Licensing and Planning latest Issues (A nasty sting in the tail)
External areas – planning issues? (This is essential Reading)
Posted: 03 Jun 2014 05:00 PM PDT
We have been alerted to a recent planning case which may impact on developments of external areas and particularly ‘loose’ furniture. More
Colman v Westminster City Council – reported in the Journal of Planning and Environment Law – involved a number of procedural issues but the Inspector concluded that some relatively common things externally amount to development for planning purposes. The Inspector’s conclusion that “the timber seating benches are structures which fall within the definition of a ‘building’ for planning purposes” is perhaps a possible surprise (see quote below). Given that operators are likely to have similar timber structures outside premises their position in terms of planning should perhaps be considered, if not already covered off – and perhaps not overlooked on any garden ‘refurbishment’ going forward.
The full reported extract of the case can be viewed here.
The relevant quote follows:
10. The Council submits that the installation of the timber decking and the erection of the timber seating are works that constitute building operations and they have materially altered the external appearance of the existing building. In assessing whether what has taken place falls within the statutory definition of a building, there are three primary factors that are relevant: size, permanence and physical attachment. No one factor is decisive and the assessment is one of fact and degree.
11. When I visited the site I saw that the timber seating is not physically attached to the timber decking. However, these benches are sizeable and weighty elements that are not easily moved. Furthermore, they are maintained in position and are not taken away overnight. Whilst the Appellant claims that they are not permanent, they are clearly not intended to be moved around this fairly restricted area. They have been in place for a sufficient length of time to be of significance in the planning context. Their presence was noticed by local residents. Applying the three-fold test, as a matter of fact and degree, I conclude that the timber seating benches are structures which fall within the definition of a “building” for planning purposes. Their provision within the forecourt amounted to the carrying out of a building operation which constitutes development under s.55(1)
Posted: 03 Jun 2014 05:00 PM PDT
The Guidance issued under Section 182 of the Licensing Act 2003 has been revised with the new Guidance coming into force today (4 June).
The revision has primarily been made in consequence of the Licensing Act 2003 (Mandatory Conditions) Order 2014 (“the Order”) to provide Licensing Authorities with advice in relation to their exercise of these new functions in respect of the new ban on sales of alcohol ‘below the permitted price’.
Most of the revisions are contained in Chapter 10 (Conditions attached to premises licences and club premises certificates) in consequence of the Order, but a limited number of revisions and corrections are also made elsewhere in the guidance to improve its clarity and consistency.
It is also interesting to note that Chapter 16 (Early Morning Alcohol Restriction Orders (EMROs)) has been revised to give greater clarity to Licensing Authorities on the process for introducing an EMRO; possibly as a result of technical points raised in previous EMRO applications such as that by our own John Gaunt in Blackpool which led to the full EMRO hearing in that matter being deferred on two occasions before the Licensing Committee determined not to recommend the adoption of the EMRO.In particular the revisions on EMRO’s deal with aspects around Evidence and Hearings.
With regards Evidence it states that The final decision to make an EMRO (or to vary or revoke one) must be made by the full council of the licensing authority. However, all preceding steps, including advertising the proposed EMRO, holding hearings and making a determination to put before the full council for its final decision, are for the licensing committee of the licensing authority. The licensing committee may delegate these steps to the licensing sub-committee or officers as it sees fit.
The revision in relation to hearings provides clarity in that although a hearing to consider representations in relation to an EMRO may be held by the licensing committee, the licensing sub-committee or an officer of the licensing authority, it is recommended that such hearings be conducted by the licensing committee or sub-committee…Probably a sensible idea!
The reviesed Guidance can be viewed in full by clicking here: ‘Revised Guidance issued under section 182 of the Licensing Act 2003‘