The Licensing Act 2003 provides a general presumption of grant of applications, subject to any representations, which may be in the nature of an objection to or in support of an application.
Changes made by the Police Reform and Social Responsibility Act 2011 removed the test of “vicinity” from the Licensing Act 2003 and as a consequence, the categories of “interested party” or “member of the relevant licensing authority” no longer exist.
Therefore, any person is able to make representations in respect of certain types of applications. However, all representations must relate to one or more of the statutory licensing objectives and may not be frivolous or vexatious.
How can I find out what applications have been made?
The legislation requires that public notice is given of applications for provisional statements, new, full variation, minor variation or review of licences and club certificates - notice of all these types of application must be given at the premises and must be visible from the exterior. Some types of application must be advertised in the local press and on the council's web site. However, the opportunity to make representation to an application is limited by the legislation - please see the table below:
|Type of application||Notice at premises||Notice in local newspaper||Notice on the public registers page *||Who can make a representation?|
|Provisional statement||Yes - applicant||Yes - applicant||Yes - Licensing Team||Any person or responsible authority|
|New licence / certificate||Yes - applicant||Yes - applicant||Yes - Licensing Team||Any person or responsible authority|
|Full variation of licence /certificate||Yes - applicant||Yes - applicant||Yes - Licensing Team||Any person or responsible authority|
|Minor variation of licence / certificate||Yes - applicant||No||No||Any person or responsible authority|
|Review of licence / certificate||Yes - Licensing Team||No||Yes - Licensing Team||Any person or responsible authority|
|Variation of Designated Premises Supervisor||No||No||No||Police only|
|Transfer of licence||No||No||No||Police only|
|Interim authority (following insolvency)||No||No||No||Police only|
|Temporary Event Notice||No||No||No||Police or Environmental Health only|
Can representations be made to every application?
No - responsible authorities and other persons may only make representations in respect of applications for the grant, variation (including minor variation), of a premises licence or club premises certificate, the grant of a provisional statement or on an application for review of a licence or certificate. Councillors have no special status over and above any other person in making representations.
This means that representations can be made to an application for a new licence or variation of an existing licence, for example, to stay open later for the sale of alcohol, entertainment or hot food and drinks.
With the exception of the Police, who can comment on all types of applications and notices, and Environmental Health, who can additionally comment on temporary event notices, no representations can be made in respect of other applications such as transfer, variation of designated premises supervisor (DPS) or temporary event notices.
Who are the responsible authorities?
- Hampshire Constabulary
- Hampshire Fire and Rescue Service
- The Health and Safety Executive (where they have responsibility for health & safety at work enforcement at the premises)
- The Maritime and Coastguard Agency (where the premises comprise a vessel)
- Home Office
Southampton City Council services
- Environmental Health Services
- Trading Standards Service
- Planning and Sustainability
- Children's Services
- Public Health
What can representations be made about?
Only representations that relate to at least one of the four licensing objectives can be considered. The statutory licensing objectives are:
- The prevention of crime and disorder
- Public safety
- The prevention of public nuisance
- The protection of children from harm
Representations must be:
- In writing
- Contain your name and full address
- Set out the likely effects that the grant of the application would have on the promotion of at least one of the licensing objectives, and
- Must clearly relate to the premises for which application is being made.
For example, representations on the basis of general noise and disturbance, without evidence of a causal link to specific premises, are unlikely to be persuasive.
It will be for the person making the representation to show reasons why the grant of the application is likely to have an effect on them or their business, and show authority to act if they make a representation to an application on behalf of a body representing others, such as a residents' or business association.
The only exception to these general rules will be where the premises are in a specific stress area identified by the Licensing Policy, where the presumption of grant is rebuttable.
Representations by petition
Petitions are unlikely to be acceptable unless every page clearly shows the reasons for the petition and each petitioner gives their name, address and signature. In any case, petitions are unlikely to carry as much weight with the Licensing Committee as letters from individuals. Individually produced representations will inevitably carry more weight than "form" letters where an individual's details have been added.
Where representations are made in the form of a petition, the lead organiser must:
• Provide their own contact details
• State clearly the application that is being opposed to, or supported and the reason for this shown on each page of the petition
• Ensure all names and addresses on the petition are clearly legible and preferably written in black ink
• Show the date the signatures are collected on each page
We, as the Licensing Authority, treat a petition as being in support of a representation by the lead petitioner (or person who submits it). We correspond with that person only and will invite that person to the hearing but not all of the signatories on the petition.
