Hearings
Decision making by the Sub-Committees
The Licensing Sub-Committee will meet to consider the
representations made by interested parties, responsible authorities
and the applicant and make its decision, usually on the day of the
hearing, based upon the following:
- the merits of the application;
- the promotion of the four licensing objectives, as laid out in
the Licensing Act 2003;
- the policy of the licensing authority;
- the Guidance issued by the Secretary of State for Culture,
Media and Sport on 7th July 2004 under section 182 of the Licensing
Act 2003.
Dispensing with a hearing
However, if all parties agree, by giving written notice to the
authority, the authority may dispense with holding a hearing.
During the preliminary stages of the hearing all parties will again
be given the opportunity to dispense with the hearing.
Withdrawal of representations
A party who wishes to withdraw any representation may do so by
giving notice to the authority no later than 24 hours before the
first date of the hearing, or orally at any stage of the
hearing.
Extensions of time and adjournments
The authority may extend a time limit given in the provisions,
if the authority believes it to be in the public interest to do so.
If the authority does so, it must give notice to all parties,
stating the period of the extension and reasons for it.
The authority may adjourn a hearing to a specified date or
arrange for a hearing to be held on specified additional dates,
where it considers it necessary. Where a hearing has been adjourned
the authority must notify the parties of the new date, time and
place for the new hearing. Where additional dates for a hearing
have been arranged, likewise the authority must forthwith notify
all parties of the additional dates.
The authority cannot exercise the above powers if the effect
would be that the application be granted or rejected or it would
fail to reach a determination on a review, within the legislative
timeframe.
Hearings held in public
The council has decided upon a procedure for hearings, which may
be altered by the Chairman at the commencement of the hearing.
Hearings Procedure
Hearings will generally be held in public. The Sub-Committee may
exclude the public from all or part of a hearing if it considers
that public interest is best served by doing so and, in this
instance, a party and any person representing or assisting a party
may be treated as a member of the public.
The Sub-Committee may require anyone attending the hearing who
is, in its opinion, behaving in a disruptive manner to leave the
hearing. That person may be re-admitted if the Sub-Committee
permits, but if not they will be entitled to give to the
Sub-Committee in writing and before the close of the hearing any
information that they would otherwise have given verbally.
Representations and supporting information
If the authority permits it any party may ask questions of
another party and address the authority, however cross-examination
is not encouraged by the Act. Members of the authority may ask any
questions of any party or other person appearing at the hearing.
The authority may take into account documentary or other
information produced by the party in support of the application
before the hearing, or if all parties consent, at the hearing.
Qualified Privilege
Statements made in Sub-Committee meetings are subject to the
general principles of the law of defamation, however the
Sub-Committee's proceedings are regarded in law as a 'privileged
occasion' subject to the statements made, having met the following
criteria:
- any opinions expressed are honestly held;
- opinions/statements are based on the facts of the matter;
- opinions/statements are on a matter of public interest;
- no malice is intended.
Failure of parties to attend the hearing
If a party has told the Licensing Authority that s/he will not
attend or be represented at the hearing, the Sub-Committee may
proceed in his/her absence.
If a party has not stated that s/he will not attend or be
represented at the hearing, and does not attend on the day, the
Sub-Committee may adjourn the hearing to a specified date if it is
considered to be necessary in the public interest; or hold the
hearing in the party's absence. When considering whether to adjourn
or continue the hearing the Sub-Committee may seek the views of the
parties present at the hearing.
Where the hearing is held in the party's absence the
Sub-Committee will consider the application, representations or
notice made by the absent party.
Where the hearing is adjourned to a specified date the authority
must forthwith notify the parties. The Sub-Committee may be in a
position to set the new date whilst the hearing is in session, or
shortly afterwards and must notify the parties forthwith of the
date, time and place to which the hearing has been adjourned.
