It seems that local authorities and operators generally take the view that the provision of late night refreshment is a licensable activity even when that provision is undertaken solely by home delivery to customers.
So, for example, it is generally considered that a unit on an industrial estate which does not entertain personal callers, that is used between 11 pm and 5 am to produce hot food (say pizzas) which are then delivered to persons who have ordered it (either by telephone or online) needs a premises licence.
I think this general view is wrong. In my view, the unit I describe is not carrying out any licensable activity.
Late night refreshment
The licensable activity is (s.1(1)(d) of the Licensing Act 2003) the provision of late night refreshment.
Schedule 2 of the Act makes provision about what constitutes the provision of late night refreshment.
Paragraph 1(1) of Schedule 2 provides that for the purposes of the Act, a person “provides late night refreshment” if -
(a) at any time between the hours of 11.00 p.m. and 5.00 a.m., he supplies hot food or hot drink to members of the public, or a section of the public, on or from any premises, whether for consumption on or off the premises, or
(b) at any time between those hours when members of the public, or a section of the public, are admitted to any premises, he supplies, or holds himself out as willing to supply, hot food or hot drink to any persons, or to persons of a particular description, on or from those premises, whether for consumption on or off the premises,
unless the supply is an exempt supply...
In my industrial unit example, we can immediately discount paragraph 1(1)(b) as the public are not admitted to the premises.
Does the activity fall within paragraph 1(1)(a)?
“Supply” is a simple concept. It is far simpler than “sale by retail” (the licensable activity relating to alcohol). As s.190 of the 2003 Act demonstrates, a contract for the sale of alcohol can be made in a different place to where the alcohol is appropriated to the contract, and that section has to deem for these purposes where the sale takes place.
But supply is much easier. It is when the food or drink is handed over.
The s.182 Guidance says this (at para 3.12):
The 2003 Act affects premises such as night cafés and take away food outlets where people may gather at any time from 11.00pm and until 5.00am. In this case, supply takes place when the hot food or hot drink is given to the customer and not when payment is made. For example, supply takes place when a table meal is served in a restaurant or when a take-away is handed to a customer over the counter.
On or from the premises
We can see in para 1(1)(b), which deals with a premises to which the public is admitted, that the supply can be “on or from” the premises. This - I suggest - is to deal with premises where food can be served from the premises, through a hatch or over a counter, to persons standing next to but not on the premises. This is a typical scenario for very "hole in the wall" takeaway operations.
As I have already pointed out, para 1(1)(b) can have no application in my industrial unit example: the public are simply not admitted to the premises.
So is my industrial unit with in para 1(1)(a)? Well, the public are not supplied on the premises.
And in my view they are not supplied from it either.
Surely they are supplied “from” the premises in that the food goes from the premises into the hands of a delivery driver, into the pillion of a motorcycle, and back into the hands of the delivery driver before being handed to the customer at the doorstep?
Well, no, not least because “premises” means (s.193) “any place and includes a vehicle, vessel or moveable structure”. So by that analysis, every moped and Vauxhall Nova departing from industrial unit to deliver pizzas would also need to be licensed because the vehicle would be a subsequent premises following the industrial unit.
The better analysis - I suggest - is that the pizza is not supplied until it is handed to the customer on his doorstep. At that point there is no supply to the public on or from any premises. It has become an entirely private, and unlicensable, supply.
Why is the supply of late night refreshment licensed?
The mischief which resulted in the supply of late night refreshment becoming - nationally - a licensable activity was the high incidence of disorder and nuisance at takeaway venues, involving tanked up patrons recently decanted from bars and clubs, hungry for a parmo and a fight.
It had nothing to do with anonymous units on industrial estates sending out pizzas to those who had ordered them.
Tellingly, the London night café licensing regime, which was the metropolitan precursor of the national late night refreshment scheme, concerned premises “which are kept open for public refreshment” or “premises where meals or refreshments are supplied … for consumption exclusively off those premises”: a formulation which, I suggest, would not cover the industrial unit where the public is not admitted and where no supply is made. Such units are regulated under planning and general environmental laws, but not, in my view, the Licensing Act 2003.
An alternative view
The editors of Paterson’s Licensing Acts 2016 suggest a different route to the same result. Para 3 of Schedule 2 exempts from late night refreshment the supply of hot food or hot drink from any premises at times when persons will neither be admitted to the premises nor be supplied with hot food or hot drink from the premises except by virtue of being, amongst other things, an employee of a particular employer. This, it is said, exempts an industrial unit only used to source deliveries by members of staff to homes. For the reasons set out above, I think this the right answer by the wrong route. There is no “supply” to the employees - they are merely agents of the principal and are themselves the suppliers, not the supplied. The Para 3 exemption, in my view, is to deal with a late night staff canteen.
Regulate by condition?
The remains the interesting question as to whether conditions controlling deliveries can be put on premises that allow the public to call. If the conduct of that delivery business (revving cars, slamming doors, annoying high pitched moped engines) offends the licensing objectives, then can they be conditioned as part of the premises licence relating to the licensable activities on site. The case of R (Developing Retail Limited) v. South East Hampshire Magistrates’ Court  EWHC 618 (Admin) would suggest that they might. But there is - in my view - a great deal of scope in objecting to a condition purporting to ban deliveries after the premises has closed to the public as a condition that trespasses too far into activity that is not licensable.
Coming soon: why your licensing plan is probably wrong.