Guide to the Licensing Act 2003

The Licensing Act 2003 governs the sale and supply of alcohol and late night refreshments and the provision of regulated entertainment in England and Wales.

Under the 2003 Act the responsibility for the administration and enforcement of licensing rests with local authorities, acting through licensing committees. The responsible licensing authority must at all times seek to promote the following four licensing objectives:

 

a. prevention of crime and disorder

b. public safety

c. prevention of public nuisance, and

d. protection of children from harm.

 

As a potential or existing licence holder, you will be required to work together with the local authority and other responsible authorities to promote these four objectives.

Similarly, the refusal, revocation or suspension of a licence can have significant consequences for you and your business. It is therefore important to understand, at the very least, the basic principles of licensing law.

Below we examine some of the key provisions of the Licensing Act 2003, including the statutory objectives, who is affected, licensable activities, what type of licence you may require and when, together with a brief overview of offences and penalties.

 

Who does the Licensing Act 2003 apply to?

 

Permission under the act is required to carry our licensable activities. There are four licensable activities contained within the Licensing Act 2003:

 

a. the sale by retail of alcohol

b. the supply of alcohol by or on behalf of a club to a member of the club

c. the provision of regulated entertainment

d. the provision of late night refreshment (ie; hot food and hot drink served between 11pm and 5am).

 

The Licensing 2003 Act also goes on to define the following licensable activities as qualifying ‘club activities’ (where members join together for a particular social, sporting or political purpose who satisfy the relevant qualifying conditions):

the supply of alcohol by or on behalf of a club to a member of the club

the sale by retail of alcohol by or on behalf of a club to a guest of a member of the club for consumption on the premises where the sale takes place, and

the provision of regulated entertainment where that provision is by or on behalf of a club for members of the club or members of the club and their guests.

As such the 2003 Act affects a broad range of businesses, organisations and enterprises where permission is required to carry out licensable activities, including but not limited to:

 

a. concert halls, theatres and cinemas

b. restaurants, public houses and bars

c. hotels, guest houses and B&Bs

d. nightclubs, casinos and bingo halls

e. supermarkets selling alcohol

f. off-licences, convenience stores and garages retailing alcohol

g. late night cafés and takeaways

h. volunteer and social clubs

 

What type of licence should I apply for?

 

Under the Licensing Act 2003 licensable activities may only be carried on under, and in accordance with, one of the following:

Premises Licence – a premises licence will authorise your business or organisation to use your premises (defined as any place and includes a vehicle, vessel or moveable structure) to be used for one or more of the licensable activities. In particular, if you propose to sell or supply alcohol on a permanent basis you will need to apply for a premises licence.

Club Premises Certificate – a club premises certificate will grant qualifying club status to specific premises, allowing that club to engage in the qualifying club activities as set out above. However, a group must meet various qualifying conditions, including the provision that there are at least 25 members and that alcohol is only supplied by or on behalf of the club.

Temporary Event Notice – a temporary event notice will be required for any occasional or one-off event with fewer than 500 people where you want to serve or sell alcohol, provide late night refreshment or put on regulated entertainment. This notice will only permit specified licensable activities lasting no more than 168 hours.

Unless a shorter period is specifically stated, all premises licences and club premises certificates will have effect for the life of the business, unless the licence or certificate is revoked, suspended or surrendered.

 

What is a ‘personal licence holder’?

 

If you are a business or other organisation proposing to sell or supply alcohol under a premises licence, with the exception of members’ clubs and certain community premises, under the Licensing Act 2003 you must also have a designated premises supervisor (DPS) who holds a personal licence.

A DPS is usually the person who has day-to-day responsibility for the running of the business and is specified on the premises licence as being responsible for authorising the sale and supply of alcohol.

A members’ club can operate under a club premises certificate rather than a premises licence. As such, there is no requirement for a DPS and any sales of alcohol do not need to be authorised by a personal licence holder.

