Legal advice: Licensing variations

What exactly do you want on your premises licence?

By David Clifton of thePublican.com's team of legal experts from London solicitors Joelson Wilson.​

As most readers will now be aware, the transitional period under the Licensing Act 2003 starts on February 7, 2005. From that date, you will have six months to apply for conversion of your existing licences to one of the new premises licences.

So what happens if, in addition to applying for conversion, you want to apply for variation - to permanently extend your hours, for example, or to vary any existing licence conditions?

Applications for conversion and variation can be made at the same time, but where a variation is required, a site-specific risk assessment must be prepared so that an operating schedule can be completed in the specified format.

The first draft format produced by the Department for Culture, Media & Sport (DCMS) is quite lengthy.

Applications for variation will be determined according to the licensing policy statement of the local authority in question - some of which are still subject to a local consultation process. However, all local authorities must have finalised and published their statements by January 7, 2005.

The following are some of the matters you may need to consider to determine whether an application for variation will be required.

• Regulated entertainment​

The "two in a bar rule" is abolished by the new Act. This means that if you want to provide entertainment of this type in future in licensed premises which do not currently hold a public entertainment licence, you will need to apply for variation to include the provision of regulated entertainment as a licensable activity.

Supper hour and special hours certificates, extended hours orders​

Unless an application is made for variation, existing statutory requirements relating to these certificates/orders will be translated into conditions on the converted premises licence. Premises which currently hold a special hours certificate, for example, will be subject to a condition on their licence that the sale of intoxicating liquor must be ancillary to music, dancing and substantial refreshment. You may want to consider whether to apply for variation to alter or remove conditions from any converted premises licence that will be the equivalent of any existing statutory requirements.

Late night entertainment​

The sale of hot food and drink between 11pm and 5am is a licensable activity and will need to be expressly authorised under a premises licence - even if, at the moment, you have a supper hour certificate or special hours certificate, for example.

Temporary extensions of hours​

The existing regime for obtaining extensions, either by applying for an occasional licence or a special order of exemption will be replaced under the Act by temporary event notices. However, these will only apply to premises with a maximum capacity of 499 people (including staff and performers). Larger premises should consider applying for variation to include a specified number of occasions each year where you would wish to stay open later.

Children​

Children under the age of 14 are currently prohibited from entering a pub's bar area unless there is a children's certificate in force. This restriction will be carried over to a converted premises licence (unless an application to vary this restriction is made). However, this will not affect the statutory requirement under the new Act that children under the age of 16 will only be able to enter pubs if accompanied by an adult.

What's next?​

So what is next in the process towards implementation of the new Act? In addition to finalisation of the draft regulations and application forms and each local authority's statement of licensing policy, the following issues are outstanding:

• Fees:​ The DCMS originally claimed that it would release draft regulations on fees for public consultation "during October".

Temporary event notices:​ Draft regulations on these notices, enabling extensions of normal hours in licensed premises with a capacity of less than 500, are promised for March 2005.

Second appointed day:​ The government has still to confirm exactly when the transitional period will come to an end and when the new Act will come into full force. There is no guarantee that it will necessarily be November 7, 2005.

AWP machines:​ We are still waiting to hear what measures are to be put in place (amending relevant provisions of the Gaming Act 1968) enabling applications to be made for AWP permits during the transitional period so that are immediate effective on "the second appointed day".

Consultation is finite​

Remember that you only have until November 10 to let thegovernment know your views on the draft regulations dealing with matters such as application forms, plans, and hearings.

There are two additional proposals arising from the draft regulations that are worth mentioning:

• Provision in the new Act to protect existing opening hours on an application for a premises licence (other than by conversion) by an existing justices licence holder will last for the entire transitional period
• From February 7, 2005 until one year after the second appointed day, licensing authorities determining applications for premises licences will be required to "have regard to" any provisional grant of a justices licence (under the 1964 Act) for the premises in question.