Agenda item - Schedule of Licensing Appeals

Report of the Director of Strategy & Governance (copy attached).

RESOLVED – That the Schedule of Licensing Appeals is noted.

8.1       The Solicitor to the Committee stated that two further appeals had been lodged with the Magistrates Court following publication of the Committee papers, and these were for Mesopotamia, 17 York Place, Brighton and Three To Four, 3-4 Western Road, Hove.

8.2       Councillor Pidgeon asked for details on the appeal hearing that Tesco had recently won against the Council. The Solicitor replied that whilst the case for the Council had been strong and fought well, with several residents and Councillor Fryer attending as witnesses, the Magistrates Court had decided that the conditions offer by Tesco during the appeal process would be satisfactory, and the store would not increase the general consumption of alcohol in the St James’ Street area.

8.3       Councillor Pidgeon asked what the costs were for the appeal and the Solicitor replied that £6,000 had been spent on legal representation for the Council. Although Tesco won the appeal they did not claim for costs and were not awarded any by the Magistrates Court.

8.4       The Chairman expressed concern that the Magistrates Court often went against decisions made at Panel hearings, regardless of how well and carefully considered they were. Councillor Watkins agreed and was concerned that the Magistrates Court was an undemocratic way of deciding on difficult licence applications, as members of the public were completely removed from the process.

8.5       The Solicitor noted that there had been no criticism of the Panel decision by the Magistrates Court, as at the time of the Panel’s decision Tesco had not proposed the number of conditions that were subsequently placed on the licence.

8.6       Councillor Young asked that the conditions be monitored closely to ensure the residents did not experience any negative impact, and the Head of Environmental Health and Licensing replied that if it appeared that licensing conditions were breached the department would take the necessary enforcement action.

8.7       Councillor Fryer noted that some conditions offered by Tesco during the appeal process were worse than what had been offered at the Panel hearing, including an extended opening time until 23:00 hours. She felt that the original decision had been disregarded by the Magistrates Court, and stated that this frequently happened during appeal hearings. She felt that this issue needed to be addressed and proposed that the Committee write a letter to the Government expressing their concerns.

8.8       The Solicitor agreed that it could be frustrating when decisions were changed at appeal hearings, but noted that it was a de novo hearing where new evidence could be introduced and considered.

8.9       The Head of Environmental Health and Licensing advised a cautious approach if the Committee were minded to write a letter to the Government, as there was a danger that the Magistrates Court could become alienated by this action. He noted there had been four appeals, with three allowed and one modified and he did not feel this was enough evidence to draw conclusions.

8.10    Councillor Mrs Theobald expressed concern that the premises was now allowed to open longer than any other off-licence premises in the area and the alcohol sold could be cheaper and would therefore result in increased sales in the area. She felt at times it was better to approve the application and negotiate better conditions than to rely on the Magistrates Court.

8.11    Councillor Watkins felt there was a danger that decisions at Panels could be influenced by the prohibitive costs of fighting an appeal at the Magistrates Court, especially when the Council lost so many cases.

8.12    Councillor Fallon-Khan noted that even with the statistics available the Council was still loosing 75% of appeals that went to the Magistrates Court, and he felt that a letter should be written expressing concern on this matter.

8.13    Councillor Hawkes stated that the Cabinet Member for Environment sat on a representative body with other Licensing Authorities. She felt that he could be asked to lobby on this issue at that body, as it was likely that other authorities were experiencing the same problems.

8.14    Councillor Simson suggested that the Committee approach LACORS on the issue. She did not think decisions at Panels were ever influenced by the threat of an appeal and felt that the decisions so far had been excellent. Councillor Watkins agreed that they had been, but was worried that future pressures on budgets may have an unwarranted effect.

8.15    The Solicitor to the Panel stated that she would soon join a licensing lawyers’ networking group and offered to raise the issue there to find out what the experience of other local authorities was. She would then report her initial findings back to Committee for further action.

8.16    RESOLVED – That the Schedule of Licensing Appeals is noted.