10.6 There are three types of condition that may be
attached to a licence or cer
tificate: proposed,
imposed and mandatory. Each of these
categories is described in more detail below.
PROPOSED CONDITIONS
10.7 The conditions that are necessary for the
promotion of the licensing objectives should
emerge initially from a prospective licensee’s
or certificate holders risk assessment which
applicants and clubs should carry out before
making their application for a premises licence
or club premises certificate. This would be
translated into the steps recorded in the
operating schedule or club operating schedule
which must also set out the proposed hours of
opening.
10.8 In order to minimise problems and the
necessity for hearings, it would be sensible for
applicants and clubs to consult with
responsible authorities when schedules are
being prepared. This would allow for proper
liaison before representations prove necessary.
CONSISTENCY WITH STEPS DESCRIBED
IN OPERATING SCHEDULE
10.9 The 2003 Act provides that where an operating
schedule or club operating schedule has been
submitted with an application and there have
been no relevant representations made by
responsible authorities or interested parties,
the licence or certificate must be granted
subject only to such conditions as are
consistent with the schedule accompanying
the application and any mandatory conditions
required by the Act itself.
82
10.10 Consistency means that the effect of the
condition should be substantially the same as
that intended by the terms of the operating
schedule or club operating schedule. Some
applicants for licences or certificates supported
by legal representatives or trade associations
can be expected to express steps necessary to
promote the licensing objectives in clear and
readily translatable terms. However, some
applicants will express the terms of their
operating schedules less precisely or concisely.
Ensuring that conditions are consistent with
the operating schedule will then be more
difficult. If conditions are broken this may lead
to a criminal prosecution or an application for
a review and it is extremely important
therefore that they should be expressed on the
licence or certificate in unequivocal and
unambiguous terms. It must be clear to the
holder of the licence or club, to enforcement
officers and to the courts what duty has been
placed on the holder or club in terms of
compliance.
IMPOSED CONDITIONS
10.11 The licensing authority may not impose any
conditions unless its discretion has been
engaged following receipt of relevant
representations and it has been satisfied at a
hearing of the necessity to impose conditions.
It may then only impose conditions that are
necessary to promote one or more of the four
licensing objectives. Such conditions must also
be expressed in unequivocal and unambiguous
terms to avoid legal dispute.
10.12 It is perfectly possible that in certain cases,
because the test is one of necessity, where
there are other legislative provisions which are
relevant and must be observed by the
applicant, no additional conditions at all are
needed to promote the licensing objectives.
Proportionality
10.13 The Act requires that licensing conditions
should be tailored to the size, style,
characteristics and activities taking place at
the premises concerned. This rules out
standardised conditions which ignore these
individual aspects. It is important that
conditions are proportionate and properly
recognise significant differences between
venues. For example, charities, community
groups, voluntary groups, churches, schools and
hospitals which host smaller events and
festivals will not usually be pursuing these
events commercially with a view to profit and
will inevitably operate within limited resources.
10.14 While the Secretary of State has set fees
centrally for licences and certificates, licensing
authorities and responsible authorities should
be alive to the indirect costs that can arise
because of conditions attached to licences.
These could be a deterrent to holding events
that are valuable to the community or for the
funding of good and important causes. Such
bodies may be loath to pursue appeals against
any unnecessary conditions because of the
costs involved. Licensing authorities should
therefore ensure that any conditions they
impose are only those which are necessary for
the promotion of the licensing objectives,
which means that they must not go further
than what is needed for that purpose. Public
safety concerns (and the concerns identified in
the other objectives) should not of course be
ignored and in considering a proportionate
response to the licensing needs for such
events, the physical safety of those attending
such events should remain a primary objective.
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Guidance issued under section 182 of the Licensing Act 2003
Duplication with other statutory provisions
10.15 Licensing authorities should only impose
conditions which are necessary and
proportionate for the promotion for the
licensing objectives. If other existing law
already places certain statutory responsibilities
on an employer or operator of premises, it
cannot be necessary to impose the same or
similar duties. For example, employers and
self-employed people are required by the
Management of Health and Safety at Work
Regulations 1999 (SI 1999/3242) to assess the
risks to their workers and any others (including
members of the public visiting the premises)
who may be affected by their business and
identify measures needed to avoid or control
risks. Conditions enforcing these requirements
are therefore unnecessary.
10.16 Similarly, licensing authorities should not seek
to impose fire safety conditions that may
duplicate any requirements or prohibitions that
could be imposed under the Regulatory Reform
(Fire Safety) Order 2005 (see paragraphs 2.20
– 2.29).
