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Agenda Item No. 6 25th June, 2015 |
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To the Chair and Members of the
LICENSING
COMMITTEE
TERMS OF REFERENCE,
PROCEDURE AND DELEGATIONS
EXECUTIVE
SUMMARY
1.
The
purpose of this report is for the Licensing Committee to note the Terms of
Reference for the discharge of licensing functions, to note the procedure for
hearings, to agree the delegation of functions and to agree the appointment of
Members to the Licensing Sub-Committee Divisions.
RECOMMENDATIONS
2. a) It is recommended that Members note:
(i)
The
Terms of Reference for the Licensing Committee as detailed in Appendix A to
this report.
(ii)
The
Terms of Reference for the Licensing Sub-Committees as detailed in Appendix A.
(iii)
The
procedures set out in Appendices B1 and B2 continue to be the procedures for Licensing
Committee and Sub-Committee hearings held under the Licensing Act 2003 and the
Gambling Act 2005 respectively.
(iv)
The procedure for dealing with settling appeals after the Sub Committee
hearing but before the appeal hearing in the magistrates’ court is decided.
b) It is recommended that Members agree:
(i)
The
delegation of functions set out in Appendix C1 and C2.
(ii) The appointment of Members to the Licensing
Sub-Committee as set out in Appendix D.
WHAT DOES THIS MEAN
FOR THE CITIZENS OF DONCASTER
3. Doncaster
Council as the licensing authority is required to establish a licensing committee
and sub-committee(s) in order to discharge its duties under the Licensing Act
2003 and the Gambling Act 2005. The
establishment of defined terms of reference, clear procedures and delegations
allows the Council to make licensing decisions.
BACKGROUND
4. Terms of Reference of the Licensing
Committee are unchanged from those that were noted by the Licensing Committee
on the 26th June 2014. A copy
of the Terms of Reference is set out in the Appendix A to this report for the
Committee to note.
5. The Licensing Act
2003 and the Gambling Act 2005 enables the Licensing Committee to determine its
own procedure and those of its Sub-Committees subject to the provisions of the
Licensing Act 2003 (Hearings) Regulations 2005 and the
Gambling Act 2005 (Proceedings of Licensing Committees and Sub-committees)
(Premises Licences and Provisional Statements) (England and Wales) Regulations
2007 respectively.
The procedures are set out in Appendix B1
and B2 of this report.
6. The Licensing Act 2003 provides that the functions of the
Council as the Licensing Authority shall be carried out by its Licensing
Committee, with the exception of the Statement of Licensing Policy. The Licensing Committee may delegate those
functions to Sub-Committees or, where permitted, to officers. Details of these delegations are found at
Appendix C1.
7.
The
Gambling Act 2005 provides that all decisions relating to premises licences are
with the exception of those listed below, delegated to the Licensing Committee
that has been established under the Licensing Act 2003. The Licensing Committee may delegate those
functions to the Sub-Committee or, where permitted, to officers. Details of these delegations are found at
Appendix C2
Exceptions:
·
A
resolution not to issue casino licences (Full Council decision only)
·
Functions
in relation to the Statement of Policy (Full Council decision)
·
Setting
of fees (Full Council)
8. The appointment of the Licensing Sub-Committee and Member
make-up process is unchanged with the minimum number of Members required to be
quorate being 3.
9.
For
hearings held to consider matters relating to the Licensing Act 2003, where
more than 3 Members attend those additional Members would be able to choose
from the following options:
· Stay and
take part in the meeting and agree the outcome with the rest of the
Sub-Committee Members;
· Sit in the
public area as an observer; or
·
Leave the meeting if they so wished.
10.
For hearings held to consider matters relating to
the Gambling Act 2005, the current Statement of Policy does not allow more than
the minimum of 3 Members to take part in the meeting. Where more than 3 Members attend those
additional Members would be able to choose form the following options:
· Sit in the
public area as an observer; or
·
Leave the meeting if they so wished.
11. In the case of an appeal of a Sub-Committee decision there is no reason why mediation or other discussions should
not be held between the Licensing Authority and the appellant once an appeal
has been lodged to either settle the matter entirely or to resolve those issues
that can be resolved or indeed to identify issues in dispute. The question is
how these may be dealt with. The options are:
1)
Refer back to the Sub-Committee
This is only possible where there is ample time between the
offer to settle and the appeal hearing. The views of interested parties and
responsible authorities will also need to be canvassed.
