West End Community Network
Position regarding Licensing Act 2003 Applications for Later Hours for COVID recovery
This document has been prepared by the Licensing Sub-Committees of the Amenity Societies in the West End which are members of the West End Community Network. It gives our views on applications to extend, for a temporary period, the hours of Licensable Activities in the period beyond the Core Hours of WCC’s Statement of Licensing Policy. It is anticipated that WCC will see large numbers of such applications in the coming months. It is relevant to all applications whether or not the stated intention is to help the business to recover from the financial impact of COVID19. It applies whether the existing hours are Core Hours or later.
We recognise that there has been huge financial damage to the hospitality industry during the pandemic and we are generally supportive of measures which allow businesses to resume trading in the period until lockdown ends (assumed to be 21/6/21).
We believe that beyond this date businesses will be able to trade in much the same way that they did pre-COVID19. Variations to the licence to allow later trading are a way to increase income for the premises. The argument most commonly used to justify these requests is that it is needed so that the business can survive. We do not agree that the need for business to survive financially outweighs the health, well-being and sleep of residents in the West End, particularly in the context of the findings of WCC’s recent Cumulative Impact Assessment.
If the grant of an extension to hours is likely to give rise to harm to the Licensing Objectives then the Council should refuse it on this basis, in line with the relevant Policies contained within the Council’s Statement of Licensing Policy (SoLP), which was published in January 2021. This position is supported by the Licensing Act 2003 and the S182 Guidance. Neither the SoLP or the S182 Guidance provide for any circumstance, exceptional or otherwise, which would permit an Application to be granted if the Licensing Objectives would be harmed.
It follows that the only circumstance under which the Application should be granted is if the Council is convinced that the licensing objectives will be positively promoted, as required by the legislation.. It is the role of the Applicant to persuade you that this is the case. If Statutory Authorities or Interested Parties, including ourselves, disagree with this then it is up to the Council to weigh the arguments and make its decision. However to grant you need to be convinced that the Licensing Objectives will be promoted.
The current Statement of Licensing Policy was drawn up during the COVID19 period. In the Foreword to the Policy its states that:
The Licensing Authority’s proposed revisions to the Statement of Licensing Policy will enable the
hospitality and entertainment sectors to plan for the short and medium term, whilst maintaining the
necessary protections for our residents and promoting the licensing objectives as a whole.
We believe that this is an important statement about the balance that the SoLP and LA2003 seek to maintain. Allowing businesses to plan and maintain the necessary protection for residents as well as supporting the licensing objectives. We are very concerned that granting even temporary extensions of hours will fail to provide this protection and will fail to support the licensing objectives.
The SoLP recognises the need for balance, even in the case of COVID19 recovery. For example the reason for Policy SCZ1 makes clear that ‘The Licensing Authority is supportive of the hospitality and entertainment sectors’ need to recover from the impact of COVID-19. However, it needs to balance the needs of businesses, the residents who live and operate in the local area and its duty under the Licensing Act 2003.’
The Licensing Objectives include the Prevention of Public Nuisance and the Prevention of Crime and Disorder. These are the Objectives on which later hours are most likely to have an impact.
The SoLP makes clear in the section on Licensing Strategy that ‘The Licensing Authority must have regard to these licensing objectives in carrying out its licensing functions under the Licensing Act 2003.’ The Strategy also states that the Council ‘may make exceptions to its own policies where it is appropriate to do so in order to promote the licensing objectives’. Our conclusion from this is that the SoLP makes the Licensing Objectives the focus and any decision to deviate from the Policies should only be made to promote the Licensing Objectives. There is no other reason suggested for deviating from the Policies.
As far as we are aware allowing business to gain more income is not and has never been a Licensing Objective. The S182 Guidance states that ‘There are no other statutory licensing objectives, so that the promotion of the four objectives is a paramount consideration at all times.’ . It is therefore our view that extending hours in order to support business is contrary both to guidance and the SoLP UNLESS it can be done whilst promoting the Licensing Objectives.