10.17 Further, the Act does not affect the continued
use o
f inspection and enf
orcement powers
conferred by other legislation; for example, the
powers of an environmental health officer in
relation to statutory nuisance under the
Environmental Protection Act 1990.
10.18 However, these general duties will not always
adequately addr
ess specific issues that arise on
the premises in connection with, for example,
certain types of entertainment. It is only where
additional and supplementary measures are
necessary to promote the licensing objectives
that conditions will need to be attached to a
licence.
Hours of trading
10.19 In some town and city centre areas where the
number, type and density of premises selling
alcohol for consumption on the premises are
unusual, serious problems of nuisance and
disorder may arise outside or some distance
from licensed premises. For example,
concentrations of young drinkers can result in
queues at fast food outlets and for public
transport, which may in turn lead to conflict,
disorder and anti-social behaviour. In some
circumstances, flexible licensing hours may
reduce this impact by allowing a more gradual
dispersal of customers from premises.
10.20 However, there is no general presumption in
favour of lengthening licensing hours and the
four licensing objectives should be paramount
considerations at all times. Where there are
objections to an application and the
committee believes that changing the licensing
hours would undermine the licensing
objectives, they may reject the application or
grant it with appropriate conditions and/or
different hours from those requested.
10.21 Shops, stores and supermarkets should
normally be fr
ee to provide sales of alcohol
for consumption off the premises at any times
when the retail outlet is open for shopping
unless there are good reasons, based on the
licensing objectives, for restricting those hours.
For example, a limitation may be appropriate
following police representations in the case of
some shops known to be a focus of disorder
and disturbance because youths gather there.
84
Workers rights
10.22 It is not for the licensing authority to consider
such matters as the rights of the workers
employed on the premises who may be asked
to work longer hours. There are existing
protections under the Working Time
Regulations 1998 (SI 1998/1833), the
Employment Rights Act 1996 (as amended)
and under the general employment law and
laws of contract.
Disabled people
10.23 It is important that proper steps should be
taken to provide for the safety of people and
performers with disabilities. However, licensing
authorities and responsible authorities should
avoid well meaning conditions which are
intended to provide for the safety of people or
performers with disabilities, but which may
actively deter operators from admitting or
employing them.
10.24 It is Government policy that facilities for
people and performers with disabilities should
be provided at places of entertainment.
The Secretary of State encourages licence
holders and clubs to provide facilities enabling
their admission and reminds them of the
duties imposed by the Disability Discrimination
Act 1995. The law provides that any person
providing a service to the public must make
reasonable adjustments to enable disabled
people to access the service. No licensing
condition should therefore be attached to a
licence or certificate which conflicts with or
duplicates this requirement.
10.25 Service providers also have a duty to make
reas
onable adjustments to any physical
features which make it impossible or
unreasonably difficult for disabled persons to
access a service, or they have to provide the
service by a reasonable alternative means.
Access to buildings and their facilities is also a
matter addressed in Building Regulations and
planned alterations affecting access may
involve the need to apply for building control.
10.26 Licensing authorities should therefore be ready
to of
fer advice to applicants for licences and
certificates about how to achieve this.
Conditions which state that “wheelchairs and
similar equipment shall not be allowed on the
premises except in accordance with the terms
of any consent issued by the licensing
authority” can be ambiguous and be used to
justify exclusion and may be ultra vires.
Conditions should be positively worded and
assume the presence of people with disabilities
on licensed premises.
10.27 In addition, Government guidelines exempting
guide and assistance dogs fr
om health and
safety requirements have been in place since
1995. Any condition of a licence or certificate
which states that “pets” may not be present on
licensed premises for public safety reasons,
must include a clear indication that the
condition does not apply to guide or assistance
dogs. Further advice can be obtained from the
Disability Rights Commissions website
www.drc-gb.org.
10.28 The Disability Discrimination Act 1995 does
not apply to ships.
However the European
Council Directive 2003/24/EC requires
appropriate measures to be taken for `persons
of reduced mobility` (this means anyone who
has a particular difficulty when using public
transport; including elderly persons, disabled
persons, persons with sensory impairments and
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Guidance issued under section 182 of the Licensing Act 2003
wheelchair users, pregnant women and persons
accompanying small children) on certain
passenger ships engaged on domestic voyages.
