Waverley Borough Council Home Page Waverley Borough Council Home Page


Waverley Borough Council Committee System - Committee Document

Meeting of the Licensing and Regulatory Committee held on 20/11/2007
Consultation on Waverley's Statement of Licensing Policy - Comments Submitted




CONSULTATION ON WAVERLEY’S STATEMENT OF LICENSING POLICY - COMMENTS SUBMITTED Annexe 2

PARA COMMENTFROMOFFICER COMMENTRECOMMENDATION
3.1Should be updated to reflect the fact that there are now no justices’ licences, public entertainment licences etcBritish Beer & Pub Association (BBPA)Agreed. The repeal of certain historic legislation, such as the Licensing Act 1964, has made many of the licences referred to at 3.1 redundant.Delete the wording in brackets in para 3.1
    5
The Policy implies that the Council has powers to impose conditions and accept and reject applications on the basis of its policy rather than on the basis of relevant representations. As I am sure you are aware the Council has no power to reject or amend an application in the absence of such representations which themselves should be evidence based. We would suggest that this is explained under ‘Fundamental Principles’ on Page 4. Nowhere in the policy does it explain that the Licensing Authority’s discretion is not engaged without a relevant representation giving the impression in many instances that the Council will not grant a licence unless its expectations are fulfilled.BBPAThe issues arising out of the ‘Canterbury decision’, to which the BBPA refers in making this comment, are set out in (Exempt) Annexe 4Insert paragraphs 5.3 to 5.11 as set out in Annexe 1
    6.1
This is an unrealistic expectation as the licensee has no power to ‘avoid significant movement of people’. The Council cannot seek to vary hours on the basis that some other venue already has these hours. The benefit of flexible hours is that people are much more likely to drift away naturally at later hours than was the case under the old regime. Our experience tells us this is the case.BBPAIt is hard to see how the Council could justify this requirement, given the wording of the Act and accompanying Guidance. The Guidance emphasises the need for flexible hours, but licensees cannot be expected to stagger hours in line with other premises. Each case should be considered on its merits.The first sentence of para 6.1 could be removed. However, the reference to Section 17 of the CDA 1998 should remain, though this could be moved to a more appropriate place in the Policy – recommend new para 6.7 as set out in Annexe 1. Insert reference to flexible hours in para 10.1
    6.1
We feel this should be deleted, as licensee can have no control over the movement of people after their premises has closed.Greene King Pub Partners (GKPP)As per previous comment.As per previous recommendation.
    6.2
Here and in a number of places in your policy you give the impression that the Licensing Authority can impose conditions to licences of its own volition. We feel this should be clarified by a statement such as “If not volunteered by the applicant within their operating schedule and following relevant representations.”GKPPThe issues arising out of the ‘Canterbury decision’, to which GKPP refers in making this comment, are set out in (Exempt) Annexe 4Insert paragraphs 5.3 to 5.11 as set out in Annexe 1
    6.3
With regard to paragraph 6.3 and the need to review the Cumulative Impact Policy, we would like this retained although we are still of the opinion that Cumulative Impact Areas are not required at this present time.Surrey PoliceNotedMove ‘Cumulative Impact’ references to their own distinct section of section 6. See paras 6.11 to 6.18 of Annexe 1
    6.3-6.6
The Guidance to the Act is clear on the application of cumulative effect insofar as it can only be considered relevant if the Council adopts a special policy to create an area of cumulative effect. The policy as written appears to give leave to make representations to any application in Waverley based on cumulative effect. This is clearly not the intention of the Guidance. We have checked this point with DCMS who confirm our understanding. We appreciate that it may not be the Council’s intention to give the impression that it does but we would appreciate this section being re-written to reflect the proper position.BBPAThis is a misstatement of the position, and no confirmation of DCMS’ view, as laid out by BBPA, has been received by the Council. Paragraph 13.32 of the Guidance makes clear that the absence of a special policy does not prevent persons or bodies from making representations on grounds that the premise will give rise to negative cumulative impact on one or more of the licensing objectives.
Move the ‘Cumulative Impact’ references to their suggestion, as recommended above. To ensure clarity, insert wording in para 6.11 which confirms that no special policy is in place. Insert para 6.14, which reproduces the wording of para 13.32 of the Guidance. Insert similar wording at end of para 6.16. This will ensure that applicants are absolutely sure of the position regarding cumulative impact.
