The Guidance to licensing authorities and police on the discharge of their functions under the Licensing Act 2003 was issued by the Secretary of State on 7 July 2004. This included guidance to police officers on using expanded closure powers in the Act to deal with disorder or noise nuisance problems on premises.

 

 

 

 

 

 

Section 182 of the Licensing Act 2003 provides the Secretary of State must issue guidance to licensing authorities on the discharge of their functions under the 2003 Act. It was approved by Parliament in June.

 

 

No. The Guidance cannot change the primary legislation.

 

 

Under the 2003 Act, it is the duty of all licensing authorities that, in carrying out their functions, they must have regard to guidance issued by the Secretary of State under section 182.

 

 

The Guidance cannot anticipate every possible scenario or set of circumstances that may arise. Provided that they have properly understood and considered the Guidance, licensing authorities may depart from it when they have reason to do so. However, as the authorities are under a duty to have regard to the Guidance, they will need to give full reasons for their departure from it. This would be a key consideration for the courts should departure from the Guidance result in a determination which gives rise to an appeal or judicial review.

 

 

We have listened to the concerns of industry interests and other stakeholders and clarified these points as far as we can in the Guidance. Ultimately, however, whether or not activities fall within particular definitions and expressions used in and relating to the 2003 Act will be a matter of fact depending on the individual circumstances of the case and will ultimately be for the courts to determine.

 

 

The Guidance recognises that the saturation of licensed venues in an area can impact on public nuisance and disorder. The planning authority, environmental health authority and police should all be consulted on new licence applications. If a 'problem' area has been identified, licensing authorities can have a special policy against granting any more licences - but should of course consider each application on a case by case basis. A restaurant or cinema, for example, may not add to the 'cumulative effect'.

 

 

Yes. A local authority itself can obtain a premises licence for public space, such as village greens, parks, commons, market squares and allow event organisers to use the location for licensable activities. The Guidance encourages local authorities to consider this option as a means of encouraging more cultural activities within their constituency.