Agenda item

For the Head of Legal Services to inform Members of the embedded restrictions on the Licensing Act 2003 from the previous Licensing Acts.

(Agenda Item 9)

       Mr Mitchison gave an account of the embedded restrictions for the benefit of Members who had asked for clarity in respect of applications that had been received with references to previous Licensing Acts. Mr Mitchison’s advice was as follows:

·                                Under the Licensing Act 1964 there were circumstances where a justice’s on-licence could be extended to allow premises to open later than the general licensing hours i.e. after 11 p.m.

·                                The most common extension that has come before Haringey’s Licensing Sub-Committees has been the so-called “supper hours certificate” or extension under s. 68 of the 1964 Act.

·                                This extension could be obtained by notice to the Police. It allowed the sale or supply of alcohol for an extra hour e.g. to 12 midnight but subject to the following conditions:

(i)                 it was only to persons taking table meals, and

(ii)               in a part of premises set aside i.e. a restaurant area, and

(iii)             only for consumption as part of the meal.

·                                The conditions set out above are now referred to as “embedded restrictions”. Unless they were complied with, the sale or supply of alcohol after 11 p.m. was unlawful.

·                                When owners of premises were applying to convert their old justices’ on-licences to new licences under the 2003 Act, they had a choice either:

(i)                 to convert only the rights they already enjoyed under their existing licences and/or certificates i.e. their “grand-father rights”. This could be done without fear of objections or the Licensing Authority cutting down the existing rights save in exceptional cases where the Police objected for crime prevention reasons. Where a conversion included a certificate, such as a supper hours certificate, then the relevant embedded restrictions became part of the new licence; or,

(ii)               to vary or extend their existing rights, for example, by expressly seeking to remove any embedded restrictions. If the embedded restrictions attached to a supper hours certificate were removed, then the premises could stay open for sale of alcohol until 12 midnight without limiting sales to persons taking restaurant

meals.

·                                As a further possibility, suppose an owner applied to convert, and to extend the existing hours to 12 midnight, but did not include (or refer to) an existing supper hours certificate in the application for conversion. The extended hours sought would be incompatible with the existing embedded restrictions.  In such a case, if the variation to extend the hours was granted, the new licence would be free of the embedded restrictions i.e. alcohol could be sold to anyone up until 12 midnight.

·                                There have been cases where applications to convert and to extend the existing hours have expressly sought to “remove embedded restrictions” but without explaining what these are or why they should be removed. In such cases Licensing sub-Committees have refused to agree the removal.

·                                If an applicant does explain what the embedded rights are and why they should be removed, the Licensing Sub-Committee should grant the removal unless Members consider it necessary to refuse having regard to the four Licensing Objectives.

·                                Since we are now beyond the end of the period when applications to convert can be considered, it is less likely that embedded restrictions will come to Members’ attention.

·                                When applications are made now for “new” premises licences, the applicants cannot benefit from “grand-father rights” including any former certificates or extensions. If there are objections, the Licensing Sub-Committee would consider the merits without being tied by any existing licence rights.

·                                However, if there were future applications:

(i)                 to vary or extend a previously “converted” licence, or

(ii)               to review a previously “converted” licence, and the case came before a Licensing Sub-Committee, the issue of embedded restrictions might arise as part of the definition of the current permitted licensable activities.

·                                Members should note that there are several other types of embedded restriction apart from the supper hours certificate. For example, the “extended hours order” under s.70 of the 1964 Act permitted sale of alcohol until 1.00 a.m. to persons taking table meals which were followed by live entertainment. There were conditions imposed, similar to those attached to the supper hours certificate, together with additional conditions preventing sale of alcohol to anyone entering the premises after midnight or less than 30 minutes before the end of the entertainment.

·                                If any cases arise where embedded restrictions of any kind appear to be an issue, then the applicant should always be asked to explain them fully so that Members can be properly advised about their effect.