2)
Give the Licensing Officer discretion to settle
The
Licensing Officer must understand the scope of any discretion. It may be that
the discretion is only within guidelines/limits from the Licensing Committee or
perhaps a decision made by the Licensing Officer in conjunction with the Chair
of the Sub-Committee.
OPTIONS CONSIDERED
12. No other option was considered.
REASONS FOR RECOMMENDED
OPTION
13. The Committee must note the Terms of
Reference, may adopt its own Procedures, may establish one or more sub-committees
and may determine the delegation of functions under the Licensing Act 2003.
14. Guidance issued by the Secretary of State recommends that
functions, so far as possible, should be delegated in the interests of speed,
efficiency and cost effectiveness.
IMPACT ON THE COUNCIL’S KEY
PRIORITIES
15.
|
|
Priority |
Implications |
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We
will support a strong economy where businesses can locate, grow and employ
local people. ·
Mayoral Priority: Creating Jobs and
Housing ·
Mayoral Priority: Be a strong voice
for our veterans ·
Mayoral Priority: Protecting
Doncaster’s vital services |
Functions
are delegated in the interests of speed, efficiency and cost effectiveness wherever possible. This ensures that licensing decisions can
be made in a timely manner. |
|
|
We
will help people to live safe, healthy, active and independent lives. ·
Mayoral Priority: Safeguarding our Communities ·
Mayoral Priority: Bringing down the cost of living |
None |
|
|
We
will make Doncaster a better place to live, with cleaner, more sustainable
communities. ·
Mayoral Priority: Creating Jobs and
Housing ·
Mayoral Priority: Safeguarding our
Communities ·
Mayoral Priority: Bringing down the
cost of living |
None |
|
|
We
will support all families to thrive. ·
Mayoral Priority: Protecting
Doncaster’s vital services |
None |
|
|
We
will deliver modern value for money services. |
Functions
are delegated in the interests of speed, efficiency and cost effectiveness wherever possible. |
|
|
We
will provide strong leadership and governance, working in partnership. |
None |
RISKS AND ASSUMPTIONS
16. It
is a requirement of the Licensing Act 2003 and the Gambling Act 2005 to adopt
Terms of Reference, the procedure for hearings and approve the delegation of
functions.
LEGAL IMPLICATIONS
17. Sections 101 and 102 of the Local
Government Act 1972 empower the Council to arrange for the discharge of any of
its functions by a Committee or Sub-Committee.
Sections 101 and 102 of the Local Government Act 1972 do not apply to the
Licensing Committee or Licensing Sub-Committees. The Council is obliged by law to appoint a
Licensing Committee under the Licensing Act 2003 and Gambling Act 2005.
Care
must be taken to ensure the procedure agreed and delegations comply with the
relevant statutes.
It is important to note
that if a matter is listed for determination by a Sub-Committee, but it is not
heard within the requisite timescales, statute determines the outcome and, therefore,
the procedures should ensure we meet the relevant timescales and statutory
requirements.
FINANCIAL
IMPLICATIONS
18. There are no specific financial implications associated with this report.
EQUALITY IMPLICATIONS
19. Decision makers must consider
the Council’s duties under the Public Sector Equality Duty at s149 of the
Equality Act 2010. The duty requires the
Council, when exercising its functions, to have ‘due regard’ to the need to
eliminate discrimination, harassment and victimisation and other conduct
prohibited under the act, and to advance equality of opportunity and foster
good relations between those who share a ‘protected characteristic’ and those
who do not share that protected characteristic. There are no specific equality
implications arising from this report.
However, any activities arising from this report will need to be the
subject of separate ‘due regard’ assessments.
CONSULTATION
20. Consultation has taken place between Governance
Services, Legal Services and the Licensing Officer.
BACKGROUND PAPERS
21. Report
to Annual Council, Terms of Reference Report.
