Craven District Council (18 019 423)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 19 Nov 2019

The Ombudsman's final decision:

Summary: Mrs B complains the Council wrongly did not impose a planning condition restricting the opening hours of a bar close to her home. Mrs B says this has removed a potential enforcement option if local residents are caused a noise nuisance. The Council was not at fault for the way it made this decision. This means we cannot say the decision was wrong. We have completed our investigation.

The complaint

  1. The complainant, who I will refer to as Mrs B, complains about the Council’s handling of a planning application for the change of use of a shop close to her home. Mrs B says the Council granted planning permission allowing the premises to be used as a bar but did not impose any condition restricting the opening hours. Mrs B says the Council’s decision is perverse and committee members went against the advice of the Council’s solicitor. Mrs B considers the bar will cause noise nuisance to residents and the Council has removed a potential enforcement option.

Back to top

The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

  1. I have considered Mrs B’s complaint and the supporting documents she sent. I have considered the planning records available on the Council website for the planning application Mrs B complains about. I have listened to recordings, also available on the Council website, of meetings of the Council’s planning committee which considered the application. I have also shared a draft version of this statement with Mrs B and the Council, and have considered the comments I received in response.

Back to top

What I found

  1. The government has issued guidance to licensing authorities on the Licensing Act 2003 (‘Revised guidance issued under section 182 of the Licensing Act 2003’). It says the licensing objectives are: the prevention of crime and disorder; public safety; the prevention of public nuisance; and, the protection of children from harm.
  2. The guidance says:

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. (section 9.45)

  1. It also says:

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. However, as set out in chapter 9, licensing committees and officers should consider discussions with their planning counterparts prior to determination with the aim of agreeing mutually acceptable operating hours and scheme designs. (section 14.64)

There are circumstances when, as a condition of planning permission, a terminal hour has been set for the use of premises for commercial purposes. Where these hours are different to the licensing hours, the applicant must observe the earlier closing time. Premises operating in breach of their planning permission would be liable to prosecution under planning law. Proper integration should be assured by licensing committees, where appropriate, providing regular reports to the planning committee. (section 14.65)

  1. The Council’s Licensing Policy says:

It is important to note that licensing and planning are separate systems of regulatory control. Licensing Committees are not bound by decisions made by the Planning Committee and vice versa. (section 4.7)

What happened

  1. The Council received a planning application for the change of use of a building close to Mrs B’s home. The change was for a shop to become a bar. Residents objected to the application because of concerns about noise. The application was considered by the Council’s planning committee.
  2. Council officers recommended that the committee grant the application planning permission. The Council recommended a planning condition restricting the opening hours to no later than 9pm. The planning committee had some concerns because the proposed opening hours for the bar set out in the planning application were different to the hours set out in the applicant’s licence application. The planning application said the bar would close at 9pm, but the licence application said the bar would close at 11pm and later than this in summer and certain other days. The committee also had some concerns about noise from equipment at the premises.
  3. The committee deferred its decision on the application to allow the applicant to clarify the opening hours and possible noise from equipment. The Council scheduled the application for a further committee meeting.
  4. Shortly before the second committee meeting the applicant put in a noise management plan. This plan said the bar would be open until 9pm. The applicant also withdrew their licence application and said they would re-apply for a licence if planning permission was granted and this would be for the same hours as planning permission. The Council recommended the planning committee grant the application planning permission. The Council again recommended a planning condition restricting the opening hours to no later than 9pm, which was in line with the applicant’s noise management plan.
  5. The planning committee decided to grant planning permission but to remove the condition controlling the opening hours. The committee considered the opening hours would be decided as part of a licence application. This was despite the Council’s solicitor advising that normally opening hours would be controlled by both planning and licensing requirements. The solicitor warned that members may be removing an option for enforcement if they removed the condition about opening hours. Also, the Chair of the committee raised concerns about not imposing a condition on opening hours. But, the planning committee asked for a condition to be included which required the applicant to follow the noise management plan.
  6. The Council says after the committee meeting it identified an issue. The planning committee had removed the condition controlling opening hours but added a condition requiring the applicant to follow the noise management plan, which included restrictions on opening hours. The Council took advice from its solicitor and decided to refer the application back to the planning committee for clarification.
  7. The applicant then put in a revised noise management plan which removed the opening hours for the bar.
  8. Council officers again recommended that the planning committee include a planning condition controlling the opening hours of the bar. During the meeting committee members received advice in private from the Council’s solicitor. The planning committee decided not to impose a condition controlling the opening hours.
  9. The Council then granted the application planning permission. The grant of planning permission did not include a condition controlling the opening hours of the bar.
  10. Mrs B complained to the Council about its handling of the planning application. The Council responded to the complaint under its complaints procedure. The Council did not accept it was at fault.

Analysis

  1. I cannot question whether the planning committee’s decision – not to impose a planning condition restricting opening hours - was right or wrong, unless there was fault in the way this decision was reached.
  2. I find the planning committee was not at fault for the way it reached this decision.
  3. It is clear the planning committee spent a lot of time discussing the issue of opening hours potentially being controlled by both planning and licensing powers.
  4. Members of the planning committee had concerns that there could be a discrepancy between the opening hours allowed by the grant of planning permission and the hours allowed by the premises licence.
  5. It is possible, although normally undesirable, for planning and licensing requirements to be different. As the Council’s licensing policy says, licensing and planning are separate systems of regulatory control and the Council’s Licensing Committees are not bound by decisions made by the Planning Committee. Also, the ability of the Council to control the opening hours of the business using its licensing powers was a relevant consideration for the planning committee to consider. This is because public nuisance must be considered when deciding the opening hours for a premises licence. So, the licensing authority was able to decide what hours would be suitable.
  6. The planning committee could have included a planning condition controlling the hours of operation. But, the decision not to do so is not evidence of fault or perverse. Equally, the committee’s decision to go against the advice of the Council’s solicitor is not evidence of fault.
  7. Mrs B complains about how the committee meetings were undertaken. Mrs B says members admitted to not reading the noise management plan, files were not available, discussions lacked form and clarity, members seemed unclear on what they voted on and it was not clear how the voting went. I have listened to the recordings of all three committee meetings. I do not find there was fault in the way the meetings were undertaken. Members debated the issue of the opening hours at length and I am satisfied on balance members knew what they were voting on.
  8. Mrs B says the Council did not follow government guidance, which I have referred to at paragraph 6 of this statement. This guidance is for licensing authorities not local planning authorities. So, it was not relevant to the Council’s decision.
  9. Mrs B also says this decision is inconsistent with Council planning decisions for similar applications. But each application must be decided on its own facts - this is not evidence of fault.

Back to top

Final decision

  1. The Council was not at fault for the matters complained about. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings