Prior to the government’s announcements last week, pubs and restaurants were restricted from operating as hot food takeaways without appropriate planning consent and permission under the Licensing Act.
On 17 March the government issued a statement on its gov.uk website that, for a period of 12 months, planning laws will be relaxed enabling permitted development rights between regulated classes to provide businesses the option to switch to carry out meals and non-alcoholic drinks without the need for planning applications.
This lifeline for businesses and consumers alike will enable compliance with the restriction on movements imposed on Monday night, and provide a simplistic procedural remedy for the pub, café and restaurant sector. Businesses must merely inform the local planning authority when this new use commences and concludes.
All premises providing off site hot food and drinks must continue to comply with the current regulations, however, which include:
- Maintaining a distance of 2 metres between customers and shop assistants
- Only permitting small numbers of people to enter the shop to ensure no crowding
- Queue control is required outside of the premises
- Seating areas should not be provided indoors or outdoors for customers to consume food and drink
Leniency on licensing laws is not intended to follow, however. The Coronavirus Act 2020 (the Corona Bill) does not enable local authorities to amend primary legislation such as the Licensing Act 2003. Businesses with existing premises licences currently selling alcohol on site must be aware the permission for takeaway service does not include alcoholic drinks unless there is an existing permission for off sales. Where there is no permission for off sales an application to vary the licence must still be made.
Businesses should also check carefully the opening times under the conditions of their current premises licences. These cannot be extended to suit a new takeaway service without an application to vary the licence.
Planning laws and licensing laws remain entirely separate, so permission to change the use of the premises does not bring with it permission to change the terms of the licence. Both permissions are still needed.
Following Monday’s lockdown and subsequent changes to planning, how will licence applications, and hearings in particular, be processed and will compliance even be possible? The Corona Bill at section 70 empowers local authorities to make regulations regarding the requirements, timings and frequency of meetings which would include sub committees such as licensing committees. It also specifies there is no need for parties to a meeting to be in the same place. This opens the doors to remote hearings and access by video link or conference calls.
On 17 March, a week before the mandatory closure of all non-essential retailers, Gary Grant, Vice-Chairman of the Institute of Licensing promoted the possibility, if not current capability, of licensing matters to be determined remotely.
The capability to switch to an online system will inevitably lag behind the decision to move to it. But given the relaxation of planning laws it is acknowledged widely that license applications should be determined sooner than later to offer the support to struggling food and drink retailers, and the consumers dependent on them, for which the planning changes were intended.
It will therefore be for each individual authorities to specify its approach to applications and, as yet, we are still awaiting this information. It should be assumed, however, that in the short term it is highly unlikely determination of contested matters within 20 working days for most cases will be achievable.
Bearing in mind the inevitable delays in the capacity to process applications will businesses be practically hindered from exercising the variations under application?
Enforcement for this industry will sit on two sides of a fence it seems. The Bill provides criminal sanctions to persons carrying out a business who fail to follow directions to close their doors to on site food and drink consumption including prosecution and fines.
Given the challenges facing local licensing authorities to process applications and facilitate hearings, it is speculated that such strong sanctions are unlikely to be imposed on businesses which switch to supplying off site hot food and drink, at alternative times, whilst awaiting determination of applications already submitted. This is provided they comply with the planning laws as amended.
Supplying alcohol under this new service is unlikely to be included in this lenient enforcement strategy. Enforcement will vary from authority to authority, but businesses should always err on the side of caution. Breach of the Licensing Act itself can led to prosecution, unlimited fines and possible imprisonment.
The Government’s late inclusion of off licences on the list of essential businesses means that it should not be ruled out that new licence applications will be made in recognition of the rare opportunity for enterprise in a country on lock down. This will increase the pressure on local licensing authorities. New licence applications remain necessary and online application is exercised in many local authorities already. Should determination require a hearing it is expected to be possible progressively as a remote era of licensing procedures develops.
Knights plc continue to provide comprehensive licensing support and advice to our clients around the country in these difficult times. The situation is changing on almost a day to day basis and we will endeavour to keep clients informed as developments occur.
We hope that this note is helpful. The situation is changing by the day, and even the hour, and so as soon as there is any further information we will share that with you. In the meantime if you need any assistance please do not hesitate to contact the Licensing team at Knights plc.
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