You must be aged 18 years or over to apply for a personal licence. In most cases, you must also hold a relevant accredited licensing qualification.

 

How do I make an application under the Licensing Act?

 

To obtain a premises licence or club premises certificate you must submit a full application, together with what is known as an ‘operating schedule’. The operating schedule must set out matters including:

 

a. a description of your premises

b. the licensable activities proposed

c. when and which of the licensable activities are planned to take place at the premises

d. the identity of the designated premises supervisor

e. the steps the licence holder will take to promote the licensing objectives.

 

Each application for a premises licence or club premises certificate will be considered on its own merit and in accordance with the responsible licensing authority’s statement of licensing policy.

Any person may make representations in relation to your application, including responsible authorities such as the police or fire service, as well as local residents and businesses. This extends to variations and reviews of applications.

Where representations are made it is for the licensing authority to decide whether those representations are relevant to the four licensing objectives. If relevant, the licensing authority must hold a hearing to consider them.

If you disagree with any decision made by the licensing authority to either reject all or part of your application, or to impose modifying conditions, you have a right of appeal to the magistrate’s court.

However, if no responsible authority or other person makes representations – and you have completed the application properly and submitted the correct fee – the grant of a licence or certificate will still be subject to any relevant mandatory conditions as prescribed by the Licensing Act 2003, together with any additional conditions relevant to the nature of your premises and licensable activities set out in your operating schedule. Should your application meet all of these requirements, the licensing authority must grant your application.

Under the Licensing Act 2003 an application is not required for a Temporary Event Notice (TEN). Instead, you must provide the responsible licensing authority, together with the police and environmental health service, with notification of the event. The police and environmental health service can object to a TEN if they feel the event will undermine any of the four licensing objectives.

 

Mandatory licensing conditions

 

Under the Licensing Act 2003 (Mandatory Licensing Conditions) (Amendment) Order 2014, any application for a premises licence or club premises certificate will be subject to the following mandatory conditions:

 

a. a ban on irresponsible promotions

b. mandatory provision of free drinking water

c. adoption of an age verification policy

d. the mandatory provision of smaller measures.

 

Additional licensing conditions

 

Further conditions on a premises licence or club premises certificate may be used to set the parameters within which your premises can lawfully operate. The imposition of any conditions must be tailored to the individual type, location and characteristics of your premises or licensable activity.

If standardised conditions are imposed where they cannot be shown to be appropriate for the promotion of the four licensing objectives in your individual case, you may be able to argue that these are unlawful. Common examples of conditions considered relevant to the licensing objectives could include:

The provision of door supervision and CCTV to prevent crime and disorder

The presence of trained first aiders on the premises and ensuring the safe departure of those using the premises to ensure public safety

A prohibition on customers using garden areas after certain times to prevent a public nuisance

A restriction on the hours when children may be present on premises where alcohol is sold

 

Offences under the Licensing Act 2003

 

The Licensing Act 2003 provides a range of inspection powers and enforcement provisions. As such the licensing authority is likely to carry out risk-based and unannounced inspections of all licensed premises to ensure conditions of the licence and safe standards are being maintained.

Where licence or certificate conditions are not being met, this may constitute an offence. The 2003 Act creates a number of offences relating to unauthorised licensable activities, drunkenness, disorderly conduct, as well as the sale and supply of alcohol to children. The penalties for these types of offences include significant – and in some cases unlimited – fines as well as imprisonment.

 

When should I seek legal advice?

 

If you are faced with a situation where your premises licence or club premises certificate is revoked or suspended you should seek immediate legal advice. Equally, advice should be sought if a new application for a licence or certificate is rejected or, alternatively, granted subject to excessive conditions.

An expert specialising in licensing matters and the statutory provisions of the Licensing Act 2003 will be able assist with any appeal, or judicial review, of the decision made by the licensing authority. In particular, where the responsible licensing authority has departed from the statutory guidance and its own licensing policy, expert legal advice should be sought in relation to the lawfulness and merits of any decision taken.