Department for Culture Media and Sport
licensing authorities and police
Revised Guidance to licensing authorities on the discharge of their functions under the Licensing Act 2003 was laid on 28 June 2007
Guidance to police officers on the use of closure powers in the Act to deal with disorder or noise nuisance problems on premises is available separately. This Guidance previously formed Chapter 11 of the Guidance issued under section 182.
Questions & Answers
What is the purpose of the Guidance?
Can the Guidance override or modify the 2003 Act?
Is the Guidance mandatory for licensing authorities/local authorities?
Can licensing authorities depart from the Guidance to reflect local circumstances?
Why doesn't the Guidance clarify what is meant by incidental music/sport/dance etc
What does the Guidance say about saturation/cumulative effect?
Can a local authority licence a public space for all to use?
What is the purpose of the Guidance?
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. Guidance was first approved by Parliament and issued in June 2004. Revised Guidance was laid before Parliament on 28 June 2007.
Can the Guidance override or modify the 2003 Act?
No. The Guidance cannot change the primary legislation.
Is the Guidance mandatory for licensing authorities / local authorities?
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.
Can licensing authorities depart from the Guidance to reflect local circumstances?
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.
Why doesn't the Guidance clarify what is meant by incidental music / sport / dance etc
We have listened to the concerns of industry interests and other stakeholders and clarified these points as far as we can in the revised Guidance issued in June 2007. 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.
What does the Guidance say about saturation / cumulative effect?
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'.
Can a local authority licence a public space for all to use?
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. Further details, including a register of local authority licensed public spaces in England and Wales, is available on this website.
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