Licensing Committee

Date: 28th October 2015

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Recent case of Gold Kebab Ltd v Secretary of State

Report of the Head of Public Protection: Mr Phil Soderquest

Policy Board Member: Councillor David Ledger

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Purpose of Report

RECOMMENDATION

  1. That Members note the decision in the case of Gold Kebab Ltd v Secretary of State for Communities and Local Government [2015] All ER (D) 48 (Sep)

KEY ISSUES

  1. This case looks again at the overlap between planning and licensing legislation. It concerns premises, the Woody Grill kebab restaurant, in the London Borough of Brent. An article by Mark Gilks including commentary on the case was published in Local Government Lawyer and is summarised below.
  1. Willesden’s Woody Grill occupies a three-story building above residential accommodation and enjoys a planning consent granted in 1998 for a takeaway and restaurant.
  1. Condition 5 of the 1998 planning permission restricted the opening hours to 8am to 11pm Sunday to Thursday and 8am to midnight Friday to Saturday. Gold Kebab failed in a number of planning applications until 2010 to extend the opening hours. From 2008, the separate licensing conditions for the premises extended until 5 o'clock in the morning and Woody Grill often stayed open until 5am in breach of the planning condition.
  1. In 2014 a further planning application for an extension of opening hours between 7am and 5am Monday to Sunday was refused by the London Borough of Brent. One ground of refusal was that the extended hours were inappropriate and disturbances were likely when people were trying to sleep in adjoining residential properties. In March 2014, the council served an enforcement notice alleging breach of condition.
  1. On appeal, the claimant’s appeal to vary Condition 5 and the enforcement notice were refused by Mr Graham Self, the planning inspector appointed by the Secretary of State. The inspector’s decision letter cited the site’s proximity to upper floor flats. Gold Kebab relied in part on the fact that a refreshment licence had been granted until 5am. The company applied to the High Court under s 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision.
  1. The company accepted the distinction between the licensing and planning regimes, but pointed out that the licensing regime’s statutory objective of the prevention of a public nuisance demonstrated an important overlap. It argued that the planning department had not taken the opportunity to raise objections to the extended licensing hours, and the attitude of the local councillors on the council’s licensing committee was a material consideration. One line of argument was that the inspector’s decision ought to be quashed because the inspector had failed to take into account a material consideration that the licensing authority would be better placed to be aware of any concerns than the inspector.
  1. The Court found that the inspector's decision letter was unimpeachable and refused the application. Mr Justice Cranston restated the established legal position that the considerations driving the two statutory regimes are different, even if there is some overlap. The inspector was entitled to conclude that the fact that a licence has been issued for the premises to operate until 5am did not mean that planning permission should be granted. In any event, the inspector had been aware of the attitude of the licensing authority and took that into account.
  1. There is no need to amend either planning or licensing policies in the light of this judgement but it is a reminder that the two regimes are separate with different criteria for granting a licence or planning permission. The fact that an applicant has successfully applied under one regime, whether or not conditions have been attached, can be persuasive, but is not binding on those dealing with an application under the other regime.

Background Papers

Transcript of Gold Kebab v Secretary of State case

IMPLICATIONS ARISING OUT OF THE REPORT

Policy:As above, paragraph 8

Finance and value for money:None

Human Resources:None

Property:None

Equalities:Not applicable

Risk Assessment:Not applicable

Crime & Disorder:No immediate or direct implications.

Customer Considerations:

Carbon Reduction:Not applicable

Consultation:None

Wards:All

Finance Officer
Monitoring Officer/Legal
Human Resources
Procurement
I.T.
Executive Director / PS
Portfolio Holder(s) / DL