Examination of witnesses
Leenamari Aantaa-Collier, Anthony Lyons, Karl Suschitzky and Peter Rogers.
Q173 The Chairman: My Lords, Ladies and gentlemen, good morning and welcome. I bid our witnesses a very warm welcome. Thank you very much indeed for coming this morning to give evidence to us. A list of interests of Members of the Committee relevant to the inquiry has been sent to you, and copies are available today for your information. The session is open to the public; it is broadcast live and is subsequently accessible via the parliamentary website. A verbatim transcript will be made of the evidence and will be put on the parliamentary website. A few days after this session you will be sent a copy of the transcript to check for accuracy. It will be immensely helpful if you could advise us of any corrections as quickly as possible. If after the evidence session you wish to clarify or amplify any points made during your evidence, or you have any additional points to make, you are welcome to submit supplementary evidence to us.
May I ask a general question at the outset? What is your view of how effectively the Licensing Act 2003 has operated over the past 11 years since it was introduced?
Anthony Lyons: I am honoured to be a witness before this Committee. I am Tony Lyons. I practise in Manchester. I have a broad-based specialist licensing practice, and I see licensing across the country, not just in Manchester. On the whole, the Act has been an advantage. We no longer have to prove a demand; we do not have public entertainment licences; we do not have to create noise to stay open later, which of course was a bugbear under the old regime. However, we were assured at the outset that it would be a light-touch approach. I did a lot of work with the Federation of Licensed Victuallers Associations, which welcomed the new Act, but in reality the unforeseen consequence, as it has progressed, is that we now have the notion of cumulative impact, which has been adopted around the country. My clients and I have found that to be an inhibitor to growth, employment, regeneration and development in a totally disproportionate way. They may want to create new premises in an area of cumulative impact that will raise the bar. We are absolutely convinced about that. My city, Manchester, is the only one that does not have a cumulative impact policy. We benefit from that by having a fantastic range of different types of restaurants and bars, and they do not cause a problem. We have pragmatic and thoughtful police; they police the city in a very good way, and therefore there is not antisocial behaviour, crime or disorder, which is always the concern of the authorities where those policies are.
Karl Suschitzky: It is probably useful to give a small amount of background so you can see my perspective and where I am coming from. I am a senior environmental health officer with Derby City Council, so my experience of the Act is as a consultee. I am also a consultee in the planning process and have a lot of experience of that, generally on noise-related matters for both. Obviously, I deal with it right through to the other end: enforcement and regulation, receiving and responding to complaints and that sort of thing. We see the process from start to finish.
My experience probably does not extend particularly into the old public entertainment licensing system, so it is difficult for me to compare the two, but in the way the Licensing Act 2003 has worked from the noise perspective, the extension to hours creates problems. The idea that places seem to be open a lot later causes conflict in certain situations, but overall the process of early negotiation on a new application to come up with an agreed approach is effective. It is quite a good approach.
Overall, the Act itself and the regulation work quite well. The biggest hindrance for us in the local authority—this is probably outside the scope of the Committee—is the lack of resources in local government, which is quite a strain. The powers are there to deal with premises causing issues from that perspective, but in order to do so we have to gather a lot of evidence. Needless to say, it has to be justified, and given the resources we have, that makes life quite difficult, particularly witnessing noise late at night and that sort of thing, but overall the Act itself seems to work quite well.
Peter Rogers: I am an acoustic consultant, so I see both sides of the situation. For me, the Licensing Act is an area that has created some confusion around the test for public nuisance in particular. I do not believe it has served the public well in the balance between the need for positive change for licensees and the communities they are in. It has also resulted in the need for things such as the Live Music Act, which, effectively, have deregulated that element, while not extending things like the Noise Act that could be used to control the impact. There are some opportunities that have developed so far and unintended consequences that need to be looked at quite carefully. Crucially, the bigger picture is the link between planning and licensing where there is some crossover and an opportunity to save money, be more consistent and achieve a better outcome for both parties.
Leenamari Aantaa-Collier: I am mainly a planning lawyer, but my experience is also in public authorities where I have dealt with licensing matters. The Act works, but there is always room for improvement. Having heard what my colleagues said, I concur with all of it. In particular, it would be helpful to have planning and licensing synchronised. It is very simple.
The Chairman: Thank you very much indeed.
Q174 Baroness Eaton: My question follows very well from your last comment. The licensing system is supposed to be about the regulation of licensable activities. The planning system is supposed to be about controlling the use of land. Case law indicates that licensing and planning decisions should be considered separately. Are they separate in practice? Where both types of authorisation are required, is it preferable to grant one type before the other?
