Agenda item

To report to Members of the Committee on Counsel’s opinion about the relationship between decisions under the Licensing Act 2003 and Town Planning Controls. (Attached)

(Agenda Item 6)

       The Chair invited Mr Sygrave to address the Committee. Mr Sygrave referred the Committee to the Haringey Statement of Licensing Policy  in its reference (8.0 Planning) to planning permission. He highlighted that under 8.2 in the Policy, all premises that apply for a licence must have planning permission for the intended use and hours of operation or be deemed “lawful” for the purpose of planning control. Mr Sygrave pointed out that this rule had not been uniformally followed by Licensing Sub-Committees and that this had led to confusion. Mr Sygrave later stated that he, on behalf of the LCSPB, agreed with the advice submitted by Counsel to the Council in relation to the policy on planning permission. Mr Sygrave went on to suggest to the Committee that in addition to the advice given by Counsel, the Committee should also consider the following:

i)                    That the Planning Service indicates why it has imposed restrictions on opening hours along with comments to the Licensing Authority once an application has been received.

ii)                  Fully briefed planning officers (preferably the planning officer who has personally dealt with a given premises) to be present at each hearing.

iii)                When an applicant’s proposed new hours are longer than those permitted by planning, it should be made clear to the applicant exactly what is in terms of the planning/license relationship (and verified by Counsel).

The Chair confirmed to Mr Sygrave that he has requested planning officers to be present at each sub-committee in view of the information supplied by planning in respect of certain license applications.

The Chair invited the Legal Adviser, Terence Mitchison to present his Report to the Committee. Mr Mitchison highlighted to the Committee that the Council’s current Licensing Policy was worded slightly wrong in the light of the law under the Licensing Act 2003 and ran the Committee through the recommended wording of the Policy, as advised on by Mr Philip Kolvin QC, and set out as follows:

8.1       Planning permission is usually required for the establishment of new premises and change of use of premises.  Uses that are relevant to licensed premises are set out in the Town and Country Planning (Use Class) Order 1987 (as amended) and include:

a)                 a retail shop, licensed for the sale of liquor for example (A1);

b)                 food and drink sold and consumed on the premises or where hot food is sold for consumption off the premises, including restaurants and bars (A3);

c)                  public house, wine bar or other drinking establishment (A4);

d)                 hot food sold for consumption off the premises (A5);

e)                 assembly and leisure uses, including cinemas, concert halls, dance halls and indoor/outdoor sports and recreation (D2); and

f)                    various “sui generis” uses which do not fall within a use class such as theatres.

8.2       All premises that apply for a licence must have will be encouraged to obtain planning permission for the intended use and hours of operation or be if not already deemed "lawful" for the purposes of planning control. The Licensing Authority will give appropriate weight to relevant Planning decisions and to the views of the Planning Authority on the compliance of the application with the licensing objectives. not consider a new application or variation of conditions if permitted licensable activities on the premises would constitute an unlawful planning use or if the hours of operation sought exceed those authorised by the planning permission. The Licensing Authority will consider a degree of flexibility in this when dealing with applications for provisional statements, which applies to premises still to be constructed or altered for licensing purposes.

Mr Mitchison also stated that he would advise that the recommendation set out by the LCSPB be embraced too. The adoption of the new Policy would ensure that rightful appeals and unenforceable licenses were avoided and that the new wording of the policy was legally acceptable.

Councillor Takki Sulaiman, who was present at the Committee meeting, highlighted the relevance of these recommendations to the whole of the Borough and was concerned that gathering evidence of licensing decisions being enforced under the four licensing objectives was not robust.

Councillor Gina Adamou , who was present at the Committee meeting, raised her concerns that information from enforcement agencies does not reach Members of the committees and that this would avoid Members making blindfolded decisions. She echoed the recommendation that planning officers and police officers should be present at all committees.

Councillor Rice raised the issue that numerous premises along Green Areas, where licensing laws are prevalent, have had planning consents that were granted many years ago. He suggested that a more rigorous approach by Planning Development Control was needed that would ensure that planning consents were clear and focussed and in-line with modern arrangements, particularly under the new licensing laws. He suggested that it was also necessary for officers acting under delegated powers and making decisions on licensing should be responsible for communicating these in a proper fashion.

The Chair invited Mr Frixos Kyriacou, Team Leader, Planning Development Control to address the Committee. Mr Kyriacou stated that the provision of sale of alcohol in shops and supermarkets was not under the jurisdiction of Planning Control, but that if there was a change in use for a given premises, the Planning Control Team would intervene. They would also intervene if an extension of hours was being sought. Mr Kyriacou confirmed that the Planning Control Team would be able to provide information on these two factors. In respect to Councillor Sulaiman’s reference to Planning Policy Statement 6, Mr Kyriacou stated that the policy focussed on town centres and that the Government advice was to focus on community effects of planning developments. This was achieved in Haringey, but Mr Kyriacou recognised that more needed to be done  to reach a balance between communities and businesses.

There was a discussion amongst Committee members and officers that highlighted problems with gathering evidence on planning and licensing grounds and the Committee came to the conclusions that  more information and evidence was required from the Planning team when applications are received and investigated for the benefit of sub-committee hearings. The Committee heard that whilst a full audit of information supplied and gathered by the Planning team was not possible in the short to medium term, it was felt that the team could work more closely with licensing, business organisations and residents to ascertain specific concerns that can be presented to sub-committees in the interest of making robust decisions.

RESOLVED

                  The Licensing Committee agreed to the following recommendations:

(i)                                         That Members note and accept the advice given by Counsel.

(ii)                                       That Members provisionally approve for statutory consultation the proposed revisions to paragraphs 8.1 and 8.2 of the Council’s Statement of Licensing Policy

(iii)                                     That Members request the General Purposes Committee to agree the commencement of the statutory consultation referred to in (ii).

(iv)                                      That, Members agree to apply the Statement of Licensing Policy in the light of Counsel’s advice when making decisions at Licensing Sub-Committee hearings during the period before the formal adoption of the proposed revisions referred to in (ii) above.

(v)                                        That Members agree not to impose conditions that would leave the hours of operation for licensable activities to be determined by the Planning Authority or by Planning Controls when making decisions at Licensing Sub-Committee hearings except to add informatives to this effect.