Licensing Committee - guidance - Portsmouth City Council

This page contains a guide to the law, procedures and functions of the Licensing Committee in relation to applications and representations made under the Licensing Act 2003.

1. Introduction

The purpose of this guidance is to explain the work and responsibilities of the Licensing Committee of the Council in so far as its role relates to the consideration of applications received by the Licensing Authority, in accordance with the Licensing Act 2003 (“the Act”).

The Act and the Licensing Act 2003 (Hearings) Regulations SI 2005 No. 44 (the “Regulations”) and the Licensing Act 2003 (Summary Review of Premises Licences) Regulations SI 2007 No. 2502 make provision for the procedures to be followed and these requirements are contained within this document.

Understandably, for some people, appearing before a committee of councillors may be a daunting prospect and we hope that this guide will offer a clear and concise explanation of what can be expected.

This guide is mainly designed for:

Licence holders or applicants for premises licences, club premises certificates and personal licences and/or their representatives
Legal Practitioners
Responsible Authorities
Other Persons

A responsible authority is defined within the Act as:

The chief officer of police for any police area in which the premises are situated;
The fire and rescue authority for any area in which the premises are situated;
The local authority whose public health functions within the meaning of the NHS Act 2006 are exercisable in respect for any area in which the premises are situated;
The enforcing authority within the meaning given by section 18 of the Health and Safety at Work etc Act 1974 for any area in which the premises are situated;
The local planning authority within the meaning given by the Town and Country Planning Act 1990 for any area in which the premises are situated;
The local authority by which statutory functions are exercisable in any area in which the premises are situated in relation to minimising or preventing the risk of pollution of the environment or of harm to human health;
A body which represents those who, in relation to any such area, are responsible for, or interested in, matters relating to the protection of children from harm, and is recognised by the Licensing Authority for that area as being competent to advise it on such matters;
The local weights and measures authority within the meaning of section 69 of the Weights and Measures Act 1985 for any area in which the premises is situated;
In relation to a vessel, a navigation authority, the Environment Agency, the British Waterways Board or the Secretary of State.
The relevant licensing authority and any other licensing authority in whose area part of the premises are situated
The Secretary of State for the Home Office

The Licensing Authority’s aim is to ensure that the Committee exercises its responsibilities fairly, impartially and after hearing all the relevant evidence in any matter and that such decision-making is conducted in an open, transparent and accountable way.

2. The Role of the Committee

The Act provides that the Licensing Authority must establish a Licensing Committee (the “Committee”) consisting of at least 10 but not more than 15 members.

Sub-Committees each consisting of three members have been formed from the Committee to determine applications.

The Committee and the Sub-Committees formed from it have the full delegated authority of the Council to determine applications in accordance with the Act. Decisions of the Committee and Sub-Committees are therefore decisions of the Council, as Licensing Authority.

Where under the provisions of the Act there are no relevant representations on application for the grant or variation of a premises licence, club premises certificate or an objection to an application for a personal licence or by a relevant person to an activity taking place under the authority of a temporary event notice, these matters will be dealt with by licensing officers.

The Licensing Authority has outlined the delegation of its functions within its statement of licensing policy. A copy of this document can be viewed at www.portsmouth.gov.uk or alternatively can be requested from the licensing service.
A table is attached as Appendix 1, detailing the delegations referred to above.

3. The role of Officers

Ordinarily the following officers will be present at a hearing:

A legal advisor whose role is to provide the Sub-Committee with any advice it requires to properly perform its functions, whether or not the Members have requested that advice, on:

Questions of law (including human rights);
Questions of mixed law and fact;
Matters of practice and procedure;
The range of options available to the Sub-Committee;
Any relevant decisions of the courts;
Relevant national or statutory guidance or local policy;
Other issues relevant to the matter before the Sub-Committee;
The appropriate decision-making structure to be applied in any given case.

It is the legal advisor’s responsibility to assist the Sub-Committee, where appropriate, as to the formulation of reasons and the recording of those reasons.

The legal advisor will not play any part in making findings of fact, but can assist the Sub-Committee by reminding them of the evidence, taken from his or her own notes or the committee administrator’s notes.

The legal advisor may ask questions of parties and witnesses in order to clarify the evidence and any issues in the case. A legal advisor has a duty to ensure that every case is conducted fairly.

