Our ‘legal doctor’ Robert Botkai discusses the pros and cons of hearings online versus in person and also Temporary Event Notices

FT - Robert Botkai partner Winckworth Sherwood

As a result of the Covid pandemic, online hearings are now well established as part of the licensing process.

Readers will be aware that a hearing must be held to consider an application for a premises licence or a variation of a licence where objections (representations) have been made and remain outstanding – ie not negotiated away.

Public participation in and access to the hearings is essential. Local residents have a right to be heard and elected representatives are to be held accountable to their electorate for their decisions.

At the start of the lock-down, there was some delay while licensing authorities organised themselves. One or two stopped accepting applications but the majority were engaged in putting measures in place to function online as soon as possible.

Unfortunately, there was little co-ordination between the authorities and so we ended up with a range of Teams/Zooms and even telephone hearings. At some hearings we could see who we were talking to but at others there would simply be initials or frozen images on screen. I would say that the vast majority of hearings have been well organised and fair. As society is re-opening there is now a debate as to whether remote hearings should continue.

I set out some of the pros and cons below based on my own experience of participating in more than 50 online hearings since lock-down began.

The Pros

There is a saving in travel and accommodation expenses. This may translate into a saving in costs to an applicant overall.

For those residents with access to a computer and familiarity with Zoom/Teams, hearings are more accessible and less intimidating.

I spend more time with Oli the cat.

The Cons

Courtroom is missing – it becomes almost impossible to pick up on visual cues. The theatrical skills of the advocate (me) are far more difficult to get across on a small screen.

The opportunity for applicants and residents to meet and build relationships before, during and after live hearings does not materialise online.

The decision is usually handed down at a live hearing. It is not uncommon for the advocate to point to an error and for this to be corrected before departing the meeting. The decisions at online hearings usually follow within five working days. The opportunity for correction is generally lost.

Oli gets a bit impatient during my closing remarks.

I suspect we will move to so-called hybrid hearings. Parties will be given the opportunity of joining online but the hearing itself will take place at the Council premises. I recently dealt with such a hearing.

I advised the client that we would be disadvantaged if we were seeking to participate in a live hearing from a screen in the Council Chamber.

We physically attended the meeting, as did all parties save for the planning officer making a representation. We secured a 24-hour licence. It was refreshing to be debating in person. The police and licensing officers, both opposing the application, were present. I am almost certain that had we opted to join online, the outcome would have been different. Our attendance also meant having a coffee and chat with officers and so we were building relationships for the future.

Temporary Event Notices

Briefly, if your store is without a premises licence for whatever reason, you can serve a temporary event notice (TEN). The TEN, if issued, will authorise the sale of alcohol and/or the provision of late-night refreshment. So, if, for example, you are opening a new site, but the licence has not yet been granted, you can serve a TEN.

Each TEN can be for a period of up to seven days (they were probably created for festivals).

This is a quick process:

Notice must be served at least five working days before the ‘event’.

If police and environmental health officers do not serve a counter notice within three working days, the TEN must be issued.

You can get up to five TENs a year. If you already have a personal licence to sell alcohol, you can be granted up to 50 TENs a year.

A single premise can apply for up to 15 TENs in one year, as long as the total length of the events is not more than 21 days.

There must be at least a 24-hour gap between them.

The government has revised the TENs regulations with effect from September 16, 2021. This is intended to assist the hospitality industry as it recovers from the impact of the Covid pandemic.

For the years 2022 and 2023, a single premise will be permitted to 10 TENs for a total maximum of 26 days. However, the very inconvenient 24-hour break between TENs will remain.

I would very much welcome feedback and suggestions on these issues or any areas you would like me to cover in future articles.