Transitional Provision
NB: The transition period for the Licensing Act 2003 is now over. All new premises licences and club premises certificates are in force. Anyone carrying on licensable activities without the appropriate new authorisation risks closure or prosecution. For more information about the new licensing regime, please refer to the 'Licensing Act explained' section of this website.
The Licensing Act 2003 ("the Act") provided for a period of transition between the 'first appointed day' on 7 February 2005 and the 'second appointed day' on 24 November 2005. The transitional period allowed "existing licence holders" under the old regime and new licence applicants to secure the grant of their new permissions before the Act came fully into force on 24th November 2005. Businesses that did not secure their new licence by this date risk closure or prosecution.
Between 7 February and 6 August 2005, "existing" alcohol, public entertainment, theatre, cinema, late night refreshment house and night café licence holders could apply to convert to new premises licences under 'Grandfather Rights'. The same applied to registered members clubs, converting their registration certificates and other licences into club premises certificates or premises licences. This fast track application process allowed for licensees to continue trading in the same way as they did under the previous laws.
The Licensing Act 2003 (Commencement No.6) Order SI 2005 No 2090 was brought into force on 7 August 2005. This allowed applicants to apply to vary premises licences and club premises certificates; to apply to vary the person specified as the designated premises supervisor and allow the variation to be given immediate interim effect; and to apply to transer premises licences and allow the transfer to be given immediate interim effect. This order also brought into force provisions of the Act relating to appeals.
Application procedure during transition
Applications to convert existing licences during transition must be accompanied by:
- The existing licence, or certified copy
- A plan of the premises
- Any relevant certificates (e.g. extension of permitted hours)
- The relevant fee
- Where the application is not made by the holder of the existing licence, a form of consent given by that person
- Where the licence will concern the sale of alcohol, details of the individual to be specified in the new licence as designated premises supervisor (DPS), and a form given of that persons consent
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A copy of the application and accompanying documents must be given at the same time to the chief officer of police. The licensing authority must grant an application for conversion, unless the police object on crime prevention grounds. If a licensing authority fails to determine an application to convert within 2 months of receiving it, the application is to be treated as granted.
The same form can be used to apply for a variation of the newly converted premises licence, as if it was in force. Applications to vary have to be advertised and copies must be sent to responsible authorities. Responsible authorities and interested parties are then open to make representations to the licensing authority about the possible affect of the proposed variation on any of the four licensing objectives. If no relevant representations are made, the application must be granted. Where an application to vary is not determined by the licensing authority within 2 months of receiving it, the application is to be treated as having been rejected.
A similar approach is taken in respect of club premises certificates and provisional statements.
During this same period, all current holders of justices' licences (that were in place on 7 February) are entitled to make an application for personal licence without the need to provide evidence of a criminal record check or of a licensing qualification. This is because the licensing justices have already judged such people to be "fit and proper" to sell alcohol by retail under the provisions of the Licensing Act 1964. These preserved rights are subject to the possibility of police intervention in certain circumstances.
DCMS has published a note and table which set out the Department's views on the Embedded Restrictions in the Licensing Act 1964 (PDF 153kb) that carried over into a converted licence where sales and supplies of alcohol are involved. In a letter to the Assistant Director at LACORS on 25 May (PDF 153kb), the Head of Licensing Policy at DCMS stressed that it is for licensing authorities to decide on the basis of their own advice what embedded restrictions should be included on the face of a converted licence. The note and table represent an opinion on issues that are self-evidently open to interpretation. It is important to stress that these papers do not require any licensing authority to re-open applications which they have all ready decided or withdraw existing published advice in their areas. These views were provided to inform those licensing authorities that were still considering these matters, were actively re-considering their policies or were actively seeking advice on this subject.
All premises licences, club premises certificates and personal licences will be given effect on 24th November 2005.
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What can I convert under grandfather rights?
What happens if my licence expires during the transitional period?
If I add another person to my justices' licence after 7 February will they need to obtain the new personal licence qualification?
Which non-domestic rateable value (NDRV) will apply when I convert my existing licences and certificates, as rates change in April 2005?
Can I apply for a new personal licence during the transitional period?
Are 'supper hours certificates','residential licences for a guesthouses' or 'Part IV residential licences for restaurants' convertible under grandfather rights or will applicants have to vary to provide the same service they do now?
Can licensing authorities ask supplementary questions?
When the clocks go forward at the start of British Summer Time, what permitted hours apply (and are therefore convertible) to a licence that holds a special hours certificate to serve until 2am?
If I covert my justices on licence and children's certificate, then get my existing licence revoked during the transition period, what happens to my newly converted licence?
Do I need to include consumption areas on my plans during transition?
If a provisional licence has been granted prior to the first appointed day, do I have to apply for a new licence, or can I convert the provisional licence during the transitional period?
Will undertakings given by off-licence holders be convertible under grandfather rights?
If an application arrives at the licensing authority on 6 August, but is not marked as received until the Monday 8 August, would that be deemed as received in time for grandfather rights?
Will licensing authorities be required to work until midnight on 6 August to check this?
If I email my application on 6 August, would it be deemed as accepted if the associated documents and fee don't arrive at the licensing authority until the Monday?
