The Licensing Act 2003: post-legislative scrutiny Contents

Chapter 3: The Licensing Process

Introduction

97.We gave earlier102 full figures showing the numbers of licences in force at 31 March 2016, and the changes from earlier years. Each of the 210,000 premises licences and the 646,500 personal licences had at some stage been the subject of an application to a licensing authority. Many would have been the subject of a hearing by a licensing sub-committee, as indeed would others which were not granted.

98.“The licensing function of a licensing authority is an administrative function. … The licensing authority has a duty, in accordance with the rule of law, to behave fairly in the decision-making procedure, but the decision itself is not a judicial or quasi-judicial act. It is the exercise of a power delegated by the people as a whole to decide what the public interest requires.”103

99.Licensing hearings may not be judicial proceedings, but to the participants their consequences are no less important. An application refused, or granted but hedged about with excessive conditions, or a licence revoked, can all be fatal to the livelihood of the applicant and maybe of his or her staff. An application granted can have potentially disastrous consequences for local residents and the wider community. It is therefore essential that licensing committees should apply the law correctly and exercise their discretion fairly, reaching conclusions which are just and sensible through a procedure which is, and is seen to be, impartial and transparent. This issue is central to the working of the Act, and central to our inquiry.

Are licensing committees working?

100.Gerald Gouriet QC, a very experienced licensing practitioner, had this to say:

“Whether a case is won or lost, whether I appear for a licensee or for a responsible authority, and especially when I am acting for local communities, I and those around me frequently leave licensing hearings with the sense that whilst they may have produced the right result, or something approaching it, that is perhaps by chance rather than because of the quality of the licensing regime and how it is implemented. Too many, on all sides, tell me they leave hearings with a bad taste in their mouths, and the sense that the result was something of a lottery.”104

101.In his supplementary written evidence Professor Roy Light, another equally experienced practitioner, said:

“The quality of hearings is hugely variable. For the most part hearings are fair and impartial but on too many occasions standards fall far short … A lack of formality with councillors entering too much into the forum is sometimes apparent as well as particular views being expressed based on other than the evidence before the committee.”.105

102.The variability of the quality was also a major issue for Mr Gouriet:

“The calibre of licensing panels varies from authority to authority, from the admirable to the indifferent and poor. Sometimes the poor quality is because of the inexperience of newly elected councillors; at other times (not by any means infrequent) panels may comprise councillors who, regrettably, no amount of experience or training is likely to improve, or improve sufficiently. There is no pattern to poor decision-making: applications are granted that should not have been, and refused when they should have been granted. No one category (of those whose interests should be balanced) is in my experience more prejudiced by poor-quality licensing than any other category.”106

103.Mr Gouriet gave us two specific examples of conduct which concerned him, and which concern us. The first was: “I had a refusal after which a committee member came up to me and said, ‘Do not worry. You will get it on appeal, but we could not go against the residents’.”107 In the second: “I was involved in a case where the only representation against was from the chairman’s wife. He would not stand down, and indulged in what I would call a pantomime of asking his wife questions as though she were at arm’s length. That should not happen.”108

104.These are scandalous misuses of the powers of elected local councillors, and they are not the only ones we were told of. The Derbyshire Police wrote: “… it has become too political with councils being frightened of making a tough decision for fear of an appeal against them by big brewing companies etc. On two occasions I have had councillors state they have agreed with the police, however, sided with the pub company for fear of an appeal.”109

105.Professor Light gave us these examples:

“Some licensing committees I have been to almost bore the marks of a pantomime; they have been so ludicrous, for example a councillor putting her fingers in her ears and saying, ‘La-de-dah-de-dah. I am not listening to you’, when I was trying to put a legal argument. Two weeks ago a councillor said to me, ‘Do not give us any case law, Mr Light. That is not for you to do; our legal adviser gives us case law. Take it back; we are not having it’. The legal adviser said, ‘Well, it is for Mr Light to give you case law, and please take it’.”110

