The new restrictions on A3 uses in Westminster City Council’s draft UDP and the Licensing White Paper
London is cool. Its centre offers all kinds of nightlife and entertainment. Restaurants are plentiful. The bars serve whatever you want to drink and clubs open throughout the night. The property industry is adept at locating new pubs, bars and restaurants in areas where demand is greatest. But many people live there too, and Westminster City Council has the unenviable task of striking the right balance in central London.
The Urban Task Force Report (Towards an Urban Renaissance, published in June 1999) talks of bringing about "active urban locations" (Clerkenwell and Bloomsbury are given as examples), but acknowledges that there are limitations on the applicability of this on a wide scale. It stresses that certain activities cannot successfully co-exist with housing. There are, though, plenty of mixed use schemes being developed around the country: the Smithfield Buildings in north west Manchester and Canal Street, Brewery Wharf in Leeds (work is due to begin early next year) and the continued redevelopment of the quayside district in Newcastle-upon-Tyne and directly across the River Tyne in Gateshead, are just a few examples.
Central London is well beyond that. The problem, as the City Council sees it, is that certain parts of central London have become saturated with leisure uses and the answer is to limit opening hours and encourage the export of bars and restaurants to neighbouring boroughs.
The UDP was approved by the Planning and Licensing Committee of the City Council on 26th September. It is believed that the UDP will go on deposit at the end of November, and will then be a material consideration when assessing planning applications. Applicants for new A3 premises, or those who want to extend (either the building or the hours) will need to demonstrate that there will not be a detrimental effect on residential amenity and the character and function or environmental quality of the area.
At the same time as development plan policies are becoming more strict, the licensing regime appears (on the face of it at least) to be relaxing. "What two ideas are more inseparable than Beer and Britannia?" questioned the Reverend Stanley Smith. The Good Practice Guide published by the Justices' Clerks' Society in 1999 sought to standardise the practice of area licensing committees by recommending the removal of the fictional assessment of "need" in applications for new liquor licences. Will that mean more licensed premises? Now, the White Paper on Licensing (Time for Reform: Proposals for the Modernisation of our Licensing Laws) presented to Parliament on 10 April 2000 by Jack Straw, the Home Secretary, proposes the most fundamental overhaul of the licensing system since the First World War. It was heralded by a wave of media coverage declaring the advent of 24 hour pubs and bars. Closer examination, however, suggests that the rationale behind the White Paper is entirely consistent with the approach adopted by the City Council in its UDP.
The key recommended change is a single integrated scheme for licensing the sale of alcohol or the provision of public entertainment or night-time refreshment. Currently, licences attach to the premises themselves but are granted to the individuals who run them. Thus the licences have to be transferred whenever ownership or management of the licensed premises changes hands - at an estimated cost over a ten year period to an individual operator of between 15,000 GDP to 70,000 GDP and for a major operator owning 300 pubs of 4.5 million GDP to 21 million GDP(Source: the White Paper). The proposal is to create a split-licensing system whereby a "personal licence" allows the holder to sell or serve alcohol for consumption on or off any premises with a premises licence. A separate "premises licence" authorises the sale and supply of alcohol, the provision of public entertainment and late night refreshment at named premises. There will be operating conditions attached to the premises licence to take into account public safety and nuisance considerations. They will be fixed locally in order to balance the operator's requirements against the views of local residents and police and fire authority assessments.
By the use of targeted operating conditions, the premises licence seeks to achieve the key aims of preventing crime and disorder, ensuring public safety, protecting children and preventing undue public disorder. Examples of operating conditions would be the use of CCTV, installation of sound-proofing and fixing the number of fire exits. In addition, permitted licensing hours would be flexible and although may, in limited cases, extend to 24 hour opening, there will be considerable variation in the operating hours between different types of venue and in different locations. Spreading closing times would, it is anticipated, allow for a more gradual and orderly dispersal of customers, a reduction in drunkenness and public disorder and a decrease in noise and nuisance. (Scotland's liberalisation of licensing laws has already seen a reduction in "binge drinking".)
Another major change would be to move the current responsibility for liquor licensing from magistrates (who historically attained the role as part of their peace-keeping function) to local authorities. The Better Regulation Task Force favoured the new responsibility going to local authorities on the basis that they will be accountable and accessible, and that it would promote their leading statutory role in the prevention of local crime and disorder.
So how does liquor licensing currently fit with planning controls? The answer is uncomfortably. Unfortunately for an operator or owner of premises, the terms of its (liquor) licence cannot bind a local authority planning committee. This has been established law for some time. This may at first thought seem a little extreme: that an operator can meet the standards and requirements of licensing justices whose role it is to regulate a particular activity, yet fail on the planning merits for an A3 use. The Courts have, in the past, been urged to separate planning from other activities carried on by the local (or other public) authorities through different statutory powers. The Courts have taken the view that whatever specific legislation may exist, planning and development control powers can be used in a more general, overall sense.
The leading case is Ladbroke (Rentals) Ltd. v. SoS for Environment [1981] JPL 427. The casino operator applied for planning permission for a gaming club and casino. The inquiry Inspector placed a restriction on the opening hours of the casino, to protect local residents from disturbance caused by the attraction of additional traffic. The Inspector's decision to refuse consent on this ground was quashed on appeal as the Court found there was no evidence on which the Inspector could have come to his conclusion. Nevertheless Sir Douglas Frank presiding said that 'the court was not entitled to imply that because the licensing authority has been given the express power, that the very wide powers given to the Secretary of State under the Town and Country Planning Act were thereby diminished...the Inspector had not acted in excess of his powers on that ground'.
The more recent case of Eden Restaurants (Holborn) Ltd v. SoS for Environment QBD (1999), does little to change this approach: noise, detrimental effect on residential amenity, smells and odours, traffic and fear (of safety) are material considerations that can be taken into the planning balance of the merits and disbenefits of granting consent, regardless of the conditions from the Licensing Committee.
Carl Powell, Director of Planning and Transportation at Westminster City Council said recently that the Council wants to retain the balance of uses and individual character in the area [Central Activity Zone] so it remains attractive to all, not just crowds of social drinkers......the new A3 policies will encourage the dispersal of bars, restaurants and entertainment uses to areas outside Westminster.
Clearly an equilibrium has to be found to accommodate both commercial demands and residential amenity. Other cities and developers are pressing ahead with their mixed-use schemes which will add to the pressures of urban planning. Westminster is taking the route it believes will work. Historically this might have been seen to be in direct conflict with the authority given to operators by liquor and other entertainment licences; however, the Government's plans for licensing reform are entirely in line with the City Council's aim - to retain a balance between the competing demands of leisure operators and local residents.
This article was written by Caroline DeLaney, a partner in the property disputes resolution group and Alistair Watson, an assistant solicitor in the planning group for Estates Gazette.