    6.12.1
The Act simply requires there to be a designated premises supervisor and there can be no representations as to his ability. This is a judgment call that can only be made on the basis of review if the DPS proves to be negligent or criminal in respect of the responsibility conferred upon that individual. This statement should be removed.BBPAPara 2.13 of the Guidance states that “conditions relating to the management competency of the [DPS] should not normally be attached to premises licences. A condition of this kind could only be justified in rare circumstances where it could be demonstrated that … poor management competency could give rise to issues of crime and disorder… It will normally be the responsibility or the premises licence holder to ensure that the managers appointed … are competent and appropriately trained.”Delete this requirement. On the rare occasions when management competency is an issue, the Guidance allows for consideration to be given to imposing such a condition, and it would be unwise to retain such a reference in light of the Guidance’s strict position here.
    6.12.2
Staff training is a matter for the business and should not form the basis of a condition.BBPAThe issues arising out of the ‘Canterbury decision’, to which the BBPA refers in making this comment, are set out in (Exempt) Annexe 4. This can be recommended as an example of best practice.Retain as para 6.3.1
    6.12.2
There is no role for the Licensing Authority in monitoring staff training in crime prevention measures.GKPPAs per previous commentAs per previous recommendation
    6.12.3
The location of cash registers is a matter for the applicant and not the Licensing Authority.GKPPAs per previous commentAs per previous recommendation
    6.12.4
We fail to see how the ‘willingness to stagger trading hours’ can legitimately be part of the consideration of a representation against the grant of a licence when what the Licensing Authority must do is consider each case on its merits and in accordance with the four licensing objectives.BBPASee comment in respect of para 6.1 (above). Staggered hours should not be an expectation of the Policy.Delete 6.12.4, but insert reference to flexible hours in para 10.1
    6.12.4
The Act does not require the applicant to have regard for the hours of other traders.GKPPSee previous commentSee previous recommendation
    6.12.6
Pubwatches are voluntary organisations and memberships must remain voluntary if they are to be effective. They are also co-operative bodies that must be able to determine their own membership, which would be almost impossible if leaving a Pubwatch would result in breach of condition. We trust that the policy merely seeks to encourage Pubwatch membership rather than make it a condition of licences.BBPAThe issues arising out of the ‘Canterbury decision’, to which the BBPA refers in making this comment, are set out in (Exempt) Annexe 4. This can be recommended as an example of best practice.Move to para 6.3.10
    6.12.8
Venues has [sic] a legal obligation no [sic] to sell alcohol to the underaged. The industry has taken this very seriously and the BBPA has promoted the use of suitable ID and the Challenge 21 in order to be able to meet that obligation. It should not however be imposed as a condition thereby itself become [sic] a legal obligation.BBPAThe issues arising out of the ‘Canterbury decision’, to which the BBPA refers in making this comment, are set out in (Exempt) Annexe 4. While the Council cannot duplicate the requirements of other legislation, or reproduce the offences contained therein, there is no reason why measures to prevent underage access to premises should not be recommended as best practice.Move to para 6.3.8
    7.6
The application process is clear and the Council cannot impose additional requirements. While we would advocate the use of risk assessments in compiling an application such assessment cannot be required by the Licensing Authority as part of the application.BBPAThe Council should not expect applicants to submit risk assessments in addition to the Act’s requirement for an operating schedule. However, the Council can encourage risk assessments to be carried out when applicants are preparing operating schedules.Delete 7.6 but insert wording as set out at paras 6.3, 7.4, 8.5 and 9.11
    7.8
This statement should be removed. It is up to others to demonstrate that a particular application will have an impact on public safety not the other way about.BBPAThe paragraph suggests a predisposition against granting applications, and also implies that the Council has absolute discretion to refuse any application on these grounds.Delete this paragraph.