Further advice and guidance is contained in
Merchant Shipping Notice 1789 (M) and
Marine Guidance Note 306 (M) both of which
are available in the Guidance and Regulations
section of the Maritime and Coastguard
Agency’s website www.mcga.gov.uk. These
documents complement the existing guidance
`The design of large passenger ships and
passenger infrastructure: Guidance on meeting
the needs of disabled people` which is
available on the website of the Disabled
Persons Transport Advisory Committee at
www.dptac.gov.uk in the maritime section.
Race equality
10.29 Licensing authorities should also avoid
imposing any condition on a licence or
certificate which appears to apply to a wide
group of people, but in fact would have an
indirect discriminatory impact on particular
ethnic groups. For example, a representation
requesting that “No Travellers” or “No Caravan-
Dwellers” be displayed inside or on premises
purportedly to prevent crime or disorder
should not be accepted not least because it
would conflict with the authority’s race
equality scheme.
The performance of plays
10.30 The 2003 Act provides that other than for the
purposes of public safety, conditions must not
be attached to premises licences or club
premises certificates authorising the
performance of a play which attempt to
censor or modify the content of plays in any
way. Any such condition would be ultra vires
the Act.
Censorship
10.31 In general, other than in the context of film
classification for film exhibitions, licensing
authorities should not use their powers under
the 2003 Act to seek to impose conditions
which censor the content of any form of
regulated entertainment. This is not a proper
function of licensing law and cannot be properly
related to the licensing objectives. The content
of regulated entertainment is a matter which
is addressed by existing laws governing
indecency and obscenity. Where the concern is
about protecting children, their access should
be restricted where necessary. But no other
limitation should normally be imposed.
Copyright and royalties
10.32 Copyright law is intended to safeguard the
livelihood of authors, composers, arrangers,
playwrights, film-makers, publishers and
makers of recordings and is extremely
important and offences relating to copyright
are made “relevant offences” by the 2003 Act.
Conditions attached to premises licences
should not require adherence to requirements
in the general law that the use of copyright
material must be authorised. Licensing
authorities should however strongly remind
applicants of the need to obtain Performing
Right Society (PRS) licences and Phonographic
Performance Ltd (PPL) licences and to observe
other copyright arrangements; and that failure
to observe the law in this area could lead to an
application for the review of the premises
licence or the club premises certificate on
grounds of the crime prevention objective.
86
Major art and pop festivals, carnivals,
fairs and circuses
10.33 Licensing authorities should publicise the need
for the organisers of major festivals and
carnivals to approach them at the earliest
opportunity to discuss arrangements for
licensing activities falling under the 2003 Act.
For some events, the organisers may seek a
single premises licence to cover a wide range
of activities at varied locations within the
premises. This would involve the preparation of
a substantial operating schedule, and licensing
authorities should offer advice and assistance
about its preparation. In particular, the
licensing authority should act as a co-
ordinating body for the input from the
responsible authorities.
10.34 For other events, applications for many
connected premises licences may be made
which in combination will represent a single
festival. It is important that licensing
authorities should publicise the need for proper
co-ordination of such arrangements and will
need to ensure that responsible authorities are
aware of the connected nature of the
individual applications. Licensing authorities
should encourage applicants to establish a co-
ordinating committee to ensure a strategic
approach to the development of operating
schedules. The purpose would be to ensure
that conditions are not included in licences
which conflict with each other, make
compliance uncertain or would be difficult to
enforce.
10.35 In the case of circuses and fairgrounds, much
will depend on the content of an
y
entertainment presented. For example, at
fairgrounds, a good deal of the musical
entertainment may be incidental to the main
attractions and rides at the fair which are not
themselves regulated entertainment. However,
in the case of a circus, music and dancing are
likely to be main attractions themselves (and
would be regulated entertainment) amidst a
range of other activities which are not all
regulated entertainment.
10.36 Particular regard should be paid to the relevant
guidance provided in the publications listed at
Annex E o
f this Guidance under ‘Public Safety’.
10.37 In addition, in the context of festivals and
carnivals,
local authorities should bear in mind
their ability to seek premises licences from the
licensing authority for land or buildings under
public ownership within the community in
their own name. This could include, for
example, village greens, market squares,
promenades, community halls, local authority
owned art centres and similar public areas
where festivals and carnivals might take place.
Performers and entertainers would then have
no need to obtain a licence or give a
temporary event notice themselves to enable
them to give performances in these places,
although they would need the permission of
the local authority to put on the event. Care
should be exercised to ensure that there is no
confusion between the role of enforcing
licensing legislation, which falls to the licensing
authority, and the role of providing advice and
assistance to festival and carnival organisers
from other parts of the local authority.