106.Mr Gouriet and Professor Light are not alone. Gill Sherratt, a licensing consultant for off-licence chains, thought that she usually got “a fair and balanced decision”, but added:

“I often have to work very hard for it, mainly for training reasons, I suggest. Training of committee members is a big issue. I spoke to a councillor who told me that, in total, she had had three hours training on licensing and then she was sitting on a committee. I can tell you the different experiences that you get. I go into a hearing as a professional and someone who is used to dealing with them, I get a decision and—this actually happened—the next hearing on had pretty much the same circumstances. He was unrepresented and had not as bad a case as mine; I got conditions applied, he had his licence revoked. That does not seem very fair … ”111

107.Paul Douglas, another licensing consultant, told us: “I feel that of late, however, the whole licensing system has been hijacked, to a point, certainly by a lot of local councillors with whom I deal. They make objections when nobody else—neither the police nor the responsible authorities—is making any, but on the basis of looking after their constituents, they lodge objections to curry favour with their voters”.112

108.We began this inquiry knowing that there would be variation among the members of licensing committees in terms of knowledge, expertise and experience; but we did not expect to be given, unasked, examples from some highly reputable sources of what can only be called gross misconduct. We were relieved to hear from Andrew Cochrane, the senior partner of Flint Bishop, solicitors from Derby: “We have 350 licensing authorities in the country. They probably have between 10 and 15 members who can sit on them. It is inevitable that, in a pool of many thousands of potential committee members, you will get a few of the nature that Mr Gouriet describes. My experience is that they are few and far between. It is usually resolved by a stern nudge from the chair or the clerk as to their behaviour.”113

The role of the legal adviser

109.John Gaunt, a partner in John Gaunt and Partners, had this to say: “The role of the legal adviser is critical. In some cases, the legal adviser proactively advises the licensing committee, which is helpful because it keeps them on a relative straight and narrow. In other experiences, the licensing adviser is entirely meek and mild and is there almost as a token.”114

110.Paul Douglas also had criticisms of legal advisers: “What I find is that the solicitors advising the committee almost become a fourth member of the committee. They ask so many questions that it gets to the stage where you almost want to say, ‘Excuse me, but it is nothing to do with you. It is down to the committee members’”.115 Dr Alan Shrank, the Chairman of the National Organisation of Residents’ Associations (NORA), gave us this example: “The committee agreed with us that there could well be troubles and, therefore, they would refuse it. The legal adviser leaned over to the chairman and said, ‘Please don’t confirm that now. Let’s have a break and then we’ll come back’. So they had a break, they came back and they made the decision to approve it.”116

The role of the responsible authorities

111.Section 13(4) of the Licensing Act contains a long list of “responsible authorities” who are authorised to make representations to licensing committees. In our Call for Evidence we asked: “Do all the responsible authorities (such as Planning, and Health & Safety), who all have other regulatory powers, engage effectively in the licensing regime, and if not, what could be done?” Councillor Richards told us that “the experience in Stratford District Council is that the police and environmental health frequently respond to our requests for information but other responsible authorities either do not respond at all or respond late.”117 From the many other replies we received on this issue, it is clear that this is the general experience.118 Daniel Davies for the Institute of Licensing made the same point, but added: “other [responsible authorities] rarely engage and when they do, representations made are either not relevant to the licensing objectives or are so generalised that they cannot be positively linked to the premises in question.”119

112.It is clear from this that most responsible authorities do not engage effectively or at all, but the view of Westminster City Council was that “the lack of responses from some responsible authorities should not be seen as a failure of the Act, or indeed that changes are required to promote authorities to make more representations to applications. The nature of the types of responsible authorities under the Act means that some will be able to make general views and comments based on the main concerns for the operation of the premises, such as the Police and Environmental Health Departments.” We think it likely that this is true in many cases, but there may well also be cases where the views of other responsible authorities would have been helpful, and only a lack of training or resources prevented them. We explain below120 how the planning system handles this differently.

