Licensing : Consultation Response

Rebalancing The Licensing Act –

A Consultation on Empowering Individuals, Families and Local Communities to Shape and Determine Local Licensing.


Response from The Kingscliffe Society, Brighton

1.         Introduction

1.1       The Kingscliffe Society was set up in 1973 and is registered with, and recognised by, the Brighton & Hove City Council. The Society covers the East Cliff Conservation Area – a large area that extends along the Eastern seafront and roads leading from it. It includes the St. James’s Street district shopping centre (as well as a local shopping centre in Kemptown) and the St, James’s area has proved to be very problematic since the introduction of the 2003 Licensing Act.

1.2       When the Act was implemented there was a deluge of applications from pubs, clubs and café bars in the St. James’s neighbourhood for new or extended licences. Most were approved, thereby bringing about a density of alcohol provision that some have compared as near to that of Soho in London.  An important factor about the area, with its virtual ‘wall to wall’ availability of alcohol, is that it is, overwhelmingly, densely residential. (At the last count there were just on 4,000 people on the electoral roll which does not, of course, include those under 18 years of age.) That crucial factor is often, or even usually, overlooked when decisions are taken on applications. The detrimental effect on the quality of life of residents, particularly from lack of sleep, is considerable.

1.3       In the light of our negative experiences we are pleased that the Government has issued this consultation paper. We endorse the comment in the Foreword which says that ‘Local communities have not had a strong enough voice in determining which pubs and clubs should be open in their area and for how long they should trade.’ We hope that decisions will emerge radically to move away from that unequal situation by changes to he existing legislation, which, with its presumption that licences would be granted, shows a partiality in favour of applicants at the expense of communities.

1.4       Given the above, it is axiomatic that residents blame the licensing regime for the present problems of the night economy, which prior to 2003 mostly ended by midnight but now continues into the early hours.  We have seen public nuisance – noise, anti-social behaviour, street fouling, damage to property – grow in the last seven years, and in addition to the harmful results of the legislation the increase in the availability and cheapness of alcoholic refreshment now offered to the public is an injurious factor.   We consider that some of the changes referred to below would do much to ease the situation.

2.         Answers to Consultation Questions

In consideration of the issues raised in the accompanying comments in the Consultation Paper we submit our conclusions to the questions as follows:

Question 1:  What do you think the impact would be of making relevant licensing authorities responsible authorities?

This change would seem to be positive in as much as then, even without any valid representations, the Licensing Authority (LA) would be able to refuse, or set suitable conditions on, any application in order to promote one or more of the licensing objectives.   

Question 2:  What impact do you think reducing the burden of proof on licensing authorities will have?

We support the option that the burden on LA’s to prove that their actions are necessary’ should be reduced. That is one of the requirements that has often overridden objections from residents.  We would also like to see relevant police data relating to both streets/areas and premises made available to the public.

Question 3: Do you have any suggestions about how the licence application process could be amended to ensure that applicants consider the impact of their licence application on the local area?

3.1       We strongly support the view that the applicants should produce an impact study with their application to show that adequate, genuine pre-application consultation has taken place with those who might be adversely affected by their proposals.  Crucial in that would be the involvement of residents.

3.2       We are concerned that such discussions should take account of all licensing objectives, including, and not least, the prevention of public nuisance. It is the securing of that objective which frequently is of greatest concern to residents when new or varied licences are sought and we are concerned that it is not more fully dealt with in the Consultation Paper.

3.3       As set out in paragraph 2.01 of the Paper, ‘The police are fighting a constant and expensive battle against alcohol fuelled crime and anti-social behaviour’.  The comments and statistics that follow are not gainsaid, but in a real sense they indicate a shortcoming of the attitude of government and the police towards the effects of late-night drinking.  By linking drink-related crime (often visible and sometimes violent) with anti-social behaviour (often less visible though audible and widespread) the concentration is on crime, and understandably so, but at the expense of dealing with disorder that has a far broader reach.

3.4       Our local Police Inspector in charge of the night-time economy had said that the only measure available to him to decide on disorder was the record of calls made (in the middle of the night) relating to noise and disturbance. Not surprisingly, and understandably, they are categorised as ‘non-emergency’ and the lengthy response time is guaranteed to make the caller even more awake, and annoyed than the original disturbance! Sequential disturbances would ensure that sleep was almost non-existent if one reported each to the police as they happened.

