The importance of legal wording on conditions

I had a recent experience with the wording of a premises licence condition which highlights the occasional tension between precise legal drafting and the need to obtain the grant of an application quickly and without a hearing.

In this particular case the tension arose regarding the nature of any entertainment on the premises. The existing condition described it as ‘background’ but it was more than background. Our suggestion to the authorities of the entertainment being described as  ‘ancillary’ rather than background was not accepted, and an alternative wording was finally agreed that perhaps is not as specific as we would have preferred. However, there were pressing timescales to comply with and other aspects of the application that needed to be granted as soon as possible, and a pragmatic view was taken by all concerned.

The Home Office Guidance, issued under Section 182 of the Licensing Act 2003 at 1.16, refers to a number of general principles to apply when considering licence conditions. They must be appropriate for the promotion of the licensing objectives, they must also be precise and enforceable; unambiguous and clear in what they intend to achieve and they must not duplicate other statutory requirements, duties or responsibilities placed on the premises by other legislation, for instance, such as health and safety or fire safety legislation. Furthermore, conditions must be tailored to the individual type, location and characteristic of the premises and events concerned, and they must be proportionate, justifiable and capable of being met.

Conditions cover the entire gamut of how and when licensable activities can be carried out. They must by their very nature be flexible to the specific circumstances of licensed premises and their local environment. Sometimes however it is simply not possible to reduce to words exactly what is intended or agreed by the parties, and in those cases the background to the application, surrounding correspondence and a general common sense approach are important. That is, if you like, the human side of licensing. Trust forms as much a part of licensing as it does in any other form of trade or profession.

Lawyers like to be precise in their drafting, but there are cases where pragmatism becomes an overriding consideration, and you have to balance the client’s needs.  In this case, we needed to ensure that the other aspects of the application were granted, and we were concerned with the risk of a difficult hearing with an unknown outcome.