Leenamari Aantaa-Collier: They are separate regimes, but there is the possibility that, for example, a situation may arise where there are already licensed premises and residential premises are put close by. People can put in objections and say that it will affect their premises, but they would have to provide a huge evidence base to stop the planning permission from going ahead. We have been talking about this. We think it would be helpful if the planning regime came first because it has a lower standard than for licensing.
Peter Rogers: From my perspective, the test applied during the planning process is primarily about health and well-being. It is a very tight, low threshold that must be achieved to protect amenity and quality of life. From a noise perspective, it means that the question of how loud is too loud and how loud is too much is considered early on. That is helpful. If there could be a situation where the planning regime applied the health and well-being test at that stage, there would be no need for the health and well-being element to be considered under the Licensing Act beyond that point, because it would have been properly considered.
Going through to the licensing process, if there was, for example, a back-to-back licence that went with a planning permission, which would be a time-limited version that expired unless it proved to be acceptable, you would enter the licensing regime process in that way. That threshold is a slightly different test. I suggest it would be little different from public nuisance; it should be based on the existing national policy for noise, which should be implemented. That looks at the “significantly adverse” test. That is already defined; it is already there.
Karl Suschitzky: I probably have to disagree with my learned colleague Mr Rogers. I certainly agree with the initial suggestion that the sensible way for the system to work is to deal with planning first and licensing later. It is logical to decide what goes on a particular piece of land before deciding on exactly the activities that are to take place on it, because the planning use categories are slightly broader. A particular use class gives an opportunity to run various types of business. I probably disagree with the suggestion that, if, in effect, noise levels have been agreed through planning, they can almost be disregarded later because they have already been dealt with. That is where the Licensing Act is useful, because you can agree and scope out much more detailed control over the activities of a specific premises through conditions. Although we can apply conditions in planning, they tend to be a bit more broad brush and less detailed than the sorts of conditions agreed under the Licensing Act, certainly under noise—things such as noise limiters on music systems and hours restrictions. We can apply hours restrictions in planning, but the more detailed activity controls seem to be much better under the Licensing Act.
The other big factor with planning, and part of the reason I believe the threshold is set ever so slightly higher in planning at “significantly adverse”, is that the other considerations are far broader. We are not considering just amenity; we are talking about the economy and the provision of housing. One of the biggest issues from our perspective is allowing residential development near licensed activities, and vice versa, because there is such pressure now for housing. Planning policy favours housing, so housing is being given permission in areas where there are conflicts, particularly noise. Because of that broader spectrum of considerations under planning and all the other things related to land use, it is important that licensing has separate and slightly more detailed scope in considering each particular premises on its merits.
Anthony Lyons: My view is that there is no cart or horse. I come from perhaps a commercial perspective. My clients may be looking to develop a new site and they want practical advice. Are they going to get licensing and planning for that site? I get those calls daily. Of course, it differs around the country, but they are looking for some degree of certainty and consistency. At the moment it is not certain and it is certainly not consistent. Ideally, what they would like to do—I do not think there is a downside—is to go for both planning and licensing simultaneously, because it makes sense to get the wheels in motion. I do not think that either should necessarily come first.
At first blush, to combine the two seems a really sensible arrangement, but when I thought about it at length, having received the questions, I thought that actually there are totally separate regimes: different legislation; different policies; different application processes; different hearings and different professionals in planning committees on one hand and in licensing committees on the other; and different appeal procedures. There is a debate to be had. Applicants often say, “Why do I have to tick the same box twice? I have to do a crime impact statement on my planning application and I have to go through how I avoid crime and disorder in my licence application”. There is an element of desire to remove that red tape and streamline the processes, but they are separate and should be kept that way.
I look at a licence as a living document. It changes all the time. One day, a bar can have a 2 am licence; the next day it could be a restaurant. The designated premises supervisor changes. The licence is always changing. If there is an issue, responsible authorities or residents can attack the licence and it can be reined in hours-wise, or even revoked, whereas planning permissions are more dormant documents. They can be changed, but it is a different process. To go forward, a lot of thought needs to go into that.
Baroness Eaton: If the processes were similar, rather than having differences in appeals and all the things you outlined, would that make a difference, or is it just because that is the existing process and therefore you would not want to see it changed?