The Roles of officers attending
Role of the Legal Advisor
This person will usually be an officer of
the Council and will be legally qualified. They will previously
have taken no part in the application, to preserve their
impartiality. S/he may be asked by the Sub-Committee to provide
advice or clarification on any procedural, technical or legal
matter at any time during the hearing. In addition to responding to
requests for advice, the Legal Advisor will give advice on:
- questions of law
- questions of mixed fact and law
- matters of practice and procedure
- the range of options available to the Sub-Committee
- any relevant decision of higher courts
- relevant national guidance or policy
- other issues relevant to the matter before the
Sub-Committee
- the appropriate decision-making structure to be applied to any
given case
The Legal Advisor may ask questions of witnesses and the parties
in order to clarify the evidence and any issues.
When the Sub-Committee withdraws to make its
determination/decision, the Legal Advisor may join the
Sub-Committee, if invited, in order to give advice. The substance
of advice given will be repeated when the Sub-Committee returns to
the hearing, so that all parties have an opportunity to comment
upon it. The Legal Advisor will then confirm or amend the
advice.
The Legal Advisor will take no part in making findings of fact
but may assist the Sub-Committee by reminding it of relevant
evidence given during the hearing, formulating reasons and
recording the reasons.
Role of the Administrator (Licensing) Co-ordinator
This person is an officer of the Council whose role at a hearing
is to make a record of the proceedings, summarise and record
decisions and to provide help and assistance to members of the
public attending hearings. They will previously have taken no part
in the application process, in order to preserve their
impartiality. However, they may have been in communication with all
parties in the process of setting up the hearing, and in order to
facilitate the mediation process by ensuring all parties are
appraised of relevant changes to the application or representations
which might lead to resolution of the issues without a hearing, or
which might impact upon the hearing.
The Licensing Co-ordinator remains with the Sub-Committee when
they withdraw to make their decision, in order to record that
decision, but will take no part in making the decision or the
findings of fact.
Role of the Licensing Manager
This person is an officer of the Counci whose role at the
hearing is to present the case to the Sub-Committee, having
prepared a report giving details of the application, the
representations made and how these relate to the licensing
objectives, the Council's Licensing Policy, the Act and the
Guidance. The report will have been distributed to the applicant,
the responsible authorities and interested parties prior to the
hearing.
Prior to the hearing the Licensing Manager will have ensured
that the licensing department has in contact with all parties, in
an attempt to mediate and encourage negotiation in between the
parties on issues which are in dispute. S/he will also have ensured
that the application has been made in the correct manner, including
checking that the necessary notices and advertisements have been
published.
The Licensing Manager takes no part in the decision making
process at the hearing and will not retire with the Sub-Committee
when making its determination. If further information is required
after the Sub-Committee has retired to make its determination,
which this officer can provide, the hearing will be reconvened in
order that all parties might hear the questions and the answers
given.
Determination
The authority will determine the issue within a given statutory
time-frame. Notification of the determination must be passed onto
the parties `forthwith', i.e. within 48 hours, of making the
determination. The notice must be accompanied by information
regarding the right of a party to appeal against the determination
of the authority.
Right of Appeal
The applicant has a right of appeal to the
Magistrate's Court within 21 days (beginning with the day on which
the applicant was notified of the Licensing Authority's decision)
against a decision to:
- reject the application for a premises licence
- impose conditions on a premises licence
- exclude a licensable activity
- refuse to specify a person as a premises supervisor.
A person who has made a relevant representation has a right of
appeal to the Magistrate's Court within 21 days (beginning on the
day on which the person was notified of the Licensing Authority's
decision) against a decision:
- to grant a premises licence
- in relation to the conditions imposed
- in relation to the licensable activities authorised
- the person specified as a premises supervisor
However, there is a possible cost to this process, as the
magistrates court may order the losing party to pay the costs of
the `winning’ party. As an alternative, parties may wish to
consider the review
process
Contact the Licensing Section
Telephone: 01304 872295
E-mail: licensing@dover.gov.uk
Post:
Licensing Section
Dover District Council
White Cliffs Business Park
Dover
Kent CT16 3PJ
