Planning

News: Hours of Operation – Inconsistencies Remain

  • Date: 02/09/2008
  • Author/Solicitor: Jonathan Phillips

Whether opening a new unit or seeking to vary opening hours at an existing operation, there is no guarantee that the hours permitted by your Premises Licence will match those set out by a relevant planning permission. I am not aware of any party taking the issue to judicial review, so until there is relevant case law operators have to assume that their opening hours will be controlled by both planning and licensing and the two mechanisms may not always equate.

Typically the Premises Licence will allow longer hours, but this will not supersede any planning restriction. Furthermore, the Premises Licence will not set a precedent for planning permission to follow suit, although it has been held to be a "material consideration" during determination of planning applications and appeals.

We have experienced a complete mixed bag of planning appeal decisions on opening hours issues, some referring responsibility to the Licensing Authority as the more "appropriate" mechanism of control, while others simply view licensing as a separate means of control altogether, which has little if any influence on the planning process.

At a recent public inquiry, a refusal of planning permission for an extension of opening hours from 11pm to 3am at a café premises was considered over a two day hearing. The Premises Licence was already in place and allowed activities to take place until 3am. However, the planning appeal Inspector considered that it was still necessary to analyse the potential impact upon public order and residential amenity, both of which had been fully analysed by the licensing process. Since the authorised capacity of the premises was 300 people, he opined that allowing them to open until 3am would be excessive. While accepting that the appellants' target clientele was older and generally wealthy, he did not consider that this obviated the need to ensure that local residents were not unacceptably disturbed by people coming and going. In his view, the opening hours should only be extended to 1am with 30 minutes being allowed for customers to leave the premises and disperse.

On the other hand, we have had a recent appeal decision that completely removed an opening hours condition because the Inspector was satisfied that relevant issues were adequately controlled by the licensing regime. There is clearly no consistency in the decision making process and it will be pot luck what view an Inspector may take when considering opening hours conditions at appeal. Local Planning Authorities tend to take the view that the environmental considerations under the planning regime are wider reaching than licensing considerations and very few will defer responsibility to licensing.

For further information, please contact Jonathan Phillips