We also note that in the section of the SoLP on how to use the Policy it is made clear that Interested Parties and Responsible Authorities must only make representations based on issues which relate to the Licencing Objectives.
When making a representation with regards to an application (either in opposition to or in support) responsible authorities and other parties must only address the likely effect of the grant/variation of the premises licence on the promotion of the licensing objectives and the relevant policies that apply. Representations cannot be based on issues that do not relate to the licensing objectives, such as moral grounds or whether the premises does not have the benefit of planning permission.
If Interested Parties and Responsible Authorities must limit themselves to the issues which relate to the Licensing Objectives we believe it follows that the argument for granting and application must also relate to whether or not it promotes the four Licensing Objectives and not to other issues.
We note that in a different context, regarding the “need” for Licensed Premises, the S182 Guidance says the following:
“Need” concerns the commercial demand for another pub or restaurant or hotel and is a matter for the planning authority and for the market. This is not a matter for a licensing authority in discharging its licensing functions or for its statement of licensing policy.
If the need for new premises should be left to the market then we believe that it is a reasonable argument that the success, or otherwise, of the existing licensed premises should also be left to the market. Even if the Government or the Local Authority believe that there is a market failure this does not justify a deviation from the requirement to support the Licensing Objectives.
In those cases where the hours can be extended without any risk to the Licensing Objectives then it is of course reasonable that an extension may be granted and applicants are always welcome to argue this. However this is not usually the argument put forward. The argument, implied or explicit, is that the risk of harm to the Licencing Objectives is justified by the need for income
The SoLP sets out a number of tests for Licence Applications to enable it to fulfil its duty under LA2003 to promote the licensing objectives. These are separated into those related to the licensing objectives, those related to hours, those related to type of premises and those related to location. We will consider the relevant ones in turn.
Hours and Licensing Objectives Policies
In considering any application WCC’s SoLP Policy HRS1 requires the Council to consider the effect of later opening on compliance with the requirements of the other Policies, especially in this case PN1 and CD1. The arguments for limiting hours because of the impacts of Public Nuisance and Crime and Disorder impact are well rehearsed and will not be repeated here. It is however also worth considering the mechanism by which later opening provides a financial benefit to the applicant.
Like all businesses the applicant has fixed costs (rent, rates, maintenance) and variable costs (staff, drink, food). Opening later does not impact the fixed costs and so makes sense only if the income received increases by more than the variable costs. In the later hours being discussed, most of the additional income will come from increased consumption of alcohol. This is a combination of customers already at the premises drinking more, or more customers coming to the premises to drink during the extended hours. Having later hours in order to allow customers to consume drinks they would have purchased anyway during the existing hours has no benefit to the applicant. This is not a reason to permit longer hours.
Our view is that taking steps to increase the income from these sources increases the risk of Public Nuisance and Crime and Disorder occurring in the vicinity of the premises. This contravenes the SoLP and fails to support the objectives of LA2003. The reasons are as follows:
Customers drinking a larger quantity of alcohol will be less likely to be in control of their behaviour when they leave the premises. This gives rise to noise in the street, both in the vicinity and as they leave the area. It also increases the risk of disorder through drunken behaviour. They are also more likely to become victims of crime.
New customers who come to the premises in order to consume alcohol during the extended hours, which are after 23:30, are likely to have come from another premises where they have been drinking already. Despite the requirement not to serve alcohol to those who are already inebriated they will usually be served, after all the only reason for opening later is to sell more alcohol, and this will give rise to the same issues as for customers who remain at the premises and drink more.
The other group of customers are those who come to the venue during the extended hours, or because of the extended hours from another event and are not already under the influence of alcohol, for example from theatre, concert or a dinner. The impact of these customers is the additional noise nuisance from their arrival and especially their departure at times after the premises would normally have been closed and the surrounding area would have been quiet.