Transparency

113.Transparency was another concern of Mr Gouriet’s:

“I am concerned at the growing extent to which decisions are influenced (if not effectively taken) by the result of discussions taking place behind closed doors, at which not all interested persons are present … there should be much greater transparency regarding these behind-closed-doors meetings. In particular, it is essential that reasons are given (by the relevant responsible authorities) for not making representations if there is an otherwise contested application … pre-hearing consultation can sail too close to the equivalent of a hearing.”121

The views of local authorities

114.The Local Government Association and the members of licensing committees who gave evidence to us did not share any of these concerns. Councillor Peter Richards told us:

“I chair our licensing committee at Stratford-on-Avon Council, and I do believe that the members understand very clearly that it is our responsibility to make a balanced decision. We have members from all parties sitting on these panels, and at no stage have I ever experienced any political influences. It is made very clear by our solicitors and in our briefing documents what we are looking to achieve and aiming at and the reasons why a particular licence may be in front of us, and a decision is made based on the legal framework by which we are bound, so I think we make very good decisions.”122

115.The sub-committee we visited in Southwark seemed to us to be taking their responsibilities seriously with the aim of reaching the right decisions.123 Yet even here we noted a number of matters which, although they probably did not affect the outcome, seemed to us to fall short of the ideal. For example:

Our conclusion

116.We appreciate that we are perhaps more likely to receive evidence critical of the way the licensing process operates than evidence saying it operates well or better. We believe—we certainly hope—that most members of licensing committees take their responsibilities seriously, adopt a procedure which is fair and seen to be fair, are well advised, and reach sensible conclusions. But clearly reform of the system is essential.

Integration of licensing and planning

117.As our inquiry progressed, at the same time that we were receiving this evidence of problems within the licensing system, we were hearing of the difficulties caused by the separation between licensing and planning. It became clear to us that the two problems are closely related.

118.In our call for evidence we asked: “Should licensing policy and planning policy be integrated more closely to shape local areas and address the proliferation of licensed premises? How could it be done?” An overwhelming majority of respondents criticised the current lack of coordination between licensing and planning, and thought that there should be better integration. We were given numerous examples of the absurdities caused by the separation of the systems, especially for applicants for new premises which need permission for both planning and licensing, and for whom permission for one without the other is of no use.

119.This example given to us by the London Borough of Hounslow is just one illustration:

“One recent problem is a restaurant who built a structure in their garden without planning permission. Planning permission was subsequently applied for and refused. There was fierce opposition to the structure from local residents and in our view the concerns of the residents were valid. The owners have also applied for a premises licence which includes the structure. Planning could not object because the regimes are supposed to be separate and the licence was subsequently granted with restrictions. We now have a situation where the planning permission is refused and the licence is granted. Residents have commented on their confusion and the premises licence holder has received an approval and a refusal for the same structure from the same local authority.”124

Their conclusion was: “The whole process is confusing for our residents and we would support a change in the position so that planning permission can be considered when determining licence applications.” 125

120.It is sometimes said by proponents of separate regimes for planning and licensing that the distinction arises because licensing concerns the regulation of licensable activities, whereas planning concerns the impacts of land uses. In reality, this is an artificial distinction. Planning does indeed concern land uses, and licensed premises are one particular example of a use of land, in much the same way that waste recycling, retail, residential, educational establishments, and many more examples are uses of land. They all give rise to their own types of impacts, which are catered for within the planning regime. Drinking Establishments (A4) and Hot Food Takeaways (A5) are already featured in the Use Classes Order126 as identified planning uses. There is no reason to believe, therefore, that use of land for licensed premises could not properly be catered for entirely within the planning system.

