The Licensing Act 2003 throws up a potential minefield of terms and conditions that need to be taken into consideration. Alun Thomas, head of licensing at law firm Davenport Lyons, guides you through it
I run a small chain of restaurants. How does the Licensing Act affect me?
Under the Licensing Act 2003, premises wishing to serve alcohol, provide entertainment (including recorded music, unless it is "incidental") or offer hot food after 11pm need to have a premises licence. Where alcohol is sold, a designated premises supervisor (DPS) is also required, who must have a personal licence. A DPS does not need to be present at all times and can delegate his or her authority.
In relation to noise, legislation has been introduced which allows the secretary of state to set a permitted noise level at nearby dwellings at night. The proposal is for 35 decibels in a habitable room of a domestic dwelling, with the doors and windows closed. Changes have also been made which affects how workers are protected.
If you're acquiring new premises, it's advisable to take expert legal advice before submitting your application for a premises licence, particularly if you expect it to be opposed.
If a representation is received, either from a member of the public or from one of the responsible authorities (police, environmental health), a hearing will be required to determine whether the licence should be granted and on what terms. Local councils deal with applications in different ways, and policies can have subtle variations from borough to borough. For example, in Westminster there's a general presumption against any new licences being granted.
Framing the application in a balanced manner to achieve what can reasonably be achieved, but so as to give sufficient commercial flexibility, can be difficult in some cases. For example, subject to the terms of the lease and planning permission, it may not be necessary to restrict the application so that alcohol can be served only with a meal to achieve flexibility.
In almost every case, it should be a condition of sale or the grant of a new lease that a licence is granted upon satisfactory terms. Even if there is an existing licence, the terms need to be checked to ensure that the conditions are not onerous and it can be transferred. Where changes are being made to the layout of premises with an existing licence, a variation of that licence will have to be submitted and there may be issues, such as means of escape, which will have to be addressed.
- What are the terms of the existing licence, if any, and can it be transferred?
- Are there any outside areas that need a licence or planning permission?
- Is there more than one person who has personal licence in case the DPS leaves at short notice?
- If a new licence is required, what hours and type of operation is envisaged, and what impact will any local policy have on whether it will be granted?
- What do the existing lease and planning permission allow?
- Ensure that any new lease or sale agreement makes the grant of a licence (or transfer and variation) a condition.
- Make a suitable and sufficient assessment of risks from noise.
- Take steps to ensure that noise is eliminated or reduced to as low a level as practicable.
- Provide personal hearing protectors where necessary.
- Ensure employees exposed to noise are placed under health surveillance.
- Provide employees with suitable information, instruction and training.
If you don't operate your premises in accordance with the terms of your premises licence, your licence can be subject to a review. The new Noise Regulations can also land you in trouble, and signing a lease without knowing whether the appropriate licence and permissions are in place is a risk not worth taking.
Alun Thomas, head of licensing, Davenport Lyons 020 7468 1616 firstname.lastname@example.org