Anthony Lyons: As my colleagues, who are far more knowledgeable on planning, would say, there are other considerations. For example, Leenamari is a planning lawyer in a firm that does not specialise in licensing. I am a licensing lawyer in a firm that does not specialise in planning, so there are two separate skill sets and considerations. How you merge those, I am not sure. It is a big question.
The Chairman: We will tweak it a little further.
Q175 Lord Foster of Bath: I want to try to tease a bit more out of you. The Government’s memorandum on the Licensing Act says that it “is being used effectively in conjunction with other interventions as part of a coherent national and local strategy”. Rather like Mandy Rice-Davies, they would say that, wouldn’t they? What all of you have said in different ways is that it is not working as a coherent strategy. You have given the example that noise could be considered partly in planning but in more detail in licensing. Some of you said they come together. Could you explore for us in a bit more detail how we as a Committee could make proposals about how to move forward with this when everybody tells us that it is not working as a coherent system?
Peter Rogers: I suppose I sit between both sides because, as far as I am concerned, if a resident has a problem with noise, it is a problem with noise. In context, it has to be looked at from the point of view of societal vibrancy. Do we all want to live in quiet, dead areas? How you decide that is potentially a local issue. It can be considered as part of a journey. Viewing the Licensing Act in isolation is not helpful to those who are building communities and the premises to serve them, so something is lost for the vibrancy of the community. The positive economic and social benefits that premises bring have to be balanced against the impact and burden on residents. There is a sensible process by which it can be considered early in planning and passed through for more detailed consideration at the licensing stage. The two do not have to be mutually exclusive, and the bridge that links them is the national noise policy document that can be implemented and referenced within the Licensing Act.
Leenamari Aantaa-Collier: There is definitely room for synchronising some of the policies. There is no reason why licensing and planning cannot work together. In particular, the issue of noise comes up all the time. It is very difficult for an applicant to understand that they have to go to one regime and then another regime in a local authority, and that the standards are different. There is no reason why you could not synchronise those standards and have the same policies for licensing and planning.
The Chairman: I think you are alluding to lack of co‑ordination, so it is good to get that on the record.
Q176 Lord Blair of Boughton: My question has almost been covered. Is there anything else you would like to say about what happens when a new residential development is proposed near long-established licensed premises? We have heard quite a bit about that example. People change the use of an office block above a pub garden and that sort of thing, so that it becomes residential. Is there anything specific about what happens with new residential development and established licensed premises?
Leenamari Aantaa-Collier: There have been examples, particularly in Birmingham, where the night-time economy has been disappearing for that reason. When licensed premises are already established in a place and you put in residential premises, you cannot get enough noise insulation to make it acceptable, unless it has been considered at the early stages of the process. There could be some compensatory system where the licensed premises would get money to put in new systems to lower the noise levels, but other than that it is difficult.
Peter Rogers: There are two things. One is the mitigation that can be put in place at the planning stage, and primarily being aware of the fact that, if you move to a nuisance, that is not a defence. The idea of nuisance is somewhat hindering the situation. In one case in London, a club was put in exactly that situation. Consequently, it moved because of the significant impact on its operation. That potentially forces vibrancy out of central points. To achieve a balance requires the whole process to work together. It requires consistency from planning through to licensing and for the loop to start again, because as more people move into our cities there is an urgent need to maintain the balance.
Karl Suschitzky: I agree that there are conflicts between the two systems, and they are not necessarily working together. It stems more from the planning process than from the licensing process because of the other influences on land use planning. I have probably already made the point that there is so much pressure on housing now that houses are being built in conflict areas. It is probably difficult for the Licensing Act to resolve those conflicts once they have already happened. Once people are living in a location near premises that, quite rightly, need to be able to operate and be a successful business, someone, either the residents or the business, ends up suffering. The decision to put them there in the first place has caused the problems, and I am not sure that the Licensing Act is necessarily the place to point the finger at how we can help to resolve the problems. It is more to do with the planning system and the situation we are in because of the need for additional housing.
Anthony Lyons: It is a very interesting and difficult question to answer. I endorse the agent of change principle, which I know you have discussed in previous meetings. It is always a question of striking a balance between competing interests. Years ago, I acted for a West Indian community centre. It was a brilliant place, but those who visited it did not do so until perhaps midnight and they had to leave at 2 am. The council granted planning permission for housing right up to and adjacent to the centre. The effect of that was that the centre’s licence was reduced in hours and it was no longer viable. It is something that needs to be and is being addressed. My starting point is that it is a shared environment, and each party needs to respect the views of the other.