Do licensing authorities have any power of discretion to accept conversion forms after 6 August.
If an application is submitted on 6 August and is subsequently returned by the licensing authority for being incomplete on 8 August, will the applicant lose his grandfather rights?
If an application to convert a licence is made to the licensing authority by 6 August but not copied to the police until after 6 August, would the applicant lose grandfather rights?
Schedule 8 to the 2003 Act lists all 'existing licences' and certificates that can be converted during transition.
However, this provision only applies to those existing licences that have effect on 7 February 2005.
Until the second appointed day, the existing licensing regimes will continue to govern existing licences and certificates. Where existing licences and certificates fall for renewal during this period, they will need to be renewed in accordance with that existing law. An application to convert an existing licence during transition must not be granted in circumstances where that licence has ceased to be held by the applicant before the application is made.
If the holder of a justices licence changes, or another holder is added to a justices licence between 7 February and 6 August 2005, they can apply in that period only for a personal licence without needing the qualification.
In March 2005,the then licensing Minister, Richard Caborn MP wrote to the British Beer and Pub Association outlining his position on transferring premises licences (PDF 103kb)
The NDRV that applies at the time of your application will be the one on which the application fee is based.
What will happen to my children's certificate when I convert my new premises licence?
Your children's certificate should accompany your application to convert your justices' licence, and it will automatically be converted. Following the second appointed day, the Act will see the abolition of children's certificates.
However, if a children's certificate exists and you no longer wish its provisions to apply, you will need to apply to vary your licence at the same time as you apply to convert.
A person who is not currently a justices' licence holder may apply for a personal licence in accordance with the provisions of Part 6 of the Act. Any personal licence issued takes immediate effect.
However, the authorisation given by the licence has no practical effect until the second appointed day when premises licences will have effect and the provisions of the Act will be fully implemented.
Premises that have a 'supper hours certificate', 'residential licence for a guesthouse' or a 'Part IV residential licence for a restaurant' in force on 7 February will be able to convert that licence or certificate, and any conditions attached to it, under grandfather rights. Applicants will need to vary their licence if they wish to remove conditions from any converted premises licence.
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A licensing authority may ask supplementary questions of the applicant, however, where there is no requirement under the Act for that information to be supplied, they cannot reject the application because the applicant has failed to provide it.
Under current law, such premises can sell alcohol for the same hours it would do normally, because the when the clocks go forward from 0:59 to 02:00, there is a substitution of references to permitted hours from 2:00 to 3:00 for that day only, so licensees are not breaking the law for serving until 3am, and don't loose an hours trade. This provision will be convertible under grandfather rights to all existing holders of special hours certificates, as it forms part of their current permitted hours. However, this will not apply to new applications made after 7 February 2005, so applicants will have to factor this into their operating schedule.
At the end of British Summer time, when the clocks go back from 1:59 to 1:00, a premises licensed to trade until 2:00, will still be able to trade until 2:00, effectively gaining an extra hour.
In such circumstances, the new premises licence that has been granted will lapse automatically.
During the transition period, an application for a justices' on-licence to be converted into a premises licence and an application to convert an existing club certificate must be accompanied by a plan of the premises that shows the location(s) on the premises used for the consumption of alcohol on the licensed premises. When new applications for premises licences and club premises certificates are made, there will be no such requirement in the plans. Instead a written description of this information will be required on the application form.
If the provisional grant of a justices' licence has not been declared final before 7 February 2005, or in cases where a provisional justices' licence is granted after the first appointed day, applicants will need to apply for a new premises licence and will not be able to convert the provisional grant. However, in this situation, where the provisional grant of the justices' licence has not been declared final, and the premises have been completed in a manner which substantially complies with plans deposited under the 1964 Act, or with modifications consented to under section 6(3) of that Act, then the licensing authority must have regard to the provisional grant of the justices' licence when determining the application for the grant of the premises licence. This special provision will end on the first anniversary of the second appointed day.
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Undertakings and assurances will not be transferred to converted premises licences as new conditions. These are non-binding personal assurances, and as such have no legal force.
An application received by the licensing authority on 6 August would be in time, regardless of the date stamped as the date of receipt. An application received by the licensing authority on 7 August would be out of time.
This will be a matter for licensing authorities to decide.
It would seem that applications are made when the relevant forms are completed and received together with the relevant documents and specified fee. The application and accompanying fee and documents would therefore have to be received at the licensing authority before 7 August.
There is no discretion to accept forms after 7 August 2005.
It is the responsibility of applicants to make their applications correctly and in good time. It would be sensible for applicants to submit their applications in good time in order to avoid last minute difficulties. It is a matter for each licensing authority to determine whether an application is complete or not. If an authority accepts an application as complete within time, it may be difficult for it to argue later that a complete application form was not received in time. Where an application is simply handed in and is subsequently found to be incomplete, then, provided the authority acted reasonably promptly, it is probably entitled to reject it even after 6 August.
An application to convert must be copied to the police for that area no later than 48 hours after the application is made. This is a pre-condition of the grant of each type of licence. It would seem that failure to copy the application to the police would result in the loss of grandfather rights, as the licensing authority would not be able to determine the application. The last day for informing the police is 48 hours after the application is made, which could be after 6 August.
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