When is a representation not a representation?

Representations are of fundamental importance to the licensing process. The Licensing Act 2003 attempted to simplify the licensing process, meaning that in the absence of legitimate concerns about an application, it will be a straightforward administrative process to grant that licence or the changes sought. However, where there are concerns about the effect of an application on the licensing objectives these should be considered and dealt with appropriately. A valid representation can therefore mean that instead of an application for a new premises licence or a major variation being simply granted at the end of the consultation period, a decision will need to be made by the Licensing Sub Committee, often with additional cost and delay for the applicant and uncertainty for all parties.

For a representation to be valid it must be ‘relevant’, that is, about the effect of the application on the licensing objectives. If a representation does not meet this requirement, or is ‘frivolous or vexatious’, then it is not a representation for the purposes of the licensing process. Relevance can be difficult to determine and it is often inconsistently interpreted by different licensing authorities. The Government Guidance is clear that in borderline cases the benefit of the doubt should be given to the person making the representation. This can be enormously frustrating where the only thing standing between you and the changes to your licence is something that you might consider to be totally irrelevant or even untrue.

Consider an application for an existing pub to extend their licence from midnight to 2am to allow late night DJs. A representation from an upstairs neighbour who has been complaining about the music for months is likely to be considered relevant. However, if that neighbour had never experienced any noise nuisance and was simply concerned about the effect of the changes on the value of their property then that would not relate to one of the licensing objectives and would not be relevant.

The representation must also relate to the application. Where the application is purely to vary plans to reconfigure the toilets, then it is unlikely that a representation brought on the grounds of crime and disorder would be relevant. Licensing authorities can now object to applications and often do so where a premises falls in one of their cumulative impact areas. We have dealt with matters which have gone to a hearing on the basis that the premises is in a cumulative impact area and the licensing authority alone have objected – without any supporting representations from the police and environmental health officers, often on whose evidence a cumulative impact policy is introduced.

It is the job of the licensing authority to determine whether a representation is relevant. There is often a lot at stake and if you have any concerns about a representation you should take legal advice.