Ins and outs of an on/off-relationship

07 September, 2007

When the new Licensing Bill was going through Parliament, I commented in OLN that the government wanted to remove the distinction between different types of licences and provide a "one-size-fits-all" permission.

This it duly did, relying on conditions in the operating schedule to show what type of activities were being allowed. Interestingly enough, some off-licences ended up with full musical entertainment permissions as a result of one council's insistence on conformity. But one area which remains distinctly unexplored is the hybrid licence.

Under the old system, there was a clear dividing line between on and off-licence - so much so that there were a number of offences contained in the 1964 Act which prohibited consumption of alcohol either within off-licensed premises or in the immediate vicinity. If drinking took place with the "privity and consent" of the licence-holder, there was an offence.

There was no opportunity for café-style licences either, where you could purchase wine from the shelves of the shop and then go and consume it with your friends in an area set aside for this. That was also against the law, and the licensing justices maintained the clear separation in all their policies.

So it was something of a surprise to discover that none of the old prohibitions had made their way forward in any form into the new Act. This was mainly because terms and conditions on consumption of alcohol had been removed entirely — consumption of alcohol is not a licenseable activity, remember. Neither, of course, had any of the undertakings which off-licensees had given to the justices gone forward: the old law did not allow conditions to be placed on off-licences, so an undertaking was the only way the bench could impose conduct rules on off-licensed premises, with the sanction of refusal to renew for non-compliance.

Transition brought with it a fair degree of confusion, principally among local authorities, as to what they could and could not put on the converted licences. Arguments still rage on this point and you will not be surprised to learn that some transitional licences still have not been finalised because the parties cannot agree on the correct wording.

So what is the current position on those old prohibitions? If you follow one specialist barrister, any of the old offences which could have been made conditions will carry forward on transition. So some new premises licences may well have conditions which replicate section 164 of the old Act, while others will be silent on the point.

But consumption is not covered by a premises licence. The only definition contained in the application form is whether you intend to make on-sales or off-sales. Clearly, if you hold a similar licence to the one you had before, consumption on the licensed premises is not permitted . But what about nearby?

That is, "off the premises". In the absence of a specific prohibition, I can see nothing which makes illegal the provision of a seating area off the actual premises where ex-customers can consume their purchases.

Of course much will depend on the circumstances. There may be a street drinking ban, in which case such an area outside an off-licence might be impossible. But certainly there is nothing in the current law which would allow the police or the licensing authority to prosecute an off-licence holder for "permitting consumption" near his premises as an offence, if the premises licence does not mention it.

There is, of course, a safer route and that is to apply for a variation of the existing licence to allow for on-sales in and around the shop. Then any academic legal debate could be laid to rest, because the whole issue would have been clearly presented to responsible authorities and interested parties. But it is costly and there is the question of planning use to consider in this context. It may be that in the long run there is no commercial advantage to be gained. But it does add to the offering for the customers and would have considerable attractions, mainly because of the avoidance of the fiendish mark-up which most pubs, bars and restaurants engage in.

I for one can think of nothing more attractive than to select a bottle not from a wine list but from a whole shop and then go and consume it in some shady area nearby with one or two acquaintances.

It is well worth a thought.

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