Question 4: What would the effect be of requiring licensing authorities to accept all representations, notices and recommendations from the police unless there is clear evidence that these are not relevant?

Our concerns here are that, on the face of it, such a requirement would seem to set ‘rights’ of the police above others who make representations and by so doing remove the opportunity for others (applicants and objectors) to be heard on an equal basis. 

Question 5: How can licensing authorities encourage greater community and local resident involvement?

5.1       Our comments made at 3.1 and 3.2 above are relevant here.  But further important changes should be made in respect of the advertising of applications. The current onus on the applicant to place an appropriate notice on the relevant premises is potentially open to abuse by, e.g placing the notice where the public cannot easily see it (we have experience of that in our locality).  It should be the responsibility of the LA to display the notices in a prominent public site and ensure that it is legally complaint, as with notices of planning applications. Additionally, following the planning pattern, near neighbours should be individually informed of an application. 

5.2       Of course, at these early stages – and throughout the application process – we would urge that the voice and experience of residents is really listened to and taken into account.

Question 6: What would be the effect of removing the requirement for interested parties to show vicinity when making relevant representations?

6.1       We are not in favour of the concept of ‘vicinity’ being removed from legislation at this time as removal could lead to representations from parties with no genuine association. However, we consider that the concept of vicinity should carry a fair definition.  For example, it ought to include adjacent streets that are recognised routes widely used by people to exit (or even enter when they have come from a spell at another licensed premises) an area where licensed premises are (or are proposed to be) located.  Such streets suffer considerably as a result of noise nuisance from people who have imbibed alcohol.

6.2       Vicinity should not be removed unless the status of interested parties is defined as those able to show the likely effect on them if the application is granted.

Question 7: Are there any unintended consequences of designating health bodies as a responsible authority?

7.1       This is not an aspect to which we have devoted in-depth consideration but it does seem sensible that health bodies should be able to contribute fully to the formulation of licensing policy, rather than to individual applications. However, with the apparent intention to abolish Primary Care Trusts it should be made clear who would collect and submit data or make representations although A & E departments and ambulance services deal with the effects of drunken behaviour and over-indulgence.  Unfortunately, no-one is collecting information with regard to the effects on the health of ‘serial disturbance sufferers’ who are wide-spread throughout our city as well as concentrated in our area.

7.2.      Preventing harm to the health of the public must become a major objective of licensing even without designating health bodies as a responsible authority.  The density of licensed premises could be regulated by planning so as to avoid the their almost ‘railway carriage’ progression, such as in our area. For example, we understand that in Paris a new licence will not be granted to a venue situated within 75m of another so licensed. The distance in New York is within 152m of an existing one. In our St. James’s Street area, by contrast, we estimate that vertical drinking establishments, licensed convenient sores, licensed cafes and supermarkets make up 75% of frontages. All this set within a density of residential homes.

7.3       Local surgeries could encourage patients to record sleep patterns interrupted by anti-social behaviour. It is important for doctors to be aware of the medical problems that serial night time disturbance can bring and the effects on physical an d mental health need to be investigated further (the WHO and the European Commission have done some work on noise and its effects and there is a growing body of evidence as to the harmful effects of noise on the health of individuals).

Question 8: What are the implications in including the prevention of health harm as a licensing objective?

We consider that this would be difficult to validate and therefore do not support. (Rather we hope that all of the existing four objectives are given full consideration)

Question 9: What would be the effect of making community groups interested parties under the Licensing Act, and which groups should be included?

Our answer at 6.2 above is relevant here as interested parties could be defined as suggested there. Then groups such as those mentioned at para. 5.13 of the consultation paper could be considered relevant. Perhaps the number of individuals being represented by each group should be made available and the groups be properly founded and constituted.

Question 10: What would be the effect of making the default position for the magistrates’ court to remit the appeal back to the licensing authority to hear?

Although not a direct answer to the question we would record our concern that currently ‘interested parties’ seem not to have a right to attend appeals brought by the LA but have to depend on being called by the LA as a witness. We would wish there to be a right on an appeal when residents have made appropriate representations..

Question 11: What would be the effect of amending the legislation so that the decision of the licensing authority applies as soon as the premises licence holder receives the determination.

We would welcome a speeding up that would prevent nuisance to residents continuing long after a determination due to a time-lag over an Appeal. Thus we would be in favour of a quick implementation of the decision but in the name of fairness that would seem to require a speedier appeal process.

