Home Office clarifies guidance on licensing beer gardens/outside areas

Richard Taylor, 27th April, 2018

The Home Office has this week, issued new guidance that clarifies the position relating to whether beer gardens/outside drinking areas need to be “licensed” or shown on plans.

Historically, it was accepted that if a pub had a justices licence that permitted alcohol sales for consumption on or off the premises, drinks purchased in the pub could be taken to the beer garden.

This was permitted by the “off” part of the “on/off” licence, i.e. the sale was an off sale as the drink was purchased for consumption off the premises.

The waters became muddied when Licensing Act 2005 came into force as early editions of the s182 Guidance issued by DCMS indicated that if premises had outside drinking areas then these should be shown on plans.

This led Licensing Authorities to take very different views with some even requiring that the gardens be included within the ambit of the licensed area.

In my view this was wrong as with most beer gardens, there is no licensable activity outside (consumption of alcohol is not licensable), and therefore it couldn’t be right to licence an area where no licensable activities were proposed.

Clarification has now been issued by the Home Office in its new s182 Guidance.

This guidance reiterates s190 Licensing Act 2005 which is very clear that the sale of alcohol is to be treated as taking place where the alcohol is appropriated to the contract – this is usually in the pub.

The Guidance goes on to state:

“In scenarios where drink orders are taken by a member of staff in the garden or outdoor space and the member of staff then collects the drinks from the licensed premises and returns to deliver them to the customer this would be treated as an off-sale and any conditions that relate to off-sales would apply.”

If sales of alcohol are to take place in the garden, for example where there is an outside bar or if a pub operates a service whereby a member of staff who is in the garden or outdoor space carries with them drinks that are available for sale, then the garden would still need to be included within the licensed area.

The Guidance has also clarified the position with regard to whether beer gardens need to be shown on plans:

“If the beer garden or other outdoor area is to be used for the consumption of off-sales only, there is no requirement to show it on the plan of the premises.”

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