Gambling Act 2005
Licensing Act 2003
Licensing Act 2003 (Hearings)
Regulations 2005
Gambling
Act 2005 (Proceedings of Licensing Committees and Sub-committees) (Premises
Licences and Provisional Statements) (England and Wales) Regulations 2007
Statement of Licensing Policy 2011
Statement of Gambling Policy 2013
REPORT
AUTHOR & CONTRIBUTORS
Paul
Williams, Business Safety & Licensing Manager
Tel:
(01302) 737837
E:
mail: pj.williams@doncaster.gov.uk
Helen Wilson, Senior Legal
Officer
Telephone: 01302 734688
Email: Helen.wilson@doncaster.gov.uk
David Murphy, Senior Finance
Officer
Telephone: 01302 737862
Email: david.murphy@doncaster.gov.uk
Peter
Dale
Director
of Regeneration and Environment
Appendix A
LICENSING COMMITTEE
This
Committee is a Committee of the Council constituted:
(1) In relation to its functions under the Licensing Act 2003,
under Section 6 of that Act.
(2) In relation to its functions under the Gambling Act 2005.
(3) In relation to its other functions, under Sections 101 and 102
of the Local Government Act 1972.
Terms of Reference
FOR RECOMMENDATION TO COUNCIL:-
1. In respect of the relevant prescribed period to consider the
adoption of the Statement of
Licensing Policy.
2. During the relevant prescribed period to keep the Statement of
Licensing Policy under review, and to recommend any revisions to it.
FOR RECOMMENDATION TO THE EXECUTIVE:-
1. In respect of the relevant prescribed period to advise on the preparation, content and implementation of the
Statement of Gambling Policy.
2. During the relevant prescribed period to keep the Statement of
Gambling Policy under review, and to recommend any revisions to it.
DELEGATED MATTERS:-
1. To discharge the functions of the Council
that are licensing functions within the meaning of the
Licensing Act 2003 as amended.
2. To discharge the functions of the Local Authority as set out
in the Gambling Act 2005.
3. The appointment of Licensing Sub‑Committees under
Section 10 of the Licensing Act 2003.
4. To determine Policies that are relevant to the Council’s
functions under Part 3 of the Constitution which relate to those licensing and
registration functions unless the policy must be determined by Full Council.
5. To exercise the Council’s functions under Part 3 of the
Constitution which relate to those licensing and registration functions except
where the function has been delegated to Officers of the Council
LICENSING SUB-COMMITTEES
These
Sub‑Committees are Sub‑Committees of the Licensing Committee
appointed by that Committee under Section 10 of the Licensing Act 2003 and
constituted:
(1) In relation to their functions under the Licensing Act 2003,
under Section 6 of that Act.
(2) In relation to their functions under the Gambling Act 2005.
(3) In relation to their other functions, under Sections 101 and
102 of the Local Government Act 1972.
Terms of Reference
1.
To
determine applications under the Licensing Act 2003, where relevant
representations are received.
2.
To
determine applications under the Gambling Act 2005, where relevant
representations are received.
3.
To
determine applications in relation to the Council’s functions under Part 3 of
the Constitution which relate to those licensing and registration functions,
where relevant representations are received.
APPENDIX B1
DONCASTER METROPOLITAN BOROUGH COUNCIL
LICENSING ACT 2003
LICENSING ACT 2003 (HEARINGS)
REGULATIONS 2005
1. Meaning of Expressions used in this
Document
|
“the
Act” |
- Licensing
Act 2003 |
|
“the
Regulations” or any particular reference to a “Regulation” |
- The Licensing Act
2003 (Hearings) Regulations 2005 |
|
“the
Authority” |
- Doncaster
Metropolitan Borough Council, in its capacity as the relevant licensing
authority under the Act, or where the context so admits the Committee |
|
“the
Committee” |
- the Sub-Committee of
the Authority’s Licensing Committee constituted under the Act to determine
the matter before it |
|
“the
Chair” |
- the member of the
Committee appointed to act as Chairperson of the Committee |
|
“the
Applicant” |
- the party making the
application e.g. the licence/certificate holder or prospective holder, or the
party seeking a review |
|
“responsible
authorities” |
- the public or other
bodies described in the Act as “responsible authorities” and who have made
representations |
2. Rights of attendance, assistance and
representation at hearings
(a) A party may attend the hearing and may be
assisted or represented by any other person.
There is no requirement that a party’s representative is legally or
otherwise professionally qualified.
