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Consent not obtained
QCan you clarify the legal position when we apply for a transfer of a premises licence and the outgoing holder has refused to give consent? Is this a legal requirement, as he is now out of the premises and a new potential holder is ready and willing to run the pub under a valid contract?
A This is a matter that really requires the services of a specialist licensing lawyer. However, it may be helpful to give a general opinion.
A premises licence is capable of being transferred to any person who is in a position to run the licensable activities authorised by the licence. It follows that it is not necessary for the owner of the premises to hold the premises licence, and it should be capable of transfer to whoever demonstrates that they are in a position to run the business.
Section 43 of the Licensing Act 2003 allows for a transfer application to be made with a request that it takes immediate effect. This is to provide for circumstances where, eg, there is a sudden change, or someone quits the premises overnight.
The applicant must show to the authority in such a case that he has taken all reasonable steps to obtain the consent of the outgoing premises licence holder and that he is in a position to run the premises immediately. In many such cases, if the previous holder has disappeared or refuses to give consent, this is sufficient evidence to allow the interim effect of the transfer
A similar situation arises during normal transfer proceedings. The consent of the premises licence holder is a prerequisite of the determination, unless it can be shown that the existing holder has refused after requests. The authority must then study the circumstances only to decide:
l whether the applicant is in a position to run the licensable activities legally and practically
l whether the consent is being deliberately withheld in order to prevent the legitimate transfer of the licence.
It is not up to the licensing authority to rule on any other form of dispute. It appears to me to be a fact that the consent is being deliberately withheld and that reasonable steps have been made to obtain it, ie, by requesting it in a letter.
The phrase "reasonable steps" was inserted, among other things, to cater for circumstances in which the existing holder had disappeared, so as to ensure that the applicant had tried to trace them, but without success.
In the current circumstances, the existing holder is aware of the application and is trying to obstruct it. Unless he can show that the applicant has no right to apply, and that he is in a position to continue to operate the premises, then the authority should accept the situation and grant the transfer.
In the company of adults
Q Is it a legal requirement that someone under 16 must be permanently with an adult on licensed premises, or can they go and play in the children's area, for example?
AThis is a slight misunderstanding of the law. The requirement for an accompanying adult only applies to premises which are being exclusively or primarily used for the supply of alcohol for on-consumption. This applies to the bar areas, of course, but not to the garden or playground. The object of the law is to prevent under-16s having free access to bars as of right, without the controlling influence of an adult. They are not necessarily banned from the whole of the premises where activities other than the supply of alcohol are taking place, as happens in a variety of multi-use licensed premises.