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Guidance issued under section 182 of the Licensing Act 2003
Discounting and sales promotions
10.38 Licensing authorities should not attach
standardised blanket conditions promoting fixed
prices for alcoholic drinks to premises licences
or club licences or club premises certificates in
an area as this is likely to breach competition
law. It is also likely to be unlawful for licensing
authorities or the police to promote generalised
voluntary schemes or codes of practice in
relation to price discounts on alcoholic drinks,
‘happy hours’ or drinks promotions.
10.39 However, it is acceptable for licensing authorities
to encourage adoption locally of voluntary
industry codes of practice which cover
irresponsible drinks promotions such as that
produced by the British Beer and Pub Association
(the BBPAs Guidelines on On-Trade Promotions).
10.40 In general, licensing authorities should consider
each application on its individual mer
its,
tailoring any conditions carefully to cover only
irresponsible promotions in the particular and
individual circumstances of any premises
where these are necessary for the promotion
of the licensing objectives. In addition, when
considering any relevant representations which
demonstrate a clear causal link between sales
promotions or price discounting and levels of
crime and disorder on or in the vicinity of the
premises, it would be appropriate for the
licensing authority to consider the imposition
of a new condition prohibiting irresponsible
sales promotions or the discounting of prices
of alcoholic beverages at those premises.
However, before pursuing any form of
restrictions at all, licensing authorities should
take their own legal advice. There will often be
very fine lines between what is and is not
lawful within the scope of their power under
the 2003 Act.
Large capacity venues used exclusively
or primarily for the “vertical” consumption
of alcohol (HVVDs)
10.41 Large capacity “vertical drinking” premises,
sometimes called High Volume Vertical
Drinking establishments (HVVDs), are premises
with exceptionally high capacities, which are
used primarily or exclusively for the sale and
consumption of alcohol, and have little or no
seating for patrons.
10.42 A comprehensive review of the research
conducted in the last twenty-five years into
alcohol and crime and its relationship to
licensed premises, Alcohol and Crime: Taking
Stock” by Ann Deehan, Home Office Crime
Reduction Research Series No.3 (1999) can be
viewed on
www.crimereduction.gov.uk/drugsalcohol8.htm.
It shows that the environment within such
establishments can have a significant bearing
on the likelihood of crime and disorder arising
on the premises. Key points on preventing
crime and disorder include:
controlling the capacity to prevent
overcr
owding and frustration to customers;
ensuring adequate seating for customers; and
ensuring the provision of door security teams
at the premises to contr
ol capacity and
ensure already drunk or disorderly individuals
are not admitted.
88
10.43 Where necessary and appropriate, conditions
can be attached to premises licences for the
promotion of the prevention of crime and
disorder at such premises (if not volunteered
by the venue operator and following
representations made on such grounds)
which require adherence to:
a prescribed capacity;
an appropriate ratio of tables and chairs to
customer
s based on the capacity; and
the presence of security staff holding the
appr
opriate SIA licence or exemption (see
paragraphs 10.58-10.64) to control entry for
the purpose of compliance with the capacity
limit and to deny entry to individuals who
appear drunk or disorderly or both.
MANDATORY CONDITIONS
10.44 Where the 2003 Act provides for a mandatory
condition to be included in a premises licence,
it is the duty of the licensing authority issuing
the licence to include that condition on the
premises licence.
Designated Premises Supervisor
10.45 Any premises at which alcohol is sold or
supplied may employ one or more personal
licence holders. The main purpose of the
designated premises supervisoras defined
in the 2003 Act is to ensure that there is
always one specified individual among these
personal licence holders who can be readily
identified for the premises where a premises
licence is in force. That person will normally
have been given day to day responsibility for
running the premises by the premises licence
holder. The requirements set out in paragraph
10.46 to 10.53 below in relation to the
designated premises supervisor and
authorisation of alcohol sales by a personal
licence holder do not apply to community
premises in r
espect of which a successful
application has been made to disapply the
usual mandatory conditions in sections 19(2)
and 19(3) of the 2003 Act (see paragraphs
4.32 to 4.47 of this Guidance).
10.46 The 2003 Act provides that, where a premises
licence authorises the suppl
y of alcohol, it
must include a condition that no supply of
alcohol may be made at a time when no
designated premises supervisor has been
specified in the licence or at a time when the
designated premises supervisor does not hold
a personal licence or their licence has been
suspended.