The legal advisor may assist unrepresented parties to present their case, but will not become an advocate for the party concerned.

The Licensing Manager whose role is to outline the application and any relevant representations and refer to the Licensing Authority’s statement of licensing policy and statutory guidance.

In a case where the licensing authority itself has made a relevant representation, that representation will be prepared and presented by an officer other than the reporting licensing officer. The roles of the respective reporting officers will be kept distinctly separate from each other in line with the statutory guidance.

A committee administrator whose role is to summarise and record decisions on individual matters and to provide help and assistance to members of the public attending such meetings.

4. Time scales for holding a hearing

The Regulations prescribe the period of time within which a hearing must be held to consider an application where relevant representations have been received. Different time scales apply depending upon the type of application to be heard.

Appendix 2 of this document details the period of time within which a hearing must be commenced for each type of application.

In such cases where it is intended that the hearing is to be held on more than one day, the hearing will be arranged to take place on consecutive working days.

5. Notice to be given of a hearing

Again, the Regulations prescribe how much prior notice needs to be given to persons in relation to when, where and at what time a hearing will be held (the “notice of hearing”).

Appendix 3 of this document outlines the provisions under which a hearing is to be held and those persons to whom a notice of hearing is to be given and Appendix 4 details those documents that will be forwarded with the notice of hearing.

1) In the case of a hearing relating to:

Cancellation of interim authority notice following an objection
(Section 48(3)(a) of the Act),
Counter notice following an objection to temporary event notice
(Section 105(2)(a) of the Act)

No less than two working days notice of the hearing will be given.

2) In the case of a hearing relating to:

Review of premises licence following closure order
(Section 167(5)(a) of the Act); and
Review of premises licence following review notice
(section 53C of the Act)

No less than five working days notice of the hearing will be given.

3) In any other case, no less than 10 working days notice of the hearing will be given.

4) Where the Regulations do not apply time scales in relation to the giving of notice, no less than five working days notice of the hearing will be given.

5) The statutory provisions as regards giving notice of hearing do not apply to a hearing under section 53B of the Act (interim steps pending review).

6. Information to accompany the Notice of Hearing

Set out below is additional information which all parties should have regard to and read in conjunction with the notice of hearing provided with this guidance document.

Right of attendance, assistance and representation

Any party may attend the hearing and may be assisted or represented by any person whether or not that person is legally qualified.

Representations and supporting information

At the hearing a party shall be entitled to:

address the Sub-Committee,
give further information in support of their application, representation or notice in response to a point which the Licensing Authority has formally notified the party as requiring further clarification (this provision does not apply to a hearing under section 53B of the Act (interim steps pending review)) and,
if given permission by the Sub-Committee, question any other party.

Consequences if a party does not attend or is not represented at the hearing.

If a party has advised that he/she does not intend to attend or be represented at a hearing, the hearing may proceed in his/her absence.

If a party has not previously advised that he/she does not intend to attend or be represented and fails to attend or be represented at a hearing, the Sub-Committee may:

Where it considers it to be in the public interest, adjourn the hearing to a specified date (this provision does not apply to a hearing under section 53B of the Act (interim steps pending review)), or
Hold the hearing in the party’s absence.

If the Sub-Committee adjourns the hearing to another specified date, all parties will be notified of the date, time and place to which the hearing has been adjourned.

Where the Sub-Committee holds the hearing in the absence of a party, they will consider at the hearing the application, representations or notice made by that party.

(this provision does not apply to a hearing under section 53B of the Act (interim steps pending review)).

Procedure to be followed at the hearing

The Licensing Committee has adopted procedures to hear applications. Attached as Appendix 5 is the procedure that will be followed when considering applications and will be explained to all parties at the beginning of the hearing.

If necessary, in relation to any application, representation or notice given by a party, the Licensing

Authority may seek clarification on any particular points that have been submitted. In such cases a request for such clarification will be issued with the notice of hearing.

The statutory provisions as regards ensuring that information accompanies the notice of hearing does not apply to a hearing under section 53B of the Act (interim steps pending review).

