There are two certainties in life as a licensing lawyer. The first, enquiries for Temporary Event Notices for Christmas extensions are generally received on the 15 December. The second is the sun comes out in June and clients then enquire about using outside areas.
I find it particularly frustrating that a lot of operators do not give any forward planning in relation to using outside areas. We have had a significant number of enquiries from operators in the last few weeks relating to using outside areas as the weather has improved.
The process can be torturous, lengthy and needs forward planning. I was pleased to see that in the recent April 2018 version of the Section 182 Guidance document, issued by the Home Office, that the issue of outside areas has been covered, for the first time.
Beer gardens or other outdoor spaces
8.35 Applicants will want to consider whether they might want to use a garden or other outdoor space as a location from which alcohol will be consumed. The sale of alcohol is to be treated as taking place where the alcohol is appropriated to the contract. In scenarios where drink orders are taken by a member of staff in the garden or outdoor space and the member of staff then collects the drinks from the licensed premises and returns to deliver them to the customer this would be treated as an off-sale and any conditions that relate to off-sales would apply.
8.36 In such cases it will be not necessary to include the garden or other outdoor space on the plan as part of the area covered by the premises licence. However, it will be necessary for the applicant to include the garden or other outdoor space on the plan as part of the area covered by the premises licence if the intention is to provide a service whereby drinks are available for sale and consumption directly from that area (i.e. the provision of on-sales). This would apply in the case of an outdoor bar or a service whereby a member of staff who is in the garden or outdoor space carries with them drinks that are available for sale (without the need for the staff member to return to the licensed premises to collect them).
8.37 If the beer garden or other outdoor area is to be used for the consumption of off-sales only, there is no requirement to show it on the plan of the premises, but the prescribed Revised Guidance issued under section 182 of the Licensing Act 2003 I 55 application form requires the applicant to provide a description of where the place is and its proximity to the premises.
This is a helpful starting point. We have had to argue with some Licensing Authorities on the issue of outside areas but the change in the introduction of paragraphs 8.35 to 8.37 clarifies the position.
For the avoidance of doubt:
- The sale of alcohol is to be treated as taking place where the alcohol is appropriated to the contract;
- If drink orders are taken by a member of staff in the garden or outdoor space and collects them from the licensed premises, this is an off-sale;
- In these cases it is not necessary to include the garden or outdoor space in the licence plan; and
- If there is an intention to have a service position where drinks are available for sale and consumption from that area then the space would need to be included on the plan as there would be a licensable activity.
That clarifies the position in relation to plans and what needs to be submitted with an application.
However, if premises are already licensed and the operator wishes to look at using an outside area there are a number of issues that need to be considered. These are:
- Does the licence authorise the sale of alcohol for consumption off the premises? If not, a variation will need to take place and this will be a full variation (28 days’ notice period);
- Are there any conditions on the premises licence dealing with how off-sales are to be allowed? It may well be that these would need to be varied by way of a full variation (28 days’ notice period);
- Is the area that you intend to use for consumption in the ownership of the operator? If it is there would need to be a further application made; and
- If the area isn’t within your demise and, instead, is on Local Authority highway land, there would need to be an application for a pavement licence (in some places called a tables and chairs licence).
Pavement licence/tables and chairs licence
This is where the process can slow down significantly. If you have an aspiration to use an outside area which is on Local Authority land then you need to be thinking of making your application well before the weather improves. Most Authorities now have particularly prescriptive application processes which can take a considerable amount of time (up to two months). Often, applications have to go before a Panel of the Local Authority. The application process will no doubt be prescriptive, in that it will ask for artists’ impressions of the area, showing where any provision of seating and screening will be situated. More importantly, there will be a requirement to provide proof of public liability insurance and ensure that the furniture/screening complies with any requirements that the Local Authority may impose.
It is at this stage that significant delays might arise in reaching agreement with the Local Authority and ensuring that all of their relevant policies are complied with.
Most Authorities have now cottoned on to how much they can charge for pavement licences and we have seen a significant increase in the cost of these licences in areas where the Local Authority know that they will be profitable.
I would urge all operators to consider consulting a licensing lawyer in good time to ensure that permissions are not delayed until the nights are drawing in.
I would be delighted to answer any specific questions on outside areas should you have any.