    7.9
The Council is not entitled to demand evidence on any of the items on this list most of which are covered by separate legislation in any event. The policy goes way beyond the intention and the wording of the Licensing Act. The Guidance makes it quite clear that the licensing regime should not duplicate other regulatory regimes.BBPAThis paragraph does not sit comfortably with section 11 of the Policy, which states that there will be no duplication of other legislative or regulatory controls. Failure to obtain the certificates listed in 7.9 would be dealt with by other enforcement bodies, and should not be the concern of the licensing process.Delete 7.9
    7.10
Health & Safety is dealt with by the Council’s own officers who may make representations. The policy should clear here [sic].BBPAAs per the previous comment, such matters would be for the consideration of bodies other than the Licensing Authority.Delete 7.10
    7.9-7.10
This is a duplication of other legislation enforced by the relevant statutory authorities and the Act does not require applications to submit or give local authorities sight of the listed reports and certificates, even though there may be a statutory requirement to possess such reports and certificates. Your own Licensing Policy Section 11.1 recognises such duplication in accordance with Government Guidance 10.15 and these sections should be deleted.GKPPSee previous two comments.See previous two recommendations
    7.12
We cannot agree that the Council should be assured that “measures are in place for current and future staff to be trained…”. It is for the operator to determine how to run the business within the law and how best to do that. Should this prove inadequate the authorities have re-dress [sic] through the law and the review process. It is not for the Council’s or others to determine the day to day management policies of a business.BBPAThe issues arising out of the ‘Canterbury decision’, to which the BBPA refers in making this comment, are set out in (Exempt) Annexe 4. This can be recommended as an example of best practice.Move to para 7.4.3
    7.12-7.13
These sections should be deleted in respect of duplication of other legislations and for reasons already covered in respect of training.BKPPThe issues arising out of the ‘Canterbury decision’, to which the BBPA refers in making this comment, are set out in (Exempt) Annexe 4. These can be recommended as an example of best practice.Move to paras 7.4.3 and 7.4.4 respectively
    7.16
We are more than surprised that the Council sees the need to have a condition relating to the access of animals. This is surely unnecessary.BBPAThis can safely be removedDelete 7.16
    7.16
Consideration of the Dangerous Wild Animals Act and Dangerous Dogs Act is not a requirement of the Act.BKPPAs per previous commentAs per previous recommendation
8.1.1It may be worth adding that something such as air conditioning units may actually add to the noise problem, especially if they are left running overnight, they are also less likely to require planning permission. Alternatively remove the reference to “air conditioning”.Environmental HealthNotedInsert additional wording and move to para 8.5.1
8.1.2Most guidance and British Standards refer to 23.00 – 07.00 hours as the night time period. Given the more rural location of many of our public houses the background noise levels are generally lower and at 22.00 hours the noise starts to impact. The smoke free legislation has commenced since the licensing policy was written and we are still assessing the impact of this on noise from patrons congregating for cigarettes – It is appropriate to keep these hours.Environmental HealthNotedMove 8.1.2 to 8.5.2
    8.1.11
Environmental Health is limited in their capacity to comment on ownership of other premises. If the existing premise is in receipt of a noise abatement notice (or other legal notice) it may remain the case that the nuisance will remain despite change of ownership. Perhaps we just need to clarify what we mean by this point.Environmental HealthThe paragraph would benefit from some clarification.Revise wording as per paras 8.11 and 8.12 as per Annexe 1
    8
I wonder if the document should address the problem of the nuisance to patrons and the public of dealing with grossly intoxicated individuals and guidance given to licence holders on their management. For example should the police be called, the individual simply ejected from the premises or referred to a helping agency? Or all three?Surrey Alcohol and Drug Advisory Service (SADAS)The methods of dealing with such individuals should be a matter for discussion between the Police, the experts in this area, and the premises, perhaps in consultation with SADAS, rather than being a matter of Policy.Recommend as good practice that applicants consider measures to ensure that staff and customers leave premises quietly – para 8.5.4 of Annexe 1
    9
I know that there are major difficulties at times in the borough with underage drinking and intoxication in public places, mostly commons and greens… I would like to see a paragraph in this section on a) rigorous following up and tracing of alcohol seized from underage drinkers and warnings to licensees. At the moment police frequently dispose of seized alcohol. It is difficult to trace sources but a warning to licensees that every effort will be made to trace the source of underage alcohol sales may well deter. SADASIt would not be within the Act to place obligations on the Police in this respect, and this issue would be more appropriately addressed through the Licensing Enforcement Protocol.No change to the Policy, but highlight SADAS’ concern via the channels set up by the Enforcement Protocol and Town Centre Disorder Group.
    9
b) A reference to the need to refer persistent underage drinkers to helping services. This could be done by the police or concerned others such as publicans who become aware that a customer is underage, either to CIAG [Community Incident Action Group] or to individual agencies.SADASSee previous commentSee previous recommendation
    9.3
Proposed insertion of the words “However, the Council expects each application to set out clearly the steps that will be taken to ensure that children are protected from harm. Reference to requirement of Licensing Act only will not be considered sufficient.”Surrey Safeguarding Children Unit (SSCU)The proposed amendment as it stands would fall foul of the ‘Canterbury decision’, but the Council can make recommendations regarding best practiceInsert para 9.11 to cover best practice measures proposed by the Council
    9.4
Replacement of “Area Child Protection Committee” with “Surrey Safeguarding Children Unit”SSCUNone.Amend as suggested.