7. Action by a party following receipt of the notice of hearing

Upon receiving the notice of hearing, all parties concerned should inform the Licensing Service whether they:

Intend to attend or be represented at the hearing;
Consider a hearing to be unnecessary;
Wish to request that another person appear at the hearing (other than their representative) as a witness. If such a request is made, then it shall be accompanied by details of the name of that person and a full description of the points about which that person may be able to assist the hearing.

The Regulations stipulate the deadlines by which parties must give notice to the Licensing Authority as regards the above.

Those timescales are as follows:

Cancellation of interim authority notice following an objection
(Section 48(3)(a) of the Act),
Counter notice following an objection to temporary event notice
(Section105(2)(a) of the Act),

The party shall give notice no later than one working day before the day the hearing is due to be held.

Review of premises licence following closure order (Section 167(5)(a) of the Act) or review of premises licence following review notice (Section 53C of the Act)

The party shall give notice no later than two working days before the day the hearing is due to be held.

In any other case, the party shall give notice no later than five working days before the day the hearing is due to be held.

The statutory provisions as regards action following receipt of notice of hearing do not apply to a hearing under section 53B of the Act (interim steps pending review).

8. Right to dispense with a hearing if all parties agree

The Licensing Authority may dispense with holding a hearing if all persons required by the Act agree that such a hearing is unnecessary having done so by giving notice to the authority that they consider a hearing to be unnecessary.

Where all persons required by the Act have agreed that a hearing is unnecessary, the Licensing Authority, if it also agrees that a hearing is not required, will give a notice to all the parties that the hearing has been dispensed with.

The statutory provisions as regards the right to dispense with a hearing if all parties agree does not apply to a hearing under section 53B of the Act (interim steps pending review).

9. Withdrawal of representations

A party who wishes to withdraw any representations they have made may do so:

By giving notice to the licensing service no later than 24 hours before the day on which the hearing is to be held; or
Orally at the hearing.

The statutory provisions as regards the time period for withdrawal of representations do not apply to a hearing under section 53B of the Act (interim steps pending review).

10. Power to extend time

The Licensing Authority may extend a time limit provided by the regulations for a specified period where it considers this to be necessary in the public interest. Where a time limit has been extended, a notice will be given to the parties stating the period of the extension and the reasons for it.

Additionally, where the Licensing Authority consider it necessary to consider any representations or notice made by a party it may either adjourn a hearing to a specified date, or arrange for a hearing to be held on specified additional dates. If such steps are taken the Licensing Authority will notify parties of the date, time and place to which the hearing has been adjourned.

However, these powers will not be exercised in such a way that the effect will be that the Licensing Authority will fail to reach a determination on:

A review under section 167 (review of premises licence following closure order) within the period specified in subsection (3) of that section.
A review under section 53A (summary reviews on application of a senior police officer) within the period specified in subsection (2)(b) of that section.

The statutory provisions as regards power to extend time do not apply to a hearing under section 53B of the Act (interim steps pending review).

11. Hearing to be in public

The hearing will be conducted in public. However, in exceptional circumstances the Sub-Committee may exclude the public from all or any part of a hearing.

12. Record of proceedings

The Licensing Authority will provide for a record to be taken of the hearing in a permanent and intelligible form and will keep such information for six years from the date of the determination or, where an appeal is brought against the determination of the authority, from the disposal of the appeal.

13. Irregularities

Any irregularity resulting from any failure to comply with the Regulations before the Sub-Committee has made a determination shall not of itself render the proceedings void.

In the case of such an irregularity, the Licensing Authority shall, if it considers that any person may have been prejudiced as a result of the irregularity, take such steps as it thinks fit to cure the irregularity before reaching a determination.

Clerical mistakes in any document recording a determination of the Licensing Authority or errors arising in such a document from an accidental slip or omission may be corrected by the Licensing Authority.

14. Giving Notice

The Regulations prescribe that any notices required to be given by either the Licensing Authority or parties must be given in writing.

This requirement will be met where the text of the notice is transmitted by electronic means, is capable of being accessed by the recipient, is legible in all material respects and is capable of being reproduced in written form and used for subsequent reference.

However, the person to whom the notice is to be given must agree in advance that such a notice may be given to them by electronic means and that the notice is also to be given to the recipient in writing.

The Licensing Authority will accept such notices subject to the above requirements and would welcome parties adopting a similar approach in respect of the use of electronic means.

