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Off-sales in the Community
CHAPTER THREE: ENCOURAGING COMMUNITY ENGAGEMENT
3.1 The Group was given the task of considering the scope for better engagement and consultation at community level in the licensing process. It was clear from the meetings Ministers held with communities during the course of consultation on the Anti-social Behaviour Bill that there was a very real concern about under age drinking and that this was coupled with a concern about off-sales premises becoming a focal point for anti-social behaviour. It was therefore important to consider how the views of a local community could be fed into the licensing process to ensure that the licensing board were made fully aware of important local issues that should be taken into account prior to taking a decision to grant a licence and could also be made aware of problems arising after a licence has been granted.
3.2 It is important to point out that although off-sales premises or the streets outside a premises may become a focus for anti-social behaviour, this is not necessarily linked to a premises either selling alcohol to under-age drinkers or itself being the root cause of the problem. We acknowledge that the majority of licence holders act in a responsible manner and are themselves concerned to remove or reduce the incidence of anti-social behaviour in the vicinity of their premises.
3.3 We considered this issue both in terms of the range of interested parties who should have the opportunity to have their voices heard and in terms of simplifying the formal process to ensure this could be done easily and effectively.
3.4 In discussing the role of communities it became clear that although our starting point was off-sales the recommendations we might make in this area could not easily distinguish between on and off-sales. The recommendations that appear below therefore have, and are intended to have, wider application.
Widening Community Involvement
3.5 We discussed how we could ensure that a sufficiently wide range of interested parties would have the opportunity to take part in the licensing process. The Nicholson Report recommendation on new statutory local licensing forums would help to increase community involvement and would be an important step in allowing communities to comment on licensing board policy. In terms of the formal licensing process, the Nicholson Report does not consider that the process of objection as set out currently in the 1976 Act need change radically under a new scheme. The Report acknowledges shortcomings in the list of objectors in the 1976 Act and suggests changes to the list of those statutorily entitled to object in order to improve upon the current position.
3.6 In our view, whilst these changes would indeed be an improvement, we feel that this may not go far enough and could still result in uncertainty over whether individuals or community organisations with a legitimate interest would qualify as statutory objectors. Qualification would still hinge on interpretation e.g. of the words 'in or near' the neighbourhood of a licensed premises. It would also still be a matter of interpretation regarding bodies which 'represent or bear to represent' individuals.
3.7 We also considered the situation where individuals or bodies might not wish to object to an application but nevertheless would wish to make some comments or indeed to support the application. At present, the 1976 Act limits interested parties to making objections rather than representations. Whilst the facility to make written objections is important, it does emphasise an adversarial attitude in the system.
3.8 Under the proposals set out in the Nicholson Report, less formal routes for making views known could include both the new local licensing forums and also the proposed Liquor Licensing Standards Officers (LLSOs). The former would allow communities to make comment on general board policy and the latter should allow mediation between community interests and licence holders to address any perceived difficulties at a lower level. However, we feel it is still appropriate as part of the formal system to allow representations to be made as well as objections.
3.9 We feel that it should be possible for any person or organisation to object or to make representations provided that they can demonstrate a real and material interest in making such objection or representation. We feel there should be a move to a more inclusive approach that recognises that a wide range of individuals and organisations may have a legitimate interest in the process. Whilst we recognise that community councils have an important role (and this is discussed further below), we also recognise that other community groups, including small ad-hoc groups formed to tackle a perceived local problem, should have an equal right to be heard.
3.10 In our view, the relevant provisions of the Civic Government (Scotland) Act 1982 provide a suitable model which could be adapted for use with applications for premises licenses under the proposed new regime. Annex A to this report sets out a suggested amended form of the relevant sections of the Act. This includes an amendment that refers to the need to demonstrate a 'real and material' interest which would be necessary to ensure that frivolous objections could be rejected. We believe this model has the potential to be simpler, more effective and inclusive, to the overall benefit of the community.
