Grey areas for licensing
When the new licensing laws were being debated, we were promised a "light touch" approach for the majority of pubs, with only those that caused a problem being targeted for action.
Well, times have changed. The new mandatory conditions show clearly that the Home Office doesn't believe in "light" or "targeted". A blanket ban is so much more effective, so that everyone gets the same rough treatment.
But licensing authorities themselves seem to have forgotten the original brief. They also have a habit of being rather heavy-handed when it comes to the law.
For example, a recent correspondent told me how she had organised some decking and a parasol umbrella in her garden, mainly for the use of smokers, only to be told that she needed a full variation of her licence to include the area into the "licensed premises" before she could use it for customers. Her own lawyer argued against this, but the council were adamant.
This is not the first time that there have been disputes about pub gardens. Even under the old law, licensing justices varied in their approach to the licensed status of the garden.
Some argued that it could not form part of the "premises" because it was not a building; some, that no drinking could take place there because it was not licensed at all, while others said that the permitted hours were enforceable there because it did form part of the premises as a whole.
Much of the problem arises from the rather ambiguous directions given at the time of transition. Plans of licensed premises were always required, and the area to be licensed was usually outlined in red. But in 2005, many of these old plans were either missing or inaccurate and the plans that were supplied to local authorities were often taken at face value as representing the existing licensed situation.
But, of course, the law itself has changed. Whereas before the justices did have some control over both sale and consumption of alcohol, now the actual licensable activity is the selling, not the drinking.
Some authorities and the police have argued that consumption issues are relevant to the licence, but the plain fact is that consumption in itself is not a licensable activity and cannot be made the subject of a variation.
I do not buy the argument that decking gives increased facilities for drinking and, therefore, counts as a structural alteration requiring permission. In the case in question the garden was always there, and there was room for people to drink outside the licensed area of the premises.
There has been no alteration to those premises and, therefore, nothing giving rise to a variation of the licence.
The fact that smokers are accommodated and the area is more used than it was before is not directly relevant. The smokers buy their drinks within the licensed area, like every other customer.
They move to the decking for a period while they smoke, and neither of the activities they do there — smoking and drinking alcohol — is mentioned at the beginning of the Licensing Act as requiring legal permission.
Of course, if their presence in that area disturbs neighbours, particularly in the evening, there would be a potential review of the licence and possible conditions imposed. But this garden does not have residential neighbours and it is clear that the licensing authority assumes as a matter of fact that they have control over all the activities of the pub.
It is this that cuts across the principles of the Act — rather like the police insistence that all pubs should have CCTV as a matter of course, even without evidence that there is a problem needing to be addressed by this means.
