There is a continuing tendency for some licensing authorities to suggest that public house operators have no legal authority to allow their customers to use beer gardens and similar external drinking areas until they have successfully applied to have their premises licence varied.

The argument is often made that the beer garden or terrace is not shown on the plan which is attached to and forms part of the premises licence and that is why a variation is required. The licensing authority, no doubt, looks forward to receipt of the application so that it can then set about imposing conditions and restrictions on the use of the external drinking area in question – always assuming that representations are received. Given that the issue often arises in the first place because of complaints from nearby residents (particularly following the smoking ban), any variation application of this type stands a good chance of becoming contentious.

But are these licensing authorities correct to press for variation applications? The answer is almost certainly that they are not. The Plans Regulations in place during the 2005 transitional period required applicants to show locations on the premises used for alcohol consumption. Since most pubs were converting old style justices’ licences, which permitted the sale of alcohol for consumption both on (inside) and off (outside) the premises, there was no need for the plan accompanying the application to show any area off the premises (such as a beer garden) used for the consumption of alcohol which in itself is not a licensable activity. The Department for Culture Media & Sport were also of this view at the time.

The principle of “grandfather rights” was enshrined to ensure that operators were no worse off as a result of the conversion process. The argument deployed by some licensing authorities flies in the face of this and cannot be justified by reference to the legislation, the regulations or the accompanying guidance issued by the Secretary of State (last revised in June 2007). If faced with a licensing authority demanding that you submit a variation application in such circumstances, look first at your premises licence to ensure that it authorises the sale of alcohol for consumption both on and off the premises and that it does not currently restrict the use of external areas. If all appears well, you should be in a strong position to resist the demand and so avoid the cost of a variation application and all that it entails.