Paper produced for Institute of Licensing on effective participation by residents in the Licensing regime
Effective Participation and Objections – Resident representations
1.‘(The Bill) is great news for those of us seeking better regulation of the lap-dancing industry and more power to local people.’ So said Durham MP Dr Roberta Blackman-Woods of the Policing and Crime Bill, which passed through the House of Commons on 19 May 2009 and is due to be debated in the House of Lords shortly. The Bill is expected to become law in early 2010.
2.As other speakers will have outlined, the Bill seeks to reclassify lap dancing clubs as ‘sex encounter venues’ as it is considered that current powers to regulate these premises (currently contained in Licensing Act 2003 (LA03)) do not provide local authorities with the degree of regulation which they feel they need, and by extension, do not provide local people with the opportunities to raise concerns as to the nature of lap dancing or similar venues. Assuming that the Bill becomes law, lap dancing clubs will fall to be considered under Schedule 3 Local Government (Miscellaneous Provisions) Act 1982 (LGMPA). Currently sex establishments, defined as sex cinemas and sex shops (and ‘sex encounter establishments’ in London) fall under the ambit of LGMPA (but see para 7).
3.In simple terms, the proposed changes will allow local people to resist applications in respect of lap dancing or striptease venues on much wider grounds than they are able under LA03, constrained as they are by the quadripartite pillars of the Act known as the ‘licensing objectives’. For instance, under LGMPA they will have more say on the suitability of the locality of the premises. Local authorities will have wider powers to refuse such applications or impose a wider range of conditions than under LA03 (affected further by recent case law).
4.It was a key objective of the campaign spearheaded by The Fawcett Society and OBJECT to obtain recognition that local people have legitimate concerns about where lap dancing clubs are located and that such concerns could not adequately be addressed by the provisions of LA03. The Secretary of State’s consultation letter to local authorities in July 2008 did refer to the licensing objectives and give examples but the onus seemed to be focused on reviewing the premises licence rather than raising concerns on the grant or variation, arguably placing too much onus on residents and responsible authorities to clear up the mess if problems arise.
5.However, this is not to say that at present residents and residents’ groups have no leverage, despite a recent press release from the Fawcett Society which stated that ‘local communities are powerless to stop the spread’ of such premises. The statutory scheme of which LA03 is the backbone envisaged a partnership approach within which local people have a full role to play. However for this to be the case it is vitally important that local people, often without the resources to obtain legal advice, are thus sufficiently empowered with knowledge of their rights and responsibilities under the Act.
6.It is a further contention of pressure groups that the restriction in LA03 that relevant representations may only be made by those ‘in the vicinity’ of the premises fails to take into account the impact of lap dancing premises on women (and men?) who work in or travel through the area. In addition premises licences are not subject to the same renewal safeguards as licences granted under LGMPA.
7.As LGMPA is adoptive, a local authority can choose whether to adopt Schedule 3. Also, the definition of ‘sex encounter establishments’ (which covers lap dancing clubs) is only relevant to London boroughs (where adopted). Even where this is the case, LA03 introduced an exemption for premises licensed and used for regulated entertainment or late night refreshment (nb – not alcohol). Therefore there is no requirement for a sex establishment licence. Thus, in London, a lap dancing premises can fall to be licensed as a sex establishment, but not if customers are permitted by a premises licence to buy coffee.
The current law
8.There are a number of ways in which local people can become aware of applications under LA03. The Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005 (‘The Regulations’) set out requirements for the advertisement of applications, by the placing of a notice at or on the premises and in a local newspaper whose circulation is within the within the premises at least once in the 10 days following the application being given to the local authority (Regulations 25-26). Local authorities are required to keep a licensing register of applications and other useful documents. Some authorities notify residents near the premises of applications, or notify recognised residents’ associations and amenity societies.
9.LA03 states that a licensing authority must carry out its functions under the Act with a view to promoting the licensing objectives. Representations in respect of an application for a new premises licence under s17 or a variation under s34 must be made by an ‘interested party’ and must relate to the likely effect of the grant on the promotion of the licensing objectives, which are;
-prevention of public nuisance
-prevention of crime and disorder
-public safety
-protection of children from harm
In the case of applications for new premises licences or variations (but not reviews) the ‘cumulative impact’ on the licensing objectives of a concentration of licensed premises can also give rise to a representation (Guidance 9.9). Thus, moral concerns cannot be taken into account. Indeed, the Government specifically referred to this in the Guidance (2.17). That approach is supported by recent case law (The ‘Somerfield’ case). However where the applicant seeks to provide lap dancing or similar, he does need to state on the application ‘any adult entertainment or services, activities, other entertainment or matters ancillary to the use of the premises that may give rise to concern in respect of children.’ Guidance note 8 requests ‘information about anything intended to occur at the premises or ancillary to the use of the premises …for example nudity or semi-nudity…’, so it should be clear from the face of the application what is being sought.
10.Interested parties are one of 3 groups as defined by LA03 who may make representations. An interested party is:
-a person living in the vicinity of the premises in question
-a body representing persons living in that vicinity (eg a Residents’ Association)
-a person involved in a business in that vicinity
-a body representing persons involved in such businesses (eg a Trade Association)
11. The provisions for determining applications differ depending on whether relevant representations are received. Thus, the local resident has a vital role to play in the process. Unless relevant representations are made in respect of lap dancing establishments, a licensing authority will be required to grant the licence in the terms sought, subject only to such conditions as are consistent with the operating schedule accompanying the application (but note the recent High Court ‘Somerfield) judgment, more of which later) and the mandatory conditions. There is no discretion.
12.Where a relevant representation is made, the licensing authority’s discretion is engaged. To be relevant, the representation must be about the likely effect of the grant of the premises licence (or of the application to vary) on the licensing objectives. Here lies the rub for applications for premises licences seeking to provide lap dancing or strip tease. It is difficult for many residents to relate their concerns regarding lap dancing or similar premises to the licensing objectives.
13.What constitutes ‘in the vicinity’ is a matter for the licensing authority. The Government Guidance (9.5) suggests that the material consideration of the licensing authority should be ‘whether the individual’s residence or business is likely to be directly affected’ by issues relating to the four licensing objectives. As we shall see, this is more constraining for residents than the corresponding provisions of LGMPA. It is also interesting to note that under the Gambling Act 2005, an interested party is defined inter alia as a person who ‘lives sufficiently close to the premises to be likely to be affected by the authorised activities’. Furthermore, under LA03 local authorities can chose to designate an area outside which representations will not be considered to be ‘in the vicinity’ although it is recommended that this only be a guideline (9.6 Guidance). It may be possible for a local resident outside this area to persuade the local authority that they are affected issues relating to the four licensing objectives. This concept of vicinity is important in understanding why so many felt LA03 to be ineffective in providing stakeholders with a means to voice their concerns as to the establishment of lap-dancing clubs in their local area.
14.The case of R (4 Wins Leisure Limited) v Licensing Committee for Blackpool Council, Brook Leisure Blackpool Limited and World Wide Clubs (UK) [2008] LLR 128 dealt with the question of what is ‘in the vicinity’. 4 Wins had made a representation in respect of an application by Brook Leisure. The body making the representation was deemed by the local authority not to be an interested party as it was located 816m from the premises in question. Judicial review of the decision was sought and Sullivan J held that ‘vicinity’ is a question of fact and degree, is dependent on local knowledge and is therefore best left to the local authority to decide. Therefore the Courts would only overturn a decision to exclude a representation for not being ‘in the vicinity’ in unusual circumstances.
15.The representation must also be made within the prescribed period, and not, in the opinion of the licensing authority, be frivolous or vexatious. ‘The prescribed period’ is 28 consecutive days starting on the day after the day on which the application was given to the licensing authority. Representations should be in writing. The Regulation 21 provides that representations can be accepted by email but that a hard copy must follow ‘forthwith’. As representations must be received by the end of the statutory 28 day period, it would be a sensible to send a representation by email in the first instance if there is insufficient time for a postal letter to be received by the local authority before the expiry of the 28 day period, then send a postal copy forthwith. However, see also Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 where the House of Lords ruled that in refusing an application for a sex establishment licence, the local authority was entitled to take into account representations received after the expiry of the statutory 28 days, where it had acted fairly and properly exercised its powers. This suggests that it is for the local authority to decide.
16.Where a representation is deemed to be ‘frivolous’ or ‘vexatious’ the local authority must notify the maker of its decision. Again, there is recourse to the Courts by way of judicial review for the aggrieved party. In borderline cases, as with the question of vicinity, the Guidance (9.12) recommends that the benefit of the doubt be given to the interested party making the representation.
What information should go into a representation?
17.The fundamental point is that the representation should relate to the likely impact of the application on the licensing objectives. The letter should state the name of the premises and the address of the person making the representation. It is a good idea to obtain a copy of the application from the local authority. Local authorities are required to keep a licensing register of applications. This has the advantage that a resident can see if any problems have occurred at the premises in the past eg if the premises licence has been reviewed. Although it is not necessary to produce a recorded history, it helps to keep a record of any problems you have experienced in the past, with times and dates, as more effective representations will be evidence based and premises-specific. It is important to show that the problems experienced relate to the premises in question. It is also important to consider any conditions which could be attached to the licence to ease concerns, or if the only remedy is outright refusal of the application.
