DCMS gives guidance

on grandfather rights

Over the past few weeks I have been commenting on the likelihood that local authority officers may not be aware of exactly what constituted "grandfather rights", and needed some help.

Hey presto! Only four months after the First Appointed Day, the Department for Culture Media & Sport (DCMS) has finally got round to spelling out what it considers to be the "embedded conditions" in the Licensing Act 1964.

It was sprung into action as a result of seeing what it thought was some dodgy advice, given to London local authorities by two barristers, which has been circulating among councils recently. This could have led to some additional and possibly unnecessary conditions being imposed on straight conversions. It possibly already has, although with the take-up of less than 5% at present, only a few early birds will have found their wings clipped as a result.

In case you did not read the previous articles, a straight conversion means that any relevant conditions attached to your existing licence must be replicated in the new premises licence, so that it operates effectively in exactly the same way as now. But these conditions must apply to the "licenseable activities" in some way. Otherwise, they should not be carried over.

So, after the high-level group meeting at the beginning of last month, where this issue was raised, the head of licensing policy at the DCMS has written to LACORS, the local government regulatory service, and told them what they think about these so-called embedded conditions. This should mean a slightly less onerous package of restrictions for those who simply want to take their grandfather rights and get on with it.

In particular, the DCMS is not keen on seeing unnecessary restrictions imposed on drinking-up time, opening time generally, the presence of children and a number of offences, including the restrictions on credit sales, which are removed by the new Licensing Act.

The arguments about this are technical and I will not bore you with the detail. But it does mean a considerably shorter table of restrictions and, therefore, less unnecessary wordage on the eventual licence with which you are issued.

One of the main points with which I wholeheartedly agree (because it confirms my already stated view) is that drinking-up time does not carry over. Drinking-up time is not a restriction, it is a concession, and anyway only applies to consumption not sale. As it does not carry over, it means there is no restricted period for drinking up and no way that a local authority can impose a premises closing time on a straightforward conversion.

Some authorities have already tried to tell applicants that they must state a closing time for the pub, even if they are only completing Part A, because it is a necessary prevention of disorder and therefore needs to be stated. This is not true and is very misleading. Hours of opening need only be stated at the end of the variation form (box O). This is different from hours for the sale of alcohol, which should be laid out in box M ­ only if a variation is sought.

It is difficult at this stage to assess how many pubs will apply for the straight conversion, rather than go for a variation of hours and conditions. What you need to be aware of is that unless you remove them in your application, certain embedded conditions will carry on even through a variation. The licensing authority will look at what you have sought to vary, of course, but may leave the other "grandfather" restrictions in place, unless you take positive steps to have them cancelled.

As this point is entirely omitted from any of the published material, including the forms themselves, it might be prudent to take legal advice to ensure you slip free of the constraints of the 1964 Act wherever possible.