Meeting documents

Licensing and Appeals Committee
Monday, 21st November, 2011 7.30 pm

Time: 7.30pm Place: Committee Room 1, Council Offices, Gernon Road, Letchworth Garden City
 PRESENT: Councillor D.J. Barnard (Chairman), Councillor Clare Body, Councillor Dave Chambers, Councillor Lisa Courts, Councillor Jean Green, Councillor Paul Marment, Councillor Alan Millard, Councillor Gerald Morris, Councillor M.R.M. Muir and Councillor Mike Rice.
 IN ATTENDANCE: Head of Housing & Public Protection, Senior Licensing & Enforcement Officer, Senior Lawyer and Committee & Member Services Manager.
 ALSO PRESENT: Councillors Bernard Lovewell, Mrs L.A. Needham and Michael Paterson.
Item Description/Resolution Status Action
PART I
1 APOLOGIES FOR ABSENCE

Apologies for absence were received from Councillors P.C.W. Burt, Richard Harman, Lorna Kercher and Joan Kirby.
 Noted   
2 MINUTES
Minutes

RESOLVED: That the Minutes of the meeting of the Committee held on 23 November 2010 be approved as a true record of the proceedings and signed by the Chairman.
 Agreed   
3 NOTIFICATION OF OTHER BUSINESS

There was no notification of other business.
 Noted   
4 CHAIRMAN'S ANNOUNCEMENTS

The Chairman reminded Members that any declarations of interest in respect of any business set out in the agenda should be declared as either a prejudicial or personal interest, and that they required to notify the Chairman of the nature of any interest declared at the commencement of the relevant item on the agenda. Members declaring a prejudicial interest should leave the room and not seek to influence the decision during that particular item.
 Noted   
5 PUBLIC PARTICIPATION

There was no public participation.
 Noted   
6 UPDATE ON LICENSING MATTERS

The Senior Licensing and Enforcement Officer gave an oral update on various licensing matters, in particular progress on the two most recent policies agreed by the Council, namely the Animal Licensing and Taxi Licensing Policies. He would also be updating the Committee on the Licensing Act 2003.

In respect of the Animal Licensing Policy, approved by the Council in January 2010, the Senior Licensing and Enforcement Officer reminded Members that one of the concerns of the trade had been that Animal Boarding Establishment conditions would require significant investment from existing premises, as the Policy gave existing licence holders an exemption for the life of the business and once sold, the new owners had 5 years to bring the premises up to the new standard required. He advised that one premises had been sold since the Policy was introduced and the new owner was not deterred from buying by the requirement to upgrade within 5 years.

The Senior Licensing and Enforcement Officer stated that the Trade Forum had been meeting to discuss ongoing concerns about the boarding conditions. The trade had put forward various proposed amendments that they believed would be more practical - these had been considered and, where possible, accepted with a view to including them as revised conditions in the consultation due next year as part of the first review of the Animal Policy.

The Senior Licensing and Enforcement Officer commented that no existing businesses had been refused a renewed licence, despite the trade's concerns, and the policy was working well. Indeed, a new business was in the process of transferring to North Hertfordshire from Central Bedfordshire, and the applicant was content to build to the existing standards - the application was for a dog day crèche, and the Policy had proved flexible enough to deal with this new type of application. Equally, home boarding applications (a new policy requirement) were progressing well.

The Senior Licensing and Enforcement Officer reminded Members that Pet Shop conditions had caused concern amongst the trade, and yet all NHDC licensed pet shops have had no problems in operating to the new conditions. In summary, the trade's worries had not materialised and the Policy had had no adverse effect on the trade- the suggestion of a Judicial Review had not arisen.

In relation to the Taxi Licensing Policy, approved by the Council in November 2010, Members recalled that on of the trade concerns had been that the removal of zoning would lead to confusion for the trade and the public, over provision of taxis in high usage areas, inability to offer a practical geographical knowledge test for new applicants, poor geographic knowledge as drivers worked in other areas of the District, inability to self-police ranks when opened up to all drivers, and several minor Policy anomalies.

The Senior Licensing and Enforcement Officer explained that the minor anomalies raised by the trade were either adequately dealt with within the Policy or the wording had been tightened to clarify the Policy intention. No amendments to the Policy had been requested to the Head of Service and Portfolio Holder, which proved that the current policy was working satisfactorily.

The Senior Licensing and Enforcement Officer advised that no reports had been received to suggest any of the trade concerns had arisen. Indeed, ad hoc monitoring by officers had shown that generally drivers were still working in the same towns and were only working within other towns in small numbers, due either to market forces or having previously dropped off in that area. The new "knowledge" test had been developed to encompass the District rather than just the old zones, and was proving successful - it had been demonstrated to the Trade Forum (who have had the opportunity for a free test) and the Forum had supported the test format.