10.47 The Act does not require a designated premises
supervisor or an
y other personal licence holder
to be present on the premises at all times
when alcohol is sold. However, the designated
premises supervisor and the premises licence
holder remain responsible for the premises at
all times including compliance with the terms
of the Licensing Act and conditions attached
to the premises licence to promote the
licensing objectives.
Authorisation by personal licence holders
10.48 In addition, the licence must require that every
supply of alcohol under the premises licence
must be made or authorised by a person who
holds a personal licence. This in most instances
will be the designated premises supervisor who
must hold a valid personal licence. This does
not mean that the condition should require the
presence of the designated premises supervisor
or any other personal licence holder on the
premises at all material times.
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Guidance issued under section 182 of the Licensing Act 2003
10.49 Similarly, the fact that every supply of alcohol
must be made under the authority of a
personal licence holder does not mean that
only personal licence holders can make sales or
that they must be personally present at every
transaction. A personal licence holder may
authorise members of staff to make sales of
alcohol but may be absent at times from the
premises when a transaction takes place.
However, the responsible personal licence
holder will not be able to escape responsibility
for the actions of anyone authorised to make
sales.
10.50 Authorisationdoes not imply direct
supervision by a personal licence holder of
each sale of alcohol. The question arises as to
how sales can be authorised. Ultimately,
whether an authorisation has been given is a
question of fact that would have to be decided
by the courts on the evidence before it in the
course of a criminal prosecution.
10.51 Nevertheless, it is important that licensing
authorities,
the police, employers and
employees in the alcohol retail industry are
given advice which promotes greater clarity
and consistency. The Secretary of State
considers that the following factors should be
relevant in considering whether or not an
authorisation has been given:
the person(s) authorised to sell alcohol at
any par
ticular premises should be clearly
identified;
the authorisation should have specified the
acts whic
h may be carried out by the person
being authorised;
there should be an overt act of
authorisation,
for example, a specific written
statement given to the individual being
authorised; and
there should be in place sensible
arr
angements for the personal licence holder
to monitor the activity that they have
authorised on a reasonably regular basis.
10.52 The Secretary of State strongly recommends
that personal licence holders give specific
written authorisations to individuals that they
are authorising to retail alcohol. A single
written authorisation would be sufficient to
cover multiple sales over an unlimited period.
This would assist personal licence holders in
demonstrating due diligence should issues arise
with enforcement authorities; and would
protect employees if they themselves are
challenged in respect of their authority to sell
alcohol. The form of written authorisation is a
matter for the personal licence holder, but the
Secretary of State recommends that it should
satisfy the criteria listed in the paragraph
above. Written authorisation is not a
requirement of the Act and its absence alone
could not give rise to enforcement action.
10.53 It must be remembered that whilst the
designated premises supervis
or or a personal
licence holder may authorise other individuals
to sell alcohol in their absence, they are
responsible for any sales that may be made.
Similarly, the premises licence holder remains
responsible for ensuring that licensing law
and licence conditions are observed at the
premises, and is also responsible for alcohol
sales at community premises where the
usual mandatory conditions in sections 19(2)
and 19(3) of the 2003 Act relating to
personal licence holders and Designated
Premises Supervisors have been disapplied
(see paragraphs 4.32 to 4.47 of this Guidance).
90
Exhibition of films
10.54 The 2003 Act provides that where a premises
licence or club premises certificate authorises
the exhibition of a film, it must include a
condition requiring the admission of children
to films to be restricted in accordance with
recommendations given either by a body
designated under section 4 of the Video
Recordings Act 1984 specified in the licence
(currently only the British Board of Film
Classification – BBFC) or by the licensing
authority itself.
10.55 The BBFC classifies films in accordance with its
published Guidelines which are based on
extensive research into public opinion and
professional advice. The Secretary of State
therefore recommends that licensing
authorities should not duplicate this effort by
choosing to classify films themselves. The
classifications recommended by the Board
should be those normally applied unless there
are very good local reasons for a licensing
authority to adopt this role. Licensing
authorities should note that the provisions of
the 2003 Act enable them to specify the Board
in the licence or certificate and, in relation to
individual films, to notify the holder or club
that it will make a recommendation for that
particular film.
10.56 It should be noted that the effect of paragraph
5 of Sc
hedule 1 of the Act is to exempt adverts
from the definition of regulated entertainment,
but not to exempt them from the definition of
exhibition of a film. Since the above
mandatory condition applies to ‘any filmit is
therefore applicable to the exhibition of
adverts.