121.We can see no logical reason why, when the decision was taken to transfer the licensing function from licensing justices to local authorities, it should have been thought necessary for local authorities to constitute new committees to handle permission for premises to be used for the sale of alcohol, unlike permission for premises to be used for other purposes which were already dealt with by planning committees. Yet no thought seems to have been given to this. The White Paper issued in 2000 argued at some length that the new licensing authority should be the local authority, but then continued: “We believe a small licensing committee would be more effective and efficient than one involving large numbers.” 127 There seems to have been no consideration of whether a local authority might carry out its new licensing function within its existing structure, without setting up a new committee, whether small or large.

122.One consequence has been that two systems have grown up which go their separate ways and, indeed, are encouraged to do so, with the section 182 Guidance requiring that the two systems should be kept watertight and separate at all times. Paragraph 13.57 of the Guidance reads: “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.”128 We believe that this policy, far from avoiding duplication and inefficiency, has increased it, and has led to confusion and absurdity.

123.The Local Government Association published in January 2014 a report entitled Open for Business: Rewiring Licensing, in which they argued that “Businesses should be able to apply to councils for a single licence tailored to their business needs.”129 The conclusion of the Greater Manchester Combined Authority was: “There is a clear opportunity to develop a “single application process” for businesses, whereby they could submit a single application which could cover all permissions required to run a business—planning, licensing, food registration, waste contract etc.—to cut down on bureaucracy and simplify processes.”130 We would go further. We believe there is a case for considering whether a single committee process might not, at the same time as helping integrate licensing and planning policy, deal with the inadequacies of the licensing committees.

Licensing and planning committee structures compared

124.A comparison of the systems for dealing with licensing and planning applications is instructive. Licensing applications are made to a licensing authority which is in practice either the council of a district in England, the council of a county in England in which there are no district councils, the council of a county or county borough in Wales, or the council of a London borough. The authority delegates applications to its licensing committee, which consists of at least 10 but no more than 15 councillors, and is assisted by licensing officers. The licensing officers deal with the majority of applications, but where a hearing is needed, this takes place before a sub-committee of the licensing committee.

125.Planning applications are made to the Local Planning Authority (LPA) which equates to the same body as the licensing authority—usually the borough or district council. As with licensing, the more serious or controversial applications will usually go in front of a planning committee.

126.Licensing authorities have their individual Statements of Licensing Policy in respect of each five-year period, made after extensive local consultation. For planning, local authorities are required to have in place a Local Plan. This is much more complex. The Local Plan encompasses the strategic overview, with detail of the local authority’s vision for its area. It maps out where different types of development are intended to be located, and the guidance policies for what will be acceptable and what will not, in design and impact terms. The Local Plan may have different component parts, and there may be other planning documents or policies which support it. Together, the entire collection of planning policies for the area is known as the Development Plan.

127.The Development Plan has statutory status, and is given primacy. In the same way that a licensing application is measured against the four statutory licensing objectives, a planning application is measured against the Development Plan; if the application accords with the Plan it is granted, and if it conflicts with the Plan it is refused, unless “material considerations” indicate otherwise. In such cases the planning committee then have to conduct a balancing exercise. Planning decision-makers cannot realistically be challenged upon their planning judgments but, like licensing committees, can be challenged for a failure to provide cogent reasons for their decisions, or a failure to interpret policy correctly, or a failure to comply with the law, and other similar considerations.

128.It would be entirely feasible to incorporate a Statement of Licensing Policy in the form of a separate element of a Local Plan, focussing specifically upon licensing of premises as a land use.

129.Planning officers process applications and have delegated powers to make decisions about some of them, and to compile draft reports before a committee meeting. For this they need a degree or a postgraduate qualification accredited by the Royal Town Planning Institute in a relevant subject. Whilst there is no doubt that licensing officers are specialised in their field, there is no equivalent qualification in licensing.131 We believe licensing officers might welcome the opportunity to obtain a qualification which would allow them to play a larger part in the licensing process.

