The existence of separate licensing and planning regimes causes frequent confusion amongst both publicans and statutory authorities alike, given that the same issues often affect both.
In particular, I am frequently asked whether it actually matters if the hours permitted by the premises licence and planning permission for a pub differ and, where there is a desire to change both licensing and planning hours, which permission should be varied first.
Who says?
It is not uncommon for the hours for regulated activity and opening hours recorded on a premises licence to be in excess of those granted by the planning permission.
In such circumstances, the guidance to the Licensing Act 2003 makes it clear that operators must 'observe the earlier closing time' and most councils have active planning enforcement teams that keep a close eye on licensed premises.
However, some premises do trade above and beyond the hours permitted by their planning permission. While doing so is a criminal offence and therefore not without risk, the enforcement of planning hours is not as draconian as that for licensing and, if later hours are observed without causing a nuisance, such trading or both can actually be used as positive evidence if a later application is made to vary the hours permitted by the planning consent.
In stark contrast, operating outside of the hours permitted by a premises licence is treated very seriously and a person found guilty of this can face either six months' imprisonment, a £20,000 fine, or both.
Where an operator wishes to apply for later hours and both the planning application and premises licence require variation, it may be prudent, for financial reasons, to obtain the permissions one after another, rather than concurrently.
This is often the case where later hours could prove controversial and it makes sense to 'test the water' first, rather than incurring the cost of running two applications at once.
It can be difficult to decide which regime to tackle first.
The guidance to the Licensing Act 2003 is rather confused on this point. It says that, 'applications for premises licences for permanent commercial premises should normally be from businesses with planning consent for the property concerned'.
However, it goes on to say that 'applications for licences may be made before any relevant planning permission has been sought or granted by the planning authority'.
Sometimes individual councils' licensing policies provide further assistance and they normally encourage applicants to have the necessary planning permission in place before they apply for either a new premises licence, or a variation to an existing one.
Responsible authority
Consideration should also be given to the fact that the planning authority is a responsible authority so can make a representation to a licensing application, albeit that it has to relate to the licensing objectives.
It can be very disheartening when the sole reason why a licensing application proceeds to a licensing sub-committee hearing is because a representation has been received from the planning authority.
While some say that having two separate regimes causes duplication and is unnecessary, the current system looks set to stay in place.
Operators should be fully aware of the terms of both - and how they interrelate - to avoid confusion.