10.57 See Annex D, Part 5 for further Guidance on
current BBFC classifications and other
conditions r
elating to the exhibition of films.
Door supervision
10.58 Under section 21 of the 2003 Act when a
condition is included in a premises licence that
at specified times an individual must be
present at the premises to carry out a security
activity (as defined in section 21(3)(a) by
reference to the Private Security Industry Act
2001 (“the 2001 Act”)), the licence must
include a condition requiring that individual to
be licensed by the Security Industry Authority
(“the SIA”) under that Act, or be entitled to
carry out that activity by virtue of section 4 of
that Act.
10.59 Section 21 of the 2003 Act has been amended
by section 25 of the Violent Crime Reduction
Act 2006 to remove an anomaly whereby
premises licences could require persons to be
licensed by the SIA in circumstances where
they were not required to be licensed under
the 2001 Act. In particular, the amendment
ensures that a premises licence need not
require a person to hold a Security Industry
Authority licence if they benefit from an
exemption under section 4 of the 2001 Act. By
way of example, certain employees benefit
from an exemption when carrying out conduct
in connection with a certified sports grounds
(s.4(6 to 12)). Furthermore, in certain
circumstances persons benefit from an
exemption where they operate under the SIA’s
Approved Contractor Scheme (s4(4)).
10.60 Conditions under section 21 of the 2003 Act
(as amended by the
Violent Crime Reduction
Act 2006) should only relate to individuals
carrying out security activities defined by
section 21(3)(a) of the 2003 Act. Therefore
they should only relate to an activity to which
paragraph 2(1)(a) of Schedule 2 to the 2001
Act applies (certain manned guarding
activities) and which is licensable conduct
within the meaning of section 3(2) of that Act.
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Guidance issued under section 182 of the Licensing Act 2003
The requirement does not relate to individuals
performing non-security related activities, and
section 21 should not be used in relation to
any such activities.
10.61 Section 21 of the 2003 Act continues to
ensure that a premises licence need not
impose such a requirement in relation to those
licensed premises which the 2001 Act treats as
unlicensed premises. Those are:
- premises staging plays or exhibiting films;
- casinos or bingo halls licensed under the
Gaming Act
1968;
- premises where a club certificate is in force
w
hen activities are being carried on under
the authority of that certificate;
See paragraph 8(3) of Schedule 2 to the 2001
Act for full details.
10.62 It should be noted, however, that the 2001 Act
will requir
e contractors and a small number of
employees (those managing/supervising and
those supplied under contract) to be licensed
as manned guards (rather than door
supervisors) when undertaking licensable
conduct on premises to which paragraph 8(3)
of Schedule 2 to the 2001 Act applies.
10.63 It is therefore important that if a licensing
authority intends that individuals m
ust be
present to carry out security activities (as
defined by section 21(3)(a) of the 2003 Act)
this should be explicit, as should the mandatory
condition for those individuals to hold an SIA
licence or be entitled to carry out that activity
by virtue of section 4 of that Act. On the other
hand, where a licensing authority intends that
individuals must be present to carry out other
activities (for example, activities related to
safety or steward activities to organise, advise
and direct members of the public) no
mandatory condition should be imposed under
section 21 of the 2003 Act. In all cases it is
important when determining whether or not a
condition is to be imposed under section 21 of
the 2003 A
ct to consider whether the activities
of any individual working in licensed premises
fall within the definition of security activities in
section 21(3)(a) of the 2003 Act. (Regardless of
whether a condition is imposed under section
21, under the 2001 Act the appropriate SIA
licence must be held by any individual
performing an activity for which they are
licensable under that Act).
10.64 Holders of premises licences should note that
the amendment under the
Violent Crime
Reduction Act 2006 will not affect the
requirements in existing licences regarding
security provision. Anyone wishing to deploy
staff under the terms of the amended
legislation and whose licence does not permit
them to do so will need to apply to have their
licence varied. The Government recommends
that where an application is made to vary a
licence solely in order to remove the anomaly
referred to in paragraph 10.59 the licensing
authority should treat the matter as
expeditiously as possible, in recognition of the
fact that the variation sought will almost
always be purely technical in nature.
92
11. Reviews
THE REVIEW PROCESS
11.1 The proceedings set out in the 2003 Act for
reviewing premises licences represent a key
protection for the community where problems
associated with the licensing objectives are
occurring after the grant or variation of a
premises licence.
