Monday, 20th April, 2009
BATH AND NORTH EAST SOMERSET COUNCIL
Minutes of the Meeting of Friday 2nd November 2007
PRESENT: Councillors: Tim Ball, Gabriel Batt, John Bull, Bryan Chalker, Tony Clarke, Gerry Curran, Steve Hedges, Malcolm Lees, Carol Paradise, Tim Warren (Chairman)
Also in attendance: Andrew Jones (Environmental Monitoring and Licensing Manager), Francesca Smith (Senior Legal Adviser)
1 EVACUATION PROCEDURE
The Clerk read out the procedure.
2 ELECTION OF VICE-CHAIR(PERSON) (IF DESIRED)
RESOLVED that a Vice-Chair (person) was not required on this occasion.
3 APOLOGIES FOR ABSENCE AND SUBSTITUTIONS
There were none.
4 DECLARATIONS OF INTEREST
There were none.
5 TO ANNOUNCE ANY URGENT BUSINESS AGREED BY THE CHAIRMAN
There was none.
6 ITEMS FROM THE PUBLIC - TO RECEIVE DEPUTATIONS, STATEMENTS, PETITIONS OR QUESTIONS
There were none.
7 MINUTES: 19TH SEPTEMBER 2007
These were approved as a correct record and signed by the Chairman.
8 REVIEW OF THE COUNCIL'S STATEMENT OF LICENSING POLICY
At its meeting on 19th September the Committee had asked officers to revise the draft Statement of Licensing Policy to incorporate the Cumulative Impact Policy agreed by the Council at its meeting of 13th September.
Members discussed the revised draft.
Several members expressed concern about what they felt were inconsistencies and contradictions in the document. They suggested that the document would be confusing to applicants and the public, was not consistent with the Licensing Act 2003 and might result in substantial legal costs for the Council at licensing appeals. For example, the Members considered that bullet points 5 and 6 of paragraph 5.4 of the Report contradicted the cumulative impact policy.
The Members considered that bullet point 6 of paragraph 5.6 of the Report that reads:-
"The statement of policy should also make it clear that licensing law is not the primary mechanism for the general control of nuisance and anti-social behaviour by individuals once they are away from the licensed premises"
could be inconsistent with paragraph 16.1 of the draft cumulative impact policy which reads :-
"The licensing authority wishes to take steps to prevent the occurrence of public nuisance and crime and disorder which may arise from the concentration of licensed premises in a particular area."
and paragraph 16.3 of the draft cumulative impact policy:-
"The distribution of late night premises may be such as to warrant special action by the licensing authority to combat exceptional problems of crime and disorder and public nuisance over and above the impact of individual premises."
Other Members suggested that part of paragraph 2.1 of the Statement which states:-
"This policy will provide the decision makers with parameters under which to make their decisions"
was inconsistent with paragraph 6.3 which states:-
"Each case will be considered on its own merits and nothing in this Policy shall undermine this principle."
The Environmental and Licensing Manager replied that bullet point 6 of paragraph 5.4 of his report was a direct quotation from the Secretary of State's Guidance. He suggested that it was possible to consider individual applications on their merits against the background of the cumulative impact policy. The Senior Legal Adviser said that, as noted in paragraph 16.2 of the document, the Secretary of State's Guidance stated that cumulative impact was a proper matter for a Licensing Authority to take into consideration. A cumulative impact policy created a rebuttable presumption that new licences would be refused within the designated area, and the onus would be on the applicant to demonstrate that the application would not add to the existing impact. At an appeal the Magistrates would have to decide whether the decision to refuse an application on the grounds of cumulative impact was reasonable and if the policy had been properly applied. Even within a cumulative impact area, a licence could be refused or additional conditions imposed, only after a hearing by a Licensing Sub-Committee, which could only take place if relevant objections had been received.
One member suggested that, like many legal documents, the Statement had to be understood as a whole, and could not always be made fully intelligible to the man in the street.
Members agreed that one of the main difficulties in formulating a policy was that the Licensing Act 2003 was concerned with preventing problems from occurring at licensed premises, whereas residents most often complained about the nuisance caused by drinkers after they had left licensed premises. The Chairman said that the primary mechanism for the control of nuisance and anti-social behaviour in the streets was the police. A member suggested that "to take steps to prevent the occurrence of public nuisance and disorder" in paragraph 16.1 should be replaced by "to contribute to the prevention of public nuisance and crime and disorder" to show that the Council was only one of several partners tackling crime, disorder and anti-social behaviour. The Senior Legal Adviser suggested that this amendment would detract from the significance of the Council as the Licensing Authority, which had the power to refuse or impose conditions on contested licence applications. However, the Chairman and the majority of members agreed that paragraph 16.1 needed to be amended, because it suggested that the Council had the power to do things that it really did not.
Some Members also expressed concern about the "blanket" definition of the Bath cumulative impact area, noting that instead of demarcating a zone the City of Bristol had listed specific streets, which made it easier to target localised problems. A member commented that Bath differed from Bristol in being a World Heritage Site. The Chairman reminded Members that the cumulative impact area had been defined by the Council, and that it was not in the power of the Committee to change it.
A member suggested that the Statement needed much more work before it was submitted to the Government Office in January. Most members disagreed, and felt that with a number of minor amendments the Statement could be recommended to the Council.
After further discussion, members suggested that the clarity of the Statement could be improved by adding references to the cumulative impact policy at appropriate points, for example in paragraphs 6.3, 14.3 and 33.7. They suggested that the initials SIA should be explained at their first occurrence in paragraph 16.18.
Members wondered about the reference to "planning considerations" in 14.3 and "planning controls" in paragraph 16.19. The Senior Legal Adviser said that this reflected the Secretary of State's Guidance, which had been issued before the decision of the High Court in the case of R (on the application of Blackwood) v Birmingham Magistrates (1) Birmingham City Council (2) Mitchell & Butlers Leisure Retail Ltd (interested party) (2006)  LR 27, which had emphasised the separateness of the licensing and planning regimes. However, Development Control is a statutory consultee for licence applications.
A member asked about responses from the consultees listed in paragraph 7.1, saying that it would have been helpful if these could have been taken into account by the Committee when considering the Statement. The Environmental Monitoring and Licensing Manager said that the consultation period had only ended on 19 October, and that it had not yet been possible to process the responses; they would be appended to the report on the Council agenda on 22 November. Members requested that in future consultation responses should be circulated with this Committee's agenda whenever the Statement was discussed.
The Senior Legal Adviser pointed out that there was an error in box 3 of the Table of Delegations of Licensing Functions in Appendix 1 of the Statement which reads:-
"Application for Personal Licence with unspent convictions". The Policy currently states that all applications for Personal Licences with unspent convictions should be considered by the Sub Committee in all cases. However, it should only be delegated to the Sub-Committee if a police objection was made and, in all other cases, to officers to issue the licence.
The Committee RESOLVED by 7 votes to 3
(i) to delegate to officers authority to make minor amendments to the draft Statement of Licensing Policy to reflect the Committee's discussion at this meeting;
(ii) to recommend that the Council adopt the draft Statement of Licensing Policy so amended.
The meeting finished at 11.48am.
Date Confirmed and Signed...........................