Licensing Act

[val]

Will it to be possible for a Licensing Authity to refuse to issue the new premises license, to be introduced in Feb 05, on the grounds of inadequate fire safety?

The guidance seems to explicitly exclude any conditions attached to a license if the matters are dealt with elsewhere.

Any views would be appreciated.

[wee brian]

The idea was that the RRO will be the only statute for fire safety in buildings in use.

I am not sure exactly how the two intereact or what happens if the licensing Act comes in before the RRO does,

[AnthonyB]

The old licensing allowed local authorities to stiuplate specific fire safety conditions in licenses (normally with help from the FB).

The RRO (at least the info I've seen) & revisions to the various Licensing laws will prohibit such local specific conditions and instead require under the Fire Safety section of the license for it to simply say - the premises shall comply with the requirements of the RRO blah, blah, blah

[wee brian]

So who decides when it doesnt comply?

If the LA deicedes the fire safety isn't up to scratch I think they can regard it as a breach of license conditions.

[Chemo on tour]

The Licensing Authority may choose to refuse an application where it can be shown that the licensing objectives  (in this instance public safety) are not met.

This need not be as a result of license conditions. Indeed as has already been indicated, the licensing authority cannot make a condition of license something which is already a requirement under other existing legislation.

Fire Authorities, however, as a responsible authority, may make relevant representations to the licensing authority notifying them of breaches of other (Fire Safety) legislation.

Having been so notified, it would be a brave authority that chose to progress and issue a licence.

This is just a personal view and ultimately it will require case law to set precedent.

[val]

Chemo and others,

Thank you for your replies. I agree that conditions can not be set in the license, (although Section 182 guidance clearly states that plans should contain details of fire safety provisions). I am still not convinced that a Licensing Authority can, under public safety objective, refuse a license if other, more appropriate legislation applies.
Field day for licensing solicitors who, I believe, are recommending that all their clients seek a 'variation' in Feb 05.

[Peter]

Now that applications are begining to cross Fire Authority desks, has anyone got examples of implementation of "Chemo on tour's" route for addressing the issue (Chemo said - Fire Authorities, however, as a responsible authority, may make relevant representations to the licensing authority notifying them of breaches of other (Fire Safety) legislation.)

[iang]

Surely the licensing authority are entitled to take a view on the fire precautions in premises subject to licensing legislation. This should be via the fire risk assessment and, if it isn't provided for example, I don't see why they cannot refuse a licence. The problem will come when the fire brigade can't make its mind up what to do - ie enforce their own legislation or let the local authority do it. This happens a lot.
Of course, if the fire brigade don't back the local authority up - it will likely be used by an applicant in any appeal.
Trouble surely looms if both parties don't work closely together! And the lawyers will then certainly have a field day.

[pd]

The Licensing Authorities have NO power to impose conditions on a license. All they can do is agree to what the licensee proposes or what one of the responsible authorities ask for. Additionally they can adopt representations from interested parties.
My FRS has taken the decison that the Licensing Act 2003 is such a pile of **** that we will, unless absolutely necessary, ask for no conditions on the license relating to fire safety. We have the WP Regs and soon, the RRO which will enable FRS to target their enforcement, (sorry friendly business advice) to those premises presenting the highest risk. The Licensing Act does though enable us to really spruce up our database with lots of new properties that we didn't know about.

Consider this, from next April and the RRO, any fire safety condition on the Premises License, (any license) becomes null and void. (Article 42, I think). Who and how then would enforcement of those conditions happen.

The posting from Crusty on another thread about the demise of FRS fire safety departments is a little premature. The RRO will provide an impetus to FRS to look more carefully at how they discharge this 'duty to enforce'. I do however agree with him/her that people who spend two years in fire safety and then leave are a nonsense.

[iang]

I've just carried out a Fire risk Assessment on a building with a license. The building is not in my opinion suitable for the numbers allowed on the license. The fire authority were consulted (some time ago) at the grant of the license - but they did not object or pass any comment. It seems some fire and rescue services know better than Parliament! Senior officers in those brigades would do well to read the Bradford City Judgement.

[pd]

1 The responsibility for ensuring a safe premises rests squarely on the responsible person (Government policy).
2. All fire officers are acutely aware of the Bradford City enquiry
3. My FRS has 10000 licensed premises and limited resources. As a fire safety officer I would love to inspect, assess, manage and enforce in each and every one of them, but without the benefit of Dr Who time travel, it is a practical impossibility.
4. We have taken the position that we will try and filter out those premises presenting a very high risk and target our limited resources at these. (Government policy).
5. Every representation made by a responsible body generates mediation (possibly illegal), a hearing, enforcement action under fire legislation, potentially an appeal and on-going monitoring.
6. Legal opinion made it clear that the absence of a fire risk assessment may be grounds for action under the fire regs but would not, in itself, be grounds for a representation under the Licensing Act 2003.
7.FRS are constantly accused of over stepping their legal powers...now we are being accused of not enforcing the law.

[PhilB]

I agree with PD, but would be interested to know where the statement"Legal opinion made it clear that the absence of a fire risk assessment may be grounds for action under the fire regs but would not, in itself, be grounds for a representation under the Licensing Act 2003." comes from can you advice?

And as far as Brdford is concerned that was a long time ago before responsibility was placed on employers or persons having control. The situation is now very different the FA may serve notices, the responsible person shall ensure that the legislation is complied with.

FA's will not have time or resources to scrutinise every application for a premises license.

[iang54]

Policy aint law! So never mind what Gov't 'policy' might be, you won't be able to use that in your defence. Indeed, are you aware that Gov't policy is not admissable in courrt?
I don't think many fire officers have a clue about the Bradford City Judgement. I suggest you serving officers read it.
And I'm not disagreeing that you have a difficult job - but it's your Chiefs aided and abeetted by senior officers who have cut the service! However, my point is that you cannot ignore consultations from other authorities legally obliged to consult you!

[pd]

Blimey...and I thought fire safety officers had a bad name!
Yes I am aware that policy will not stand up in court but we have to take our lead from government departments that draft the laws.
I have tried to tease out what you are saying and you may be right that FRS cannot ignore information that comes their way but they do have the right and duty to act on that information in a considered way. If I sent all my FSO's round to every premises that apparently missed an extinguisher off a plan or operating schedule then the chances are that we would miss a really dangerous place.

Phil

The legal opinion was from a number of senior licensing solicitors who had been instrumental in advising the DCMS during the bill's passage. OK so they may have a bit of a vested interest but they were adamant that the lack of a fire risk assessment, if everything else was so-so would not allow a FRS to raise a representation. (Every representation, potentially, would have to be defendable in a court).

[PhilB]

Thanks PD.

Surely these things were ironed out during the required consultations that took place before LCs determined their policy!!

I see no problem with FAs sending standard letters to the licensing comittee making no representations at that stage stating that the employer/responsible person should have carried out a risk assessment to comply with HASAW Act & RRO.
The FA have not then ignored the consultation, but I doubt that iang54 will agree!

The comittee could then grant a license, subject to conditions. One of those conditions could be comply fully with RRO/HASAW.

FAs can then prioritise their workload accordingly.

If subsequently problems are encountered the FA could apply for a review.Where a premises licence has effect, an interested party or a responsible authority may apply to the relevant licensing authority for a review of the licence.

The authority must take such steps necessary for the promotion of the licensing objectives which may result in a license being revoked.

I think FAs would be more likely to be found guilty of negligence if they directed all their resources at licensing rather than implementing a risk based inspection program.