Compliance battle drags on

It was the main plank of the Government's new policy on licensing that there should be a "one-size-fits-all" licence, and it would be the conditions of the licence that would indicate what type of premises were being run.

So the corner shop has the same basic licence as a top West End nightclub, but the controls on the way they are run are entirely different.

In the first instance this was achieved by requiring new applicants to fill in an "operating schedule", which would indicate to the licensing authority and others what was intended to take place on the premises and the hours during which those activities would be available.

So far, well and good. The operating schedule as such never actually materialised, because the regulations provided a long and detailed application form — both for new licences and variations — so that filling in the boxes constituted the operating schedule. If you left a section empty and failed to tick the check box, that meant you were not running that particular activity.

Where it became complicated was that you also had to set down, in five sections, how you intended to meet the licensing objectives, both generally and specifically. You were not compelled to give a mass of detail here, but at the outset a great number of applicants for variation did put down their aspirations for how they would run "compliant" premises — so as to persuade the licensing authority that they were good and competent licensees.

Hostages to fortune! What many authorities did was to turn this wish list into conditions on the licence. This was not directly to do with the operating schedule, but it meant that whatever you saw as honest endeavour to make your premises meet the objectives became a legally enforceable condition, breach of which could have you prosecuted.

So if you wrote that the door of the premises would be constantly monitored to keep out undesirable customers, this became a requirement for doorstaff. If you offered to ensure that parts of the premises were inspected regularly, a condition was placed that hourly visits to the toilets was a condition on the licence.

In addition, some local authorities had their own list of conditions they thought appropriate for premises. In spite of the Guidance clearly advising that standard conditions were not appropriate, authorities decided that following any kind of representation from responsible authorities, however justified, these conditions could be brought into play.

Recently, this position has been successfully challenged — and not before time. A High Court judge has held that it is not necessary to convert the whole of the operating schedule/application into conditions, and that only those conditions that are necessary and proportionate to the risk involved should be added to the licence.

Some premises in the past have been saddled with conditions that are really nothing to do with the way they operate. They have been inserted as a "preventative measure" by earnest councils keen to show that they are on top of the licensed trade and can head off any potential issues.

But the judge said that each application should be treated on its own terms (a long-standing but often ignored principle) and that the conditions should reflect what the evidence has shown to be the real situation. A carefully run village pub should not be saddled with conditions more appropriate to a vertical-drinking town-centre venue simply because the licensing authority has a "list".

But with the Government itself poised to add its own lists of general conditions to licences, it seems that the licensed trade is to be saddled with compliance to specific conditions for some time. Let us hope that some operators continue to battle against the tide.