The Business and Planning Act 2020 temporarily modified the Licensing Act 2003 to provide an automatic extension to the terms of most premises licences, authorising the consumption of alcohol on the premises to allow for the sale of alcohol for consumption off the premises in England and Wales (the Extension).
The Extension was due to lapse on 30 September 2023. The Government has extended the life of the Extension to 31 March 2025.
It seems appropriate now to set out how the Extension works.
THE EXTENSION
The off-sales permission will permit off-sales to be made at a time when the licensed premises are open for the purposes of selling alcohol for consumption on the premises, subject to a cut off time of 11pm or the closure time of an existing outside area, whichever is earlier.
Measures also temporarily suspend existing licence conditions in so far as they are inconsistent with the new off-sales permission.
Conditions on existing dual premises licences (permitting both on-sales and off-sales) that would prevent one or more of the following are also suspended under the temporary off-sales permission:
- off-sales being made at a time when the premises are open for the purposes of selling alcohol for consumption on the premises (subject to a cut off time of 11pm or the closure time of an existing outdoor area, whichever is earlier;
- off-sales being sold in an open container; and,
- deliveries to buildings used for residential or work purposes
DOES THE EXTENSION SET OUT ANY RESTRICTION ON OFF SALES IN AN OPEN CONTAINER?
No, but the Government Guidance does state that licence holders should be mindful of the risk of beer glasses that are taken off the premises being broken and becoming a physical hazard. It encourages premises to only use glass open containers when serving customers seated at tables, or else selling alcohol to customers who will use the outdoor space attached to the premises or obtained by an application for a pavement licence. For take-away sales, you should serve alcohol in alternative containers such as reusable plastic cups, a can or a bottle.
DOES THE EXTENSION APPLY TO ALL PREMISES?
No.
To benefit from the Extension the premises licence must have been capable of having effect on 22 July 2020.
A premises licence that only permits on-sales will be excluded if, within the three years preceding on day 22 July 2020:
- a premises licence application was made for a licensed premises and permission for off-sales was refused;
- a licence variation seeking permission for off-sales was refused;
- a licence variation seeking to exclude the off-sales permission was accepted; or
- the premises licence was varied or modified on review to exclude off-sales.
If in any doubt as to whether a premises licence benefits from the extension legal advice should be sought.
PAVEMENT LICENCES
The Extension should not be confused with another Covid change – the pavement licence. The Extension will enable off-sales to be made into spaces not covered by the premises licence, but it does not deal specifically with furniture on a pavement. A pavement licence only permits the placing of furniture on the highway. Premises that wish to expand outdoors, with customers consuming alcohol on the highway will need both a premises licence to sell alcohol (to which the Extension will automatically apply) and a pavement licence (dealing separately with the consumption on the highway).
It is not a statutory requirement to notify the licensing authority or seek permission to exercise the benefits of the Extension, but newly issued Government Guidance states that a licence holder should notify its licensing authority if it intends to start making off sales under the Extension.
IS ANY PUBLIC NOTICE REQUIRED?
Yes!
You will be familiar with Section 57 Licensing Act 2003 but here is a reminder.
The holder of a premises licence must secure that—
- the summary of the licence or a certified copy of that summary; and
- a notice specifying the position held at the premises by any person nominated for the purposes of subsection are prominently displayed at the premises.
In addition, if you take advantage of the Extension a new statement should be displayed next to your Section 57 notice.
If the licence authorises on-sales only, the statement must be clear that off-sales are authorised under section 172F(2) Licensing Act 2003.
If you have a dual licence (authorising on and off-sales but subject to conditions which are to be suspended under the Extension) then the statement must state that off-sales are authorised under section 172E(5) Licensing Act 2003 and list any of the temporary conditions relied on.
The section 172F statement must be kept on the premises or under the control of the holder of the licence or a person who works at the premises who has been nominated by the holder of the licence for this purpose. A copy of the section 172F statement must be prominently displayed at the premises alongside the summary of your premises licence.
Failure to comply with these requirements without reasonable excuse is an offence.
DOES IT MATTER IF PREMISES ARE IN AN AREA WHERE THERE IS A PUBLIC SPACE PROTECTION ORDER (PSPO) IN FORCE?
Government Guidance on this is a little confused. If you have premises in an area covered by a PSPO you should take legal advice before taking advantage of the Extension.
CAN THE EXTENSION BE REMOVED?
There is a fast-track review process whereby the police may apply for an expedited review if they are of the opinion that premises are associated with serious crime and/or serious disorder. This review process sits alongside the existing licence review process.
CONCLUSION
Extending the Extension appears to have been a last- minute decision taken by the Government. As with much of the Covid legislation the rules are not always clearly set out and take some reading. If you have any doubts as to whether your licence benefits from the Extension, or the notice that needs to be displayed, you should seek legal advice.