Need to know: pub beer gardens and licensing laws

Operators and customers alike value an outside space. Marquees, awnings, temporary outdoor bars, barbecues and live music can all help make the most of good weather or a cool crisp evening.

However, these outdoor areas are not always appreciated by nearby residents who may also be enjoying their garden or an evening with the windows open. And pubs have to balance their customers’ needs with keeping neighbours onside.

The use of outside areas can be fraught with difficulties and there are many things to address and consider from both a practical and legal standpoint.

Things to consider: 

• Check if the pub’s outside area is part of the licensed area on the licence plan and establish whether or not you can use your beer garden and if so, under what circumstances.
• If that area is unlicensed and you wish to include it in the licensed area, take into account that there may be objections from local residents. This could result in the refusal of your application or alternatively, onerous conditions added to restrict the use of the outside area.
• Even if the outside area is not shown on the plan, in certain circumstances, the area can still be used even for the consumption of alcohol. During the recent bout of hot weather, many operators wanted to provide hot food and drinks outside, for example a barbecue. The provision of hot food and hot drinks is only licensable between the hours of 11pm and 5am. But again, there could be restrictions on this sort of activity on the premises licence.
• The provision of late-night refreshment may actually be restricted to inside the premises only. For example, one licensee had a condition on their premises licence stating ‘the outside area shall not be used for licensable activities’. Consequently, after 11pm, no food or even hot drinks could be consumed outside. Outside areas can be restricted by conditions on a premises licence or on the planning permission. You should therefore look out for conditions attached to your planning permission or premises licence that states, for example, ‘there will be no use of the outside area’, ‘the outside area will only be used until 9pm’ or ‘the capacity in the outside area will be limited to 15’. 
• If an outside area is located on the public highway, then both planning and a pavement licence may be required to trade.

Managing complaints

Residents rarely complain directly to operators. Often the first time an operator realises there is an issue is when there is a visit from a council enforcement officer. This type of visit could lead to an abatement notice under Section 80 of the Environmental Protection Act 1990 being served or even a review of the premises licence under Section 51 of the Licensing Act 2003.

Alternatively, as happened in one case, residents upset by customer noise, clattering glass vessels, barbecue smells and bright lights from the beer garden complained directly to an overzealous environmental health officer. The EHO restricted the use of that outside area, which had a devastating effect not only on the total capacity of the premises but also the operation and profitability of the outside areas trade during the summer months. It’s a scenario that is well worth avoiding by being proactive.

Draconian prevention

The abatement notice is a very draconian way of preventing noise nuisance at a premises. If this is served and no action is taken, it could last indefinitely. Each consequent breach of that notice then could result in a prosecution, a costly hearing and an unlimited fine, which is determined by the courts.

In any event, the key to protecting the benefit of an outside area is actually good management as local authority officers get very ‘twitchy’ when local residents complain about licensed premises they perceive to be causing a problem. So the use of a written policy specifically addressing the control of an outside area is beneficial.

Points this kind of policy would address include:

• How to address concerns raised by neighbours or the local authorities
• Proactive action to prevent any issues in the outside area, use of stewards, door staff and glass collectors
• Displaying notices asking customers to respect local residents
• Removing litter, dimming lights and even moving furniture late at night

Regular meetings with neighbours and notices to keep customer noise to a minimum could avert formal complaints to the authorities. A number of operators use door staff or other staff, and also install CCTV cameras to monitor the outside area as a deterrent against bad behaviour.

It is always better that an operator controls and restricts the use of their own outside area than allowing the local authority to do so by way of an abatement notice or review proceedings.