PAPER B2

Purpose: For Decision

Committee: LICENSING PANEL

Date: 16 NOVEMBER 2004

Title: TO CONSIDER THE STATEMENT OF LICENSING POLICY AS REQUIRED BY THE LICENSING ACT 2003, WHICH WILL BE USED TO ASSIST THE DETERMINATION OF APPLICATIONS UNDER THE aforementioned ACT

REPORT OF THE HEAD OF CONSUMER PROTECTION

PURPOSE/REASON

1. To consider and, if appropriate, recommend to the Full Council the Licensing Authority’s policy (set out at Appendix 1) for the period 7 January 2005 until 6 January 2008. A policy must be published and ratified by Full Council before the Authority carries out any function in respect of individual applications made under the Licensing Act 2003.

DETAILS OF THE APPLICATION

2. All statements of Policy should state the four licensing objectives with the Licensing Authority’s vision on promoting these.

3. The Policy should consider the effect of the modernisation of legislation and its interrelation with and supportive effect upon a number of other Council (and other strategic partners) key aims and objectives. These are of vital importance and should be principal aims for all involved in licensing work. They include:

· the introduction of better and more proportionate regulation to give business greater freedom and flexibility to meet their customers’ expectations

· greater choice for consumers, including tourists, about where, when and how they spend their leisure time

· the encouragement of more family friendly premises where younger children can be free to go with the family

· the further development within communities of our rich culture of live music, dancing and theatre, both in rural areas and in our towns

· the regeneration of areas that need the increased investment and employment opportunities that a thriving and safe night-time economy can bring; and

· the necessary protection of local residents, whose lives can be blighted by disturbance arising from the premises and anti-social behaviour associated with the activities of some people visiting places of entertainment.

LOCATION AND SITE CHARACTERISTICS

4. The Policy will cover all licensable activities, as defined under the Licensing Act 2003, taking place on the Isle of Wight.

RELEVANT HISTORY

5. Section 5 of the Licensing Act 2003 requires a Licensing Authority to prepare and publish a statement of its Licensing Policy every three years.

6. The Act allows for the Policy to be kept under review and the Licensing Authority may make such revisions to it as it considers appropriate; for instance in the light of feedback from the local community or evaluation as to whether the statutory objectives are being met.

7. The Department of Culture Media and Sport (DCMS) is responsible for the reform of Licensing Law retailing to the supply of alcohol, the provision of regulated entertainment and the provision of late night refreshment in England and Wales.

8. As part of the fulfilment of the Governments 2001 manifesto commitments for the reform of the Licensing Law, the Licensing Act 2003 received Royal assent on 10 July 2003. This brought together in one statute the regulation of the use of premises for the licensable activities referred to above.

9. On 7 July 2004 the Secretary of State issued guidance which had been approved by Parliament and also announced the first appointed day as 7 February 2005. The Policy is part of the implementation of the Act and guidance.

10. The Department of Culture Media and Sport released draft application forms and other draft regulations (excluding fees) for public consultation on 15 September 2004.

11. It had also been proposed that draft regulations on fees for public consultation would be released in October 2004. This had not taken place at the time of writing this report.

12. This Licensing Authority must have determined and published their first Licensing Policy Statement by 7 January 2005, which will apply for a three year period starting from this date.

COUNCIL POLICY

13. The Licensing Policy Statement has to have due regard to Government regulations, guidance on the Act and ensure that it is properly integrated with local crime prevention, planning, transport, tourism, race equality schemes, cultural strategies and any other plans introduced for the management of the town centres and the night time economy.

