Legal advice: Keeping it varied

Advice on how to get ready for your licence hearing.

By Piers Warne and Anna Mathias of thePublican.com's team of legal experts from London solicitors Joelson Wilson.​

Variation of premises licences - light touch bureaucracy or conditions galore? Now August 6 has passed and all applications are either in or out of time, we have a chance here to focus on those applications made which seek to vary premises licences.

In theory, if you made a valid application in time, your conversion is guaranteed in all but a few cases where the police believe that there has been a material change in circumstances at the premises, which would lead to issues arising under the crime prevention objective. Do you fall outside this category? If so, then (subject to the government reneging on the whole Act in the face of recent much-publicised opposition) you will eventually be the proud owner of a premises licence. Given the work and hassle that went into getting it, you can be proud of yourselves!

Why it might not be over yet​

Variations, however, are subject to forces outside your control. Representations can be made by a variety of parties and unfortunately, most seem to be considered relevant, even if they do not strictly comply with the Act in terms of what they say. This means that you are likely to have to attend a hearing, unless you can negotiate with whoever made the representations.

Unfortunately, many people are being forced to make variation applications to continue providing live entertainment for which they did not previously need a licence and they have to run this gauntlet. I have therefore included below a summary of what to expect at hearings should you be required to attend. Unfortunately, each authority (and each individual committee) has a different approach on the day, but there are some general rules that apply to all hearings:

• Have Newton on your side​

Newton took 23 years to come up with his theory of gravity. It was his ability to focus on the problems at hand that led to the insight that changed physics.

You should focus on the licensing objectives to which the representations refer. This is likely to be either public nuisance or crime prevention if you are looking to vary to allow for later hours or live music.

The Guidance to the Act (at Paragraph 5.68) reminds the committee to focus the hearing on the steps to promote the licensing objectives which gave rise to the representation.

This will cut down any work you have to do and assist in concentrating your mind on matters that are relevant. I am not suggesting 23 years need to be spent (the fact that your hearing has to be within two months of the date your application was received places a natural limit on time and very often you will get only very short notice indeed), but focusing on the nature of the representation will certainly assist.

Have Seneca on your side​

There is no substitute for knowledge. Your application will be put before lay councillors by people who are not necessarily up to speed with all aspects of the Licensing Act, especially the guidance. When you are asked to make your application, you will want to give yourself the best opportunity to have granted what you are applying for without additional conditions being imposed. Always remember (and remind the committee) that the way they should consider your application is as follows:

• Can they grant it as applied for (taking into account any conditions proffered in the operating schedule)?
• Are there any conditions that would allow the variation to be granted in a way that would not undermine one or more of the licensing objectives? If the answer to this question is no, then the committee may refuse part or all of the application.

Always read the statement of licensing policy published by the local authority in which the premises are situated and note any special policies relating to hours and "cumulative impact zones". Do not be daunted. As the Roman philosopher Seneca said, if you have considered an issue before it arises, you are better prepared to deal with it. Paragraphs 3.22 to 3.28 of the Guidance to the Act are particularly helpful if there are stress area policies.

Have Jeremy Paxman on your side​

Like Jeremy, a little tenacity and persistence is an asset.

Always recognise that the committee must grant your application unless to do so runs contrary to one or more of the licensing objectives. You have to show that it doesn't.

If you have run the premises for a long period without incident, tell them. If you have had no complaints directly to you, tell them. If you do not have trouble with the police, tell them. This will assist your application and show the committee the style of premises you are running.

Do not be tempted to exaggerate, however, as this could come back to haunt you.

Have Sun Tzu on your side​

"He who fights, knows when to fight and when not to fight", said the Chinese thinker. If you are dealing with representations, there is a chance of conflict.

Remember that different people want different things and that the Licensing Act 2003 was introduced partly to allow residents to have their say in the running of licensed premises near them. Should you be in a situation that is heated, stand your ground. Fight your corner, but if it comes to nothing, be gracious and look to build bridges in the community. You can always apply to vary your premises licence in the future, having operated for a while in harmony with the local community.

By following the above, you stand the best chance of succeeding. At the end of the day, you know your business better than anyone, how it operates and why you want the variations. This is perhaps the most important argument to be put forward in making the application before a licensing committee.