Question 12: What is the likely impact of extending the flexibility of Early Morning Restriction Orders to reflect the needs of the local areas?

12.1    We have referred earlier on about the problems of noise and nuisance – to that can be added accompanying problems relating to vomit and urinating against people’s properties. This is not dealt with currently as the 2003 Licensing Act protects licensees from liability in relation to problems created by their patrons after they have left the premises.  But the people who make the damaging noise and nuisance are surely those who have left licensed premises in the area and the fact that if the premises were not open then the people would likely not there, heaping distress and disturbance on residents is disregarded. The people making the problem are surely those who have left premises in the area but at all licensing hearings at which our Society has been represented applicants insist that noisy revellers are from elsewhere - although evidence has never been forthcoming in support of such assertions. Collectively applicants respond as if the ‘culprits’ are parachuted into the area from elsewhere!

12.2    It follows that we are strongly in favour of EMRO’s to provide a much needed antidote to the problems of late night street noise currently suffered by so many residents. To date, only noise from the premises is covered by legislation, and, as we stated earlier, the concerns of police licensing officers are primarily, and often solely, directed at the first licensing objective of ‘prevention of crime and disorder’.  A measure to deal with this major problem of public nuisance is long-overdue and we welcome the introduction of EMROs as a remedy to the problems directly attributable to alcohol consumption in our locality. 

12.3    We have noted that EMRO’s restricting the sale of alcohol between 3 a.m. and 6 a.m., if considered necessary to meet licensing objectives, will be implemented shortly. That is welcomed but does not go far enough. Thus we strongly support the government’s proposed ‘significant amendment to allow local councils to decide between which hours (e.g. midnight to 6 a.m.) they would like to prevent premises from opening, according to what they believe to be most appropriate for their local area.’  Further ‘The change would ensure that licensing authorities are given the freedom to respond to the needs of their local community in determining when premises can sell alcohol.’  The proposed amendment is essential because the introduction of restriction of closing hours to 3 a.m. to 6 a.m. will do little to help this massive problem of noise nuisance since problems start soon after midnight and continue throughout the night, in our experience. Thus we suggest a 12 midnight to 6 am at minimum – preferably 7 a.m. or 8 a.m - in order to cover the usual period when most residents are hoping to have sleep,uninterrupted by the thoughtless and damaging (in health terms to the recipient) behaviour of intoxicated people on their streets.

Question 13: Do you have any concerns about repealing Alcohol Disorder Zones?

We did support a move to establish an ADZ in our St. James’s Street area but although it seemed that there was sufficient evidence to start the process of investigation this was not supported by the council, police or businesses through fear of giving the area a bad name and detracting tourists from coming to spend their money!   Poor old residents on the back seat again! 

Question 14: What are the consequences of removing the evidential requirement for Cumulative Impact Policies?

We have the benefit of a CIP covering our St. James’s Street area and it was based on evidence submitted by the police and supported by us.  The submission of that evidence seemed proper.  However, when an application is submitted in respect of premises within that CI area then evidential requirements from the applicant to justify the application should still be required other the policy is undermined.  We are heartened by any proposal to simplify CI policies to make them more responsive to local needs and by giving greater weight to the views of local people through lessening constraints on the licensing authority.

Question 15: Do you agree that the late night levy should be limited to recovery of these additional costs? Do you think that the local authority should be given some discretion on how much they can charge under the levy?

15.1    We are pleased that the government intends to legislate to enable LA’s to charge a late night levy to help pay for the cost of policing the local night-time economy, where deemed necessary.  However, we stress that it is not just a question of policing.  Managing refuse, dealing with street fouling, noise monitoring and investigation and so on incur costs that fall to the council – and there is also the cost of damage caused to properties of residents and businesses, cost at the  local A&E department of NHS (injury and illness) as a result of alcohol intoxication.   It is only fair that these costs should be borne by those supplying the alcohol – i.e. the principle of ‘the polluter pays’. Late night Refreshment facilites should also be subject to levy as in our experience these are often associated with late night/early morning disturbance.

15.2    Each LA should be allowed to set levy charges. The system must be regulated and controlled by the LA..

Question 16: Do you think it would be advantageous to offer such reductions for the late night levy? (i.e. for best practice premises) 

This should be considered – but if implemented reductions should not be such as to render any levy as little more than a token. After all, the customers of even ‘best practice’ venues can contribute to the problem.