11.2 At any stage, following the grant of a premises
licence, a responsible authority, or an
interested party, may ask the licensing
authority to review the licence because of a
matter arising at the premises in connection
with any of the four licensing objectives.
11.3 The Regulations allow applications for reviews
to be made electronicall
y, as long as the
licensing authority agrees and the applicant
submits a subsequent written application.
The licensing authority may also agree in
advance that the application need not be given
in writing. However, these applications are
outside the formal electronic application
process and may not be submitted via
businesslink or the licensing authority’s
electronic facility.
11.4 In addition, a review of the licence will
normally f
ollow any action by the police to
close down the premises for up to 24 hours on
grounds of disorder or noise nuisance as a
result of a notice of magistrates’ court’s
determination sent to the licensing authority.
11.5 Licensing officers may not initiate their own
r
eviews o
f premises licences, but elected
members of the licensing authority may
request reviews if they are concerned about
licensed activities at a premises or such
matters are brought to their attention (see
paragraph 8.15 above). Officers of the local
authority who are specified as responsible
authorities under the 2003 Act, such as
environmental health officers, may also request
reviews on an
y matter which relates to the
promotion of one or more of the licensing
objectives.
11.6 Representations made by a department of the
local authority w
hich is a responsible authority
should be treated by the licensing authority in
precisely the same way that they would treat
representations made by any other body or
individual.
11.7 In every case, the representation must relate to
particular pr
emises for which a premises
licence is in existence and must be relevant to
the promotion of the licensing objectives. After
a licence or certificate has been granted or
varied, a complaint relating to a general (crime
and disorder) situation in a town centre should
generally not be regarded as a relevant
representation unless it can be positively tied
or linked by a causal connection to particular
premises, which would allow for a proper
review of the licence or certificate. For
instance, a geographic cluster of complaints,
including along transport routes related to an
individual public house and its closing time
could give grounds for a review of an existing
licence as well as direct incidents of crime and
disorder around a particular public house.
11.8 Representations must be in writing and may be
amplified at the subsequent hearing or ma
y
stand in their own right. Additional
representations which do not amount to an
amplification of the original representation
may not be made at the hearing.
11.9 It is important to recognise that the promotion
of the licensing objectiv
es relies heavily on a
partnership between licence holders,
authorised persons, interested parties and
responsible authorities in pursuit of common
93
Guidance issued under section 182 of the Licensing Act 2003
aims. It is therefore equally important that
reviews are not used to drive a wedge between
these groups in a way that would undermine
the benefits of co-operation. It is good practice
for authorised persons and responsible
authorities to give licence holders early
warning of their concerns about problems
identified at the premises concerned and of
the need for improvement. A failure to respond
to such warnings is expected to lead to a
decision to request a review.
11.10 Where the request originates with an
interested party – e.g. a local resident,
residents’ association, local business or trade
association – the licensing authority must first
consider whether the complaint made is
relevant, vexatious, frivolous or repetitious.
11.11 Further information for interested parties about
the review process is available in “Guidance for
interested parties: applying for a review” which
can be found on the DCMS website.
REPETITIOUS REPRESENTATIONS
11.12 Relevance, vexation and frivolousness were
dealt with in paragraphs 9.8 – 9.13 above. A
repetitious representation is one that is
identical or substantially similar to:
a ground for review specified in an earlier
application for review made in relation to
the same premises licence which has already
been determined; or
representations considered by the licensing
authority w
hen the premises licence was
first granted; or
representations which would have been
made when the application f
or the premises
licence was first made and which were
excluded then by reason of the prior issue
of a provisional statement;
and, in addition to the above grounds, a
reas
onable interval has not elapsed since that
earlier review or the grant of the licence.
11.13 Licensing authorities are expected to be aware
of the need to pr
event attempts to review
licences merely as a second bite of the cherry
following the failure of representations to
persuade the licensing authority on earlier
occasions. It is for licensing authorities
themselves to judge what should be regarded
as a reasonable interval in these circumstances.
However, the Secretary of State recommends
that more than one review originating from an
interested party should not be permitted
within a period of twelve months on similar
grounds save in compelling circumstances or
where it arises following a closure order.
11.14 The exclusion of a complaint on the grounds
that it is r
epetitious does not apply to
responsible authorities which may make more
than one request for a review of a premises
within a 12 month period.
