Change of use for retirement

Because of the gloomy predictions for pub closures over the next year, I make no apology for mentioning once again the fact that it is still difficult to 'de-licence' a pub.

I don't mean giving up the premises licence. That is already provided for under section 28 of the Licensing Act 2003. As long as you are named as the actual holder of the premises licence you can send it back to the licensing authority with a note that you wish to give it up.

You cannot, of course, simply send back the licence in your possession if the brewery or operating company are the actual holders.

But freehold owners still contact me regularly to ask what the procedure is for giving up the business, but staying in the pub as a private house. This is where the problems arise.

It is not simply a question of telling the local authority. You have to convince the planning department that a change of use is necessary — from commercial to residential.

This is where both local and national policies come into play. There has to be abundant proof that the premises are unviable as a public house and will remain so in the future.

The fact that you have decided to retire from the trade is not necessarily enough. They may counter with the proposal that another owner will revive the business and that because of the pub's location it is inappropriate to remove it from the commercial category at this time.

There is also the question of rates. Where a business is not trading, some rates relief can be obtained, but again it is not possible to switch to the residential tariff as of right.

All this time, of course, a valuable property for you has in effect no value: you do not want to sell it to someone else and you will not get such a good price if the place is closed anyway. Your capital is tied up.

If you could advertise it with a change of use to residential, it would probably be worth far more on the current market, especially if it is in a desirable location, perhaps in the centre of an attractive village.

All this means is that you need to plan carefully and certainly consult an experienced adviser on property matters so that you know how to embark on the planning application. However, as I have said before, be prepared for a long and rather frustrating wait.

Q&A​

Staff and end of tenancy​

Q.​ Due to the changed circumstances of this brewery, we as tenants have been given notice to quit, which expires early next year. My question is: what about our long-serving staff? Do we have to fire them as well and pay compensation? Can they take us to a tribunal? They have been loyal to us and we want to be fair.

A.​ I appreciate your dilemma, but there should be no need for you to terminate the employment of the pub's staff in the circumstances you describe.

I assume that the business of the pub is to be kept going after you have left, or another tenant or lessee is going to be brought in. Under the Transfer of Undertakings (Protection of Employment) Regulations, as amended, a regular member of staff's employment is taken to continue even when the business changes hands.

Purchasers of businesses are obliged to take on all existing employees and if they subsequently dismiss them, then redundancy payments may be due. You do not say what the brewery intends to do, and at this stage you may not know. But certainly, whatever they tell you now, you are not legally required to make your staff redundant in advance of your leaving date and thereby become liable for additional payments.

This is a matter for the brewery to determine. It is they who have terminated the tenancy and you should notify them in writing of the names and periods of service of your employees and ask for details on what they intend to do.

Is serving a thug illegal?​

Q.​ Is it true that if another licensee lets a person drink in his premises after a 'Ban the Thug' order is made, even if he is named in the order, it is not illegal? I thought there was an obligation on licensees not knowingly to serve such people?

A.​ Whatever your personal feelings on this action, it is indeed allowed for under the Licensed Premises (Exclusion of Certain Persons) Act 1980.

It must be remembered that the exclusion order applies in the first instance to the convicted person, ordering him not to enter the premises on which the original offence was committed, or any other premises named in the order, on penalty of a fine of up to £200 or one month's imprisonment.

The order does not impose any legal obligation upon the licensee or his staff in respect of the banned person. They are not obliged to refuse service to such a person, although in the vast majority of cases they would enforce the ban anyway.

The Act states that if the person is allowed to enter at "the express consent of the licensee of the premises or his servant or agent" no offence is committed.

So the legal answer to your question is yes. It is not illegal for a licensee to consent to admit a banned person, even during the currency of the ban, which includes his own premises.

Taking draught home​

Q.​ We have a good range of ales. If a customer wants me to fill up a container with draught beer for him to take home, what's my legal position?

A.​ The only problem about off-sales of draught products is to ensure that you stick to the proper measures.

You cannot normally rely on the container provided by the customer, because it is unlikely to be Government stamped. If you have metering equipment, there is no problem. You can make the delivery into any container you like.

If you only have free-flow pumps, then you should pour the beer into an imperial measure, such as a stamped, lined jug, and then transfer it to the container supplied. Otherwise, you will need to pour each pint and then transfer it to the container. It is highly unlikely that you will be prosecuted, but some zealous trading standards officer might take action if you relied on unstamped containers.