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The Earl of Onslow: My noble friend has brought something sharply into focus in my mind. If a planning consent is given to the pub in the residential area to which my noble friend alludes, presumably the local authority could put on a 106 agreement, which says that the pub will not be open after 11 o'clock, because that is what the residents require. Will a 106 agreement be overridden by the licensing laws? If so, should it?
Lord McIntosh of Haringey: I realise that the noble Lord, Lord Hodgson, did not want to intervene against his Front Bench, but he did so very effectively; he is just too modest to say so. Many of the amendments in the group would introduce not just additional bureaucracy but additional uncertainty for those who are thinking of opening pubs or building, developing or altering premises to be used for licensable activities.
Let me explain what Clauses 28, 30 and 31 do. Clause 28 provides that where a premises is being or is about to be constructed, extended or altered for use for licensable activities, a person interested in the premises may apply to the licensing authority for a provisional statement. He has to be 18 or over. A provisional statement is issued under Clause 30 and provides those engaged in, or about to be engaged in, construction or development work at premises to be used for licensable activities with some assurance about the potential trading conditions. I hope that that is what everyone wants. Clearly, developers or property owners who want to alter or extend premises may be reluctant to invest their moneythe noble Lord, Lord Hodgson, explained that the amounts could be substantialwithout an assurance that they can carry out their intended business. An application for a provisional statement must be accompanied by a schedule of works, which includes a statement of the particulars of
Amendment No. 206 would provide that instead of a schedule of works, the application for a provisional statement would indicate the work to be undertaken to meet the requirements of the licensing authority and would have to prove that, where appropriate, planning permission had been obtained. That would merely duplicate the provisions of the planning system. The licensing authority is concerned only with licensing activities. Of course, local authorities have other functions, including planning, but we must restrict the Bill to the needs of licensing activities. It is too long already, and would get much longer and more complicated, because it would intermesh with planning and other law.
There is the same sort of duplication in Amendment No. 208. It would require an applicant for a provisional statement to complete the works for which the statement was made to the satisfaction of the licensing authority, the fire authority and the local authority in respect of preventing the risk of pollution of the environment and harm to human health. Those issues are all dealt with separately under building regulations. The amendment would duplicate work not only for the applicant, but for the authorities concerned. Also, the amendment would introduce a subjective test where there is currently an objective test.
Lord McIntosh of Haringey: I withdraw the word "intermesh". I am saying that there is perfectly good planning legislation. Where it is necessary for planning law to be taken into account in order to provide a proper regime for licensing, the Bill is concerned with that. It is concerned in a way that such matters were not related before. To duplicate the planning regime is simply unnecessary. It is a burden on applicants, on those who undertake what is agreed to be a legal and necessary activity, and on local authorities.
The issue of representations is very important. The schedule of works must contain information about the licensable activities to be carried out at the premises, so that interested parties and responsible authoritiesthat includes local residentscan make representations if they wish to. We are discussing cases where work is being or will be carried out. In many cases, the person carrying out the work will not be the same person who will carry out the licensable activities. Therefore, it is not possible at that stage to provide the level of detail required for the operating schedule that must accompany an application for a premises licence. That is why we resist the idea of having an operating schedule at this stage.
There may be a concern that licensable activities that would eventually be carried out would not be the same as those described in the schedule of works. I can assure the Committee that that would not happen without further representations being heard by the licensing authority on the application for a premises licence by interested parties and responsible authorities. Again, that includes local residents.
Under Clause 31, representations about applications for premises licences where a provisional statement has been issued are excluded if the application is in the same form as the licence described in the application for the provisional statement and the work described in the schedule of works has been satisfactorily completed. That covers the point made by the noble Lord, Lord Hodgson, about the second bite at the cherry. However, to come back to the point made by the noble Lord, Lord Brooke, which also relates to that made by the noble Lord, Lord Redesdale, for representations to be excluded, the relevant person must have been able to make the same or substantially the same representations when the provisional statement was applied for and failed to do so without reasonable excuse.
It will always be difficult to define what is a reasonable excuse. In the end, the courts will have to define it, but I take the point that the noble Lord, Lord Hodgson, made about being in hospital or on holiday. The important factor is that there must have been no material change in the circumstances relating to the premises or the vicinity of the premises since the statement was issued. It is only if something has changed that the situation arises.
There is a typographical error in Clause 31(2). The reference to Section 18(6)(c) should be to Section 18(6)(d). The intention is that all relevant representations are excluded, not only those about the identity of the premises supervisor. If the Public Bill Office tells us that that has to be corrected by an amendment, we will table one on Report.
The effect of all the provisions is that further representations can be made if the premises licence application is not in the same form as that in the provisional statement, the work has not been satisfactorily completed, or there has been material change in the circumstances relating to the premises or their vicinity.
Let us take an example involving the argument. A builder may wish to construct a new nightclub and applies for a provisional statement setting out that the club will be open between eight o'clock and two o'clock for six days a week and provide music and dancing. The operator who takes a lease on the club may decide that he wants to stay open until four o'clock on Saturday nights and provide hot food between eleven and one. The builder could not have predicted that, but the information in the premises licence application would be different from that in the provisional statement application. Therefore, further representations could be made by responsible authorities or interested parties. Everyone, including applicants, would agree that that was fair.
Lord Hodgson of Astley Abbotts: What the Minister is saying is interesting. In the example that he gave, which was very helpful, he said that there was no change between the builder and the nightclub operator and no chance of further representations. I do not read the Explanatory Notes to Clause 31 as saying that. I am delighted to have his assurance, but the Explanatory Notes do not say that a change is required to trigger the second bite at the cherry so far as I read them.
Lord McIntosh of Haringey: That is what the Bill says. There is the correction to be made because of the typographical error, which may be relevant, in which case we will almost certainly have to table an amendment on Report.
Behind all the provisions, the provisional statement arrangements exist to allow the industry a degree of certainty when building or developing premises. We all agree that that is reasonable. However, providing that certainty should not prevent representations being made where the information in the application is substantially different from that in the provisional statement, or where there has been material change in the circumstances. It must, for instance, be open to the police to object to the identity of a particular premises supervisor if they have some history of involvement with illegal drugs and, since the provisional statement was made, the area around the premise has become known for drug dealing.
Amendment No. 210 would provide that the provisions of Clause 30 applied only where the provisional statement application was made in accordance with Clause 28. However, subsection (8) already states clearly that for the purpose of the clause an application is only a "provisional statement application" if it is made in accordance with Clause 28. The amendment is therefore unnecessary.
I shall deal with the specific points that have been made. The issue of whether something substantially complies will be for the guidance. Guidance to the licensing authorities will assist them in interpretation of the terms used in the Bill. Again, one cannot be totally precise. If there is dispute about something, the courts might have to decide on it.
I thought that my noble friend Lady Blackstone had already answered the point made by the noble Lord, Lord Avebury. In any case, nightclubs are in the D2 class and cannot be converted from the A3 class. The Office of the Deputy Prime Minister is reviewing the A3 use class and will address the points that he raised. I think that the noble Lord has already been told that.
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