Question 17: Do you agree that the additional costs of these services should be funded by the late night levy?

Yes we do, absolutely.

Question 18: Do you believe that giving more autonomy to local authorities regarding closing times would be advantageous to cutting alcohol-related crime?

Yes indeed, but it needs to be accompanied by other measures. Drawing on evidence from the European Community’s study of binge drinking we were urge, in addition, three further measures: a) a reduction in the availability of alcohol through a reduction in the hours of off-sales to conform with more normal shopping hours, say no later than 21.00 hours as trading limit (we have several shops allowed to sell until midnight); introduce an adequate tax on alcohol and  prohibit advertisements of alcohol targeted at the young. These measures are urgently required given the known adverse health and societal effects relating to over-consumption of alcohol.

Question 19: What would be the consequences of amending the legislation relating to TENs so that:

a. All the responsible authorities can object to a TEN on all of the licensing objectives?

b. The police (and other responsible authorities) have five working days to object to a TEN?

c. The notification period for a TEN is increased, and is longer for those venues already holding a premises licence?

d. Licensing authorities have the discretion to apply existing licence conditions to a TEN?

19.1    Amendment of the legislation along the above lines would introduce some sanity into the current situation relating to TEN’s  Leaving aside the ‘one off’ private party or fete situations, generally speaking the TEN’s provision is frequently, if not usually, a bane to residents in our hot spot area.  Thus we would add to the (a) in question 19 the involvement of ‘interested parties’. This is essential from our experience.  In respect of (c) the notification period should be increased as set out.  Implementation of (d) above is crucial.  We have much experience of the adverse effects of TEN’s in our area when all licensing conditions about no drinking in the street, preventing noise escape from music through closed windows, etc. are just set aside – and, of course, the resulting problems spread over a longer period as the whole point of the TEN’s is extended hours, which can last over several days.  This is intolerable for residents.

19.2    Further we consider that apart from community groups who are, say, organising a one-off fete, all applications for Ten’s should be required to come from personal licence holders. In a recent invasion of our narrow residential streets by several thousands of people to party over a two-day period (without the views of residents being sought in advance) we had various stalls of cheap alcohol set up by ‘enterprising’ people who, presumably, had obtained a TEN for the event.

Question 20: What would be the consequences of:

a.      Reducing the number of TENs that can be applied for by a personal licence holder to 12 per year?

b.     Restricting the number of TENs that could be applied for in the same vicinity (e.g. a field)?

The consequences of both (a) and (b) should be to help to reduce the adverse effects of alcohol related problems, not least massive public nuisance.  At the street party cited above, some 30 TEN’s in a limited area containing many, many residents were granted – 14 of which were allowed to have outside loudspeakers playing music at 75 db. volume.   12 TENs per year should be the maximum for any premises and restricting the number that could be applied for in the same vicinity – e.g. for us a densely packed residential area – would help in some respect to limit the damaging  disturbance suffered  by residents.

Question 21: Do you think 168 hours (7 days) is a suitable minimum for the period of voluntary closure that can be flexibly applied by police for persistent underage selling?

We consider persistent underage selling to be pernicious. Thus we would favour a lower minimum period of voluntary closure, say 48 hours. If the practice does not cease in that time then permanent closure should follow with the possibility of revocation of licence. This is too bad a practice to be treated other than severely and speedily.

Question 22: What do you think would be an appropriate upper limit for the period of voluntary closure that can be flexibly applied by police for persistent underage selling?

As said, persistent underage selling of alcohol is a very serious offence with possible extremely damaging consequences.  There should be no provision for voluntary closure; rather, legal enforcement should be in placed.

Question 23: What do you think the impact will be of making licence reviews automatic for those found to be persistently selling alcohol to children?

Hopefully it would cause would-be offenders to think twice before acting in this irresponsible way.

Question 24: For the purpose of this consultation we are interested in expert views on the following.

a. Simple and effective ways to define the ‘cost’ of alcohol

b. Effective ways to enforce a ban on below cost selling and their costs

c. The feasibility of using the Mandatory Code of Practice to set a licence condition that no sale can be below cost, without defining cost.