130.The support offered by officers to planning committees greatly surpasses that which is available to licensing committees. Planning officers will spend significant time collating and analysing consultation responses to a planning application, and will apply their professional judgment to those responses to reach a planning balance overall, which is in compliance with law and guidance. The report which they produce to a committee will set out detailed analysis of that material, and will conclude with a specific reasoned recommendation, supported by any suggested conditions that are deemed appropriate. By contrast, it is considered inappropriate for a licensing officer preparing a report for a licensing committee to do anything other than set out the bare facts of the application, record the representations that have been submitted, and give a recital of any relevant law and policy, to a greater or lesser extent, depending upon the authority in question. Consistency is, again, lacking in this area.

131.Another distinction between the licensing and planning systems is the way in which the views of other bodies are collected and incorporated. In licensing it is the applicant who must notify the responsible authorities and, as we have explained,132 the result is usually that only the police and environmental health are involved. In planning, the case officer has the responsibility of contacting the statutory consultees and asking for their input and, if their input seems to be important, chasing them if they have not responded.

132.Leenamari Aantaa-Collier,133 with a planning background, told us: “The difference is that in a planning situation the planning officer takes consultation responses, basically. He gathers them together and makes a recommendation to the committee as to how the matter should be decided in his professional opinion, whereas a licensing committee deals with the matter afresh.”134

Integration: the views of witnesses

133.The better integration of licensing and planning policy was a question put to all of our witnesses in the call for evidence, and specifically put to many of those who gave us oral evidence. But it was only towards the end of our inquiry that we first put to witnesses the more radical suggestion that licensing committees should be combined with planning committees. On 29 November 2016 we assembled a panel of witnesses specifically to discuss the similarities and differences between the licensing and planning regimes.

134.Leenamari Aantaa-Collier had this to say:

“There is definitely room for synchronising some of the policies. There is no reason why licensing and planning cannot work together. In particular, the issue of noise comes up all the time. It is very difficult for an applicant to understand that they have to go to one regime and then another regime in a local authority, and that the standards are different. There is no reason why you could not synchronise those standards and have the same policies for licensing and planning.”135

135.Peter Rogers, a noise expert from Sustainable Acoustics, said:

“Having attended both, my view is that the planning process is probably far more prepared and helpful to achieve the outcome we are striving for. The licensing committee environment seems somewhat inconsistent—that is one word for it—and perhaps unhelpful in what we are trying to achieve. The single best thing that could be achieved is to remove the Chinese wall between licensing and planning to enable both things to be considered.”136

The concerns of residents

136.We asked our witnesses to compare how the two regimes dealt with the concerns of residents. Anthony Lyons, from Kuit Steinart Levy LLP, a firm of Manchester solicitors, told us that “Residents have every opportunity to lodge their representations either individually or in concert against any application in licensing. I am not a planning practitioner, but I think residents have, if they are minded to use the process, the correct avenue to object and be heard in those objections.”137

137.However the other three members of the panel all stressed the additional opportunity residents have to put their views to the planning officer before they even get to the planning committee. Karl Suschitzky, an environmental health officer with Derby City Council, explained this:

“The planning system allows additional dialogue at the pre-committee stage to resolve some of the issues, and licensing does not seem to. The way licensing seems to work is that residents can put in written representations at great length and they are presented to the committee for discussion, whereas in the planning system, as has been mentioned, there is a planning officer who has expertise in planning matters and there will be an opportunity to respond to some of those matters.”138

138.Peter Rogers said:

“In my experience of both scenarios, I have seen perhaps more opportunity in the planning process for residents’ concerns to be addressed early on. They may still have an issue that they want to express. They can do that to the committee and it will be considered. In the licensing situation, I see almost a lost opportunity to have dialogue before, and we end up with a situation that is far more charged in the committee environment, where residents want to be heard, and rightly so. There is an opportunity to learn from planning committees, ultimately to give the public a clear and consistent way of being treated.”139

139.It is not only the concerns of residents which are more likely to be adequately addressed in the planning process; as we have explained,140 the procedure followed in planning cases is more likely to make sure that the committee receives input from responsible authorities whose views are important.