15. Contact details for the Licensing Service

Any enquiries in relation to matters referred to in this guidance or in respect of licensing applications may be referred to:

Portsmouth City Council
Licensing Service
Civic Offices
Guildhall Square
Portsmouth
Hants
PO1 2AL

Tel: 023 9283 4607/4604
Email: licensing@portsmouthcc.gov.uk

Appendix 1 – Delegation of functions

Matter to be dealt with	Sub Committee	Officers
Application for personal licence	If an objection	If no objection made
Application for personal licence with unspent convictions following receipt of an objection notice from either the Chief Officer of Police or Secretary of State	All Cases
Suspension or revocation of a personal licence following convictions or immigration penalties coming to light before or after grant of licence	All Cases
Application for premises licence/club premises certificate	If a relevant representation made	If no relevant representation made
Application for provisional statement	If a relevant representation made	If no relevant representation made
Application to vary premises licence/club premises certificate	If a relevant representation made	If no relevant representation made
Application to vary designated premises supervisor	If a police objection	All other cases
Request to be removed as designated premises supervisor		All cases
Application for transfer of premises licence	If an objection	All other cases
Applications for interim authorities	If an objection	All other cases
Application to review premises licence/club premises certificate	All cases
Application by the Chief Officer of Police for the summary review of a premises licensed for the sale of alcohol by retail	All cases
Decision on whether a representation is irrelevant, frivolous or vexatious etc.		All cases
Decision to object when local authority is a consultee and not the relevant authority considering the application	All cases
Determination of an objection to a temporary event notice	All cases
Determination of application to vary premises licence at community premises to include alternative licence condition	If a police objection	All other cases
Decision whether to consult other responsible authorities on minor variation application		All cases
Determination of minor variation application		All cases

Appendix 2 – Time scales for holding a hearing

	Provision under which hearing is held.	Period of time within which hearing must be commenced.
1	Section 18(3)(a) (determination of application for premises licence).	20 working days beginning with the day after the end of the period during which representations may be made as prescribed under section 17(5)(c).
2	Section 31(3)(a) (determination of application for a provisional statement).	20 working days beginning with the day after the end of the period during which representations may be made as prescribed under section 17(5)(c) by virtue of section 30.
3	Section 35(3)(a) (determination of application to vary premises licence).	20 working days beginning with the day after the end of the period during which representations may be made as prescribed under section 17(5)(c) by virtue of section 34(5).
4	Section 39(3)(a) (determination of application to vary premises licence to specify individual as premises supervisor).	20 working days beginning with the day after the end of the period within which a chief officer of police may give notice under section 37(5).
5	Section 44(5)(a) (determination of application for transfer of premises licence).	20 working days beginning with the day after the end of the period within which a chief officer of police or Secretary of State may give notice under section 42(6).
6	Section 48(3)(a) (cancellation of interim authority notice following police objection).	5 working days beginning with the day after the end of the period within which a chief officer of police or Secretary of State may give notice under section 48(2).
7	Section 52(2) (determination of application for review of premises licence).	20 working days beginning with the day after the end of the period during which representations may be made as prescribed under section 51(3)(c).
8	Section 53B(1) (Interim steps pending review where the holder of the premises licence has not been given an opportunity to make representations)	48 hours from the time of receipt of an application to review a premises licence under section 53A. (Non-working days disregarded in the calculation).
9	Section 53B(6) (Interim steps pending review where the holder of the premises licence has made representations against any interim steps)	48 hours from the time of receipt of the representations under 53B(6). (Non-working days to be disregarded in the calculation).
10	Section 53C (Review of premises licence following review notice)	Within 28 days after the day of receipt of an application under 53A.
11	Section 72(3)(a) (determination of application for club premises certificate).	20 working days beginning with the day after the end of the period during which representations may be made as prescribed under section 71(6)(c).
12	Section 85(3) (determination of application to vary club premises certificate).	20 working days beginning with the day after the end of the period during which representations may be made as prescribed under section 71(6)(c) by virtue of section 84(4).
13	Section 88(2) (determination of application for review of club premises certificate).	20 working days beginning with the day after the end of the period during which representations may be made as prescribed under section 87(3)(c).
14	Section 105(2)(a) (counter notice following objection to temporary event notice).	7 working days beginning with the day after the end of the period within which a relevant person may give a notice under section 104(2).
15	Section 120(7)(a) (determination of application for grant of personal licence).	20 working days beginning with the day after the end of the period within which the chief officer of police or Secretary of State may give a notice under section 120.
16	Section 124(4)(a) (convictions coming to light after grant or renewal of personal licence).	20 working days beginning with the day after the end of the period within which the chief officer of police or Secretary of State may give a notice under section 124.
17	Section 167(5)(a) (review of premises licence following closure order).	10 working days beginning with the day after the day the relevant licensing authority receives the notice given under section 165(4).

