Licensing variations finally simplified

22 February, 2008

At long last the Department for Culture, Media & Sport has got round to correcting some of the technical flaws in the Licensing Act.

The Act has now been in position for well over two years, during which time there has been a great deal of talk, but no action. Now, the first of what is hoped will be a number of improvements has finally made it into the public arena. They are going to provide a simpler method of varying a licence.

On the department's own admission, applying for even a small variation to a premises licence, such as changing the layout of the shop, requires a legal process which can cost £900 or more. On average it is more than £600. This is fine for major supermarkets, but quite a hit for a small off-licence or corner store. There was, from early on, criticism of the rigidity of the process, which required applicants to put up a notice, advertise in the local paper - often at inordinate expense - and send copy application forms to up to eight council departments, all for the sake of moving a doorway or adding one extra shopping hour.

Single, shorter application

The consultation on changing the Act to provide a simpler variation for these minor alterations which have no impact on the licensing objectives has just come to an end. Indications are that most respondents agree in principle with the DCMS proposal that a decision on what is "minor" should be in the hands of the licensing officer, with some additions to the statutory guidance from the DCMS on what would be acceptable to qualify for this description.

For licence holders this would mean a single, shorter, application could be made direct to the licensing department, with no copies required to the other statutory authorities and no need for newspaper advertisements or notices on the premises. The officer would then have 10 days to decide on whether the variation falls within the "minor " category, with a discretion to consult with responsible authorities if thought necessary.

In most cases it is assumed this will be a foregone conclusion, especially if there is precedent or there has been prior consultation with the officer. But the officer does have power to rule that, in his opinion, following the guidance, the variation is not minor, in which case the government proposes there shall be no appeal for the applicant - a full variation application has to be started from scratch, to give potential objectors 28 days in which to respond.

There may be some opposition to this, bearing in mind the attitude of certain councils. Lack of an appeals procedure means the only recourse is to the High Court for judicial review or to the local authority ombudsman. The DCMS must know that both options are generally out of the question for small operators - the one because of expense and the other because of delay. Even going to the magistrates, if it was an option, would cost a hefty £400 thanks to last year's swingeing increase in fees.

One of the main uses of the new minor variation route might be to remove conditions which are no longer necessary or might have been wrongly added in the first place. One example is those conditions relating to fire precautions, which are now the direct concern of the fire authority and are invalid if included on a premises licence. As long as there is no impact on the promotion of the licensing objectives, the licensing officer can remove them using this new procedure.

Another may well be hours. While the on-trade's hours of opening may be a bone of contention, off-sales hours are generally less of a problem, although there are notable exceptions. If you merely want to key in your licensed hours to revised opening times then, in the absence of any specific issue, that should also be amenable to a minor variation application.

Structural changes

The main use of the new procedure, however, is likely to be for structural changes which might affect the plan but not the licensable activities. In the early days, several licensees complained that even for moving a doorway or a hatch they were advised to go for a full variation, which seemed disproportionate. It was examples such as this that persuaded the DCMS, albeit grudgingly, to admit that the new licensing system needed a tweak here and there.

One issue not yet resolved is that of fees. The consultation document is noticeably silent on this, which may mean local authorities do not want to miss out on revenue and are demanding that the fees stay the same as for a full variation, with the trade "saving " money purely on the other costs. Stand by for some tough talking on this one.

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