Josef Cannon

Overview

•Planning and licensing – a comparison

•Guidance and case law

•The KVP decision – what does it say?

•The “Reasons Sub-Plot” in KVP

Planning v LicensingPlanning Licensing

Regulates development/use of land in the public interest

Regulates one specific type of land use in public interest

Seeks to avoid unacceptable harm Seeks to avoid unacceptable harm

Balances against public interest in using land beneficially: economic element

Balances effects against public interest in economy, esp. late night.

Concerned with protecting certain characteristics – heritage, character, beauty, openness.

Generally – protecting licensing objectivesBUT – SEV licensing allows for considerations of character too

Seeks to avoid:-Nuisance-Crime/disorder-Risks to safety

Seeks to avoid:-Nuisance-Crime/disorder-Risks to safety-Harm to children

Guidance

• Original Statutory Guidance – LA03:

3.51: “planning, building control and licensing regimes will be properly separated to avoid duplication and inefficiency”

• Current Guidance – LA03:

13.55: “The statement of licensing policy should indicate that planning permission, building control approval and licensing regimes will be properly separated to

avoid duplication and inefficiency. The planning and licensing regimes involve consideration of different (albeit related) matters. Licensing committees are not bound by decisions made by a planning committee, and vice versa

9.41: Where businesses have indicated, when applying for a licence under the 2003 Act, that they have also applied for planning permission or that they intend to

do so, licensing committees and officers should consider discussion with their planning counterparts prior to determination with the aim of agreeing mutually acceptable operating hours and scheme designs.

Case Law

• R (Blackwood) v Birmingham Magistrates’ Court

• “Plainly an overlap”• “Similar considerations…arise”• “it is [hard] to formulate any general principle that would assist in demarcating the

respective competencies of planning and licensing authorities”• “the framework and substance of the Act, and its underlying rationale, would strongly

suggest that operational matters are intended primarily for regulation by the licensing authorities”

• On the facts, hours of operation primarily matter for licensing regime• Any conflict with Guidance?

KVP – the facts (1)

• Not LA03 but SEV regime

• Lapdancing venue “Pandora’s” on edge of small village – applied for new SEV licence

• Also applied for planning permission for change of use

• Both applications dealt with by same authority – BUT different committees

• Planning application:

- Numerous objections, including on impact on character of area

- Recommended for approval

- Considered impact on ‘character/locality’

- No greater impact on character than existing use (pub)

- No noise implications versus those from existing use

- Granted based on that Report, on 24 November 2011

KVP – the facts (2)

• SEV license application:

- pursuant to new regime – Sched. 3 to LG(MP)A1982

- numerous objections, many based on character of area

- no recommendation from officers

- Refused on 28 November 2011, following a hearing

• Reasons: sparse, but amplified reasons given later

• NB No mention of planning decision at hearing, save for fact that pp had been recently granted

KVP – The Power

• Sched. 3 to LG(MP)A1982 allows refusal on:

- series of mandatory grounds

- 4 discretionary grounds:• Unsuitability of applicant.• Unsuitability of beneficiary or front-man.• Number of licences in locality exceeds the appropriate number. An appropriate

number may be nil.• Inappropriate having regard to character of locality, use of premises in vicinity or

layout, character or condition of the premises.

• 4th ground – only challengeable by JR – unlike others (appeal to MC)• Sales J agreed this showed that “Parliament plainly intended to provide that the

considerations…in paragraph…(d) were considerations for the local authority’s own evaluative judgment, subject only to supervisory jurisdiction of HC”

• South Bucks refused Pandora’s on ground (d)(i) - character

KVP –ground 2 – conflation of concepts

Reminder – 12(3)(d): Inappropriate having regard to

` (i) character of locality,

(ii) use of premises in vicinity or

(iii) layout, character or condition of the premises

•A argued that the 3 grounds for refusal in 12(3)(d)(i) are discrete: cannot be conflated•So: where decision referred to both character and use to which premises are put – misdirection•Sales J – in intro – rejects that:

“there is no radical conceptual divide…character…calls for a compendious and general evaluative judgment to be made…including not least the use to which properties …happen to be put.”•Example: can refuse on character, but where cannot refuse on character, can refuse on individual nearby buildings (e.g. school/church)

KVP – grounds 1 & 3 – planning v licensing

•Lengthy ‘preliminary’ point (although key to grounds 1 & 3)

•Argument for A:

- Planning permission granted on basis that no harm to character

- Granted following officer recommendation

- Granted only a week prior

- LSC left out of account the Report and/or the permission (ground 3) and

- did not explain why came to different view on character (ground 1)

KVP – grounds 1 & 3 – planning v licensing

•Sales J:•Overlap between objectives and relevant factors BUT different focus

•Planning: wider impact of use of land

•Licensing: more with individual operation and impact that has

•Removal of SEV from licensing regime – intended to widen scope yet further

•Planning Report: distinct focus was comparing proposed use with ‘fallback’ – the pub operation – and the planning history.

“No necessary correlation between the consideration to be given to an application for planning permission, even in relation to matters relating to character of an area…and the questions relevant to whether an [SEV] licence should be granted…under paragraph 12(3)(d)(i)”

KVP – grounds 1 & 3 – planning v licensing

Reasons

•Sales J:•Rejects contention that should have made reference to the Planning Report even if not raised – no such obligation

•In any event not “ruled out” as a matter of fact – no-one raised it

•LSC correct to describe itself as ‘separate and distinct’ from planning decision

•Had it been raised – subject to fairness, would have been open to LSC to consider it

•Rejected analogy with planning permissions – e.g. Bloor – not apt

•Rejected analogy with renewal - Sheptonhurst

NB – does not address question of how to deal with it if it HAD been raised: requires explanation?

KVP – grounds 1 & 3 – planning v licensing

Relevant considerations

•Sales J:•As no ‘mandatory’ requirement to have regard to the planning position, then no merit in this ground

•In any event knew that planning permission had been granted: was the Report and/or reasons that it did not consider in depth

•As a matter of fact, had not been ‘ruled out’ or denied

•LSC entitled to form ‘its own independent judgment based on the representations and evidence received by it’

NB – what if it WAS mandatory: how practical? How far back? What other regimes?

KVP – grounds 1 & 3 – planning v licensing

Overall implications

•Underlines and reinforces separation of SEV licensing and planning•Probably has some implications for LA03 licensing too – same•Different focus of regimes•No mandatory requirement to have regard to the other (unless raised)•No requirement to ‘distinguish’ (unless raised)•Underlines breadth of discretion in SEV licence applications under (d)

KVP – the “reasons sub-plot”

•Original reasons:

“…the grant would be inappropriate having regard to the character of the locality where the Premises are situated in accordance with paragraph 12(3)(d)(i) of the 1982

Act in particular the Premises being in close proximity to a residential area.”•Pre-action protocol letter complained of inadequate reasons•Response: reconvened LSC and produced Amplified Reasons•Much fuller account of why refused and why inappropriate•Sales J: fine. Those were the actual reasons. Proper approach.

NB – in costs judgment:“I am by no means convinced that KVP would have succeeded even if the original decision notice had stood by itself…it is distinctly possible, if not probable…that what was said in the original reasons was sufficient…”

Licensing v Planning

Any questions?