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Licensing in the post-COVID world

Nicola Sturgeon has said it'll be around 2 July when we find out whether pubs and restaurants can open outdoor spaces in phase two of lockdown.

When the time comes, this will be the first tentative step forward following more than three months of virtual shutdown for bars.

Some licensed premises carried on operating throughout lockdown to a limited extent, providing takeaway and delivery options for both food and alcohol. They could only do this if licence terms allowed.

If it happens, what would opening in phase two mean for the wider licensed and hospitality trade?

Outdoor opening

A decision on outdoor opening won't take place until around the start of July.

Even when some hospitality businesses can start using their outdoor spaces though, things certainly won’t go back to the way they once were any time soon. And operating within social distancing rules will logistically be far from easy.

Premises would still only be able to trade within the terms of their existing premises licence.

If this doesn’t allow for using outdoor space, then it’s not simply a case of expanding into the car park or a convenient lawn area.

Changes like this need a licence variation, and that takes months.

Applicants have to factor in the lead time for pulling together the application and the licensing board, which decides matters, usually meets every two months.

Short term fix

Premises could, as a short term alternative, seek an occasional licence, or a series of occasional licences — lasting up to 14 days each.

The lead-in time for these is generally less than a licence variation (although it can still be four to six weeks). There is also the difficulty in predicting when lockdown will be lifted to allow these outdoor sales to begin again.

However, an occasional licence could allow premises to make the most of outdoor space by incorporating it into the licensed area.

There are other factors to consider —

  • If the additional land is not within a business’s control, then a short term lease or licence may need to be put in place
  • If proposals are seen as a change of use, planning permission may be required
  • If a business wants to use outdoor pavement space, then it will need to secure a street occupation permit from the local authority

All of the above mean additional costs and detailed risk assessments.

Phase three

Even once we enter phase three of the routemap, expected on 9 July, the requirements for social distancing will significantly reduce capacity to a point where it simply may not be viable for many businesses to re-open.

This phase allows businesses to use indoor space again. Again though, it will be subject to the two metre minimum social distancing requirements.

Unless there is some relaxation, perhaps in line with the World Health Organisation’s one metre recommendation, then it may mean that many premises simply cannot justify opening for such a limited number of customers.

The licensed and hospitality trade has always shown itself to be resilient and innovative.

But it will take a similarly inventive and efficient approach from licensing boards to support the changes required so many premises can re-open safely and profitably.

David Scott

David leads Ledingham Chalmers’ Aberdeen planning and licensing team and provides specialist planning and licensing law advice to clients in the private, public and third sector.

Posted, 18 June 2020 by David Scott
Categories: Commercial property | Coronavirus | Coronavirus and commercial property | Insights