We can in no way claim to be able to offer ‘expert’ views on this issue, although we are fully in the camp of those who wish to see ‘cheap’ alcohol’ dealt with to reduce alcohol consumption. We have, however, read a suggestion from an organisation representing Residents’ Associations (NORA) that seems to have come up with a possible way. As we understand it, NORA consider that cost should be related to alcohol content and concluded that it should be illegal to sell alcohol at less than £1 per 15 mls of alcohol (price quoted to respond to inflation). These prices are far less than those charged in licensed premises, but much more than those charged in supermarkets, where most underage

purchases occur. Also supermarket sales are recognised as being mostly responsible for the ‘priming’ of those going out for a night’s ‘entertainment’.

Question 25: Would you be in favour of increasing licence fees based on full cost recovery, and what impact would this have?

Yes, we would be in favour as fees charged currently don’t touch the actual cost of managing the system. Licensing fees should cover all the cost of management of the entire licensing process. It is not acceptable for any cost of the licensing process to fall on the council taxpayer. (We were once assured by a government minister that no cost would so fall - but that has turned out not to be the case).

Question 26: Are you in favour of automatically revoking the premises licence if the annual fees have not been paid?

  Yes, absolutely. Licenses will know when the annual fees are due and they should pay on time and the premises license revoked if they fail to do so.

Question 27: Have the first set of mandatory conditions that came into force in April 2010 had a positive impact on preventing alcohol-related crime?

  We do not feel able to answer this question due to the short passage of time since implementation of the mandatory conditions.

Question 28: Would you support the repeal of any or all of the mandatory conditions?


Question 29: Would you support measures to de-regulate the Licensing Act, and what sections of the Act in your view could be removed or simplified?

29.1    There are some aspects that could be made clearer and would save time and cost, or should be amended to bring about greater fairness. The first of these, for us, is the relationship between licensing and planning. Individual situations often give rise to conflict here when an applicant applies for, and obtains, licensing hours which go beyond those imposed on the premises by a planning decision. The planning condition should be superior but in our experience this is often ignored and the licensee acts on the basis of the licence only without, seemingly, any action taken against him.

29.2    The licensing policy in Brighton & Hove refers to the planning/licensing relationship and records the expectation that issues of planning and building control will have been explored before licensing applications are submitted. We have urged the council, in our submission relating to its current three-year review of policy, that the word ‘expectation’ should be changed to ‘requirement’.

29.3    Restrictions with regard to repetitious submissions should apply to applications as well as to representations from residents. That levelling up seems particularly appropriate in a consultation paper aimed at empowering individuals and giving communities a strong voice in licensing matters.

29.4    There are anomalies relating to TENs and to applications for events at small licensed venues that should be amended. Notwithstanding there being four licensing objectives, the Licensing Act allows them to be set aside in the two instances quoted. TENs only have to satisfy one objective - that relating to ‘prevention of crime and disorder’ – a limitation that is surely at variance with the intention of the Act. The same goes for applications for events at small licensed venues which have to meet only two objectives. We can see no rationale for these exceptions and the two situations should be brought within the orbit of the entire Act. It would better meet the perceived aims of the consultation paper if it were amended to submit the applications quoted, not least TENs, to the same scrutiny as all other applications

3.         Final Comments

3.1       Although very welcome overall, we would have wished the paper to have dealt more fully with two issues – one is the provision of Late Night Refreshments, which is not mentioned in this consultation paper. Such premises are often sources of crime and disorder as well as public nuisance. 

3.2       The second, crucially, is the wish for wider attention to be given to the whole issue of the prevention of pubic nuisance resulting from night noise and behaviour. This is a massive problem as often the problem cannot be dealt with on a reactive basis, as is crime by the police. A proactive approach to noise nuisance is called for, e.g. recognising and tackling the ‘danger’ spots and having those monitored regularly on the basis of collection of factual evidence (in which responsible use of CCTV can play a part). The compilation of facts would put pressure on the powers-that-be to react to the information gathered. Action in this respect would be a welcome and essential step towards enhancing community well-being.

3.3       We hope that you will perceive our comments as constructive.  You will be aware that many residents blame the current licensing regime for the distressing problems arising from the night time economy that includes ever expanding hours of operation and ever availability of cheap alcohol with dire consequences of anti-social behaviour, street fouling and damage to property.  We look forward to policy and practice improvements to bring residents into equality with licensees and as a result to eliminate some of the indefensible situations to which they are subjected.

David Hainsworth 

Secretary - The Kingscliffe Society

September 2010