As things stand, the regulations requiring the closure of pubs for on sales also prohibit the provision of seating (by the pub) for customers of the pub to consume their drinks.

We are hoping that these regulations will be relaxed soon and it is likely that due to social distancing rules, businesses will need to make use of beer gardens, car parks or other outside areas to accommodate drinkers.

So what do we need to consider from a licensing perspective to make best use of outside areas?

Does the licence permit off sales?

The first thing to consider is whether the licence permits off sales. Premises licences granted under Licensing Act 2003 permit alcohol sales for consumption on the premises only, off the premises only or both. It is the sale of alcohol that is important here not the consumption of it.

Beer gardens/outside areas at pubs have historically been consumption areas only. Alcohol is purchased on the premises (inside the pub) but consumed off the premises (in the beer garden).

So, as long as the licence permits off sales and there is a relaxation of the regulations allowing pub businesses to provide seating then alcohol can be sold for consumption in the beer garden.

If the premises licence permits alcohol sales for consumption both on and off the premises, it is not necessary that the outside drinking area be shown on the premises licence plan. If the premises licence permits alcohol for consumption on the premises only then the outside areas to be used for consumption would need to be shown on the plan and identified as within the licensed area.

Location of sales

The next question is where can sales take place – do they have to be over the bar or can orders be taken outside, drinks delivered to the table and money taken outside?

The law on this is complicated and the wording is old fashioned but that’s what lawyers are for. Briefly, alcohol must be sold on licensed premises. The place of the sale of alcohol is where it is “appropriated to the contract” i.e. where the drinks order is prepared. The effect of the legislation is that alcohol to be consumed in the outside area may be ordered and paid for

1. face to face over the bar (subject to social distancing rules being met) or
2. through waiting staff circulating outside as long as the drinks ordered are delivered from within the licensed premises i.e. collected from the bar
3. By telephone/smartphone app again as long as the drinks ordered are delivered from within the licensed premises.

As long as the drinks are “appropriated to the contract” inside the licensed premises then there is no problem with staff taking payment for drinks orders outside.

Possible Solutions to assist with outside service

To ensure that alcohol ordered is “appropriated to the contract” on licensed premises, the following would be permitted –

1. Orders through a window into the public area of the pub
2. The establishment of an order point/table outside – a member of staff takes an order and payment and then he/she/someone else goes puts the drinks order together inside the pub before delivering it back to the table
3. Telephone ordering from the garden/car park into the pub
4. Use of an ordering app

A new outside bar?

What is not permitted would be the establishment of a new outside bar. Unless a premises licence already has outside bar facilities (which are shown on the premises licence plan) a new outside bar servery may not be set up in an outside area unless

1. an application made to licence it is granted or
2. a TEN is given to allow sales from an outside bar
3. the outside area is already part of the licensed area (this is unusual) – the outside area would be shown on the premises licence plan as part of the licensed area, perhaps edged red

General considerations

Please note all premises licence conditions will still apply. There may be conditions on the licence relating to the times of use of the beer garden or the use of polycarbonates/plastics. Failure to comply with the conditions could result in criminal prosecution or review.

Need support with your licensed premises or estate? Get in touch today...

Richard Taylor is the head of our nationally renowend Licensing team. One of the most experienced Licensing lawyers in the country, Richard has dealt with everything imaginable throughout his career and counts major supermarket chains, national retailers, hotel operators, cinema operators, betting companies and pub companies amongst his clients.

Contact Richard today to discuss your requirements: Telephone 01482 590216 / 07949 132931 or email rjt@gosschalks.co.uk.