Back in the day, forecourts rarely if ever offered alcohol. More relaxed licensing changed that, and today 24-hour selling of alcohol is permitted – but only if you follow a strict procedure and set of rules. Our experts from Winckworth Sherwood guide you through the process.
Prior to the enactment of the Licensing Act 2003 (“the 2003 Act”) in 2005, off-licences could only be granted for limited hours of 8am to 11pm Monday to Saturday and 10am to 10.30pm Sunday with slight variances for Easter and Christmas.
Under the 2003 Act premises licences may be granted allowing the sale of alcohol up to 24 hours a day.
If your premises has a restriction on hours and you wish to apply to extend the hours, you will need to apply for a variation of your existing premises licence.
THE PROCESS
The process is very similar to that of a new licence application.
1. Draft an operating schedule (see below)
2. Submit the application together with the licensing authority fee (same as for a new licence)
3. Advertise the application on the premises for 28 days (blue notice) and in a local newspaper
There will be a 28-day consultation period whilst the blue notice is on display, during which local residents, business and responsible authorities including the police, licensing team, environmental health and public health, may raise objections or concerns (“representations”).
If there are representations and they cannot be negotiated away, the application will go to hearing for the outcome to be decided by the licensing committee.
If there are no outstanding representations, there is no need for a hearing and the application will be granted.
OPERATING SCHEDULE
You should consider what steps you can offer to mitigate against the perceived risk of selling alcohol 24/7. Such steps depend on the individual circumstances of the store.
Very often we are asked by officers to include a night pay window condition e.g. that all sales between certain times at night must be through a pay window. However, before agreeing to this, you may wish to consider whether at the particular location the use of a pay window may cause more noise than if customers are allowed into the store. This must be weighted up against any risk to cashiers particularly if they can be lone workers at any time.
The importance of a proper risk assessment cannot be overstated.
OTHER THINGS TO CONSIDER
Statement of Licence Policy
A policy may state acceptable or framework hours for off-licence premises. Any application outside of these hours will need particular care. The policy may also include suggested steps that an applicant may consider for its operating schedule.
Are the premises in a Cumulative Impact Zone?
A licensing authority may adopt a Cumulative Impact Policy (“CIP”) for part or all of its area.
The effect of a CIP is usually to create a rebuttable presumption that an application for a new licence or significant variation (often stated to include additional hours) will be refused.
If the subject premises fall with an area covered by a CIP, you will need to demonstrate any measures that you will take to mitigate the impact of granting the application; and why you consider the application should be granted as an exception to the policy. To do so you must understand the impact that led to the adoption of the CIP. The evidence that supported the adoption of the CIP should be publicly available.
CIPs were previously intended to be relevant to on-licence applications only (e.g. pubs and nightclubs). This made sense. The CIPs were intended to deal with the problems that arose from a saturation of on-licensed premises. It was difficult for officers to attribute liability for crime and disorder or public nuisance when those causing issues had visited multiple premises.
Government guidance changed to allow Licensing Authorities to include off-licences within the scope of their CIPs.
Views differ on whether such policies are effective or even appropriate. Nonetheless such a CIP needs to be carefully considered and addressed before any application is submitted.
CIPS are frequently misunderstood. They do not create a hard and fast rule of refusal. Every application must ultimately be considered on its own merits.
Planning permission
Some stores will have restricted opening hours on their planning permission. Whilst planning and licensing are separate regimes the most restrictive hours apply. So, if you succeed in securing a 24-hour alcohol premises licence but your store is subject to a planning restriction on trading hours, the planning restriction trumps the licence hours.
Covenants
You should check if your store is subject to a covenant either in a lease or on a freehold title that restricts trading hours or the sale of alcohol.
APPEAL
An appeal against a refusal or other unsatisfactory outcome is to the Magistrates’ Court. An appellant must demonstrate that the decision was wrong – new evidence can be considered. If the appeal is unsuccessful a court may order the appellant to pay the licensing authority costs. All the more important to ensure your initial application has the best possible chance of success.
CONCLUSION
A well-prepared application and a proactive approach in dealing with any policy issues, local concerns and objections are all important.
Once licensed 24/7, you may find that your store attracts greater scrutiny from officers. It is essential that your stores are fully compliant with the requirements of the 2003 Act and that cashiers are properly trained with records maintained.
Please do contact the licensing team at Winckworth Sherwood should you be considering an application to extend hours.
Co-written by Robert Botkai senior partner at Winckworth Sherwood, and his colleague Jeenna Khela is an associate in the commercial real estate and licensing team.