3.11 The Nicholson Report concluded that statutory objections should be confined to those individuals or organisations who are not normally involved in the licensing process but who may wish to object to the grant of a particular application. Although we believe that anyone with a real or material interest should be able to object or make representations, we also consider that the legislation should list a number of statutory consultees. Consultees would be those individuals or bodies entitled to receive written notification of an application from the licensing board and this would operate in a similar way to the planning regime. Under planning law any person or body has the right to submit representations, including letters of support, and the planning authority will determine the relevance of the objection or representation. However, there are also statutory consultees eg, SEPA, the roads authority, Scottish Water, community councils, etc, to whom the planning authority must send copies of the application and invite comments. This is the kind of regime the Working Group would like to see in place for liquor licensing.
3.12 In the time available we have not been able to discuss who these statutory consultees, entitled to receive written notification, might be. However, as a starting point for further discussion, we make the following suggestions -
- any person owning or occupying property that is conterminous or within, say, 4 metres of the premises to which the application relates;
- the community council for the area in which the premises is situated;
- the chief constable;
- the fire authority; and
- relevant departments of the local authority, particularly environmental health, building control and, possibly, trading standards.
3.13 We also note that it will be necessary to consider an equitable means of dealing with applications to vary operating plans under the proposed new system. The system has to be workable and we acknowledge that a requirement to consult on what might be seen as minor adjustments eg to display areas, would be unduly onerous. More detailed consideration should be given to which types of variation should trigger consultation and which might simply be noted by the clerk. This should include reference to the materiality of the variation.
Recommendation
1. The scope of those able to object to a new application for a premises licence should be simplified and widened to anyone who can demonstrate a real and material interest and should include the right to make representations, using the relevant provisions of the Civic Government (Scotland) Act 1982 as a model.
2. Consideration should be given to the drawing up of a list of persons or bodies with whom licensing boards would be required to consult on applications. These persons or bodies would be known as statutory consultees and they would be able to submit both objections and representations on applications.
3. Consideration should be given to how to deal equitably with applications to vary an operating plan and under what circumstances the variations are requested. The scope for objections and representations to be made should be linked to the materiality of the proposed variation.
3.14 We recognise that, particularly in the absence of other organised groups in a local area, a community council is an important and well known focus for presenting the views of a local community. The role of the community council is to:
"ascertain, co-ordinate and express to the local authorities for its area the views of the community which it represents, in relation to matters for which those authorities are responsible, and to take such action in the interests of that community as appears to it to be expedient and practicable." ( Local Government (Scotland) Act 1973).
3.15 There is presently no statutory obligation for boards to notify community councils of forthcoming applications, although we believe that it is standard practice for boards to forward their agenda to the community council. We felt this had clear drawbacks since it left community councils with a relatively narrow window of opportunity in which to take any action. The Group therefore recommends that community councils should be included as statutory consultees to ensure that they are automatically sent a copy of an application at the outset without the need to make a request for such information.
3.16 This should improve the process to make it easier for community councils to respond and would also ensure that, in the absence of any other local interest, the community has still been formally notified of an application.
Recommendation
4. Community councils should be one of the statutory consultees recommended above.
Improving the Process
3.17 Having recommended a move to an alternative model to widen community involvement, we were able to build on this model in considering ways to improve the formal process. The Nicholson Report recommends that procedural provisions should be set out in secondary legislation and that prescribed forms should be agreed for both applicants and objectors. We agree with this approach and with the specific recommendation in the Report that, under the new system, licensing boards should take on responsibility for forwarding copies of objections and representations to applicants. We also agree with the maintenance of the requirement to advertise applications in the press and that these should be listed by postcode.
3.18 Under section 10(5) of the 1976 Act, and in accordance with the Nicholson Report, the existing system of neighbour notification would be maintained. This means that in the case of an application for the grant or provisional grant of a new licence, the applicant should give 3 weeks' notice in writing to every occupier of premises situated in the same building. This is in addition to the requirement to display a notice at the premises for 3 weeks prior to the relevant board meeting and for a list of applications to be published in local newspapers by the clerk.
3.19 We do not believe that the present system of neighbour notification operates successfully. Our recommendation above regarding statutory consultees is therefore designed to maintain notification of specified individuals and bodies but to place the onus on the licensing board to carry out that formal notification.