The Senior Licensing and Enforcement Officer was of the view that the Policy had been a success and the anticipated problems highlighted by the trade had not arisen. Tunbridge Wells District Council (one of the other few councils with zones) had actually taken the new NHDC Policy as the base of their plans to de-zone early next year.

The Senior Licensing and Enforcement Officer reminded the Committee that it had asked officers to investigate two specific areas raised by the trade, namely "Dead" Mileage and an additional MOT garage.

In respect of "Dead" Mileage, the Committee was informed that Officers had found that this would be lawful if it were included on the tariff card as a booking fee, Officers had advised the Trade Forum that this would be considered as part of the annual tariff setting, and so they should make their proposals known at that point. No proposals were received and so it had not been include in the 2011/12 tariff, although it could be considered in future years.

With regard to an additional MOT garage, the Committee was advised that the Licensing and Enforcement Manager had undertaken work on this task by identifying the numbers of vehicles potentially affected and the mileage involved. Legal Services had obtained the current Service Level Agreement with North Hertfordshire Homes, which had to be terminated in accordance with its stated terms. Potentially, the appointment of new MOT service providers would be subject to a procurement process. Further guidance from Legal Services on the various options was awaited, and had been included as part of the Trade Forum's Work Plan.

In relation to the Licensing Act 2003, the Senior Licensing and Enforcement Officer reported that the new Statement of Licensing Policy that took effect from January 2011 was working well, particularly the extra clarification on garages, opening hours and large scale outdoor events. No Magistrates Court appeals had been made against any Licensing Sub-Committee decision, the last appeal being in mid-2007, and the reputation of the NHDC Licensing Committee was second to none.

The Senior Licensing and Enforcement Officer stated that the new process of minor variations had been delegated by the Licensing and Appeals Committee to Officers, following the recommendation in the Statutory Guidance. Since that decision, a total of 31 minor variation applications had been received, all of which had been successfully dealt with by Officers. Although there was no right of appeal available in the Act, aggrieved parties could complain through the Council's 3C's process and ultimately to the Ombudsman. However, no complaints had been received to date.

Looking forward, the Senior Licensing and Enforcement Officer referred to the Police Reform and Social Responsibility Act introduced 11 significant changes to the Licensing Act, which were likely to take effect in April/May 2012. Further training would be given and a briefing paper would be circulated when more details became available. Two of the more significant points were the abolition of interested parties, so that anyone could object to an application, and that any conditions imposed were required to be "appropriate", rather than "necessary", although "appropriate" had yet to be defined.

The Senior Licensing and Enforcement Officer answered a number of questions raised by Members. The Committee was pleased that both the Animal Licensing and Taxi Licensing Polices were both working well, and congratulated the Licensing and Enforcement Team on this achievement.

RESOLVED: That the oral update of the Senior Licensing and Enforcement Officer on various licensing matters be noted.

REASON FOR DECISION: To keep the Licensing and Appeals Committee abreast of various licensing matters.
 Noted   
7 PROPOSED STREET TRADING POLICY 2012-17
Report
Appendix A
Appendix B
Appendix C

The Senior Licensing and Enforcement Officer presented the report of the Head of Housing and Public Protection in respect of a proposed Street Trading Policy 2012-17. The following appendices were submitted with the report:

Appendix A - Schedule of comments received during the consultation, including recommendations;
Appendix B - Schedule of comments received during the additional consultation with Area Committee, including recommendations;
Appendix C - Proposed Street Trading Policy.

The Senior Licensing and Enforcement Officer advised that the Local Government (Miscellaneous Provisions) Act 1982 (Section 3 and Schedule 4) provided the legal framework for the control of street trading in England and Wales. The legislative framework, however, was not an automatic entitlement and Local Authorities were required to formally adopt the legislation if they wished to regulate street trading in their areas. On 26 April 2005, the Council had resolved to adopt Street Trading regulations, and had designated streets as either consent, licence or prohibited streets. It was noted that only the main towns and arterial routes had been designated, and rural villages were exempted.

The Senior Licensing and Enforcement Officer explained that street trading was defined as "the selling or exposing or offering for sale of any article, including a living thing, in a street". It excluded the provision of services. A street was defined as "any road, footway, beach, or other area to which the public have access without payment…..".