Any representation which includes material in which a third party has copyright must be accompanied by written confirmation from the copyright owner not only that you have permission to use the material but also that the city council, as licensing authority, can publish it in connection with the application. If you do not provide these confirmations, it is unlikely that such material will be accepted.
The Act also requires the council to disregard representations that are considered to be frivolous or vexatious.
What are frivolous or vexatious representations?
As a general rule, frivolous representations are likely to lack seriousness. This does not mean that a trivial complaint will always be considered frivolous, but it must relate to one of the licensing objectives and demonstrate evidence of the points made in order to be relevant.
Vexatious representations may, for example, arise because of disputes between rival businesses.
Can anyone be represented at the hearing?
Yes, but they will need to specifically authorise someone to act on their behalf. Someone making a representation could ask, for example, a legal representative or friend to act on their behalf. Please note that the representative will act as an advocate for the person who made the representation - they can only present and explain the representation, and will not be able to present their own views on the application or add matters not referred to in the representation.
Who should representations be sent to?
Send your representations, in writing, which must include your name and full address, to the licensing team. The licensing team must receive representations no later than the last date specified in the notice of application, as the legislation does not allow consideration of late representations. This date will be 28 days after the city council received a valid application (10 working days for a minor variation or 7 days for some types of review).
What happens after representations have been made?
Representations that are irrelevant, frivolous or vexatious must be disregarded, so, on receipt, the licensing team will check that the representations can be considered. In borderline cases the representations will be placed before the Licensing Sub-Committee, which may choose not to consider them.
If your representation is not accepted as relevant or deemed to be frivolous or vexatious, the licensing team will write and tell you. The legislation does not provide any right of appeal against such a decision, other than by way of application for judicial review to the High Court.
What happens when representations are relevant?
A copy of the representation will be sent to the applicant by the licensing team and, if necessary, arrangements will be made for the council's Licensing Sub-Committee to hear the application and the representations made to it. Hearings will take place in public, although the Sub-Committee may, in certain instances, decide that it is in the public interest to hold hearings in private.
The details of all valid representations (including the names and addresses of those making representations) will be included in a report that the Licensing Team will prepare for the hearing. These reports are public documents and the city council is required by law to publish them.
All who have made representations will be invited to attend any hearing, as will the applicant. Any person or responsible authority may be assisted or represented by any person at the hearing regardless of whether that person is legally qualified, but see the paragraph above about representatives at hearings for the restrictions.
The licensing team will notify everyone of the date and time of the hearing and provide details of the procedure to be followed at the hearing. Only persons that have made a relevant representation, or their representative, can present evidence. Any new evidence should be served on all the parties to the hearing before the hearing date to allow proper consideration. At the hearing the sub-committee will decide whether to grant the application in full or in part, and if granted what conditions should be imposed on the licence. The papers relating to any hearing will be published online in the Licensing Sub-Committee's pages.
Is a hearing always required?
No, it is possible for all parties to agree that a hearing is unnecessary in some cases. In such instances, and subject to the council also agreeing that a hearing is not required, the matter will be dealt with by the officers or, exceptionally, the Licensing Sub-Committee will decide the application on the basis of a written report only. In the case of an application for a review, a hearing will always be required.
Can representations be withdrawn?
Yes, by giving notice to the licensing team no later than 24 hours before the hearing or in person at the hearing.
Who makes the decision?
The Licensing Committee is currently made up of ten elected Members of the council and the Licensing Sub-Committee will comprise of any three of those Members. Although the Sub-Committee does not hear evidence on oath, as in a court, the Sub-Committee is required to determine applications in accordance with the evidence before it at the hearing.
What can applicants, responsible authorities and persons who have made representations do if they are unhappy with the decision of the Sub-Committee?
They can appeal direct to the West Hampshire Magistrates' Court within 21 days of the decision of the Sub-Committee.
Anyone considering an appeal is strongly advised to take professional legal advice prior to commencing on this potentially costly course of action.
The West Hampshire Magistrates' Court is at 100 the Avenue, Southampton, SO17 1EY - 023 8038 4200
What if there are problems after a licence is granted?
A responsible authority or any other person can seek a review of a licence. The legislation sets out detailed requirements for reviews.