FORMAL CONSULTATION

14. A list of consultees is set out at Appendix 2.

15. A schedule of all responses received from the consultation on the Licensing Policy is set out at Appendix 3.

16. Two adverts were published in the Isle of Wight County Press. The Principal Licensing Officer was interviewed by Isle of Wight radio and six roadshows took place to explain the Policy and elicit views from those present. The dates, times and venues of the roadshows are set out below:

Tuesday 19 October	2.30 pm	Newport Football Club
Tuesday 19 October	7.00 pm	Ventnor Winter Gardens
Wednesday 20 October	7.00 pm	Northwood House
Tuesday 26 October	7.00 pm	Ryde Theatre
Wednesday 27 October	7.00 pm	Freshwater Memorial Hall
Friday 29 October	7.00 pm	Lions Day and Community Centre, Lake

17. The questions that arose from the roadshows are set out at Appendix 4.

THIRD PARTY REPRESENTATIONS

18. These are included in the Schedule of responses at Appendix 3.

FINANCIAL IMPLICATIONS

19. Expenditure on licensing matters where fees are regulated by the Council in most instances balance the income. As with other statutory licensing fees Officers believe that there will be a short fall of income. In this particular function, based on previous consultation fees, the short fall is estimated to be 50% of the cost of the service initially. Later this could reduce as the Government have stated their intention to review the fees within two years.

LEGAL IMPLICATIONS

20. Section 5 of the Licensing Act 2003 requires the Licensing Authority to have a Policy which must be reviewed before the end of the three year period.

21. The Policy must be approved and published before the Authority carries out any function in respect of individual applications made under the terms of the Act.

22. An “aggrieved party” may challenge the statement of Licensing Policy by way of judicial review.

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

23. A copy of the draft Policy was sent via e-mail to the Safer Community Partnership on 1 October 2004.

24. Sue Lightfoot, Service Manager, has informed us that their comments have been incorporated in the Isle of Wight Constabulary’s submission (see Appendix 3).

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

25. Members are advised that this Policy must be considered against a background of the implications of the Human Rights Act 1998.

There are three convention rights, which need to be considered in this context:

a) Article 6 - Right to a fair trial

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

It has been held that the fact that there is a right of appeal to the magistrates’ court from any decision of the Panel is sufficient to make the Council’s licensing system compliant with the convention rights.

b) Article 8 - Right to respect for private and family life.

Everyone has the right to respect for his private and family life, his home and his correspondence. In the case of article 8 there shall be no interference by a public authority with the exercise of this right except as such in accordance with the law and is necessary on a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder and crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

c) Article 1 of the first protocol – protection of property.

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. In the case of Article 1 of the first protocol it states that “no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law. The preceding provisions (of which articles 6 and 8 are but two) shall not however in any way impair the right of the state to enforce such laws as it deems necessary to control the use of the property in accordance with general interest or to secure the payment of taxes or other contributions or penalties”.

Officers believe these rights have been considered in the Policy and in accordance with the Licensing Authority’s legitimate aims.

OPTIONS

26. To approve the Policy and recommend it to the Full Council for adoption.

27. To approve the Policy after any agreed amendments and recommend it to the Full Council for adoption.

EVALUATIONS/RISK MANAGEMENT

28. The Panel will be aware that Officers have taken the following into consideration:

a) the need for licensed premises

b) prevention of children from harm

c) the Portman Group Code of Practice (See paragraph 8.29 of the licensing policy statement)

d) integration of strategies

e) crime prevention

f) cultural strategies

g) transport

h) tourism, employment, planning and building control

i) promotion of racial equality

j) duplication

k) standardised conditions

l) enforcement

m) live music, dancing and theatre

n) administration, exercise and delegation of functions

o) transitional matters

29. The number of licensed premises in England and Wales (approximately 160,000; 113,400 on-licences and 46,600 off-licences) shows a fall of around 2% compared to last year (figures correct on 27 October 2004).

30. 20,000 registered members’ clubs hold a club registration certificate allowing them to supply alcohol to members’ and guests on their club premises.

31. The number of Special Hours Certificates in the Island is approximately 130.

RECOMMENDATIONS

32. To approve the Policy and recommend it to the Full Council for adoption.

APPENDICIES ATTACHED

33. Appendix 1: draft licensing policy

Appendix 2: list of consultees

Appendix 3: schedule of responses

Appendix 4: questions that arose from the roadshows

BACKGROUND PAPERS

34. As attached.

Contact Point: John Murphy, 823152

ROB OWEN

Head of Consumer Protection