The Senior Licensing and Enforcement Officer stated that the key task in writing the Policy was to implement the wishes of Council from 2005 in a fair and transparent way, underpinned by the licensing principles (as defined in the Policy) of:

"to enhance the town centres of Baldock, Hitchin, Letchworth and Royston";
"to protect public health through the control of street trading within North Herts";
"to ensure traders operate within the law and act fairly in their dealings with the public"; and
"to prevent nuisance, unsafe practices and anti-social behaviour".

The Committee was informed that Officers believed it was important to make this a permissive policy to encourage and facilitate the diverse cultural, community and commercial activities of town centres (town centres was a Council strategic priority at the time of consultation). Officers also believed that this should not be a revenue generating scheme that would preclude applications due to excessive cost. Highways Act licensing could be undertaken by either NHDC or HCC in a two tier area, although NHDC corporate policy was not to undertake regulation that could be undertaken by another body.

The Senior Licensing and Enforcement Officer commented that the greatest obstacle was the requirement within the legislation for each individual stallholder to have their own individual consent, which would likely preclude applications due to excessive administration and cost. Officers had considered prescribing areas within the towns that could be set aside for one consent holder to manage by way of a multi-user annual consent, where stallholders could use that consent with the consent holder's permission. Initial proposals had caused some concern over who would be able to apply for a multi-consent, what would it cost, land ownership issues, how would the consent be managed, etc.

The Senior Licensing and Enforcement Officer advised that additional consultation had been undertaken with Area Committees based on some proposed plans. However, land ownership continued to be a concern.

The Senior Licensing and Enforcement Officer stated that it became apparent following consultation with each Area Committee, in particular with the Letchworth Committee, that prescribing areas of land on a map to be used as Town Centre Manager Consents as part of the Policy was not practical. The issue of land ownership was key in determining who would be suitable to hold such a consent, and this was not always easily identifiable, particularly in Letchworth. With officers keen to ensure that administration costs were kept to a reasonable level to prevent the cost of consents from becoming prohibitive, a solution was required to prevent the Council incurring the costs of investigating land ownership. Equally, given the land ownership issues, the term Town Centre Manager Consent was deemed to be too narrow in its description as it would not always be the Town Centre Manager that would have permission to control town centre land.

The Committee noted that the solution contained within the proposed Policy was to rename these consents as Town Centre Consents. The Policy allowed for maximum flexibility in the issuing of such consents by stating that:

"Any person or organisation may apply for a Town Centre Consent, however, in order for a consent to be granted the Council will require proof of the landowner's permission for street trading to take place on their land."

By transferring the responsibility for determining land ownership to the applicant, Council administration costs were kept to a minimum, allowing for the consent fee to be set at a practical level. The increased flexibility would allow for multiple Town Centre Consents to be issued to encompass all landowners, rather than restricting the consents to Town Centre Mangers, as previously suggested. The Town Centre Consents would be issued for a period of twelve months, allowing the consent holder flexibility to plan community/cultural activities in addition to promoting additional town centre trading. To ensure transparency and consistency in determining who would be allowed the use of a Town Centre Consent, the consent holder would be bound by the same decision-making process prescribed within the Policy by way of consent condition.

The Senior Licensing and Enforcement Officer commented that further thought was given to the use of Council-owned land, in particular given possible restrictions placed on the use of such land as a result of Heritage Lottery Funding. The proposed Policy also provided the flexibility to issue Council Land Consents. Such consents would be issued for time-specific periods to reflect specific community and/or cultural events. As with Town Centre Consents, maximum flexibility had been provided within the Policy which stated:

"Any person or organisation may apply for a Council Land Consent, however, in order for a consent to be granted the Council will require the applicant to obtain a land licence through the Council's Safety Advisory Group (SAG)."

By requiring a consultation with the Council's SAG, officers could fully assess the suitability of each application and any specific safeguards required could be included as a condition of use through the land licence process.

The Senior Licensing and Enforcement Officer explained that, as continental markets and other such town centre events were a regular feature within North Hertfordshire, it was decided that additional provision should be made for such events. It may be the case that a proposed event would fall outside the remit of a Town Centre Consent, or even cross over several consent areas, including the highway following a road closure. The proposed Policy also provided the flexibility to issue Special Events/Markets Consents. Such consents would be issued for time-specific periods to reflect specific community and/or cultural events. As with Town Centre Consents, maximum flexibility has been provided within the Policy which stated:

"Any person or organisation may apply for a Special Events/Markets Consent, however, in order for a consent to be granted the Council will require proof of the landowner's permission for street trading to take place on their land."