3.20 In addition, we feel that a notice displayed at the premises by the applicant would serve as a useful additional means to draw an application to the attention of the community. This notice, however, should be improved upon. We suggest it should be A3 in size and set out to a prescribed form containing certain minimum information. This should include the following:
- Licence applicant's name;
- Name and address of premises;
- Proposed hours of operation on each day of the week;
- Brief overview of the nature of business to be conducted at the premises;
- Specific arrangements for children;
- Information about how to make an objection or representation.
3.21 Annex B includes suggested forms which could be used for this statutory notice. However, the proposed National Licensing Forum should be asked to consider this issue in detail and recommend the prescribed forms to be used throughout Scotland. In addition, we believe that local authorities should provide sufficient web facilities for licensing boards so that it can become a mandatory requirement for boards to display application lists on their websites. This should be in place by 2005, in line with existing Government targets for public sector organisations to have all their transactions capable of being dealt with electronically on-line.
Recommendation
5. An A3 pro-forma notice should be displayed by the applicant outside the premises. The notice should take a recognised form (such as that set out in Annex B) and this form could be set out by the proposed National Licensing Forum.
6. It should become mandatory for licensing boards to display application lists on their websites by 2005.
Timescales
3.22 We also considered the timescales within which notices should be displayed and objections or representations made. We concluded that the timescales specified in the 1976 Act are confusing since, in both cases, they make reference to the day of the relevant board meeting. Notices are to be displayed 21 days before the meeting and objections received not later than 7 days before the meeting. These time limits have often been misunderstood and there is no clarity over the treatment of Sundays or public holidays.
3.23 For display of notices we recommend the Civic Government (Scotland) Act 1982 procedure requiring display for 21 days beginning with the date on which the application was submitted to the licensing board. For notification of objections and representations, we recommend (as set out in Annex A) that these should be made within 21 days of the day that public notice of the application is given (i.e. within 21 days of the applicant displaying the notice). In addition, a minimum of 7 days notice should be given to all parties of a board meeting where an application will be discussed.
Recommendation
7. There should be a requirement that a notice should be displayed at the premises for 21 days beginning with the date on which application is made. There should be a requirement for objections or representations to be made within 21 days of the applicant displaying the notice.
8. A minimum of 7 days' notice should be given to all parties of a board meeting where an application will be discussed.
Form of written objection or representation
3.24 The Nicholson Report recommends that prescribed forms for applicants and objectors should be available in electronic form and should be allowed to be submitted in electronic form. We believe this is essential in order to modernise the process. We believe that the means of notifying written objections and representations should be extended to fax as well as e-mail provided an acknowledgement of delivery is retained. It therefore also follows that licensing boards should be able to use fax and e-mail to notify the applicant of objections and representations.
Recommendation
9. Objections and representations could in future be notified by hand, post, fax or e-mail.
3.25 We considered the provisions in the 1976 Act which relate to late objections. That Act specifies that the board has the discretionary power to waive procedural failures and postpone consideration of an objection but only in relation to the grant and renewal of a licence. However, we feel that the existence of this power is relatively unknown, particularly to objectors.
3.26 In our view, there is a need for a clear and unambiguous process for procedural failures and late objections or representations. We recommend that the relevant provision covering late objections and representations should be adopted from the Civic Government (Scotland) Act 1982 with slight amendments as shown in Annex A. We also recommend that there should be a suitable provision to cover procedural failures by applicants, those making objections or representations, and clerks.
Recommendation
10. The late objection provisions of the Civic Government (Scotland) Act 1982 should be adopted for liquor licensing applications.
11. There should be suitable provision to cover procedural failures by applicants, those making objections or representations and clerks.
3.27 The Nicholson Report recommends a system of supervision and monitoring once a premises licence has been granted. LLSOs would be an integral part of that system. There would also have to be a system that allows for complaints to be made after a licence has been granted. The Report does not attempt to address this in detail but suggests that a procedure should be established to allow complaints to be made to boards which would automatically trigger a hearing. Complaints could be made by LLSOs and by anyone statutorily entitled to object.
3.28 We believe it is important to acknowledge that there must be a role for communities to raise issues at an informal and formal level after licences have been granted and where a perceived problem arises. However, in our view, this aim will be met on an informal level by liaison between an LLSO and the local community and on a formal level by provision to make a formal complaint which must then be given an oral hearing.
