Published: 27 June 2013
Q: I am a small multiple operator and I have recently identified a completely new site for my next pub/dining venture. The existing building needs to be demolished completely and a new Premises Licence applied for. However, when I spoke with the Council’s Licensing Officer he advised me to apply for something called a Provisional Statement as soon as possible. Is this the same as the old Provisional ‘Site’ Licences? I don’t want to spend a substantial amount of money developing this site without a guarantee that I will have a licence at the end of it.
A: Provisional Statements are a relatively new concept under the Licensing Act 2003, and most importantly are not the same as the old Provisional Licences. The critical difference is that even if you obtained a Provisional Statement you would not be able to automatically ‘convert it’ (the old words were ‘make final’) into a Premises Licence. If you did apply for a Provisional Statement you would have to include your proposed licensable activities, hours etc together with a schedule of works and plans. But the grant of the Provisional Statement, in my opinion would not give you the necessary confidence to take the financial plunge and start building. The reason for this is that before you could start trading you would still have to apply for a Premises Licence, which could still attract representations. What, then, is the point of applying for a Provisional Statement? The Government’s position has always been that having a Provisional Statement gives developers a certain measure of assurance by prohibiting anybody from making representations to the Premises Licence if they didn’t make representations to the Provisional Statement. However, there are two important caveats to this ‘assurance’. The first is that an objector can make a representation to the Premises Licence if he had a reasonable excuse for not doing so (for example he moved into the area after the Provisional Statement was granted) and the second is that there has been no material change in the circumstances relating either to the premises or to the vicinity. So, for example, if somebody was ill or away on holiday they could object to your Premises Licence application, or if two new pubs had sprung up in the intervening period objections could still be made that weren’t made when you applied for your Provisional Statement.
In summary, therefore, there is little degree of assurance in applying for a Provisional Statement. The Government acknowledged this when the Licensing Act 2003 came into force, and has indicated that operators and developers are permitted to apply for Premises Licences before the premises are constructed, ignoring the Provisional Statement procedure entirely. This is certainly what we would normally advise our clients to do in similar circumstances. Any concerns by the Authorities that it is too early to assess the impact of the application on the licensing objectives can often be addressed by conditions allowing them final sign off before the premises trades, or to submit more detailed plans in due course.
In my view, therefore, whilst there is nothing stopping you from applying for a Provisional Statement I think the better course is to apply for a Premises Licence. Either way I trust you will be obtaining your own legal advice.
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