Having introduced this range of multi-user consents to facilitate community, cultural and commercial activity within the towns, further safeguards were needed to further assist community and cultural events and establish the principle of reasonable cost-recovery consent fees. Defining community and cultural proved to be a challenge, given the diversity of such groups within North Hertfordshire. The proposed Policy, therefore, made special provision for ‘not-for-profit organisations' and stated:

"……Not-for-profit organisations will be exempt from application fees"

The Senior Licensing and Enforcement Officer advised that this principle was further enforced by a consent condition on Town Centre, Council Land, and Special Events/Markets Consents, which prevented the consent holder from levying a charge for the use of his/her consent by not-for-profit organisations.

The Committee noted that the principle of consent fees for commercial organisations was stated in the proposed Policy as follows:

"The fees charged by the Council for consents to trade should cover the reasonable cost of administering and enforcing the service."

It was not felt practical to charge for enforcement on an ‘as required' basis, due to the additional administration involved. The ability of consent holders to enlist the assistance of the Constabulary and/or Town Centre Rangers would reduce the involvement of council officers in this service and so the enforcement cost element in the first year would be set at a minimal amount to reflect this. As part of the annual fee setting process, enforcement costs could be reviewed and adjusted accordingly.

The Senior Licensing and Enforcement Officer explained that the designation of streets required a practical solution, as some Area Committees wished to have no Prohibited Streets, whilst others wished to retain their existing Prohibited Streets. In the case of Baldock, some Prohibited Streets required re-designating as Consent Streets to allow trading in the most practical places, for example, the High Street. Any change in designation required a resolution of Full Council, with the associated costs of a newspaper public notice in advance of the resolution, followed by two further newspaper public notices after the resolution had been made. In order to cover the whole of the District, as required by the legislation, public notices would be required in both the Comet and Royston Crow newspapers, resulting in a total of six public notices at an approximate cost of £250 each.

In order to avoid this cost, and the associated administration, each time the designation of a street needed to change in the future, the Senior Licensing and Enforcement Officer stated that the proposed Policy designated all streets within the four towns and the main arterial roads as Consent Streets. It was acknowledged, however, that from time to time streets within the towns may be deemed not suitable for trading, for example Letchworth Gate. To facilitate this flexibility, the proposed Policy provided an appendix of streets where consents would ordinarily be refused, save for exceptional circumstances. All current Prohibited Streets in Letchworth had been included in this appendix. In future years, as towns developed and street suitability may change, this appendix could be changed by the Portfolio Holder for Housing and Environmental Health, as provided for within the proposed Policy. This approach would allow the Council to retain full control over which streets were deemed suitable for trading, without the administration and cost of a Full Council resolution each time a change was required.

The Committee was supportive of the proposed Policy. In answer to a question requiring the proliferation of "A" Boards on highway land in town centres, it was confirmed that this would be the responsibility of Hertfordshire County Council, but that a formal reporting mechanism would be developed. In terms of the potential danger of spring loaded revolving advertisement signs, the Head of Housing and Public Protection commented that the Council's Health and Safety powers could be invoked should any of these prove to be dangerous.

The Committee made one amendment to the proposed Policy, namely to correct the name of Letchworth Gate from the "A6141" road to the "A505" road in Appendix F of the document.

RESOLVED: That the proposed Street Trading Policy, as attached at Appendix C to the report, and as amended, incorporating the results of the public and Area Committee consultation exercises, be supported.

RECOMMENDED TO CABINET: That the proposed Street Trading Policy, as attached at Appendix C to the report, and as amended, be adopted.

RECOMMENDED TO COUNCIL: That all streets within the town centres of Baldock, Hitchin, Letchworth Garden City and Royston, as annotated within Appendices A to D of the Street Trading Policy, and all arterial roads within North Hertfordshire, as listed in Paragraph 2.2.3 of the Street Trading Policy attached as Appendix C to the report, be designated as consent streets for the purpose of Schedule 4 of the Local Government (Miscellaneous Provisions) Act 1982.

REASON FOR DECISION: To simplify the Street Trading process by enabling town centre landowners, or their agents, and not-for-profit event organisers to apply for a collective consent.
 Agreed  Licensing & Enforcement Manager
8 PROPOSED STREET COLLECTIONS POLICY 2012-17
Report
Appendix A
Appendix B

The Senior Licensing and Enforcement Officer presented the report of the Head of Housing and Public Protection in respect of a proposed Street Collections Policy 2012-17. The following appendices were submitted with the report:

Appendix A - Schedule of comments received during the consultation, including recommendations;
Appendix B - Proposed Street Collections Policy.

The Senior Licensing and Enforcement Officer advised that the Police, Factories, etc (Miscellaneous Provisions) Act 1916, as amended by the Local Government Act 1972, required all collections of money, or sales of articles, in a street or public place, for the benefit of charitable or other purposes, to be regulated by local authorities. The legislation was not adoptive and applied automatically in each local authority area.