Appearances before a Licensing Board
3.29 The Group spent some time discussing appearances before a board. It appears to be the case that the procedure used by boards can vary from area to area. Some boards may use a greater degree of formality than others and that formality can be intimidating for both applicants and objectors. It was noted that practices of adopting court like procedures did not necessarily help to reduce the intimidating atmosphere. Other problems appear to include scheduling of cases and a requirement for applicants and objectors to sit through an entire board meeting until their case is heard.
3.30 The Nicholson Report acknowledges that appearing before a board may be intimidating. We endorse the Nicholson recommendation that appropriate training should be provided to board members and this should include training on good and acceptable judicial behaviour. We believe further changes could be made to the process. For example, it could be preferable for boards to meet in a more informal setting. In addition, applicants and objectors should not be required to attend an entire meeting, reducing the time they have to spend away from their usual work or business.
3.31 We did not have time to make detailed recommendations in this area. However, we felt that it would be important, whilst acknowledging the importance of the decisions taken at board meetings which impact on a person's livelihood, to reduce rigid adherence to the formality of the present proceedings. There would be a need to ensure that both applicants and objectors feel relaxed and therefore capable of presenting their views to the best of their ability within a process that they understand and trust. We therefore recommend that the proposed National Licensing Forum should be tasked with producing specific guidance aimed at making the process of appearing before a board less intimidating. Such national guidance would also allow for greater consistency in approach by licensing boards across the country.
Recommendation
12. National Guidance should be issued by the proposed National Licensing Forum with the aim of making the process of appearing at a licensing board hearing less intimidating and more consistent.
Local Licensing Forums
3.32 The group has also considered, as far as possible within the timescale, the role of the proposed new local licensing forums and their relationship to licensing boards.
3.33 The Nicholson Report recommends that statutory local licensing forums should be established consisting of members drawn from a variety of backgrounds with an interest in the licensing system and that the board should be under a statutory duty to have regard to the views of the forum. Forums would provide an opportunity for more informal discussion of matters of local concern and are therefore welcome. We endorse the Report's recommendations for membership of forums and their role. We refer briefly to the issue of off-sales and ethnic minority communities later in our Report but for the present we would recommend that the proposed local licensing forums include representation from ethnic minorities.
3.34 We are aware that various licensing forums have been set up in some parts of the country, on a voluntary basis. However, the success of these appears to be variable. In Clackmannanshire, a forum was established several years ago but it has not met over the last two years. The forum was established by the board who generally set the membership and agenda. A wide range of interests were invited to attend meetings and the Chair rotated between the trade, board and community representatives. In South Ayrshire, on the other hand, a forum is convened by the board, has had regular meetings and has organised a licensing conference. Edinburgh also operates a similarly successful forum with a wide range of interests represented. In South Lanarkshire there is no forum as such. Licensing focus groups do meet to discuss local issues but there is no formal link to the board. In Renfrewshire there is no formal forum but meetings are held every 6 months with the licensed trade and include police and planning interests.
3.35 We discussed the options of integrating the forum and board by, for example, allowing the chair of the board to act as chair of the forum and board members to be ex-officio forum members. Although this would have the benefit of ensuring regular communication between the two bodies, it was felt that this might risk the independence of the board. Any conflict of interest for the board should be avoided.
3.36 On the other hand forums need to be separately identifiable bodies to ensure that they act as an independent check within the system. We therefore feel that forums should be independent of boards. However, this would not change the position recommended in the Nicholson Report and, indeed, we strongly agree that boards should be under an obligation to meet with forums and to take their views into account.
Recommendation
13. The proposed local licensing forums should be independent of the licensing boards.
3.37 In addition, we recognised that it would be beneficial for members of local forums to undergo training to ensure a better understanding of the licensed trade and the licensing process.
Recommendation
14. Suitable training should be made available to the members of the proposed local licensing forums.
3.38 Chapter 4 of the Report includes discussion of the role of LLSOs. We also considered the relationship of LLSOs to the forums. It was considered that there should be a 'close relationship' and that it would be preferable for at least one LLSO to be available to attend each forum meeting. We see this relationship as pivotal if the LLSO is to successfully carry out a mediation role.
Recommendation
15. The proposed liquor licensing standards officers should actively participate in the local licensing forums, attending meetings and presenting the forum with relevant information.
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