In July 2009, the Department for Culture Media and Sport issued Supplementary Guidance on “a simplified process for minor variations to premises licences and club premises certificates”. Part One of the Guidance repeats the wording: “a simplified process for minor variations to premises licences” This July 2009 Guidance replaced the Guidance on variations of premises licences published on the 28th of June 2007. It was envisaged that a minor variation was a “small variation that will not impact adversely on the licensing objectives”.
The July 2015 Guidance issued under Section 182 of the Licensing Act 2003 repeats the same phraseology of “a simplified process”. The question to be asked to determine whether an application is to be classified as a minor variation or not is whether the variation proposed could impact adversely on the licensing objectives. Paragraph 8.48 of the Guidance confirms that “in considering the application the Licensing Authority must consult relevant responsible authorities if there is any doubt about the impact of the variation on the licensing objectives… and take their views into account in reaching a decision”.
There are then cited some very helpful examples of what may be a minor variation, including small changes to the layout of premises, as long as the change does not increase the capacity for drinking, or affect access between the public part of the premises and the rest of the premises, or impede the effective operation of a noise reduction measure. Variations to extend licensing hours for the sale or supply of alcohol for consumption on or off the premises between the hours of 23.00 and 07.00 or to increase the amount of time on any day during which alcohol may be sold or supplied for consumption on or off the premises must be treated as a full variation, whereas applications to reduce licensing hours will normally be processed as a minor variation.
Paddy, Anna and I have all been involved in many applications for minor variations and generally Licensing Authorities take a sensible view as to whether an application can be classed as a minor variation or not. I am currently dealing with premises which have been taken over by one of our clients and a new layout plan has been submitted. There is no increase in the public area for drinking, no increase in bar serveries and the Licensing Authority has agreed that this application can be a minor variation.
We have however had instances where we have not agreed with a licensing officer’s decision and it may be that there will be further articles on this point, should one of our cases end up in the High Court. The Guidance confirms that, in some circumstances, it would be possible to amend or remove an existing condition as “premises may change over time and the circumstances that originally led to the condition being attached or volunteered may no longer apply” (paragraph 8.64). For example, there may be no need for door supervision if a bar has been converted into a restaurant.
What if a door supervision condition had been placed on a licence requiring door staff on a Monday night because, when the licence was granted, Monday night was a busy night (perhaps a student night) and door supervision was required at that time? If the circumstances change and Monday night is no longer a busy night and the premises may only have 20 to 30 customers, then it must surely be appropriate to use the minor variation process to remove a specific requirement for a certain number of door supervisors and replace it with a condition that asks the premises licence holder to risk assess whether and when door supervision is required. I would suggest that this should be treated as a minor variation, especially if the police agree with the application being treated as such.
Would it be appropriate in such a case for a licensing officer, who has received advice from the police suggesting that from a crime and/or disorder point of view there is no risk to the licensing objectives, to conclude that this particular application should be a full variation as opposed to a minor variation? Although the Guidance asks licensing officers to consider whether an application could impact on the licensing objectives, there clearly needs to be some evidential basis for a licensing officer to reach a particular decision. I do not think it is appropriate for licensing officers who have received advice from the police or environmental health that an application to vary a condition will not impact on the licensing objectives to then rule that the application is not a minor variation and a full application is required. A full variation does of course require a 28 day consultation period, an advertisement to be placed in a local newspaper and of course a significantly increased fee, which could be over £1900 if the multiplier applies… or am I being cynical?