18.It is important to remember that it is possible to object to the provision of regulated entertainment, which includes inter alia dancing, live music, recorded music, facilities for dancing, anything similar, of the kind which a premises providing adult entertainment would need, if local people are concerned about noise emanation which may be caused by the proposals. However, of course, such objections would need to relate to the licensing objectives.
19.It may be an idea to gather a petition, with names and addresses, stating clearly the nature of the objections. It may also be useful to speak to your local Residents’ Association or similar. Councillors may also provide help and assistance (including with the hearing) if necessary. Residents’ Associations may see fit to inform people living close to the premises or publicise the application in some other way.
20.Public nuisance is probably the most common licensing objective referred to in representations. It is not given a statutory definition in LA03 and so thus is capable of including ‘low-level nuisance affecting a few people living locally’ (Guidance 2.33). Examples of public nuisance are noise nuisance, light pollution, noxious smells and litter (Guidance 2.32). The most common is noise emanation from the premises or from people drinking/smoking outside the premises. However this does not address many concerns arising from the use of a premise specifically for lap dancing or similar, although such venues may give rise to these problems.
21.The protection of children from harm objective is intended to protect children from moral, psychological and physical harm (Guidance 2.41). Clearly this may be relevant for lap dancing premises and conditions will usually if not always be necessary to restrict access to premises where adult entertainment is provided. In addition, some premises may provide adult entertainment at some times but not at others. It is therefore important to peruse the operating schedule contained in the application form. The measures suggested in the Secretary of State’s consultation letter of July 2008 are, for instance, that no under 18s be allowed to perform, or be employed in the premises may be seen by some to be taken as read and do not address their concerns as to the existence of the premises in the first place. An example of the confusion on the issue is that it is suggested in the consultation letter that concerns about inappropriate signage can be addressed by reference to the protection of children from harm objective. This appears to contradict the Guidance (2.17) which states that ‘the display of advertising material on or immediately outside the premises’ is regulated by The Indecent Displays Act 1981. As conditions should only be imposed where they are ‘necessary’ local people might have difficulty raising concerns in the context of LA03. The Somerfield case has emphasised that conditions should only be imposed where necessary and where not covered by other legislation and should not be lifted verbatim from an operating schedule. Thus even if an applicant has suggested such measures, the licensing authority may not see fit to condition the licence accordingly.
22.The crime and disorder objective is concerned with matters such as fighting, drugs and disorder. In the context of lap dancing venues, protecting performers from assault may be a relevant consideration. The public safety objective is concerned with the physical safety of persons using the premises eg overcrowding), not with public health (Guidance 2.19).
The Sub-Committee hearing
23.If the licensing authority considers that a representation is relevant and not vexatious or frivolous, it must hold a hearing to consider the application (unless all parties agree it is not necessary). The licensing authority will write to those who made relevant representations to inform them of the date at least 5 working days before the hearing. The Regulations require interested parties to give notice at least 2 working days before the hearing whether they will attend, whether they will be represented and whether they think a hearing is necessary at all. Hearings are normally held in public unless there it is in the public interest not to do so. At the hearing, it is open to the Licensing Sub-Committee to
-Grant or vary the licence (as appropriate)
-Refuse to grant or vary
-Grant or vary in part, including modifying conditions if necessary
-Exclude licensable activities from the licence
Appeals against decisions of licensing authorities
24.s181 and Schedule 5 LA03 provide the framework for appeals against decisions of the licensing authority. An interested party has the right of appeal against a decision of the licensing authority. Appeals are made to the magistrates’ Court for the petty sessions area in which the premises is situated and is commenced by notice of appeal given by the Appellant to the justices’ chief executive for the magistrates’ court within 21 days beginning on the day on which the appellant was notified by the licensing authority of the decision appealed against.
25.Where an interested party appeals against a decision of the licensing authority, the holder of the premises licence is a respondent in addition to the licensing authority (Schd 5 (9)(3)). There has been much debate whether a corresponding right exists for an interested party to be a respondent where the applicant for the licence/variation appeals against the decision of the licensing authority. The judgment of DJ Purdy in Lucas v Westminster City Council (2005) seemed to establish this right but the judgment has been contradicted in other judgments (eg Reed and Hodson v Tanbridge District Council (2006). It should be noted that both these cases were heard in the Magistrates’ Court and so are not binding on other courts or other magistrates’ courts.
26.Although awarding costs against a local resident is the exception rather than the rule, it has happened (Barrington v North Dorset District Council [2008] LLR 17.
27.It is also possible to challenge a local authority decision by judicial review, and to challenge magistrates’ court decisions by judicial review or by case stated.
Supplementary provisions regarding representations
28.It is a good idea to peruse the local authority Statement of Licensing Policy, which the authority is required to produce and to review periodically before making a representation.
