Planning and the Licensing Bill

There seems to be collusion between the Government and the drink industry over many aspects of the new Licensing Bill. One is the vain search of local authorities to find where their alleged control over licensing in their areas will lie once the Bill passes into law. On the crucial subject of density of outlets, we are told by the Government that that this is a planning not a licensing matter, and controllable through that planning system. On other occasions, the opposite is stated.

Simon Milton is the Leader of Westminster City Council and argues that planning legislation is ineffective in dealing with the cumulative effects of licensed premises.

Introduction

Local authorities with experience of managing a late night economy recognise that a concentration of late night licensed premises in a particular area causes a number of problems including noise on the streets, disorder, crime and nuisance such as litter and street urination. These impacts make city centres unattractive to visit after dark for anyone who is not part of the late night drinking scene. The Government recognises these problems in its regulatory impact statement accompanying the Licensing Bill but its guidance makes clear that local authorities will not be able to take the cumulative impact of granting additional licenses into account in determining license applications. Instead, the Government states that these issues should be dealt with through the planning system.

There are three reasons why this approach cannot work:

1) Use Classes Order

Planning legislation defines categories of activity into use classes. Within these use classes, planning permission is not required. Bars and pubs currently sit in the same use class (A3) as restaurants and coffee bars. Nightclubs fall within D2 class along with cinemas, theatres, bingo halls etc. This means that there is nothing in planning law to prevent a restaurant becoming a bar and a cinema becoming a nightclub. Yet the impacts of these different uses are very different. Moreover, planning permission is not required for an existing A3 or D2 use to increase capacity or open for longer hours. So planning. cannot contain growth. Planning permissions last for ever, unlike licences, and so cannot be reviewed when local circumstances change. And even in those cases where planning permission is required, a prospective increase in crime and disorder is not normally regarded by the Planning Inspectorate as a proper reason for refusing planning permission,

Case Study: a bar operator has recently acquired two small restaurants in Soho adjacent to each other. One of them shares a party wall with a block of flats. This part of Westminster is designated as a stress area where the police and council believe that saturation of late night drinking establishments has been reached.

The restaurants were typical Soho establishments serving people in the West End for the theatre or cinema and closing around 12.30am. The bar operator has knocked the two units into one and opened a bar accommodating 700 people and has applied for a 3.00am license. The police, council and local residents have opposed this application in the licensing magistrates yet in planning law this operation does not even require permission despite the very different local impact that the operation will have. The only way of safeguarding this significant additional impact is through the licensing system but under the new legislation, the licensing authority would not be able to take into account the impact of this new bar on the area.

2) Unitary Development Plans (UDPs)

Local councils can only make planning decisions in line with their UDP policies or else see their decisions overturned on appeal. To use the planning law to prevent undesirable concentrations of late night activity, local authorities must establish new policies in their UDP, which must then go to public inquiry. A dynamic late night economy requires a more flexible and dynamic response than is available through the planning policy process. Many A3 uses have been granted in the past on the basis that their hours could be controlled through licensing. Unless these existing premises are required to seek a new planning permission (which is inconceivable), the authority will have no ability to prevent a significant increase in late night drinking from these premises in areas that already face significant crime and disorder issues.

Case Study: Westminster City Council is currently updating its UDP, which is being considered by a planning inquiry. In line with Government suggestions it is designating stress areas where it believes there is already too great a concentration of late night licenses. One of the principal objectors to this policy is the licensed trade, which is arguing in its submission that these are matters for licensing rather than planning policy!

3) Planning Enforcement

The powers to enforce against planning breaches are far weaker than in breaches of license conditions. If a premises changes use without planning permission, for example by changing from a shop into a bar, the local authority can serve a notice on the owner. But the premises may trade quite lawfully nevertheless. The notice can be appealed, or the premises can seek retrospective planning permission and then appeal a refusal to issue consent. By playing the system it is perfectly possible for premises to stay in business for eighteen months before the process reaches its conclusion, trading lawfully all the while. Under the new Licensing Bill, such a premises would also be entitled to a 24-hour license regardless of the planning position.

Case study: a Class A1 retail premises in Soho began operating in breach of planning control as a Class A3 cafe/restaurant in 1998. Following warnings from the planning enforcement team the business closed down. The A3 use then later reopened under new owners but again closed promptly following threats of enforcement action. When it reopened a third time under yet more new owners in January 2000, these owners said they proposed to bring the operation within a sandwich bar use which would fall within the lawful Class A1 use. They submitted an application for a Certificate of Lawfulness for a Proposed Use in order to establish beyond doubt that what they proposed would constitute an Al use. After some negotiation a Certificate was issued. However they did not operate in accordance with the certificate but continued to operate as a Class A3 cafe/restaurant. When threatened with the issue of an enforcement notice they submitted applications to keep the cafe/restaurant use and for tables and chairs outside the premises. The applications were refused and authority to issue enforcement notices against both matters was obtained at the same time. The owners appealed however and a decision is expected in December this year. Despite enforcement action, for the greater part of the period 1998 to date the unauthorised use has traded in breach of planning control.

Conclusion

It will be seen that planning legislation alone currently provides little protection for authorities seeking to manage the late night economy. Until there is a change in Use Classes Orders to categorise bars and nightclubs as a use in their own right separate from restaurants and other entertainment uses, and without far more effective enforcement powers, local authorities must be able to rely on a cumulative impact policy as part of its local licensing statement to ensure safe and attractive town centres. Even then, planning will only provide controls over new premises in new locations rather than the thousands of existing premises to which new licensing hours will apply.