(b) The hearing shall take place in public, unless
the Authority decides to exclude the public from all or part of the hearing
because it considers that the public interest in doing so outweighs the public
interest in the hearing, or that part of the hearing taking place in public. A party and any person assisting or
representing a party, may be treated as a member of
the public.
(c) The Authority may exclude from a public
hearing any person attending who acts in a disruptive manner,
and refuse to re-admit that person, or impose conditions on his/her
re-admission. Any such excluded person
may, before the end of the hearing, submit to the Authority in writing any such
information that he/she would have been entitled to give orally.
(d) The Authority may dispense with a hearing
if all of the persons required by the Act agree that a hearing is unnecessary,
have given notice to the Authority that they consider a hearing to be
unnecessary, and the Authority have given notice to all parties that the
hearing has been dispensed with.
3. Non-attendance of a party at the hearing
(a) If a party has informed the Authority that
he/she does not intend to attend the hearing, or be represented at the hearing,
the hearing may proceed in his/her absence.
(b) If a party who has not so notified the
Authority does not attend either in person or by his/her representative, the
Authority shall adjourn the hearing to a specified date if it considers it in
the public interest to do so, but it shall otherwise proceed with the hearing
in that party’s absence.
(c) Where the hearing proceeds in the absence
of a party, the Authority shall consider the application, representations or
notice made by that party.
(d) Where the hearing is adjourned, the
Authority shall forthwith, notify the parties of the date, time and place to
which the hearing has been adjourned.
4. Procedure
at the Hearing
The hearing shall take the form of a discussion led by
the Authority. The following procedure
is intended to give form to such a discussion to ensure that all parties are
able to put their case. Each party shall
have equal maximum time in which to address the Committee. The Committee may take into account
documentary or other information provided by a party before the hearing, or
with the consent of all other parties at the hearing. The Committee may change the procedure in
individual cases, upon the application of a party, or upon its own motion, if
it considers it necessary to properly determine the business before it.
(a) At the commencement of the hearing, the
Chair will make introductions and establish that all parties understand the
procedure to be followed. The Committee
will then receive and determine any application that a party may wish to make
to permit another person to appear at the hearing, and any application that any
party wishes to make to vary the following order of addresses.
(b) The Applicant may then address the
Committee and provide any further information that the Authority have
requested. At the conclusion of the
Applicant’s address, members of the Committee may ask the Applicant
questions. Following questions by
Committee members, any other party that wishes to question the Applicant may
request permission to do so. If granted,
the party or parties receiving permission may question the Applicant.
(c) Other parties entitled to address the
Committee or given permission to do so under paragraph (a) above, may then do
so; and also provide to the Committee any information that the Authority have
requested. Following the address, the
members of the Committee may question the party addressing the Committee. Following any Committee questions, any other
party wishing to question the party that has addressed the Committee may seek
the Committee’s permission to do so. If
granted, the party or parties receiving permission may question the Applicant.
Order of Addresses under paragraph (c)
Subject to any direction given by the Committee under
paragraph (a) above, the order of addresses by other parties, under paragraph
(c) above, shall be:-
[1] Any representative of a “responsible
authority” (as defined in the Act)
[2] Any other party opposing the Applicant
[3] Any other party not falling within
category [1] or [2] above, or category [4] below
[4] Any other party supporting the Application
Permission to question or cross-examine
the Applicant or other party
A party may question any other party
appearing if given permission by the Authority.
The Committee will determine any
application by a party to question another party on its merits.
Cross examination shall not be
permitted unless the Authority considers that cross examination is required for
it to consider the representations, application or notice, as the case may
require.
The Committee shall determine any
application by one party to permit cross examination of another on its merits.
Normally, permission will be given to
one party to question or cross-examine another, only where:-
(i) a material fact
put forward by one party is disputed by another party and the dispute can be
properly determined, only if cross examination is permitted; or
(ii) the question
that one party wishes to put to the other is non contentious and is for the
purpose of clarification only.
5. The Committee’s Deliberations and
Determination
(a) The Authority considers that normally, it
will be in the public interest that the deliberations of the Committee are
conducted in private. Deliberations will
take place in private unless an application is made by any party present for
these to be conducted in public. If any such application is made, the Committee
shall determine such application.
