What the future holds for unused licences
One of the questions that has been raised concerning the forthcoming transitional period is the status of licences which are not being used.
This may be because the pub has been temporarily closed because incoming lessees are not available, or the existing licensee has financial difficulties. Or it may be that there has been a successful application for the provisional grant of a licence which has not yet been declared final. What happens to the licence during this period? The pub is not open for business and in some cases the licensees have left town. Who holds the licence and can they apply for a premises licence during transition?
The first thing to be made clear is that in order to apply for a premises licence, there must be a justices' licence in existence. If it has been surrendered, if renewal has been refused, or if it has been revoked, then there will be no licence on which to base the application. Similarly, the provisional grant of a licence does not in itself mean that a licence is in existence, or that there is a holder of the licence who can make the necessary application. It would appear that in such cases an application would need to be made for a new premises licence, unless the provisional grant has been declared final in the intervening period, when of course it would become an existing justices' licence.
There is no direct legal formula for giving up a licence when it is no longer used, or for putting it into "cold storage" while work is carried out. A licence is a valuable commodity and needs to be preserved for the site where it is needed. However, if the existing licensee for whatever reason has left the premises and given up the trade, then it is usual for a transfer of the licence to be made to another person. Where a tenancy is involved, the transfer is from the outgoing tenant to another tenant of the same property. In the past it was unusual for a brewery to leave a tenancy unoccupied, unless there was an intention to de-license the property and sell for private occupation or development. Certainly, if for some compelling reason a tenant suddenly quits the premises, it is in the interests of the brewery to keep the pub open and running as soon after the departure as possible.
For this reason, the system of protection orders and interim authorities is used to cover sudden departures, or death, so that someone can continue to sell on the same premises until the situation can be regularised. But you cannot continue a fiction. If the person who has held the licence gives up the tenancy, or gives up his employment with the operating company, in the case of a manager, then it is imperative that the licence should immediately be transferred to someone who has an interest in the property and can properly continue as the licensee. It is not, in itself, illegal to close licensed premises for renovation or refurbishment for a period of time; clearly, where no-one can be found to run the premises, there may have to be a period of closure. Nor is it illegal for an employee of the operating company to hold the licence during this time.
The question of whether premises are under tenancy or management is not directly one for the licensing justices to decide, and if a company makes a sudden switch, for whatever reason, as long as the applicant is "a fit and proper person" and is qualified to hold the licence they cannot justifiably refuse it.