29.In normal circumstances, representations cannot be made anonymously even if someone else is making the representation on their behalf. The representation must contain the name and address of the interested party. The rationale for this is that the local authority (and the Applicant in case of dispute) needs to satisfy itself that the representation satisfies the statutory criteria as discussed above. Representations must be disclosed to the Applicant (Licensing Act 2003 (Hearings) Regulations 2005). In cases where an interested party has a fear of intimidation or violence if personal details are divulged to the Applicant, and the licensing authority considers such fears to be genuine, remedial measures can be considered. Examples are providing responsible authorities with details of the issues so that they may make representations if appropriate and justified or only divulging those personal details necessary for the applicant to be satisfied that the interested party is within the vicinity (Guidance 9.17-18). The situation is different under LGMPA, as we shall see.
Reviewing a premises licence
30.Where the operation of premises has given cause for concern in relation to the licensing objectives, an interested party may apply to review an existing premises licence. As with representations, an application for review must not be frivolous or vexatious. There is an additional hurdle, that of repetition. A ‘reasonable interval’ must have elapsed since a review on similar grounds. This is suggested as being 12 months, unless there are compelling circumstances.
31.It is good practice to try to resolve any problems informally prior to applying for a review. In the case where concerns arise from the use of premises for adult entertainment, resolution may prove difficult.
32.Similar provisions apply as to notifications and time periods as with representations as described above. At the hearing, the licensing authority can:
-decide no action is necessary
-modify or add conditions
-exclude a licensable activity
-remove the designated premises supervisor
-suspend the licence for a period of not more than 3 months
-revoke the licence
33.Clearly, there are remedies for local people where problems do occur, providing the problems are linked to the licensing objectives. A right of appeal to the Magistrates’ Court also exists following determination of the review.
Conclusion on the current law
34.Although LA03 can be said to have empowered local people in respect of licensed premises in general, the same is not as true in respect of adult entertainment premises. Although the Secretary of State’s consultation letter in July 2008 stated that ‘any of the statutory licensing objectives may be affected by adult content’ in the licensable activities, the thrust of any objections made to lap dancing premises under the current law seems to be necessarily the use of the premises for late night refreshment, alcohol and regulated entertainment rather than specifically for adult entertainment. This is made more apparent by the judgment of Black J in R(Daniel Thwaites PLC) v Wirral Borough Magistrates’ Court and Ors [2008] EWCH 838 (Admin) which stressed the need for actual evidence as opposed to speculation. This places the onus more than ever on local people who, if there is no evidence of problems caused by a premises because eg it has never operated as a lap dancing venue before, they will be left with the choice of whether to institute a review of the licence. Some might say that this places too much of an onus on residents where the provisions of LGMPA would have seen their views heard more clearly in the first place. Nevertheless, local people can have some say in the decision making process by producing clear, detailed and compliant representations related to the specific premises if they are concerned by the proposals.
The Local Government (Miscellaneous Provisions) Act 1982 and the future for effective participation
35.When one considers the provisions of Schedule 3 LGMPA it is immediately obvious that it provides residents who are concerned with the proliferation of lap dancing venues with more scope to object and have their views heard and considered in relation to the type of premises, not just in relation to licensing objectives. The grounds for refusal are inter alia:
-that the applicant is unsuitable to hold the licence by reason of having been convicted of an offence or for any other reason
-that the number of sex establishments in the relevant locality at the time the application is made is equal to or exceeds the number which the authority considers appropriate for that locality (which could be none)
-that the grant or renewal of the licence would be inappropriate, having regard to
i)the character of the relevant locality
ii)the use to which any premises in the vicinity is put
iii)to the layout, character or condition of the premises…in respect of which the application is made.
36.So this is how sex establishments (sex shops and sex cinemas) are currently licensed, and how sex encounter establishments in London boroughs have been licensed before the lacuna in LA03. Residents do not have to live in the vicinity. People who travel through the area and may be affected by the negative impact of the premises can raise concerns. As the licences have to be renewed every 1-3 years, there is more opportunity for residents to raise concerns outside a formal review process and these concerns can be linked specifically to the sexual nature of the premises.
37.The grounds for objection are much wider. Objections need only state ‘in general terms’ what the grounds of the objection are, within 28 days after the date of the application (but note the Belfast City Council case). The local authority only gives general terms of the objection to the applicant. Importantly, the local authority cannot reveal the name or address of an objector to the applicant, without the objector’s consent. This is an important difference between the two regimes, and one which will provide comfort to local people in some circumstances. Should the Policing and Crime Bill become law, residents should be able to have much more of a say in the licensing of these premises.
Richard Brown
Licensing Advice Project
Westminster Citizens Advice