If you run a venue licensed for the sale of alcohol for consumption on the premises, you should have a maximum occupancy capacity. Many venues have this capacity specified on the premises licences but often DPSs and licensees do not realise that maximum capacities are, in most cases, no longer a licensing issue. 

When is a maximum capacity limit a licensing issue?

The only instances when a maximum capacity is relevant to a premises licence is where such a capacity limit has been imposed due to “public safety” and/or “prevention of crime and disorder” reasons.  

For example, where a venue has been associated with crime and disorder, a capacity limit can be imposed to address the prevalence of this or a maximum capacity can be applied to certain events hosted by a venue to protect customers of performers. 

A maximum capacity relating to public safety and crime/disorder can only be imposed by a licensing sub-committee following a review of a premises licence.

What a premises no longer can do is impose a maximum capacity limit for fire safety reasons.

When is a maximum capacity limit not a licensing issue? 

In all other cases, i.e. not relating to public safety” and/or “prevention of crime and disorder” reasons, a maximum capacity limit is mandated by the Regulatory Reform (Fire Safety) Order 2005. 

Maximum capacity limits under the 2005 Order does not need to be displayed on the premises licence.  Maximum capacity limits for fire safety reasons is agreed by the local fire and rescue authority following a fire risk assessment. 

What about the capacity printed on your licence? 

If your premises licence specified a maximum capacity, you can in most cases ignore it.  The only time when this cannot be ignored is when it has been imposed by a licensing sub-committee. 

Lots of premises licences that were converted in 2005 would have had old capacity limits transferred over.  These capacity limits can be disregarded as the 2005 Order has superseded the Licensing Act 2003.

Stephen McCaffrey

Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.

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Licensing Defence Barristers are leading licensing barristers dealing with all legag matters relating to alcohol, entertainment and late-night licences.