11.15 When a licensing authority receives a request
for a review from a responsible authority or an
interested party or in accordance with the
closure procedures described in Part 8 of the
2003 Act, it must arrange a hearing. The
arrangements for the hearing must follow the
provisions set out by the Secretary of State in
regulations. The details may be viewed on the
DCMS website. The Secretary of State
considers it particularly important that the
premises licence holder is fully aware of the
representations made in respect of the
premises, any evidence supporting the
representations and that they or their legal
representatives have therefore been able to
prepare a response.
94
POWERS OF A LICENSING AUTHORITY
ON THE DETERMINATION OF A REVIEW
11.16 The 2003 Act provides a range of powers for
the licensing authority on determining a
review that it may exercise where it considers
them necessary for the promotion of the
licensing objectives.
11.17 The licensing authority may decide that no
action is necessary if it finds that the review
does not require it to take any steps necessary
to promote the licensing objectives. In addition,
there is nothing to prevent a licensing
authority issuing an informal warning to the
licence holder and/or to recommend
improvement within a particular period of
time. It is expected that licensing authorities
will regard such warnings as an important
mechanism for ensuring that the licensing
objectives are effectively promoted and that
warnings should be issued in writing to the
holder of the licence. However, where
responsible authorities like the police or
environmental health officers have already
issued warnings requiring improvement –
either orally or in writing – that have failed as
part of their own stepped approach to
concerns, licensing authorities should not
merely repeat that approach.
11.18 Where the licensing authority considers that
action under its statutory powers ar
e necessary,
it may take any of the following steps:
to modify the conditions of the premises
licence (whic
h includes adding new
conditions or any alteration or omission of
an existing condition), for example, by
reducing the hours of opening or by requiring
door supervisors at particular times;
to exclude a licensable activity from the
scope o
f the licence, for example, to exclude
the performance of live music or playing of
recorded music (where it is not within the
incidental live and recorded music
exemption);
to remove the designated premises supervisor,
for example, because they consider that the
problems are the result of poor management;
to suspend the licence for a period not
exceeding thr
ee months;
to revoke the licence.
11.19 In deciding which of these powers to invoke,
it is expected that licensing authorities should
s
o far as possible seek to establish the cause
or causes of the concerns which the
representations identify. The remedial action
taken should generally be directed at these
causes and should always be no more than a
necessary and proportionate response.
11.20 For example, licensing authorities should be
alive to the possibility that the r
emoval and
replacement of the designated premises
supervisor may be sufficient to remedy a
problem where the cause of the identified
problem directly relates to poor management
decisions made by that individual.
11.21 Equally, it may emerge that poor management
is a direct r
eflection of poor company practice
or policy and the mere removal of the
designated premises supervisor may be an
inadequate response to the problems
presented. Indeed, where subsequent review
hearings are generated by representations, it
should be rare merely to remove a succession
of designated premises supervisors as this
would be a clear indication of deeper problems
which impact upon the licensing objectives.
95
Guidance issued under section 182 of the Licensing Act 2003
11.22 Licensing authorities should also note that
modifications of conditions and exclusions of
licensable activities may be imposed either
permanently or for a temporary period of up
to three months. Temporary changes or
suspension of the licence for up to three
months could impact on the business holding
the licence financially and would only be
expected to be pursued as a necessary means
of promoting the licensing objectives. So, for
instance, a licence could be suspended for a
weekend as a means of deterring the holder
from allowing the problems that gave rise to
the review to happen again. However, it will
always be important that any detrimental
financial impact that may result from a
licensing authority’s decision is necessary and
proportionate to the promotion of the
licensing objectives.
REVIEWS ARISING IN CONNECTION
WITH CRIME
11.23 A number of reviews may arise in connection
with crime that is not directly connected with
licensable activities. For example, reviews may
arise because of drugs problems at the
premises or money laundering by criminal
gangs or the sale of contraband or stolen
goods there or the sale of firearms. Licensing
authorities do not have the power to judge the
criminality or otherwise of any issue. This is a
matter for the courts of law. The role of the
licensing authority when determining such a
review is not therefore to establish the guilt or
innocence of any individual but to ensure that
the crime prevention objective is promoted.
Reviews are part of the regulatory process
introduced by the 2003 Act and they are not
part of criminal law and procedure. Some
reviews will arise after the conviction in the
criminal courts of certain individuals but not
all. In any case, it is for the licensing authority
to determine whether the problems associated
with the alleged crimes are taking place on the
premises and affecting the promotion of the
licensing objectives. Where a review follows a
conviction, it would also not be for the