    9.6
Same suggested amendment as for paragraph 9.4SSCUNone.Amend as suggested.
    9.7
Our comments under … paragraph 7.12 apply equally here. Training and recording often form part of management’s due diligence approach but that does not mean that they should [be] imposed as conditions. Conditions should only be imposed where necessary and in order to address an issue that is not covered by the law. Clearly underage selling is covered and no such conditions are required.BBPAThe issues arising out of the ‘Canterbury decision’, to which the BBPA refers in making this comment, are set out in (Exempt) Annexe 4. This can be recommended as an example of best practice.Include as ‘best practice’ within para 9.11
    11.1
We welcome the statement the Council recognises the need to avoid duplication and request that the policy is amended to give effect to that statement, in accordance with those duplications we have pointed out within this response.BBPAPlease see earlier comments regarding non-duplicationPlease see earlier recommendations regarding non-duplication
    11.10
This is a classic duplication. All citizens are obliged to comply with the Race Relations Act and licensees are no exception. This paragraph is not necessary and directly contravenes the statement in paragraph 11.1BBPASee earlier comments regarding non-duplicationDelete 11.10
    11.14
As above. This has no place in a licensing policy.BBPASee earlier comments regarding non-duplicationDelete 11.14
    11.15 & 11.16
AWP machines are covered by the Gambling Act 2005 and they are subject to the Code of Practice as published by the Gambling Commission … The access of children to machines is not a subject for Operating Licences within the Licensing Act. The reference here should only be to the provisions of the Gaming Act if it is to be mentioned at all.BBPASee earlier comments regarding non-duplicationDelete paras 11.15 and 11.16
    12
We ask for consideration for an amendment to paragraph 12 to reflect the following. It is our belief that there is scope for Waverley Borough Council to be more pro active in its enforcement, particularly where breaches of Licences are concerned. … There are times where it would, in our view, be more appropriate for the Borough to proceed by way of summons for certain offences. . We believe that it would be advantageous for the Borough Licensing Officer to lead in these circumstances, coordinating the matter and prosecuting if sufficient evidence existed.Surrey PoliceThis would be more appropriately addressed in the Licensing Enforcement Protocol.No change
    12.2
We welcome the Council’s commitment to the Enforcement Concordat. The BBPA supports the Hampton Principles which it believes will go far in promoting a better understanding between business and enforcement agencies resulting in improved cooperation which in turn will improve compliance. We would welcome the inclusion of the Council’s support for these principles which include as one of [the] principles the statement that “Regulators should be recognised [sic] that a key element of their activity will be to allow or even encourage economic progress and only to intervene when there is a clear case for protection.”BBPANoted. The comment refers to the Government’s guidance entitled “Implementing Hampton: from enforcement to compliance.” However, the Council has a number of service areas which involve enforcement. It would be more appropriate for corporate consideration to be given to adopting the Hampton Principles, rather than the Council adopting them solely in respect of its role as Licensing Authority.No change to Policy, but recommend that the Council considers adopting the Principles corporately. Should that happen, as reference to the Hampton Principles could be inserted into the Policy at a later review.
