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Morning Briefing for pub, restaurant and food wervice operators

Wed 10th May 2023 - Legal Briefing

Licensing applications in a post-covid world by Tim Shield

The question I am most often asked by new clients, or even old ones who want a quick reminder, is: “How long will the licensing application process take?” And because I get asked so often, I thought it would be useful to lay out the structure for readers. On the face of it, it’s a relatively easy question to answer, but it does include several different variables. The nature of the licensing application process has evolved since the pandemic, which has in turn brought up its own debates and controversies – but really, it is just the same as it has always been.

The question is usually asked in the context of a fresh premises licence application for a new development – which is always exciting to be involved with. The process has been more or less the same for almost 18 years, since the implementation of the Licensing Act 2003 (which came into force on 24 November 2005). To make an application for a premises licence, you must give notice to the relevant licensing authority along with various other parties. Following this, there is an initial period of 28 days for any comments to be put forward about the licence from external sources, such as the police or local residents. These are known as representations. If none are made, then the application is granted.

So, best-case scenario, the shortest period to grant a new licence is 29 days (the licence being granted the day after the consultation period closes). However, if there are representations or objections to the application (which there often are for new licences), which cannot be resolved within the 28 days, the matter then proceeds to a hearing. There are regulations that demand this hearing takes place within a further 20 working day period. For some reason, this is specifically “working days” rather than just the “regular days” that were defined in the previous part of the process – an odd and confusing decision, I must admit.  
 
Therefore, even with objections, you should know the outcome of an application for a premises licence within a period of around eight weeks. These time frames are also the same for major variations to an existing premises licence as the regulations also require the hearing to take place within those time frames. This is in an ideal world, of course, and on occasion, this does not always occur. Due to the volume of work or other reasons, licensing authorities are sometimes unable to hold hearings within the expected time frames. This was exacerbated by the covid pandemic, and you may recall that the hospitality sector took a particularly hard hit during the time when things came to a complete halt, which included licensing applications. 

Typically, hearings for licensing applications have always taken place in person, whether it be at local authority offices or town halls. But the pandemic completely changed this, and for obvious reasons, this stopped overnight in March 2020. We found ourselves bound to Zoom and Microsoft Teams very quickly, and as a repercussion, we had to learn how to do things digitally. This meant the process of local authority meetings evolved and moved online.

We have all seen many different videos of all sorts of council meetings that occurred through Teams or Zoom during the government restrictions. One particularly chaotic parish council meeting leaps to mind, with councillors trading insults and ultimately getting booted off a Zoom call. Handforth Parish Council became an unlikely internet sensation in 2020 after the meeting was uploaded to Twitter. However, these recordings and streams are not just excellent for good humour, but can be very useful in a licensing setting as it makes the hearing more convenient and accessible. 

On the flipside, there has been controversy as during covid, questions were raised about whether these virtual hearings were lawful or unlawful. A recent case relating to a south London nightclub has provided some guidance on the question. It involved the revocation of a nightclub licence in Lewisham following several hearings that took place over Teams.  

The decision was made by considering the regulations under the Licensing Act and the Section 182 Guidance, along with previous case law in both England and Wales. In Wales, there is an express provision for remote hearings, but in England, there is no such specific statement. The judge in this case determined that there was “no prohibition on remote hearings” and “allowed each licensing committee to regulate its own procedure”, clarifying that “whether a hearing was conducted in person or remotely is a matter of procedure”.

In conclusion, the judge found that conducting licensing hearings remotely is permitted in law and acceptable. It is yet to be seen whether this point will be taken further and appealed again. It could be that we even see similar challenges in court in the future, but I have no doubt that different licensing authorities deal with matters in various ways, often meaning the outcomes are also different. During this time, we moved from being a team of licensing solicitors at John Gaunt & Partners that travelled to the four corners of the country to one sitting in our office and conducting hearings remotely, with some early in the morning or running late into the evening. 

I believe there are merits in both formats of hearings, but on a personal level, I always prefer to attend a hearing with my clients, and I feel I can put forward the best application I can in person. It is a real benefit to meet the decision makers face to face – and those with concerns or objections, to explain matters fully – so it is a welcome sight to see things getting back to normal. As we move out of the pandemic and life has started to return to normal, licensing authorities have predominantly moved back to in-person hearings, but there are a handful that still choose to hold remote sessions on the occasion.

My overall advice to new and familiar licensing applicants is to get your application in early – we often see new business owners make the mistake of putting their licensing application towards the bottom of their checklist as it is easy to get swept away with the excitement and stress of launching a new venue. It is such an essential thing, and without the licence, you simply cannot provide licensable activities. It is the beginning of an exciting new business venture in an industry that so highly valued in the UK.
Tim Shield is a partner at John Gaunt & Partners

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