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Festivals & Licensing Plans

Gerald Gouriet QC

Music Festivals, Large-Scale Events, and Licensing Plans

Applications for premises licences under the Licensing Act 2003 are governed by regulations that require detailed plans of the premises to accompany the notice of application. The requirement, however, is often ignored. Paradoxically, the greater the scope of the application, the less compliance there tends to be: in applications for large-scale events and festivals, covering acres of indoor and outdoor spaces, attended by tens of thousands of people, it is frequently said – almost by way of complaint – “the applicant can’t possibly provide the detail specified in the regulations.” This article asks: “Why not? The detail has to be given by an applicant for a bar or nightclub. Why should less scrutiny be given to applications which by their very size and nature are more vulnerable to compromising the licensing objectives?”  I suggest that licensing authorities should not entertain applications accompanied by outline plans only, or by plans which do not substantially comply with the requirements of the regulations.

The article will focus on the requirements of the Licensing Act 2003 and 2005 Regulations made under it. An analogous position maintains under the Gambling Act 2005 and the corresponding 2007 Regulations. Material sections of the regulations (i.e. concerning the requirement for detailed plans in gambling-premises applications) are set out in an appendix.

Licensing Plans: the 2005 Regulations

Section 17(4) of the 2003 Act provides that application for a premises licence must be accompanied by a plan of the premises in the prescribed form.

The Licensing Act 2003 (premises licences and club premises certificates) Regulations 2005, (“the 2005 Regulations”): provides

23  (1) An application for a premises licence under section 17… shall be accompanied by a plan of the premises to which the application relates and which shall comply with the following paragraphs of this regulation.

(2) [Plan to be drawn in standard scale]

(3) The plan shall show –

(a) the extent of the boundary of the building, if relevant, and any external and internal walls of the building and, if different, the perimeter of the premises.

(b) & (c) [points of access and escape routes]

(d) in a case where the premises is to be used for more than one licensable activity, the area within the premises used for each activity.

(e) – (j) [fixed structures, stages or other raised areas, steps, stairs, etc., public conveniences, fire safety equipment, location of kitchen.]

It is abundantly clear that the licensing plans accompanying an application must indicate the perimeter of the premises and also the areas to be used for different licensable activities.

It is not difficult to see why a mere perimeter line is insufficient; or why the locations intended to be used for different licensable activities must be shown on the plans submitted with the application: the statutory consultees (including the public) must be able to understand exactly what is being applied for, and a licensing sub-committee must be able to make an informed decision whether or not to authorise it.

If just a perimeter line around the proposed licensed premises is shown on the plan, and (even if a rough indication is given of the applicant’s intent) the number, size and location of different areas intended to be used for each of the licensable activities are not shown, it is unlikely to be possible for a sub-committee to make a rational determination as to the steps it is appropriate to take for the promotion of the licensing objectives – which it is required to do by section 18(3)(b).

Licensing Plans to be issued “forthwith” on grant

Where an application for a premises licence is granted, the licensing authority must “forthwith” issue the applicant with the licence “in the prescribed form”, to which is attached a plan of the licensed premises: sections 23(1)(b) & 24(1), 24(2)(b) of the 2003 Act. When a licensing authority determines to grant an application for a premises licence, the purpose of requiring it ‘forthwith’ to issue a licence and plan is surely to enable everyone thereafter to know exactly what has been authorised.

The licensing plans attached to an application may be amended for the purposes of an issued licence within the permissible range of amendment of licensing plans as explained by Hickinbottom J in Taylor v Manchester City Council [1]; but the plans attached to a premises licence should be in the form of, and contain the same particulars as, the plans accompanying the application for that licence. There is little point in regulation 23(3)(d) otherwise.

Substantial compliance

It is too well-established a principle of modern statutory interpretation for it to be necessary to cite authority for it: failure to comply with procedural statutory requirements is not necessarily fatal to an application if there has been substantial compliance, and no one is prejudiced by the failure in question.

Applications on “outline plans”, however, are not easy to squeeze into that formula, any more than the ugly sister’s foot could be squeezed into Cinderella’s glass slipper. Even if it is accepted that the failure is “procedural” – which is perhaps to be doubted when it is a failure to produce licence plans that enable a sub-committee to fulfil its obligations to promote the licensing objectives – it cannot seriously be suggested that to mark only a perimeter line around a large site, and to give little or no information otherwise as to the areas to be used for the different licensable activities proposed, comes even close to being “substantial compliance”.  Each application will, of course, be judged on its own merits; but it is difficult to conceive how outline plans which do not even attempt substantial compliance can be the basis of the grant of a premises licence under the 2003 Act.

Delegation of licensing responsibilities

A frequent submission in applications for large-scale events is that the application is only at a formative stage, and that as intentions become more certain they will be subject to the approval of ad-hoc bodies such as Safety Advisory Groups. That is impermissible. Responsibility for the promotion of the licensing objectives is that of the licensing authority. Decisions relating, for example, to the number/location/size/style of proposed licensed areas – in particular, but not limited to areas for the sale of alcohol – are the functions of the democratically accountable councillors who sit on the licensing sub-committee and may not be delegated.

In R (Hope & Glory Public House Limited) v City of Westminster Magistrates Court [2] the Court of Appeal emphasised the importance of democratic accountability in licensing decisions. Toulson LJ said: “… Parliament had chosen to make the local authority central to the promotion in its area of the licensing objectives set out in the Act, because local councillors are accountable to the local electorate and are expected to be sensitive to the needs and concerns of the local populace.”

Assessments by Safety Advisory Groups, the development of Event Safety Plans, and even approval by unelected officers of the licensing authority, are not substitutes for the decisions of a licensing sub-committee: they are additional measures necessitated by the sheer scale of what is proposed by music festivals and other large-scale events.

Public safety is, in any event, only one of the licensing objectives.

Conclusions

An application to licence a large-scale festival with a predicted attendance of tens of thousands requires greater scrutiny by a licensing sub-committee than does a bar or nightclub – not less scrutiny. Self-evidently, major events are significantly more vulnerable to compromising the licensing objectives. Large-scale events and music festival have no special privileges or entitlements to by-pass the licensing regime.

In order for a licensing sub-committee to assess whether or not to grant, and if it grants what conditions it is appropriate to put on a licence, it is necessary for it to be given the detail, not the outline, of the application it is considering: that is why Regulation 23 requires the application to be accompanied by a detailed plan which sets out each of the particulars itemised in the Regulation.

An application in outline only, which is not accompanied by “a plan of the premises… in the prescribed form” is not in accordance with section 17(3)(b) of the 2003 Act. Accordingly, a licensing sub-committee will have no jurisdiction to grant a premises licence: jurisdiction to grant a premises licence arises only when a licensing authority “receives an application… made in accordance with section 17”: section 18(1)(a).

Irrespective of jurisdiction, because the number, size and location of the areas intended to be used for each of the licensable activities will be unknown to a licensing sub-committee who receives only an outline plan, it will not be possible for it to make a rational determination as to the steps it is appropriate to take for the promotion of the licensing objectives: section 18(3)(b).

It may well be the case (it is frequently said to be so) that the Licensing Act makes inadequate provision for the licensing of major events such as music festivals. That, however, is for Parliament to address: it is not for licensing practitioners to invent new law to suit their clients.

[1] [2012] EWHC 3467

[2] [2011] EWCA Civ 31