Q177 Baroness Henig: Continuing the theme of the two regimes and what we should do about them, many witnesses have been critical of the operation of licensing sub-committees. We have taken a lot of evidence on that. Some people have compared them unfavourably with planning committees. Trying to think logically, perhaps radically, would there be any advantage in making the licensing function an integral part of the planning process with a single committee of the local authority dealing with both licensing and planning?
Anthony Lyons: There are completely different procedures at the moment. I cannot contemplate it, but I would like to see the debate around it before we get to that position. My comment to this Committee is about wanting to see consistency around the country. I visit committees nationwide, and it is inconsistent. For example, you may as an applicant have to suffer the objectors putting their case first before you explain your application. That puts you on the back foot. You may be limited to five or 10 minutes to explain what your case is about before a sub-committee, yet you have no such limitation when you go to appeal. As a starting point, it would be helpful to have a national procedure that should be followed by licensing sub-committees. Each council has its own procedure. It would be very helpful to have a degree of consistency around the country.
Baroness Henig: Do you think that inconsistency on the licensing side is because the licensing committees are relatively new? People have talked about the inconsistency in licensing, and there is an implication that in planning the inconsistency is not there so much. Why do you think that is?
Anthony Lyons: It is relatively new. We are 10 or 11 years on. My view is that the dust is just settling, and it should be allowed to settle more. There was a 40-year period between the Licensing Act 1964 and the Licensing Act 2003. The industry has had so much upheaval over the last few years with the new guidance and so forth, which you have heard about, that the dust should be allowed to settle. It is a debate, but it is one for the future; now is not quite the time to do that.
Leenamari Aantaa-Collier: The difference is that in a planning situation the planning officer takes consultation responses, basically. He gathers them together and makes a recommendation to the committee as to how the matter should be decided in his professional opinion, whereas a licensing committee deals with the matter afresh. When a planning officer takes the case, the committee considers the matter in detail from every aspect; members have time to consider objections from the public and they can have discussion and dialogue prior to the committee hearing. It is well prepared before it gets to the committee. Licensing does not work that way. That is the difference. Maybe there is something to learn.
Peter Rogers: Having attended both, my view is that the planning process is probably far more prepared and helpful to achieve the outcome we are striving for. The licensing committee environment seems somewhat inconsistent—that is one word for it—and perhaps unhelpful in what we are trying to achieve. The single best thing that could be achieved is to remove the Chinese wall between licensing and planning to enable both things to be considered. When I give expert evidence at those committees, whether I am representing a member of the public or a premises, they simply want to know clearly how loud is too loud and what they must do. To do that, we need to allow both regimes to have a flow of information. Currently, that does not work.
Karl Suschitzky: I agree with some of the comments already made about the differences between the two. One of the other issues with licensing sub-committees versus planning committees is that they tend to have fewer members, and the membership seems to change quite regularly, which causes problems. Each time there is a local election, we end up with different members on the committee. Planning committees, because they are wider, have more members in the first place. Derby City Council has between 12 and 15 members on the planning committee, whereas there are only three on the licensing sub‑committee. We have established members on the planning committee; they have been on it for many years and they are experienced in planning matters. One of the issues is that we have a day’s training with the new members and suddenly they are thrown to the wolves. That potentially causes problems. They have legal advice, but having long-term, established members would be really beneficial.
Q178 Baroness Watkins of Tavistock: On a similar theme, when residents are given an opportunity to argue their points, how do planning committees compare with licensing committees?
Leenamari Aantaa-Collier: That goes back to the answer I gave earlier. When a planning officer has taken the consultation responses, including objections to or representations in favour of a development, the officer has time to consider those issues, and put them in the right way to the committee. They can say, “This is how much weight you can give to this application; this is how you can consider it; this is right; this is wrong; this is not a planning matter, or this is not a licensing matter”. There is a time element. In a licensing committee, you do not have that; it is just there, and there is no time to consider the issues in detail.
Baroness Watkins of Tavistock: I am asking particularly about the opportunity for residents. You answered that the planning officer would represent residents.
Leenamari Aantaa-Collier: The residents have a further opportunity to make their voice heard through the planning committee in addition to having had a discussion with the planning officer, so it is quite a comprehensive approach.
Baroness Watkins of Tavistock: In comparison with the licensing committee.
Leenamari Aantaa-Collier: In comparison with the licensing committee, it is there and then, and that is it.
