MAIDSTONE BOROUGH COUNCIL

 

LICENSING SUB COMMITTEE

 

18^TH MAY 2012

 

REPORT OF THE HEAD OF DEMOCRATIC SERVICES

 

Report prepared by Lorraine Neale

 

 

1.           GAMBLING ACT 2005 – APPLICATION FOR A NEW BETTING PREMISES LICENCE – FOR PADDY POWER, 9 GABRIELS HILL, MAIDSTONE, ME15 6HL

 

1.1        Issue for Decision

 

1.1.1   To consider and determine whether under s162 (3)(c) of the Gambling Act 2005 that the representation made in respect of the application for a new betting premises licence at 9 Gabriels Hill by Power Leisure Bookmakers Ltd “will certainly not influence the authority’s determination of the application” and that if so determined, to decide whether to determine the application without a hearing.

 

1.2        Reason for Urgency

 

1.2.1   Representations for this application ended on 10 May 2012 and a decision is required as soon as is reasonably practicable to conform with the legislation. A decision in relation to the representation is required before a determination can be made.

 

1.3        Recommendation of the Head of Democratic Services

 

1.3.1  In accordance with S162 (3)(c) of the Gambling Act 2005, that it be determined that Mr Martin’s representation “will certainly not influence         the authority’s determination of the application”

 

1.3.2  That it be agreed that as a result of the above no hearing be held      into the application for a betting premise licence for 9 Gabriels Hill by       Paddy Power.

 

1.4  Reasons for Recommendation

 

1.4.1 A letter of representation, dated 16, April  2012,  was received on 20,          April 2012 (Appendix A), in respect of an application for a Gambling Act    betting premises licence for Paddy Power, at  9 Gabriels Hill, Maidstone. The period for representation has now expired and no further representations from any interested party or responsible authority have been received. Mr Martin is considered to be an interested party in respect of this application under S158 of the Gambling Act 2005, as a person with business interests that might be affected by the authorised activities. However, it is necessary for the Licensing Authority to consider the content of the representation and determine whether to have a  hearing under s162 (3)(c) of the Gambling Act 2005.

 

1.4.2  A copy of Mr Martin’s letter (Appendix A) makes the following points;

 

·         Another betting premise should not be allowed in Gabriels Hill, as there are already two in the street.

·         Families visiting this shop should not have to avoid people crowding round another bookmaker.

·         Another bookmaker would encourage more undesirable people to loiter.

·         He has made several reports to the Police of what appears to be people passing drugs in the area of the application premises.

·         The Council has a duty to protect the existing retail environment and encourage better quality shops.

 

1.4.3 The Licensing Authority can only determine an application in accordance     with the Gambling Act 2005.

                

S161 of the Act Representations states:

 

(1) Where an application is made to a licensing authority for a premises licence, an interested party or responsible authority in relation to the premises may make representations in writing to the licensing authority.

 

This only requires that representations be in time, it does not set out a series of permitted grounds for the representation.

 

The intention of Parliament by s161 appears to have been to allow local businesses whose interests may be affected to have their say and the Act does not particularly limit them by permitting them only to speak on set grounds.

 

1.4.4 S162 of the Act requires that the Licensing Authority must hold a hearing   if an interested party has made a representation which is not withdrawn           but MAY determine such an application without a hearing if they think the       representations made are vexatious, frivolous or will certainly not          influence the authority’s determination of the application. The authority          appears to be given a broad discretion but it must be strongly guided by      the answers to the principles in s153.

 

         

 

 

 

1.4.5 S153 of the Act sets out Principles to be applied to the determination of       an application;

 

(1) In exercising their functions under this Part a licensing authority SHALL aim to permit the use of premises for gambling in so far as the authority think it—

(a) in accordance with any relevant code of practice under section 24,(Appendix B)

(b) in accordance with any relevant guidance issued by the Commission under section 25, (Appendix C)

(c) reasonably consistent with the licensing objectives (subject to

paragraphs (a) and (b)), and (d) in accordance with the statement published by the authority under section 349 (subject to paragraphs (a) to (c)). (Appendix D)

(2) In determining whether to grant a premises licence a licensing authority may not have regard to the expected demand for the facilities which it is proposed to provide.

 

On determining an application for a premises licence (whether at a hearing or not) an authority SHALL grant it or reject it.

 

1.4.6 The Guidance at (1.19) takes a strict view,

 

“a licensing authority has no discretion in exercising its functions under Part 8 of the Act to grant a premises licence where that would mean taking a course which it did not think accorded with the Guidance contained in this document, any Commission Code of Practice or the Licensing Authority Statement of Policy or be consistent with the licensing objectives. In reaching a view that a grant would be in accordance with such Guidance, Code of Practice or Licensing Authority Statement of policy a licensing authority is of course, as any public authority decision maker, obliged to act fairly and rationally”.

 

There is always the ability to depart from guidance for strong and defensible reasons but it is difficult to see what these would be if all the s153 principles were met and considered with the aim to permit.

 

1.4.7  It does not appear that anything raised in the representation expresses       the view that the application would not be in accord with the Code of   Practice (Appendix B) and there is not indication that it is.

