Late Night Refreshment

For the purposes of the Act, the provision of late night refreshment means the supply of hot food or hot drink to the public, for consumption on or off the premises, between the hours of 11pm and 5am or the supply of hot food or hot drink to any persons between those hours on or from premises to which the public has access.  If this is the case, a premises licence, issued under the Licensing Act 2003, will be required to authorise the activity.

Food or drink is "hot" for the purposes of the Act if it is heated on the premises, or elsewhere, before it is supplied for the purpose of enabling it to be consumed at above ambient air temperature, or if it may be heated on the premises for this purpose after it is supplied.

The Act provides for a number of supplies to be exempt supplies that will not constitute the provision of late night refreshment. Examples are the provision of hot drink by vending machines in certain circumstances; where the hot food or hot drink is supplied free of charge; or where it is supplied by a registered charity.

Including late night take-aways and fast-food outlets in the Act extends the licensing regime which previously operated in most of London to all of England and Wales. The Government felt this was necessary to protect local residents because premises which serve late night refreshment can be used by customers who may have been drinking at other premises earlier in the evening, thereby creating the potential for disorder on and near the premises. Also, because large numbers of customers may gather at places serving late night refreshments, there is a potential for nuisance and disturbance for local residents.

Do restaurants who had a special hours certificate need to include late night refreshment in their premises licences as a separate licensable activity?

Yes. There will be no equivalent of special hours certificates under the new licensing regime. A restaurant owner will need to apply for a premises licence to replace the existing permission from the magistrates. This will allow a premise to provide, or continue to provide, alcohol with meals, and, depending on their preferred hours of opening, to provide hot food or hot drink between 11pm and 5am. It will cost no more to include in an application for a premises licence to authorise the supply of alcohol an application for the premises licence to authorise also the provision of late night refreshment.

Are there any instances where the provision of hot food and hot drink would not require an authorisation under the Act for the provision of late night refreshment?

The following miscellaneous supplies of hot food or hot drink are exempt:

• hot drink consisting of, or containing alcohol (although an authorisation under the Act will be required for the supply of alcohol);
• hot drink distributed by means of a vending machine where the payment for the hot drink is inserted into the machine by a member of the public, and the hot drink is supplied directly by the machine to the member of the public;
• hot food or hot drink supplied free of charge, where there is also no charge for admission to any premises, or for some other item to obtain the hot food or hot drink;
• hot food or hot drink supplied by a registered charity or by a person authorised by a registered charity (i.e. a charity which is registered under section 3 of the Charities Act 1993 or a charity which, by virtue of subsection (5) of that section is not required to be registered);
• hot food or hot drink supplied on a vehicle, which is not permanently or temporarily parked at the time.

Supplies of hot food or hot drink are also exempt where the supply is on or from premises to which, at the time of the supply, only persons of the following descriptions will be admitted and supplied with hot food or hot drink:

• guests (and their guests) of hotels or similar premises – that is guest houses, lodging houses, hostels, caravan or camping sites or other premises supplying accommodation as their main purpose;
• members of recognised clubs and their guests (see below);
• employees of a particular employer and their guests – for example, where refreshment is made available to employees whose shift patterns require them to be present at the workplace between 11pm and 5am;
• persons engaged in a particular trade or who are members of a particular profession or follow a particular vocation, and their guests.

Supplies of hot food or hot drink on or from premises already licensed under certain other Acts – for example, those used as "near beer" premises in London, where certain descriptions of non-alcoholic beverages are sold, are also exempt.

Are clubs in the possession of a club premises certificate covered by the provisions for late night refreshment?

No. Clubs premises certificates do not need to authorise the provision of late night refreshment by the club to members of the club, and their guests. This is because the supply of hot food or hot drink to members and guests of recognised clubs is exempt in the circumstances described above. To qualify as a recognised club, a club must satisfy the following conditions:

• nobody can be admitted as a member, or to any of the privileges of membership without an interval of at least two days between their nomination or application for membership and their admission;
• a person who is admitted as a member other than by prior nomination or application must wait at least two days between their becoming members and their enjoying the privileges of membership;
• the club is established and conducted in good faith as a club.
• all qualifying clubs will be recognised clubs.

Is a staff canteen covered by the provision for late night refreshment?

No. Refreshment made available to employees of a particular employer between 11pm and 5am are exempt from the need to obtain an authorisation for late night refreshment in the circumstances described above.

I am the owner of a late night take away outside London. I've never needed a licence before, will I need one now?

Yes. The Act regulates licensing laws across England and Wales, which means that late night take-aways and cafes outside London will now need an authorisation to serve hot food or drink to the public on or from the premises between 11pm and 5am.

Will a supermarket be covered by the provision for late night refreshment?

Yes, if a supermarket is heating food or drink for consumption, whether on or off the premises between 11pm and 5am or provides facilities to enable the food or drink to be heated a late night refreshment licence will be required. However, if a supermarket is selling only cold food and drink and not providing facilities to enable the food or drink to be heated on the premises, then a licence authorising the provision of late night refreshment will not be required.

Will a vending machine be covered by the provision for late night refreshment?

Vending machines supplying hot drinks are exempt so long as the payment for the drink is inserted into the machine by a member of the public and the hot drink is supplied to that member of the public directly by the machine.

Any further questions?

Please contact the licensing section of Hart District Council on 01252 774496.