A single licensing and planning panel?

140.We put to all these four witnesses the question: “Could you live with a situation where the two procedures were merged under the planning committee and certain individuals would be trained to deal with licensing?” Leenamari Aantaa-Collier replied: “It is definitely something to be explored seriously.” Peter Rogers agreed: “I do not think there is any reason why that should not be explored.”141

141.Anthony Lyons, from Kuit Steinart Levy LLP, a firm of Manchester solicitors, was again the dissenting voice on the panel:

“At first blush, to combine the two seems a really sensible arrangement, but when I thought about it at length … I thought that actually there are totally separate regimes: different legislation; different policies; different application processes; different hearings and different professionals in planning committees on the one hand and in licensing committees on the other; and different appeal procedures. There is a debate to be had. Applicants often say, ‘Why do I have to tick the same box twice? I have to do a crime impact statement on my planning application and I have to go through how I avoid crime and disorder in my licence application’. There is an element of desire to remove that red tape and streamline the processes, but they are separate and should be kept that way.”142

142.We agree with Mr Lyons that there is different legislation, and that it should stay that way; we are not suggesting otherwise. Licensing law is, and will remain, separate from planning law. As in the case of licensing, there is bespoke legislation for a variety of topics, from protected species to the protection of heritage assets, which must be taken into account and followed in the planning regime. The planning system is well used to looking at other statutes which are relevant in particular circumstances. All the statutes have to be knitted together, and conformed with in a seamless whole. Adding the Licensing Act and its Guidance would represent nothing new.

143.But for the rest of Mr Lyons’ criticism, our conclusion is different. It is precisely because there are “different policies; different application processes; different hearings and different professionals in planning committees on the one hand and in licensing committees on the other” that we believe that the regimes which are separate should not necessarily be kept that way.

144.The Mayor of London, through Philip Kolvin QC, his Night Time Commissioner, made this point:

“Planning tends to be a once for all decision operating in perpetuity, whereas licensing is flexible and can adapt to changing circumstances in the locality or the premises. In particular, review powers can be used to vary conditions including by altering trading hours, or even to remove licensable activities or revoke the licence, according to requirements of the individual case and locality.”143

We agree that this is a valid distinction between the planning and licensing functions, but we do not see that this would prevent the two functions being performed by members of a single committee. There are provisions for varying and amending planning permissions and altering conditions, and for enforcement in the case of activities which go outside the terms of the permission, which all appear to be equivalent processes to those available in licensing.

Would a change impose a burden on local authorities?

145.We would not advocate such a change if we thought that this would increase the burden on local authorities at a time of austerity, when their resources are being cut. We put to Ministers the question: “Would there be any advantage … in making the licensing function an integral part of the planning process, with a single committee of the local authority dealing with both licensing and planning?” Sarah Newton MP replied:

“I do not think so. It would require a huge upheaval in the planning system. There would have to be primary legislation and a huge amount of training to enable people to make those decisions. The planning system has undergone considerable changes in the last couple of years; you have the neighbourhood planning legislation before you in the House of Lords at the moment. It is important that the current regime settles down. If there are issues with poor performance and poor decision-making, it is better to tackle them with education and training, to make sure that councillors understand the powers they have and use them well.”144

146.We believe that this betrays a misunderstanding of the question. Planning legislation is certainly complex and the new legislation will do nothing to make it simpler; but we are not suggesting “a huge upheaval in the planning system”, or indeed any changes at all in planning law. The only change to primary legislation which would be needed would be amendment of sections 6–10 of the Licensing Act which provide for the establishment of licensing committees and their functions, and for the sub-delegation of their work to sub-committees.