(b) Subject to paragraph (a) above, the Chair
shall formally exclude the public including, the parties and their
representatives from the meeting under Regulation 14(2), to enable the
Committee to deliberate in private. The Committee shall deliberate only in the
company of its legal adviser. The
function of the legal adviser shall be to advise the Committee on points of law
and procedure only.
(c) If
during its deliberations, the Committee require any further information from
any party in order to assist in its deliberations, the Chair shall reconvene
the public hearing for the purpose of attempting to secure that further
information.
(d) Following the Committee’s deliberations,
the public shall be re-admitted to the hearing, whereupon the Chair shall
announce the determination of the Authority, where the provisions of the Act or
the Regulations require a determination to be made at the conclusion of the hearing
or otherwise where the Committee is unable to announce its determination.
(e) Following the announcement of any
determination of the application, representations or notice before the
Committee, the hearing shall conclude.
- Record of proceedings
A record of the hearing will be taken in a permanent and intelligible
form. Any such record will be kept for a
period of six years from the date that the application or review is finally
determined (including, in either case, any appeal or
judicial review).
Appendix B2
DONCASTER
METROPOLITAN BOROUGH COUNCIL
HEARING
PROCEDURE
Gambling Act
2005
The
Gambling Act 2005 (Proceedings of Licensing Committees and Sub-committees)
(Premises Licences and Provisional Statements) (England and Wales) Regulations
2007
1. Meaning
of Expressions used in this Document
|
“the Act” |
- Gambling Act 2005 |
|
“the Regulations” or any particular
reference to a “Regulation” |
- The Gambling Act 2005
(Proceedings of Licensing Committees and
Sub-committees) (Premises Licences and Provisional Statements) (England and Wales) Regulations 2007 |
|
“the Authority” |
- Doncaster Metropolitan Borough Council, in its
capacity as the relevant licensing authority under the Act, or where the
context so admits the Committee |
|
“the Committee” |
- the Sub-Committee of the Authority’s Licensing
Committee constituted under the Act to determine the matter before it |
|
“the Chair” |
- the member of the Committee appointed to act as
Chairperson of the Committee |
|
“the Applicant” |
- the party making the application e.g. the licence
holder or prospective holder, or the party seeking a review |
|
“responsible authorities” |
- the public or other bodies described in the Act as
“responsible authorities” and who have made representations |
2. Rights
of attendance, assistance and representation at hearings
(a) A party may attend the hearing and may be
assisted or represented by any other person.
There is no requirement that a party’s representative is legally or
otherwise professionally qualified.
In conducting a hearing the relevant committee must ensure that each
party is given the opportunity to—
i.
address the relevant committee on any matter that
is relevant to the application or review, or any representations made on the
application or review;
ii.
call witnesses to give evidence on any matter that
is relevant to the application or review, or any representations made on the
application or review;
iii.
provide further information on, or explanation of, any
matter on which the relevant committee has indicated that it will want further
clarification.
(b) The hearing
shall take place in public, unless the committee direct that all or part of a hearing must
be in private if it is satisfied that it is necessary in all the circumstances
of the case, having regard to—
(a) any unfairness to a party that is likely to
result from a hearing in public; and
(b) the need to protect as far as possible, the
commercial or other legitimate interests of a party. A party and
any person assisting or representing a party may be treated as a member of the
public.
(c) The
Authority may exclude from a public hearing any person attending who acts in a
disruptive manner and refuse to re-admit that person, or impose conditions on
his/her re-admission. Any such excluded
person may, before the end of the hearing, submit to the Authority in writing
any such information that he/she would have been entitled to give orally.
(d) The
Authority may dispense with a hearing if all of the persons required by the Act
agree that a hearing is unnecessary, have given notice to the Authority that
they consider a hearing to be unnecessary, and the Authority have given notice
to all parties that the hearing has been dispensed with.
3. Non-attendance
of a party at the hearing
(a) If
a party has informed the Authority that he/she does not intend to attend the
hearing, or be represented at the hearing, the hearing may proceed
in his/her absence.
(b) If a party who has not so notified the
Authority does not attend either in person or by his/her representative, the
Authority may adjourn the hearing to a specified date if it considers it in the
public interest to do so, but it may otherwise proceed with the hearing in that
party’s absence.
