Legal News

Altering your premises

operational, legal news, October 2006, COMMENTS

One of the biggest problems faced by a licensee, nowadays, is how to deal with changes to licensed premises. The Regulations under the Licensing Act spell out very clearly what needs to be on the plans. They include showing the position of every fire extinguisher. There is an argument for saying that if you move a fire extinguisher from one wall to another you would need to apply for a variation to the existing licence.

This would ensure that the plans attached to your licence show the correct position of all the items specified in the schedule. As the application would have to be served on seven or eight authorities as well as advertised in the local newspaper it would be very expensive. Better to leave it where it was! Perhaps not surprisingly many local authorities around the country have agreed to a simplified procedure. Where there are very minor alterations affecting only one of the recipients of the Premises Licence then you could simply send plans to the licensing authority and to that fire authority. If they’re happy that they will replace the existing Premises Licence plan with the new one.

What happens if you want to move a fire door five yards along the side of the building because you want to extend your bar? Slightly surprisingly, extending the bar doesn’t require any application at all unless it blocks access to a fire exit. Moving the fire exit gets you away from this problem but again technically you would need to make an application. On the other hand, frankly, who’s interested except the fire authority? Residents and others are unlikely to be concerned as it’s only to be used in an emergency. Some licensing authorities will accept this as a minor modification and providing the fire authority’s happy will simply change the plan. This is a huge saving in cost and it’s certainly worth asking to see whether it can be done.

I think it’s fair to say that the Government is not happy. They take the view that any alteration, however small, does require an application. They say that the issue of approving “minor alterations” in this way is not dealt with in the Act. The contrary argument is that there is nothing in the Act that forbids local authorities from carrying out this type of minor variation. Legal opinion as to whether or not this can be done is equally split. It seems to me therefore that where local authorities take a sensible line and agree to this form of procedure then licensees should be very grateful. It is, however, yet another example of a failing within the Act that needs to be put right.

I can see the Government’s argument for saying that there is no specific approval for it. On the other hand, many local authorities got fed up with the rigid nature of the Act and helped licensees to convert old style licences to new ones. They did it in spite of the fact that there was no slip rule that gave them permission to do so. If they hadn’t helped us all out then the Government would have been horribly embarrassed by the number of licences that were not, in fact, converted. Three cheers then to most local authorities.

I say most because regrettably it’s not all local authorities. Some say that there is no power to do this and require an application to be made. I’m sure in some cases this is down to a concern that the correct procedure should be followed. Within others it’s simply a desire to do everything properly regardless of the harm it can do. Anyway, I think that there’s an argument for saying that the licensing authority can do it and it’s certainly worth a try.

What happens if you decide that there’s no way to make the alterations that you’re proposing stand out as a small variation? Under the old law, Magistrates Courts would, on the whole, agree to your increasing the size of the premises by 30% or so using an application for approval to alterations. Anything over that and you were likely to have to apply for a new licence. Under the new law there is no guideline at all. There’s also an argument for saying that any significant change to the plans may require a new application. Under the new law you have to advertise, serve the same authorities and the cost is very much the same. For this reason, where there’s time to do it, we have taken to writing to the local authority enclosing a copy of the plan and asking them whether they think it’s a new application or a variation. Some licensing authorities are taking a sensible line.

They are following the guidance that the Magistrates used suggesting that anything over 30% in terms of increasing the size of the premises will need a new application. Others are being much more rigid.
The sad thing is that different procedures are being followed all over the country.

The new Guidance is not likely to be published until next year. Even if it comes out with a very clear recommendation it’s unlikely to please everybody. In the meantime, and even probably after its publication, you will continue to get a wide disparity in approaches throughout the country. But hey, it keeps us lawyers busy!

Words: Jeremy Allen

From: October 2006 Issue

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