 

1.4.8  Nothing (including the representation) indicates the application would not   accord with Guidance. (Appendix C). Gambling Commission Guidance         reminds authorities that public nuisance is not a licensing objective for       gambling,

“In considering applications, licensing authorities in England and Wales should take particular care to bear in mind that these objectives are not the same as those in the Licensing Act 2003. In particular, they do not include considerations in relation to public safety or prevention of public nuisance. The requirement in relation to children is explicitly to protect them from being harmed or exploited by gambling.”(5.2),

and that moral and ethical objections to gambling are not a valid reason to reject an application, (5.28), This goes on to state that a decision cannot be based on dislike of gambling or a general notion that it is undesirable to allow gambling premises in an area.

 Guidance also sets out examples of representations not likely to be relevant (7.53) e.g. “that there are already too many gambling premises in the locality (although it may be relevant if it points, as a result, to rising problems in crime, disorder, underage gambling or problem gambling)”.  The representation does not appear to suggest that the grant of a premises licence would lead to crime and disorder. The reporting of possible drug transactions does not refer to any link with betting premises. There are no Police representations relating to crime and disorder in the area.

 

1.4.9 The content of the representation does not suggest that a grant of the        premises licence application would be contrary to the licensing objectives of :

·         preventing gambling from being a source of crime or disorder, being associated with crime or disorder, or being used to support crime;

·         ensuring that gambling is conducted in a fair and open way and

·                   protecting children and other vulnerable persons from being harmed or exploited by gambling. 

 

 

          

1.5      Decision

 

1.5.1   There is no indication that the proposed use would not accord with the      authority’s own Statement of Principles. (Appendix D)

 

1.5.2   S.162 of the Gambling Act 2005 states that licensing authorities would     not need to hold hearings in respect of representations that were:

(a) vexatious

(b) frivolous

(c) will certainly not influence the authority’s determination of the                    application”

 

It is my view that whilst a) & b) are not appropriate the representation does not engage any of the principles on which the authority is required to base its decision and therefore that the representation, “would certainly not influence the authority’s determination of the application”

 

1.5.3If Members agree that this is the case there is then a discretion not to          hold a hearing to determine the application. It is my view that if the      representation will not influence the determination a hearing would serve no practical purpose.

 

The Gambling Act 2005 does not make any provision for appeal of this decision by either the applicant or interested party and therefore, any challenge would be by way of judicial review.

 

1.6    Alternative Action and why not Recommended

 

1.6.1  The Sub Committee could decide to hold a hearing for all parties to attend and state their cases, it is considered that the representation received   does not refer to matters on which the Local Authority should base its           determination. The Local Authority should operate its discretion and not           to have a hearing is recommended.

 

1.7    Impact on Corporate Objectives

 

1.7.1  Any decision taken with regard to this matter will not in itself have

          any significant effect on the Corporate Objectives.

 

1.8    Risk Management

 

1.8.1  The decisions made may result in judicial review by the interested party or         the applicant, which may have costs implications for the Council.

 

 

1.9    Other Implications

 

1.      Financial	X
2.           Staffing
3.           Legal	X
4.           Equality Impact Needs Assessment	X
5.           Environmental/Sustainable Development
6.           Community Safety	X
7.           Human Rights Act	X
8.           Procurement
9.           Asset Management

 

 

1.9.1 Financial - The appropriate application fee has been paid in     accordance with the Council’s fees and charges.

 

1.9.2 Legal -Considerations are as set out in the report.

 

 

1.9.3 Equality Impact Assessment - The Equality Act 2010, Section 149

requires public authorities in the exercise of their functions to have due

regard to the need to eliminate discrimination, harassment and

victimisation, to advance equality of opportunity between the sexes

and foster good relations between them. Consideration of this may

inform Conditions. This duty also covers religious belief and disability.

An assessment was made at the time at the time of the adoption of

the Policy.

 

1.9.4 Community Safety - Section 17 of the Crime and Disorder Act 1998

gives authorities a duty to have regard to the likely effect of the

exercise of their functions on the need to do all they reasonably can to

prevent, crime and disorder.

 

1.9.5 Human Rights - The Human Rights Act 1998 should be taken into

consideration when reaching a decision. The rights potentially

engaged are:-

 

Article 10 (right to freedom of expression) and Article 1,Protocol 1 (protection of property) of the European Convention on Human Rights. The Committee must carefully consider the applicant’s rights and these must be balanced against the public interest.

 

 

1.10  Relevant Documents

 

Appendix A Letter of representation

Appendix B Gambling Commission Licence conditions and code of Ppactice

Appendix C Gambling Commission Guidance

Appendix D MBC Gambling Statement of Licensing Principles

 

 

 

IS THIS A KEY DECISION REPORT?   Yes                                               No     If yes, when did it first appear in the Forward Plan?   …………………………………………………………………………………………………………………………..     This is a Key Decision because: ………………………………………………………………………..   …………………………………………………………………………………………………………………………….       Wards/Parishes affected: …………………………………………………………………………………..   ……………………………………………………………………………………………………………………………..