(c) Where the
hearing proceeds in the absence of a party, the Authority shall consider the
application, representations or notice made by that party.
(d) Where the
hearing is adjourned, the Authority shall forthwith, notify the parties of the
date, time and place to which the hearing has been adjourned.
4. Procedure
at the Hearing
The hearing
shall take the form of a discussion led by the Authority. The following procedure is intended to give
form to such a discussion to ensure that all parties are able to put their
case. Each party shall have equal
maximum time in which to address the Committee.
The Committee may take into account documentary or other information
provided by a party before the hearing, or with the consent of all other
parties at the hearing. The Committee
may change the procedure in individual cases, upon the application of a party,
or upon its own motion, if it considers it necessary to properly determine the
business before it.
(a) At the
commencement of the hearing, the Chair will make introductions and establish
that all parties understand the procedure to be followed. The Committee will then receive and determine
any application that a party may wish to make to permit another person to
appear at the hearing, and any application that any party wishes to make to
vary the following order of addresses.
(b) The
Applicant may then address the Committee and provide any further information
that the Authority have requested. At
the conclusion of the Applicant’s address, members of the Committee may ask the
Applicant questions. Following questions
by Committee members, any other party that wishes to question the Applicant may
request permission to do so. If granted,
the party or parties receiving permission may question the Applicant.
(c) Other
parties entitled to address the Committee or given permission to do so under
paragraph (a) above, may then do so; and also provide to the Committee any
information that the Authority have requested.
Following the address, the members of the Committee may question the
party addressing the Committee.
Following any Committee questions, any other party wishing to question
the party that has addressed the Committee may seek the Committee’s permission
to do so. If granted, the party or
parties receiving permission may question the Applicant.
Order of
Addresses under paragraph (c)
Subject to
any direction given by the Committee under paragraph (a) above, the order of
addresses by other parties, under paragraph (c) above, shall be:-
[1] Any
representative of a “responsible authority” (as defined in the Act)
[2] Any other
party opposing the Applicant
[3] Any other
party not falling within category [1] or [2] above, or category [4] below
[4] Any other
party supporting the Application
Permission
to question or cross-examine the Applicant or other party
A party may
question any other party appearing if given permission by the Authority.
The Committee
will determine any application by a party to question another party on its
merits.
Cross
examination shall not be permitted unless the Authority considers that cross
examination is required for it to consider the representations, application or notice,
as the case may require.
The
Committee shall determine any application by one party to permit cross
examination of another on its merits.
Normally,
permission will be given to one party to question or cross-examine another,
only where:-
(i) a material
fact put forward by one party is disputed by another party and the dispute can
be properly determined, only if cross examination is permitted; or
(ii) the
question that one party wishes to put to the other is non-contentious and is
for the purpose of clarification only.
5. The
Committee’s Deliberations and Determination
(a) The
Authority considers that normally, it will be in the public interest that the
deliberations of the Committee are conducted in private. Deliberations will take place in private
unless an application is made by any party present for these to be conducted in
public. If any such application is made, the Committee shall determine such
application.
(b) Subject to
paragraph (a) above, the Chair shall formally exclude the public including, the
parties and their representatives from the meeting under Regulation 14(2), to
enable the Committee to deliberate in private. The Committee shall deliberate
only in the company of its legal adviser.
The function of the legal adviser shall be to advise the Committee on
points of law and procedure only.
(c) If during
its deliberations, the Committee require any further information from any party
in order to assist in its deliberations, the Chair shall reconvene the public
hearing for the purpose of attempting to secure that further information.
(d) Following
the Committee’s deliberations, the public shall be re-admitted to the hearing,
whereupon the Chair shall announce the determination of the Authority, where
the provisions of the Act or the Regulations require a determination to be made
at the conclusion of the hearing, or otherwise where the Committee is unable to
announce its determination, notification will be given to all parties within
five days.
(e) Following the announcement of any determination
of the application, representations or notice before the Committee, the hearing
shall conclude.
6.
Record of proceedings
A record of the hearing will be taken in a permanent and intelligible
form. Any such record will be kept for a
period of six years from the date that the application or review is finally
determined (including, in either case, any appeal or judicial review).