Government introduces new Bill for pavement licences and off-sales

“The Government has introduced the Business and Planning bill today.

MPs will consider all stages of this important bill in one day on Monday, 29 June 2020, and we will let you know once it comes into force.

The Bill contains various parts, including important sections on pavement licences and alcohol licensing. The Bill also contains sections on planning which are not covered in this eNews.

Regarding alcohol, the Bill allows off-sales without the need for an application, including delivery of alcohol.

If you only have off-sales on your licence.

Firstly, premises that are not currently authorised to sell alcohol for consumption off the premises at all (in other words “on sales only”) will be authorised to provide off sales until 30 September 2021 without the need to make any application to the licensing authority.

Any restrictions on the licence are suspended in so far as they are inconsistent with this new authorisation for off sales. For example, if you had a condition stating “No off sales” this would not apply.

If you are already permitted on and off-sales.

For premises are already authorised to sell alcohol for consumption both on and off the premises, the following conditions or types of conditions are suspended:

any conditions restricting the time when an off sale may be made (when the premises is also open for the sale of alcohol for consumption on the premises)
any condition that would prevent alcohol being sold in an open container (for example a condition requiring off sales to be in sealed containers only)
any condition that would prevent off sales where it is a sale for delivery
In other words, if you have on sales and are open for the sale of alcohol for consumption on the premises then you can provide off sales in open containers to the times you are permitted for on-sales.

Exceptions.

Premises with on-sales only who hope to benefit from the additional off sales permission do not qualify if a “Disqualifying Event” has occurred in the previous three years. This would include if the licensing authority had refused to grant a premises licence authorising off sales, or to vary a licence to include off sales, or if the licence was varied to explicitly exclude off sales.

Duration.

Permissions for both premises previously only with on sales and those with existing on and off sales under this section will continue until 30 September 2021 or until the permission is revoked or excluded.

Enforcement.

There are provisions for a so-called “Off Sales Review” which is similar (but separate to) the existing summary review procedure.

A responsible authority can apply for an Off Sales Review at short notice and the licensing authority must decide within 48 working hours (weekends are excluded) whether to take any Interim Steps against the licence. For those who have simply been granted off sales for the first time those interim steps could include excluding off sales from the licence or suspending those off sales.

For those who already have off sales but are benefiting from suspension of conditions relating to time, sealed containers or deliveries the licensing authority can amend those conditions, no doubt restricting the manner of off sales or possibly even preventing them.

An interim steps hearing can take place without the licence holder but operators do have the opportunity to request a further hearing to review those interim steps. There is also a mandatory full review hearing 28 days after the application was made by the responsible authority but again this only relates to the issue of off sales and the rest of the licence and its permissions are not open to restriction or modification.

It is also possible to appeal against the decisions both for interim steps and the final review.

Pavement Licences.

The Bill also contains important provisions about applying for pavement licences.

Operators, whether or not they already hold a tables and chairs/ pavement licence may apply for a pavement licence to the local authority. This is effectively a “Fast track” application process for pubs, wine bars, drinking establishments or other premises used for the sale of food or drink for consumption on or off the premises.

The fee cannot exceed £100 and requires details of the furniture to which the application relates together with other information or material as the local authority may require. There is a public consultation period of 7 days beginning with the day after the day on which the application is made.

The local authority may grant the application subject to certain criteria (mainly the ability of non-vehicular traffic being able to use the highway).

Deemed Grant.

Interestingly if the local authority does not make a decision within the 7 days then the application is deemed to be granted for 12 months.

Duration of Pavement Licence.

A pavement licence granted in this way can last until 30 September 2021 or such time as the local authority specifies in the licence, although that cannot be less than 3 months.

The local authority may publish conditions to apply to the pavement licence which may be different to their standard conditions which relate to tables and chairs licences. Equally, it can apply to revoke the licence if it considers that the conditions have been breached, or serve notice on the licence holder requiring the taking of steps to be remedied.

The provisions relating to pavement licences are complex and we will be writing further once we have considered the full implications, including in respect of existing permissions and renewals.

These are all important and permissive relaxations on the existing legislative regime for both alcohol and planning and again any forthcoming government guidance will be welcome. Once we have reviewed the detail we will provide further commentary”