147.Nor do we envisage “a huge amount of training”. Some training will certainly be needed and, as we explain in Chapter 5, will be needed whatever recommendations we make and whether or not they are adopted; but the training would be no more than is necessary to enable some planning officers and councillors to deal with licensing, in the same way that they currently already need and receive training to deal with planning for licensed premises. It is already the case that in some local authorities some of the same councillors sit on both committees. Scarborough Borough Council wrote: “Consideration should be given in having a joint Planning and Licensing Committee particularly as half our licensing committee members also sit on planning.”145

148.In the year ending 31 March 2016, local authorities in England and Wales received:

The majority of these were dealt with without a hearing; only 3,068 applications for a premises licence or club premises certificate and 68 personal licence applications went to a committee hearing. In that year 700 licensing reviews were completed, and 117 summary reviews.146

149.The figures for planning applications are not directly comparable, since they are collected quarterly and relate only to England. Between July and September 2016 district level planning authorities in England received 120,782 applications for planning permission, 94% of which were dealt with without a hearing. The result is that, in that quarter, some 7,000 applications went to a hearing, equivalent to 28,000 a year.147 A 10% increase to take account of Wales would raise this to 31,000 hearings.148

150.These are not accurate figures and should not be relied on for other purposes. They do not take account of other work which can go to licensing committees, such as variations of licences and TENs, nor do they take account of other work which is dealt with by planning committees. Nor do they take into account that, among many hundreds of minor changes to domestic property, there will lurk the occasional multi-million pound development. But these figures suffice to make clear that the workload of planning committees is much greater than that of licensing committees—perhaps something of the order of 10 times greater—so that the nature of the work of planning committees would be significantly but not substantially different.

151.We emphasise that the overall workload of local authorities would remain unchanged. It might even follow that the simplification of administration and procedure would result in a saving of resources, but we have no evidence to support this, and do not rely on it as an argument in favour of change.

Our conclusion

152.If, as we think, it is not only permissible but logical to look at licensing as an extension of the planning process, it would have been sensible for the Licensing Act to transfer the powers of licensing justices to the planning committees of local authorities, rather than set up a new and untried system of licensing committees with a new and different procedure, new staffing, and a new appellate process. Instead the result has been that each local authority has been able to deal with all aspects of land use through a planning committee with the single exception of licensed premises, which require a separate committee and a separate mechanism. Now that the system has been in operation for 11 years, we believe that this can be seen to have been a mistake and a missed opportunity.

153.We recognise that a suggestion that licensing committees should be abolished and their work amalgamated with that of planning committees is a radical one. It is not a change which should be made without first being trialled over a small but representative sample of local authorities over perhaps two years.

154.Sections 6–10 of the Licensing Act 2003 should be amended to transfer the functions of local authority licensing committees and sub-committees to the planning committees. We recommend that this proposal should be trialled in a few pilot areas.

155.We have considered when such trials should begin. Mr Lyons said that this was “one for the future; now is not quite the time to do that”.149 But “now” is never the time. We have explained in the previous chapter how the current system took seven years to evolve. We believe that the debate and the consultation on transferring the functions of licensing committees and sub-committees to the planning committees must start now, and the pilots must follow as soon as possible.

156.If our recommendations are accepted, some time must elapse before trials can start, because amendments will be needed to sections 6–10 of the Act to allow licensing authorities to send licensing work to planning committees. If, as we hope, the trials are successful, further time must elapse before the changes are complete. Improvement of the work of licensing committees cannot wait so long, and we explain in Chapter 5 what must be done without delay.


102 Box 1, paragraph 58

103 Per Toulson LJ in R (on the application of Hope and Glory Public House Ltd) v City of Westminster Magistrates’ Court [2011] EWCA Civ 31 [accessed 10 March 2017]

