A House of Lords Select Committee is currently interviewing witnesses as it considers making proposals to reform the licensing laws. Any recommendations will not be binding on the Government, but are likely to be persuasive, and could impact on petrol retailers.
The Select Committee is considering a range of issues.
A Public Health Licensing Objective
In addition to the four licensing objectives (see box), there is a considerable lobby for the introduction of a fifth the protection of public health and wellbeing. I struggle to see how a licensing committee can possibly predict whether the grant of a single licence will have an effect on public health. As such, the new objective could be pointless. However, if the store is in a cumulative impact area, it will be for the applicant to prove that the grant will not impact on public health. This really is an impossible hurdle.
On November 22, the Lords questioned representatives from three major retailers and seemed to be sceptical about how a public health objective could be used by a licensing committee when deciding on a single licence application. I hope that this scepticism will win the day but there is a strong lobby out there pushing for this new licensing objective.
Additional regulation for off licences
Home Drinking: The Select Committee has heard from witnesses that the price differential between on and off sales has "turned us into a home drinking nation". They are asking if a different approach is needed for licensing the off trade. The retailer cannot be expected to know or find out where and when the customer intends to consume the purchased alcohol. There has been a society change partly fuelled by the internet, which enables us to download a film, have a meal delivered and enjoy an evening in with a bottle of wine. It is not all down to the price. Home drinking cannot be regulated. The committee also wants to know how the off trade can help to reduce ’pre loading’. However, the purchase can take place anytime, anywhere. There would be no point, for example, restricting off licence sales on Friday and Saturday evenings as the purchases would then be made on other days.
Minimum Unit Pricing: The argument for minimum unit pricing continues to rage. Scotland is taking the lead on this, with the Scottish Whisky Association challenging the Government’s attempt to introduce a minimum unit price. England and Wales are watching carefully.
Super strength beer and cider: Regulation on high-strength beer and cider may well be considered. Even this is not straightforward. Legislation will struggle to differentiate between the high- strength beer or cider, which is known to be attractive to alcohol dependents, and craft/specialist beers and ciders which can also be high strength. I suspect that the Select Committee will conclude that locally organised voluntary schemes work better than changing the law, but a rise in taxation for high-strength alcohol may well be a recommendation.
Alcohol delivery: The delivery of alcohol to the home appears to on the minds of the peers. I am not quite sure who has identified alcohol delivery as a problem that needs solving. It is not unlawful in England and Wales to deliver alcohol to a person who is under 18, but most major retailers operate Challenge 25 on the doorstep. Well done to the Ocado driver who refused to hand over a bottle of wine to my 16-year old daughter, who argued that her licensing lawyer Dad was in the bath.
24-hour licences: The Lords did touch on 24-hour licences and a concern is that they may recommend that off licences be restricted to shorter hours so that no off sales may be made or delivered during the night. This would be a draconian step and one hopes that the trade would have the opportunity to put its case for 24-hour sales.
Licensing and planning: The select committee is looking at the relationship between licensing and planning. Some witnesses have called for a single regime, with the same procedure, inspectors and appeals system. I hope that the Lords will have been persuaded that licensing and planning cover different issues. My own view is that merging them into one process could well assist with new developments, but in all other cases would simply slow the process.
Inconsistency in decision making: There has been concern about inconsistency in licensing sub committee decisions. The local nature of the sub committees means that some inconsistency is inevitable. The only way to counter this would be a national licensing inspectorate and appeals process and I don’t believe there is any appetite for this. Decisions made by licensing justices before the Licensing Act came into force in 2005 were considerably more inconsistent.
More cumulative impact: Witnesses for the off trade argued that cumulative impact policies for off licences are unhelpful and result in new licences being refused, but little action being taken against irresponsible existing retailers. I believe that the argument was taken on board.
Enforcement: The select committee has heard about the relatively low level of enforcement, very few reviews, and virtually no prosecutions for serving alcohol to someone who is drunk. I believe they will stress in their recommendations that officers need to be encouraged to have confidence in the use of their powers to regulate the irresponsible traders without fear of costs orders. The powers are there. Use them.
I would be surprised to see recommendations of wholesale change, but there is a risk that the Lords will recommend greater restrictions on off sales, perhaps relating to late night sales and deliveries. Licensing, particularly for off licences, is unlikely to get any easier. If you are considering applications for new grants or extended hours, it may be best to progress these before any reforms are implemented. I cannot say if such reforms would be retrospective.
Robert Botkai is a partner and head of commercial real estate and licensing at law firm Winckworth Sherwood.
He can be reached by email at firstname.lastname@example.org. Visit www.wslaw.co.uk.
Licensing: the basics
The Licensing Act 2003 sets out the framework for the law in England and Wales in relation to the following activities relevant to petrol stations:
The sale of alcohol by retail;
and the provision of late-nightrefreshment the sale of hot food and hot drinks between 11pm and 5am.
The Licensing Act is underpinned by four licensing objectives:
The prevention of crime and disorder;
The prevention of public nuisance;
The protection of childrenfrom harm.
Every decision taken by a licensing authority, whether to grant a licence or to take it away, must be made by reference to these objectives.
Generally, a licence will be granted unless an objector can demonstrate that the grant will be contrary to one or more of the licensing objectives.
However, if the application is for premises in a cumulative impact area, the burden is reversed. There is then a presumption that the application will be refused unless the applicant can demonstrate that the grant will not or is unlikely to impact on the licensing objectives. This test can prove to be an extremely problematic hurdle for an applicant.