House of Lords report proposes integration of licensing and planning

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On 4 April 2017, the House of Lords published a report titled "The Licensing Act 2003: post-legislative scrutiny".  This report recommends the incorporation of licensing issues into the planning system.

Existing interaction between licensing and planning

Such incorporation would build on existing interaction of the licensing and planning regimes.  Section 182 Guidance, which is the body of national licensing policy, says at para 9.45 that licensing and planning authorities should consider discussing applications to agree operating hours and scheme designs.  Para 14.56 of the Guidance recommends coordination of licensing and planning policies, while the Court of Appeal (in the 2016 case Forster v SoSCLG [2016] EWCA Civ 609) has said that "while a licensing committee is not bound to follow a planning decision-maker's conclusion, nor vice versa, each will and should have regard to the other where both make decisions in the same context".

These statements contrast with other statements in licensing policy which stress the separation of the licensing and planning regimes.  For example, para 14.57 of the S.182 Guidance states "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".  There is therefore a lack of clear direction on the relationship between licensing and planning.

The Lords' criticisms

A lack of integration of licensing and planning was one of the key criticisms made in the Lords' report.  The outcome of this lack of integration is that a use may be consented under one regime and refused under the other.  Further criticisms included inconsistent decision-making on a case-by-case basis and across local authorities, poor-quality decision making by licensing sub-committees, and an ineffective appeals system.

The Lords' recommendations

The report recommends that matters which are currently dealt with by local authorities' licensing committees and sub-committees should be dealt with by their planning committees (it fails to address situations where the decision might, presently, be delegated to a licensing officer).  The report recommends trialling this proposal in a few pilot areas initially, and says 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". 

The report also recommends that coordination between the licensing and planning systems begins immediately.  To facilitate this, the S.182 Guidance should be amended in line with the quotation from Forster, above.

The report further recommends that appeals of decisions of licensing authorities should no longer go to Magistrates Courts, but should lie to the Planning Inspectorate following the same course as planning appeals.  This change is not dependent on the outcome of the above recommendation relating to Committees, and the Lords say that the change should be made as soon as possible.

In conclusion

While these recommendations are purely advisory, the Lords' comments illustrate a trend of weakening separation of licensing and planning.  Councils processing planning applications increasingly seek evidence of consistent licensing provisions, and vice versa.  This trend will continue if revisions to the S.182 Guidance, or the other Lords' other recommendations, are implemented and as a result planning lawyers and licensing lawyers may need to work more closely in the future.