Appendix 3 – Notice to be given of a hearing

	Provision under which hearing is held.	Persons to whom notice of hearing is to be given.
1	Section 18(3)(a) (determination of application for premises licence).	(1) The applicant; (2) persons who have made relevant representations
2	Section 31(3)(a) (determination of application for provisional statement).	(1) The applicant; (2) persons who have made relevant representations.
3	Section 35(3)(a) (determination of application to vary premises licence).	(1) The holder of the premises licence; (2) persons who have made relevant representations.
4	Section 39(3)(a) (determination of application to vary premises licence to specify individual as premises supervisor).	(1) The holder of the premises licence; (2) The chief officer of police; (3) the proposed individual specified as the premises supervisor.
5	Section 44(5)(a) (determination of application for transfer of premises licence).	(1) The applicant; (2) The chief officer of police or Secretary of State; (3) the existing holder of the premises licence.
6	Section 48(3)(a) (cancellation of interim authority notice following police objection).	(1) The person who has given notice; (2) The chief officer of police or Secretary of State
7	Section 52(2) (determination of application for review of premises licence).	(1) The holder of the premises licence; (2) persons who have made relevant representations; (3) the person who has made the application.
8	Section 53B(6) (Interim steps pending review where the holder of the premises licence has made representations against any interim steps)	(1) The holder of the premises licence; (2) The chief officer of police.
9	Section 53C (review of premises licence following review notice)	(1) The holder of the premises licence; (2) Persons who have made relevant representations; and (3) The chief officer of police who made the application.
10	Section 72(3)(a) (determination of application for club premises certificate).	(1) The club; (2) persons who have made relevant representations.
11	Section 85(3)(a) (determination of application to vary club premises certificate).	(1) The club; (2) persons who have made relevant representations.
12	Section 88(2) (determination of application for review of club premises certificate).	(1) The club; (2) persons who have made relevant representations; (3) the person who has made the application.
13	Section 105(2)(a) (counter notice following objection to temporary event notice).	(1) The premises user; (2) The relevant persons.
14	Section 120(7)(a) (determination of application for grant of personal licence).	(1) The person who has made the application; (2) The chief officer of police or Secretary of State
15	Section 124(4)(a) (convictions coming to light after grant or renewal of personal licence).	(1) The holder of the licence; (2) the chief officer of police or Secretary of State
16	Section 167(5)(a) (review of premises licence following closure order).	(1) The holder of the premises licence; (2) persons who have made relevant representations.