The Committee noted that the purpose of the legislation was to ensure that collectors were properly authorised, that the collections did not cause a nuisance to the public, that donations were receipted and stored in a secure way, and that the total proceeds were properly accounted for and forwarded to the appropriate charitable organisation. Unless persons who wished to undertake charitable street collections held a permit from the local authority, it was an offence for any person to undertake such a collection. Equally, it was an offence if a collector undertook a collection under a permit, but failed to comply with the street collections regulations as prescribed.

The Committee further noted that, on 21 March 1974, the Council had formally adopted the Model Street Collection Regulations, which had applied to all street collection permits issued by the Council since their adoption. There was no right of appeal through the courts against the refusal to grant, or revoke, a permit. However, any decision must be reasonable, as it could be subject to a complaint to the Local Government Ombudsman or challenge through a Judicial Review.

The Senior Licensing and Enforcement Officer stated that, historically, street collections had been administered largely based on convention and the model street collection regulations, rather than under the control of a formally adopted Policy. He commented that the proposed Policy reflected current practice and the prescribed regulations. However, the Policy provided further clarification on how the Council would administer applications.

The Senior Licensing and Enforcement Officer answered a number of questions raised by Members and, at the request of the Committee, undertook to provide with each issued permit an A4 sheet warning collectors to take appropriate precautions regarding the money they had in their possession during the collection process.

RESOLVED: That the proposed Street Collections Policy, as attached at Appendix B to the report, incorporating the results of the public consultation exercise, be supported.

RECOMMENDED TO CABINET: That the proposed Street Collections Policy, as attached at Appendix B to the report, be approved.

REASON FOR DECISION: To enable the adoption of a clear and transparent policy in respect of the Council's approach to this licensing function, which would be of benefit to charitable organisations, collectors and the public, as well as ensuring consistency of approach by officers.
 Agreed  Licensing & Enforcement Manager
9 PROPOSED HOUSE TO HOUSE COLLECTIONS POLICY 2012-17
Report
Appendix A
Appendix B

The Senior Licensing and Enforcement Officer presented the report of the Head of Housing and Public Protection in respect of proposed House to House Collections Policy 2012-17. The following appendices were submitted with the report:

Appendix A - Schedule of comments received during the consultation, including recommendations;
Appendix B - Proposed House to House Collections Policy.

The Senior Licensing and Enforcement Officer explained that the House to House Collections Act 1939 required all house to house collections for a charitable purpose to be licensed by local authorities. The legislation was not adoptive and applied automatically in each local authority area. This would encompass collections where the promoter was collecting items for subsequent sale, such as clothing, where the promoter guarantees to remit a set percentage, or minimum amount, to charitable purposes.

The Committee noted that the purpose of the legislation was to ensure that collectors were properly authorised, that the collections did not cause a nuisance to the public, that donations were receipted and stored in a secure way, and that the total proceeds were properly accounted for and forwarded to the appropriate charitable organisation. Unless persons who wished to undertake charitable collections held an Exemption Certificate issued by the Secretary of State, it was an offence for any person to promote or make collections from door to door for charitable purposes without first obtaining a licence from the local authority.

The Committee further noted that the House to House Collections Regulations 1947, subsequently amended by the House to House Collections Regulations 1963, applied to all licences issued by the Council under the House to House Collection Act 1939. There was no right of appeal through the courts against a decision to refuse or revoke an application, although there was a right of appeal to the Secretary of State whose decision would be final. Additionally, any decision must be reasonable as it could also be subject to a complaint to the Local Government Ombudsman or through a Judicial Review.

The Senior Licensing and Enforcement Officer stated that, historically, house to house collections had been administered largely based on convention and the prescribed regulations, rather than under the control of a formally adopted Policy. He commented that the proposed Policy reflected current practice and the prescribed regulations. However, the Policy provided further clarification on how the Council would administer applications.

The Senior Licensing and Enforcement Officer answered a number of questions raised by Members.

RESOLVED: That the proposed House to House Collections Policy, as attached at Appendix B to the report, incorporating the results of the public consultation exercise, be supported.

RECOMMENDED TO CABINET: That the proposed House to House Collections Policy, as attached at Appendix B to the report, be adopted.

REASON FOR DECISION: To enable the adoption of a clear and transparent policy in respect of the Council's approach to this licensing function, which would be of benefit to charitable organisations, collectors and the public, as well as ensuring consistency of approach by officers.
 Agreed  Licensing & Enforcement Manager