    Page 18
Proposed addition of the Surrey Safeguarding Children Board’s web address to “Other useful sources of information”SSCUAgreed.Amend as suggested
    Page 18
Proposed addition of SADAS’ web address to “Other useful sources of information”SADASAgreedAmend as suggested
    General
The policy would benefit from making a proper distinction between the Council and the Licensing Authority whose role is to discharge its duties under the Licensing Act 2003.BBPAAgreed. The Policy should reflect the wording of the Act and GuidanceReplace references to ‘Waverley’ and ‘the Council’ where appropriate throughout the Policy
    General
It would be appropriate if references to the “Council “ throughout the policy were replaced by the “Licensing Authority” in order that the Policy is consistent with the wording of the Act itself and to avoid potential confusion in circumstances where the Council exercises other statutory functions affecting the premises.GKPPSee previous commentSee previous recommendation
    General
The Licensing Policy doesn’t include any timeframes. It would be beneficial for applicants to know how long each stage of the process is likely to take.Surrey Trading StandardsThe timeframes for various applications under the Act are set out by the Act and supporting Regulations. Timeframes for the various applications vary considerably, and to address every variation within the Policy would be cumbersome.Insert new section 14 directing applicants to the Licensing Section should they require further information in respect of the licensing process
    General
There doesn’t appear to be any information on appealing against a decision i.e. how to appeal, who will deal with it, etc.Surrey Trading StandardsBasic information on appeals could be included, but prospective appellants should obtain their own legal advice on the appeal processReplace old section 13 with a new section (‘Appeals’) containing basic information on how to appeal the Council’s decisions
    General
We found that the existing policy works well for our Village Hall. To date we have not had a problem with the numbers of “TENs” allowed. We do, however, feel that in the future this number could be increased to allow for any increase in bookings that may require a licence.Cranleigh Parish CouncilNoted. The number of TENs permitted could only be amended by the GovernmentNo change
    General
It might also be useful to ask publicans or licensees to display contact details of helping services such as SADAS. This could be done through a discreet campaign for example by placing stickers in lavatories. This was hugely successful during the 80s and 90s in reducing the risk behaviours associated with AIDS.SADASIt is difficult to see how such a measure could be justified under one of the four licensing objectives, given that there is no provision for the protection of vulnerable persons, such as those with alcoholism. No change
    8
Noise from late night bottle emptying and collections. It may be appropriate to add a condition controlling the emptying of such waste receptacles. The bottles could reasonably be collected the following morning.Environmental HealthAgreedRecommend the wording of para 8.5.9, which addresses the issue of noise associated with bottle deliveries and collections
    8
Mobile food traders. We should make reference to the additional requirement to ensure that they are trading in an appropriate location. Additional factors in relation to odour and noise should be added as mobile premises can provide a location for persons to gather. It is difficult under Environmental Health legislation to take action in relation to noise from persons in the street so the licensing stage is an appropriate point to control these measures.Environmental HealthThere is no “additional requirement” under the Act regarding mobile traders and appropriate locations. Whether a location is appropriate for mobile food traders to operate from will only be considered with reference to the licensing objectives, as is the case with any licensed premises. Street trading is already regulated by the Local Government (Misc Provisions) Act 1982. Odour and noise are addressed in section 8 of the Policy.No change
    8
Reference could also be made to premises where accommodation is also provided (B&Bs but particularly staff quarters). This could just be a sentence that reminds all DPSs that the premises could still be the subject of complaint and investigated under [Environmental Protection Act 1990] powers.Environmental HealthAll premises that fall to be licensed under the Act could be the subject of complaint and investigation under the EPA1990, and therefore there seems to be no need to highlight this for ‘residential premises’.No change.
    8
Smoke free legislation: There should be reference to this legislation and ensuring Waverley Borough Council have a balanced and objective view on tackling perceived noise problems associated with people smoking outside. Although smoking is not a regulated entertainment we have seen a number of applications to extend opening times of garden areas to allow later drinking and applications for areas to the fronts of premises again to allow smokers to take drinks outside. There are nuisance and public order issues here and I think there should be reference in the policy to this legislation as there may be conflicting comments from the responsible authorities.Environmental HealthThis Policy should not replicate the measures already adopted by the Council in respect of its obligations under the ‘smoke free’ legislation. Para 8.5.6 of the revised Policy proposes as good practice that applicants address the impact of noise from al outside areas of the premises.No change.
    General
[W]e hold a number of Premises Licences in your area and the review is therefore significant to us and we are grateful for the opportunity to provide our comments. However, on this occasion we have considered the proposed amendments and confirm we have no comments to make.Punch TavernsNotedNone
    General
Hambledon Parish Council has no comments on the consultation document.Hambledon Parish CouncilNotedNone
    General
Having read the policy document Churt Parish Council has no practical comments to makeChurt Parish CouncilNotedNone
    General
I am pleased to inform you that Surrey Fire and Rescue Service have no comments to makeSurrey Fire and Rescue ServiceNotedNone
    11.3
[The policy] refers to Development Control [Committees] and Sub [Committees]. We have not got them now Development Management [Committees].Local Planning AuthorityThe policy should be up-to-date in this respectAmend paragraph 11.3 as appropriate
GeneralI have received no further responses from the Crime and Disorder Reduction Partnership other than those you have already received from the Police and Fire & Rescue ServicesCrime and Disorder Reduction PartnershipNotedNone

Comms/Licensing/07-08/033