Our view is that as we are discussing applications to extend hours beyond the existing Core Hours this last group of customers will only be a small proportion of the total. A ‘last entry’ condition is therefore of no comfort. Most people will already have been consuming alcohol and will come to or remain at the premises with extended hours to continue drinking. They will consume more alcohol and are more likely to give rise to issues as they leave the premises.
Policy PN1 makes clear that the Council’s criteria when granting a licence is ‘the potential for nuisance associated with the style, characteristics and activities of the business to be carried out at the premises and the potential steps which would be taken to reduce the risk of nuisance occurring. This will particularly apply in areas of residential accommodation and where there is residential accommodation in proximity of the premises’.
In most of the West End there is residential accommodation in the vicinity of the premises and so this is a particular concern. The activities of the premises which are most likely during the later hours are the sale of alcohol and there are very few, if any, steps which can be taken to minimise and control ‘noise from customers arriving at the premises…. and departing from it including noise and other nuisance caused by customers’ transportation and how dispersal is managed.’ Which is one of the elements which need to considered under PN1. The approach of CD1 is similar to this.
The reasons for HRS1 make clear that ‘Core hours are an essential element to ensure businesses can operate for a reasonable period whilst protecting the impact on the licensing objectives.’ It goes on to state that ‘The consideration of hours of operation will be in the context of the particular circumstances of each application and the licensing objectives. The hours at which noise may occur and disturbance of residents’ rest, relaxation and sleep will be of particular concern.’ In our view it follows that the grant of an application where it is likely to disturb the sleep of residents fails this test.
The Policies to be considered are those related to Cumulative Impact (CIP1 and SCZ1). Unlike the policies noted above these Policies do allow for a grant contrary to Policy to be made but only in genuinely exceptional circumstances (in Cumulative Impact Areas), and we have seen this argued for applications for extensions of hours made in the Cumulative Impact Areas. The reason given is: many licenced businesses have closed and will not reopen, so the area will no longer suffer from Cumulative Impact, so the reason for the Policy no longer applies.
The provision of alfresco tables and chairs which has been facilitated by the Council has already allowed many businesses to reopen, albeit outside only. Certainly, in some areas the cumulative impact is, if anything, greater than before. The long-term impact on the level of cumulative impact is unclear. Even if some businesses do not reopen it is likely that others will take their place. We do not accept that the reason for the Cumulative Impact policies has suddenly vanished due to COVID19.
CIP1 allows the Council to grant an exception and sets out how this will be considered. It states that: ‘in considering whether a particular case is exceptional, the Licensing Authority will consider the reasons underlying the West End Cumulative Impact Zone special policy and the relevant premises use policies when considering applications.’
Our view is that the need, for financial reasons, to allow premises to open later in the CIZ is not related to the reasons underlying the Policy. The only ‘related’ reason would be that it is no longer an area suffering from Cumulative Impact. We cannot see this now, and so the grant of an extension for this reason would be premature.
Within the SCZ’s there is not a presumption to refuse the grant. However the Policy requires that “In addition to meeting the other policies within this statement, applications within a designated Special Consideration Zone should demonstrate that they have taken account of the issues particular to the Zone”. In all SCZ’s the issues which need to be taken into account mainly occur at night. It follows that any application to extend hours is likely to make these issues worse. Our view is that any extension of hours in the SCZ should therefore be refused unless the applicant is able to demonstrate that the Licensing Objectives will be promoted.
In summary our position is as follows.
Applications for later hours are intended to provide premises with a higher income by allowing them to sell more alcohol than they would otherwise sell, or at least as much alcohol as before but at a later hour.
The alcohol consumed by customers at the later hours will result in harm the Licensing Objectives, especially related to Public Nuisance and Crime and Disorder in the surrounding area, which contains significant amounts of residential property.
There is no justification in the SoLP or the S182 Guidance to support a view that harm to the licensing objectives is outweighed by the financial benefits to the business.
Applicants are welcome to argue that later hours can be granted whilst still promoting the Licensing Objectives, but unless they persuade the Licensing Authority to agree with them then their Application should be refused.