104 Written evidence from Gerald Gouriet QC (LIC0056)

105 Supplementary written evidence from Professor Roy Light (LIC0168)

106 Written evidence from Gerald Gouriet QC (LIC0056)

107 Q 145 (Gerald Gouriet QC)

108 Q 150 (Gerald Gouriet QC)

109 Written evidence from Derbyshire Police (LIC0028)

110 Q 114 (Prof Roy Light, Barrister, St John’s Chambers)

111 Q 69 (Gill Sherratt, Director, Licensing Matters)

112 Q 144 (Paul Douglas, Managing Director, Douglas Licensing (NW))

113 Q 150 (Gerald Gouriet QC)

114 Q 114 (John Gaunt, Partner, John Gaunt and Partners)

115 Q 150 (Paul Douglas, Managing Director, Douglas Licensing (NW))

116 71 (Dr Alan Shrank, Chairman, National Organisation of Residents’ Associations)

117 Q 28 (Councillor Peter Richards, Chairman of the Licensing and Regulatory Committee, Stratford-on-Avon District Council)

118 See for example, written evidence from Westminster City Council (LIC0090) and Q 73 (Richard Brown, Licensing Solicitor, Westminster Citizens Advice)

119 61 (Daniel Davies, National Chairman, Institute of Licensing)

120 Paragraph 131

121 Supplementary written evidence from Gerald Gouriet QC (LIC00165)

122 Q 27 (Councillor Tony Page, Deputy Leader, Reading Borough Council and Licensing Champion, Local Government Association)

123 See Appendix 4 for a report of this visit.

124 Written evidence from London Borough of Hounslow (LIC0025)

125 Ibid.

126 Town and Country Planning (Use Classes) Order 1987 (as amended) (SI 1987/764)

127 Home Office, Time for Reform: Proposals for the Modernisation of Our Licensing Laws, Cm 4696, April 2000, paragraphs 117–125

128 Case law to date supports this interpretation: R (KVP Ent Ltd) v South Bucks DC, paragraphs 54-60, R (on the application of Blackwood) v Birmingham Magistrates Court, paragraphs 53-62.

130 Written evidence from Greater Manchester Combined Authority (LIC0103)

131 Warwick University once offered a Certificate of Higher Education in Licensing law, but no longer.

132 Paragraphs 111–112

133 When Ms Aantaa-Collier gave evidence she was working for the Wilkes Partnership; she is now Legal Director at Shakespeare Martineau.

134 Q 177 (Leenamari Aantaa-Collier)

135 175 (Leenamari Aantaa-Collier)

136 Q 177 (Peter Rogers, Managing Director, Sustainable Acoustics)

137 Q 178 (Anthony Lyons, Partner, Kuit Steinart Levy LLP)

138 Q 178 (Karl Suschitzky, Environmental Health Officer, Derby City Council)

139 Q 178 (Peter Rogers, Managing Director, Sustainable Acoustics)

140 Paragraph 131

141 Q 179 (Leenamari Aantaa-Collier)

142 Q 174 (Anthony Lyons, Partner, Kuit Steinart Levy LLP)

143 Written evidence from Mayor of London (LIC0173)

144 Q 211 (Sarah Newton MP, Parliamentary Under-Secretary of State for Vulnerability, Safeguarding and Countering Extremism, Home Office)

145 Written evidence from Scarborough Borough Council (LIC0014)

146 Home Office, ‘Alcohol and late night refreshment licensing England and Wales’ (31 March 2016), Tables 6a, 6b and 7: https://www.gov.uk/government/publications/alcohol-and-late-night-refreshment-licensing-england-and-wales-31-march-2016/alcohol-and-late-night-refreshment-licensing-england-and-wales-31-march-2016 [accessed 10 March 2017]

147 DCLG, ‘Planning applications in England: July to September 2016’ (15 December 2016): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/577548/Planning_Applications_July_to_September__2016.pdf [accessed 10 March 2017]

148 In Wales in the year 2014/15 there were 24,203 planning applications: Welsh Government, ‘All Wales Planning Annual Performance Report 2014/15’ (March 2016) p 19: http://gov.wales/docs/desh/publications/160322-planning-annual-performance-report-2014–15-en.pdf [accessed 10 March 2017]

149 Q 177 (Anthony Lyons, Partner, Kuit Steinart Levy LLP)




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