Licensing: The shape of things to come?

This time last year we reflected on what was widely accepted as the most challenging year to date for those operating within the licensing arena, as the country struggled to cope with an unprecedented health crisis, and the impacts were felt in terms of restrictions on trading and resources. Like many, l was cautiously optimistic for 2021, but that naive optimism was soon shattered with new variants, further lockdowns, vaccine passports and more restrictions.

The original 10 sets of regulations became 17, more guidance followed, legal challenges were rejected and temporary legislation will become permanent. For many years licensing solicitors have called for a consolidated Licensing Act to no avail; no doubt a consolidated version of the COVID-19 regulations was also on many Christmas lists. As we reflect on 2021 and look forward to 2022, many commentators report that the hospitality landscape has never looked bleaker, and for solicitors the challenge of grappling with the ever changing legal position is clearly set to continue into the new year.

Permanent changes?

Over the past 20 months the lifeline for many within the hospitality industry has been the ability to utilise an outside area/beer garden. These spaces were the first to be given the green light to reopen and, in July 2020, everything from a bin storage space to a car park was repurposed as an alfresco drinking area by way of occasional licences. This was a direct result of licensing boards being encouraged via a formal update to guidance to look creatively at applications for occasional licences in an effort to support outdoor hospitality. At the same time the Chief Planner and the then Housing Minister announced temporary relaxations of planning and building standards controls in respect of temporary structures and the use of land.

This was embraced wholeheartedly, but as we prepare for the lifting of these relaxations at the end of March this year the inconsistencies across different licensing authorities are becoming apparent. In some areas no more occasional licences will be approved, while others will revert to a pre-pandemic position where rolling occasionals are acceptable for outside spaces. Operators are being encouraged to review their positions and many major variation applications to make arrangements permanent are already being considered. These are often attracting neighbour objections as public sympathy for the industry wanes and licensing boards are asked to consider wider public nuisance ramifications as things return to “normal”. This is bound to be a very difficult balance to strike.

In the off-trade sector, what were initially temporary arrangements during the first lockdown have become established facilities as the demand for deliveries continues to grow and shopping habits change. Many national operators have already sought to include a permanent delivery service within their operating plans over the past year where licensing board policies call for this. This has been an opportunity for the board to attach conditions which would otherwise not apply. Agents are already encouraging other operators looking to continue offering this facility to make it permanent where necessary to ensure they are not left behind.

After the elections

While COVID-19 continues to dominate the headlines and events are cancelled, there is one significant event which is still expected to take place this year. On 5 May, the Scottish local elections are due to happen, following which new licensing boards will be formed. Historically this has often marked a shakeup in approach and policy. These newly appointed licensing boards will have the somewhat unenviable task of reviewing their predecessors’ policies later in the year for introduction in 2023.

To what extent will the pandemic shape their development? We know that outside areas are now seen as vital. One licensing board took the unusual, but welcome, decision in December to permit all premises operating outside areas to play background music during the festive period. Could this be made permanent? Deliveries are now the norm. Will more boards choose to address this in their policy and provide for specific local conditions? How will the health data used to shape overprovision policies have been impacted by the pandemic, and will boards reassess their views on licensed hours, particularly hybrid premises, given the way in which premises had to adapt in recent times?

The new licensing board members will also receive updated training which is set to be finalised and approved later this year. It is hoped this will better equip them to make the difficult decisions they will inevitably be faced with as licensing continues in the shadow of the pandemic.