Licensing or planning - which one first?

"Dear Mr Faulkner,

Thank you for your licensing application, however I note that planning permission has not yet been submitted.

Kind regards

Licensing department”

As a licensing lawyer, the above email is something that enters my inbox all too much, and unsurprisingly, a topic that confuses and frustrates operators up and down the country.

Licensing or planning - which one first? Obtain the premises licence first, then follow with planning? Or submit both at the same time? The answer – helpfully, there isn’t one.

When opening a new premises, or looking to make changes to an existing premises licence, licensing and planning are two requirements that need to be dealt with at the earliest opportunity. I do not think you need a lawyer to tell you a pub without alcohol is, well, not a pub.

Strategically an operator, alongside their advisors, will need to make a decision on which application to submit first, and that is one which will not always be to the liking of the local authority.

Within their statements of licensing policies, councils will regularly comment about which application they expect to see first. Albeit a preference, there is no rule as to what application must come first, and an operator is free to travel down both paths as and when they see fit.  

It is key to point out licensing and planning are separate regimes dealt with through distinct legislative frameworks. This, however, does not restrict the application processes bringing up similar issues and considerations – operating hours, noise concerns, deliveries, etc.

In practice, this separation of the two differing regimes leads to inconsistences across permissions. It is commonplace in the industry to have a premises licence with hours early into the morning yet planning permission with a modest midnight close.

Considerable headache 

This is a considerable headache for operators, as the same local authority has decided two entirely different restrictions for the same unit. Which one does an operator follow?

Breach of a planning permission condition could lead to planning enforcement, and operating outside of your premises licence hours is a criminal offence and would almost certainly lead to review of the licence.

In practice, the more restrictive permissions will prevail, and the operator will follow the modest hours to reduce their risk of enforcement. This ultimately devalues the permission with the later hours, almost rendering it useless.  

The separation of the two regimes further creates confusion amongst local stakeholders as to exactly what has been permitted in a premises.

On the flip side of this, however, is that the existence of a premises licence with later hours should ​assist any future planning application to extend the hours to match. I use the word ‘should’ lightly, as we must remember that both regimes are distinct and are not co-dependent.

The existence of a later premises licence will be persuasive to the planning committee, but not binding.

Interestingly, when looking at Government Guidance, in the eyes of the legislator the separation is not as hard and fast as the reality. The S.182 Guidance to Licensing Authorities states:

“Where businesses have indicated, when applying for a licence under the 2003 Act, that they have also applied for planning permission or that they intend to do so, licensing committees and officers should consider discussion with their planning counterparts prior to determination with the aim of agreeing mutually acceptable operating hours and scheme designs.”

"I do wholly appreciate the idea of combining licensing and planning is somewhat utopian, and the current approach is strongly cemented in both legislation and caselaw"

To muddy the waters even more, the same guidance document states: “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”

And to add a cherry on top, the planning authority are a responsible authority when consulting on a new premises licence application.

This conflicting and outright confusing approach leads me onto my next question – is the current licensing and planning regime fit for purpose?

From the perspective of all parties involved in a new licensed premises – operators, residents, councillors, responsible authorities – consistency and clarity as to exactly what is permitted is crucial. Currently, I struggle to see how this is the case.

Planning allows for councils to develop a local plan, specifically designing a bespoke strategy for their area and what sort of businesses and operators they wish to invite.

Licensing does not allow this. The Licensing Act operates with a much more rigid approach centred around the four licensing objectives. Whether an operator has an exemplary track record or is exactly what the town centre needs does not form part of the conversation – each application is determined on its own individual merits.

Now, I do confess, this rigidity is something that I as a licensing lawyer will use to my advantage at times. However, taking a more holistic view I am minded to follow the argument that combining the two legislative regimes will make the whole process better for all.

Utopian idea 

It is no trade secret that our high streets up and down the country are failing, and the derisory effect of cumulative impact policies​​ all too easily utilised under the Licensing Act exacerbated the problem.

If the two regimes are brought closer together, this will allow for a more consistent and centralised approach to deciding what is best for a disused high street venue, in turn presenting operators with all the information when deciding if they wish to make an offer on a site.

Further, this approach will make the job of the licensing authority, planning authority and the two decision making committees clearer, allowing them to provide a complete view of an application without being fearful of asking what their regulatory sister has already permitted.

Finally, this conjoined attitude will provide local residents with a better understanding of what is permitted at a premises, and ultimately lead to a better working relationship between the trade and their neighbours.

I do wholly appreciate the idea of combining licensing and planning is somewhat utopian, and the current approach is strongly cemented in both legislation and caselaw.

Nevertheless, our industry is struggling, and the regulatory pressures and restrictions are not helping. The hospitality industry is on its knees, and bringing Licensing and Planning closer together – maybe even just into the same room for a start – would not be the worst idea.

• Felix Faulkner​ is a solicitor at Poppleston Allen​​