Memorandum from the Department for Culture,
Media and Sport (DGB 88)
RELATIONSHIP BETWEEN PLANNING AND LICENSING
SYSTEMS IN ENGLAND
1. The draft Bill proposes broadly the same
arrangements for the licensing of premises by local authorities
as Parliament recently approved in the Licensing Act 2003. Where
the prospective operator of premises which, under the draft Bill,
require a premises licence (such as a casino or betting shop)
he or she will need to obtain such a licence from the relevant
authority before the premises can be used for that purpose. The
licence will incorporate conditions, which are mandatory for all
premises licences, and conditions specific to the premises concerned.
2. These licensing requirements are additional
to, and not in place of, the normal planning process. In some
cases an operator will not need planning approval in order to
use premises for gambling. If, for example, a bookmaker who wants
to open a new betting shop acquires premises that are already
in the same planning Use Class as betting shops (ie A2 financial
and professional services), no planning approval will be needed
for the change in use. The bookmaker will, of course, need to
hold a valid operating licence from the Gambling Commission, and
will need to obtain a betting premises licence from the local
authority before the premises can be used as a betting shop.
3. In other circumstances, however, where
the opening of gambling premises involves the construction of
a new building, major adaptation of an existing building, or a
change of Use Class, then planning approval will need to be obtained
in the normal way.
4. The draft Bill seeks to cater, in the
same way as the 2003 Act, for the needs of prospective operators
who have secured planning approval for building work but do not
want to incur the risk of undertaking it without a reasonable
measure of assurance that an application for a premises licence
will be successful. Clauses 166 and 167 accordingly provide for
a local authority to issue a provisional statement that has the
effect of restricting its ability subsequently to refuse a licence
application or grant a licence on different conditions. Indeed,
there is nothing in the draft Bill to preclude a prospective operator
from submitting applications for planning approval and a provisional
statement at the same time. We envisage that this is what many
operators will want to do to give them some reassurance that their
gambling premises licence will be forthcoming once a development
is complete.
5. The Annex to this note sets out in diagrammatic
form how these arrangements are intended to apply.
6. The Scrutiny Committee has raised a question
about the ability of local businesses or residents to use the
opportunity, under the draft Bill's provisions, to make representations
to a local authority considering an application for a premises
licence (or a provisional statement) about the proposed use of
the premises for gambling (and to appeal against a decision to
grant a licence) in such a way as to undercut the value of planning
approval which had already been obtained.
7. Local people potentially affected by
an application for planning approval have a right, under current
planning law, to make representations to the relevant local authority.
If approval is nevertheless granted, they have no right of appeal:
their only recourse would be to seek judicial review of an approval
on the basis that the way the decision was reached was unlawful.
By contrast the draft Bill, like the 2003 Act, provides for local
businesses or residents (who have made representations during
the application process) to appeal to a magistrates' court against
a local authority's decision to grant a gambling premises licence.
They do not have to argue that the authority has acted irrationally
or unlawfully using public policy principles: instead, they may
appeal simply on the basis that the decision was incorrect whether
on the law or the facts (sometimes also called the "merits").
The policy reason for allowing such a right of appeal is that,
in the Government's view, the use of premises for gambling may
potentially affect the character of communities so markedly that
those with homes or businesses in the community concerned should
be able to challenge an authority's decision, in contrast to the
potential impact of the use of those premises for other purposes.
8. However, it does not follow that the
licensing process affords an opportunity simply to reopen planning
decisions in a way that is potentially unfair to prospective operators.
The criteria governing planning and licensing decisions are different.
Local authorities must base their decisions on consideration of
the licensing objectives set out in clause 1 of the draft Bill;
and they may not take into account considerations that are not
relevant to gambling regulation. Indeed, clause 125 requires them
to permit the use of premises for gambling in so far as they think
such use will be consistent with those objectives and in accordance
with the instruments of gambling regulation. So the grant of a
premises licence or provisional statement may not be appealed
on the grounds in effect that the premises should not have been
built or altered in the first place, bearing in mind that they
are usable for any purpose within the relevant Use Class.
9. It is also relevant to note that the
operators of many premises requiring a gambling premises licence
under the draft Bill, including casinos and bingo premises, will
almost certainly also want to sell alcohol or provide regulated
entertainment on them, and so will also need to obtain a premises
licence under the Licensing Act 2003. The draft Bill is intended
to provide a high degree of coordination of the two licensing
regimes. The procedural requirements are similar; and the draft
Bill enables local authorities to use the same committees and
officers for both purposes, and to deal with applications for
both licences at the same time. The criteria governing local authority
decisions on premises licences are, while not identical, consistent
and the rights of local people to make representations are also
similar. Against this background any restriction of third party
rights of representation or appeal in relation to gambling premises
licences would introduce an inconsistency of approach between
the two related licensing systems. In addition it is questionable
whether this would provide any clear practical benefit for the
operators concerned, since representations in relation to alcohol
licences would still have to be dealt with by the local authority
under the 2003 Act, or by the magistrates' court in the event
of appeals against the grant of an alcohol licence.
December 2003
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