Appendix 4 – Documents to accompany notice of hearing

	Provision under which hearing is held	Person to whom notice of hearing is given	Documents to accompany notice of hearing
1	Section 18(3)(a) (determination of application for premises licence).	The person who has made the application under section 17(1).	The relevant representations as defined in section 18(6) which have been made.
2	Section 31(3)(a) (determination of application for provisional statement).	The person who has made the application under section 29(2).	The relevant representations as defined in section 31(5) which have been made.
3	Section 35(3)(a) (determination of application to vary premises licence).	The holder of the premises licence who has made the application under section 34(1).	The relevant representations as defined in section 35(5) which have been made.
4	Section 39(3)(a) (determination of application to vary premises licence to specify individual as premises supervisor).	(1) The holder of the premises licence who has made the application under section 37(1); (2) the proposed individual as referred to in section 37(1).	The notices which have been given under section 37(6).
5	Section 44(5)(a) (determination of application for transfer of premises licence).	(1) The person who has made the application under section 42(1); (2) the holder of the premises licence in respect of which the application has been made or, if the application is one to which section 43(1) applies, the holder of that licence immediately before the application was made.	The notices which have been given under section 42(6).
6	Section 48(3)(a) (cancellation of interim authority notice following police objection).	The person who has given notice under section 47(2).	The notices which have been given under section 48(2).
7	Section 52(2) (determination of application for review of premises licence).	The holder of the premises licence in respect of which the application has been made.	The relevant representations as defined in section 52(7) which have been made.
8	Section 53C (review of premises licence following review notice)	The holder of the premises licence in respect of which the application has been made.	The relevant representations as defined in section 53C(7) which have been made.
9	Section 72(3)(a) (determination of application for club premises certificate).	The club which has made the application under section 71(1).	The relevant representations as defined in section 72(7) which have been made.
10	Section 85(3)(a) (determination of application to vary club premises certificate).	The club which has made the application under section 84(1).	The relevant representations as defined in section 85(5) which have been made.
11	Section 88(2) (determination of application for review of club premises certificate).	The club which holds the club premises certificate in respect of which the application has been made.	The relevant representations as defined in section 88(7) which have been made.
12	Section 120(7)(a) (determination of application for grant of personal licence).	The person who has made the application under section 117(1).	The notice which has been given under section 120
13	Section 124(4)(a) (convictions coming to light after grant or renewal of personal licence).	The holder of the licence in respect of which the notice has been given.	The notice which has been given under section 124.
14	Section 167(5)(a) (review of premises licence following closure order).	The holder of the premises licence in respect of which the review has been made.	The relevant representations as defined in section 167(9) which have been made.

Appendix 5 – Hearing procedure and associated guidance

Each application that comes before the Sub-Committee will be considered on its individual merits and the authority will make its decision based upon:

The merits of the application
The Licensing Act 2003 and regulations made thereunder
The promotion of the four licensing objectives
The statement of licensing policy for this Licensing Authority
The guidance issued by the Home Secretary under section 182 of the Licensing Act 2003
The four licensing objectives as provided by the Licensing Act 2003 are:
The prevention of crime and disorder;
Public safety;
The prevention of public nuisance; and
The protection of children from harm.

Additional advice

a) Any changes to the Membership of the Committee will be given at the beginning of the meeting.

b) Members of the authority may ask questions of any party or other person appearing at the hearing.

c) The Licensing Authority shall consider any request made by a party for permission for any other person (other than the person he intends to represent him at the hearing) to appear at the hearing. Such permission shall not be unreasonably withheld (this provision does not apply to a hearing under section 53B of the Act (interim steps pending review)).

d) In considering any representations or notice made by a party, the Licensing Authority make take into account documentary or other information produced by a party in support of their application, representations or notice (as applicable) either before the hearing or, with the consent of all the other parties, at the hearing. (this provision does not apply to a hearing under section 53B of the Act (interim steps pending review))

e) The Committee shall disregard any information given by a party or any person who has been given permission to appear at the hearing by them which is not relevant to:

their application, representations or notice (as applicable) or in the case of another person, the application representations or notice of the party requesting their appearance, and
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the promotion of the licensing objectives or, in relation to a hearing to consider a notice given by a chief officer of police, the crime prevention objective.

f) In cases where a decision cannot be given at the end of the hearing, all parties will be notified of the decision within 5 working days.

g) Persons have a right to appeal, details of which will be provided by the Licensing Manager and will be set out within the prescribed notice of decision.

h) This authority is committed to making decisions in an honest, accountable and transparent fashion but on occasion may find it necessary to exclude members of the press and public based upon the legal framework given in the Local Government Act 1972 Part 1 of Schedule 12a and/or local policy. Similarly, the Licensing Authority will generally allow all parties to ask questions of another party present, but this decision will be taken on a case by case basis and in some exceptional circumstances (where a reason will be given) cross-examination may be prohibited.

i) The Sub-Committee has the right to exclude any parties disrupting the hearing, at its discretion. In such circumstances a person may, before the end of the hearing, submit to the authority in writing any information which they would have been entitled to give orally had they not been required to leave.

j) Decisions of the sub-committee together with associated agendas and reports of previous meetings are available via the PCC web at:
http://democracy.portsmouth.gov.uk/ieListMeetings.aspx?CId=332&Year=0

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