Minor or major – it makes a difference

The dates may not at first seem significant, but this period marks a time when licensing practitioners and operators alike frequently became red-faced with frustration. The reason? For the first three and a half years of the Licensing Act’s existence, the only official way to make a change to your premises licence was to apply for a full variation of that licence.

A full variation of course involves a payment of a fee ranging from £100 to £635 (and a lot more if your premises attracts the multiplier or the capacity of your premises is more than 5,000), the cost of advertising in a newspaper (frequently between £300 to £400), a 28-day consultation period and the prospect of residents and authorities alike lodging objections, resulting in a hearing.

If the change you are proposing to your licence was minor, perhaps a rearrangement of the fixed seating, or the addition of the Exhibition of Films so that you could have cinema nights, or the removal of obsolete or duplicate conditions, the prospect of spending possibly thousands of pounds to do so (without any guarantee you would be successful) was more than enough to get the blood pressure rising for operators and their representatives alike.

As always, the trade and the regulatory authorities found a way and muddled through. This usually meant contacting the local licensing officer at the licensing authority and letting them know what your proposed changes were (perhaps sending them a copy of the proposed plans), crossing your fingers and hoping he or she had got out of bed the right way to allow what became known, certainly at our offices, as an “informal” variation. This usually meant simply swapping the new proposed plans for the old, sometimes with a payment of an administrative fee.

That situation was clearly insupportable long-term, and the Government accepted this, bringing into effect a Legislative Reform Order which introduced the new procedure known as a Minor Variation.

Procedure faults

This new procedure, under Section 41(A) to 41(C) of the Licensing Act immediately made life simpler, cheaper and more predictable for operators. The minor variation procedure is a straightforward and inexpensive method for making uncontroversial amendments to a licence or the layout plans without the need for a full public consultation and the commensurate cost and delay. The application fee is only £89, and the consultation period is 15 working days. You do not have to advertise in the newspaper either.

Sounds brilliant and generally it is. However, the procedure still has its faults.

At its core is the requirement the variation proposed in the application “could not have an adverse effect on the promotion of any of the licensing objectives”. The test is a strict one and where doubt exists then the Authority is obliged to refuse the application. There is no appeal.

The licensing authority (a licensing officer at the council, not the full licensing committee) must consult relevant responsible authorities such as the police or environmental health if there is any doubt about the impact of a variation on the licensing objectives and take their views into account. He or she must also consider any relevant representations received by, for example, local residents who may have comments, having seen the notice(s) that are required to be prominently displayed (on white paper, not pale blue as in a full variation) on the premises during the first 10 days of the consultation period.

The minor variation procedure is intended to provide a simple way to update premises licences, for example small variations to the layout of the premises, adding uncontroversial licensable activities (but not alcohol) or removing or amending obsolete conditions.

The minor variation procedure cannot be used, for example, to increase the capacity for drinking on the premises, or for applications that might block emergency exits or routes to emergency exits, or impeding the effective operation of a noise reduction measure such as an acoustic lobby. These have to go to full consultation.

Licensing authority's hands

Regarding alcohol, basically you cannot use the minor variation process to extend your hours for the sale of alcohol between 23:00 and 07:00. At any other hour of the day, i.e. between 07:00 and 23:00, it is possible to “swap” existing hours for the sale of alcohol for new hours, so for example if you presently have an hour authorised between 3 and 4 in the afternoon you could in theory swap this for an hour between 7 and 8 in the morning (for whatever that is worth).

Apart from some of these strict bars on what you can do with the minor variation process, the rest of it is, as before, very much in the hands of the licensing authority and any authorities they may choose to consult. This still leaves us sometimes with a situation where it is advisable to see the authority’s views before submitting a minor variation, particularly if time is of the essence. You do not want to submit a minor variation for some time-sensitive structural works, only to find out 10 days into the consultation period the licensing authority thinks your application should in fact be a full variation, and rejects it, leaving you to have to resubmit with a full variation and the minimum 28-day consultation period.

Equally, some licensing officers take a stricter view on what can be done under a minor variation than others. If your area for the sale of alcohol is ever so slightly increasing, for example because you have moved the disabled toilet to another part of the premises and the new disabled toilet takes up less space than the old one, resulting in a slight increase in the area for the sale of alcohol, then most people would see this as a minor change but again, you will be at the mercy of the licensing authority.

We find most authorities are eminently sensible about these things, including where there is, how shall I say this, an element of “retrospectivity” about the application …

It is always best to explore the possibility of a minor variation rather than a full variation for all the reasons above. Nobody wants a full hearing and all the paperwork that this entails (particularly the licensing authority) so if you think your proposed changes are minor then go for that. The dividing line can be very fine, however, and it is often worth taking some legal advice prior to taking the plunge.

• Andy Grimsey is a senior consultant solicitor at Poppleton Allen solicitors.​​