Peter Rogers: In my experience of both scenarios, I have seen perhaps more opportunity in the planning process for residents’ concerns to be addressed early on. They may still have an issue that they want to express. They can do that to the committee and it will be considered. In the licensing situation, I see almost a lost opportunity to have dialogue before, and we end up with a situation that is far more charged in the committee environment, where residents want to be heard, and rightly so. There is an opportunity to learn from planning committees, ultimately to give the public a clear and consistent way of being treated.
Anthony Lyons: I have represented residents as well as applicants. Residents have every opportunity to lodge their representations either individually or in concert against any application in licensing. I am not a planning practitioner, but I think residents have, if they are minded to use the process, the correct avenue to object and be heard in those objections. We often see residents’ associations forming together to object to and bring balance to an application.
Karl Suschitzky: I agree across the board. Residents have a good opportunity to raise concerns through both systems, but I agree that the planning system allows additional dialogue at the pre-committee stage to resolve some of the issues, and licensing does not seem to. The way licensing seems to work is that residents can put in written representations at great length and they are presented to the committee for discussion, whereas in the planning system, as has been mentioned, there is a planning officer who has expertise in planning matters and there will be an opportunity to respond to some of those matters. As a consultee, I am quite often asked to respond before a committee hearing to consultation and representations that have been submitted on a planning application, whereas in licensing you almost have to send in a representation that you hope covers all the issues; otherwise, there is in effect just an off-the-cuff discussion at the committee. There is slightly better preparation in planning.
Q179 The Chairman: You have rehearsed today a number of objections that we have heard from other witnesses. Residents, applicants and objectors appear to be deeply unhappy about the process as it is—that there is not really enough throughput of licensing applications in many local authorities. What you appear to be moving towards, if I can spell it out, is having one authority to look at all applications, planning and licensing. They would still have training to do licensing, but the same local authority planning committee would look at licensing. We have had a torrent of unhappiness. Residents say that they do not like going first because they do not know what the applicant is saying, so how can they object to something? It would be really neat if potentially we could move towards a system where one and the same local authority is responsible for both, front-loading both issues at the same time, and on a planning committee there could be people responsible for licensing. We are hearing that there is so much unhappiness at the moment. If we carry on with the system as it is under the 2003 Act, we will get more of the same. Are you looking at that as a possibility? Could you live with a situation where the two procedures were merged under the planning committee and certain individuals would be trained to deal with licensing? I entirely take the point raised by Mr Suschitzky, I think, about licensing conditions being attached. I do not think it would be the wish of the Committee to lose that, and I do not believe the Government would agree, but it would streamline the whole situation and lead to much happier people all round.
Leenamari Aantaa-Collier: It is definitely something to be explored seriously. There may be some hiccups, but there are things that could definitely be concurred.
The Chairman: Can you see any reason not to?
Leenamari Aantaa-Collier: No.
Peter Rogers: I do not think there is any reason why that should not be explored. There should also be the opportunity to look at dealing with things such as the Noise Act to give residents some support, and allowing environmental health to have the tools, not necessarily a full statutory nuisance process, whereby we can check against a permitted limit, or something we consider a good starting point. That would make it about the premises and would carry on the spirit of the Licensing Act, which is promotion to prevent, and for the premises to be part of the community in which they work and operate. It would enable that to happen much more fairly.
Karl Suschitzky: I would like to clarify one question. I may be going into more detail than has necessarily been thought about on this issue. Is the suggestion that the same committee would deal with licensing and planning matters for a particular site at the same time, or just by the same committee at different times?
The Chairman: I do not think you can put one time on it. I take the point that there is no cart and horse, but I do not think we can have a situation whereby a vibrant nightclub, say, has already met some conditions and then a residential block is plonked in it. It would tick a number of boxes. There are two reasons why I would be concerned, and I would like you to address them: would it lead to additional cost, and be more expensive, or would it take a longer time. We will come to appeals in a moment, but it strikes me that in the initial application it would streamline the process and probably be less expensive. It would not seek to undermine the requirements of the Licensing Act—quite the reverse. Mr Lyons, would you like to respond?
Anthony Lyons: I am convinced that by far the majority of applications pass through licensing without an objection. I am not that enthusiastic, but I would like to listen to debate on this. We all acknowledge that inevitably there is currently an overlap between licensing and planning. I would like the dust to settle on the existing regime before we get into this, but let us debate it; let us see how it would arise. Karl asks whether it would be one committee or two committees with time limits, expense and so on. There are so many different parameters around it that it needs careful consideration.
Karl Suschitzky: One positive aspect would be the streamlining of the process and getting it through one system. However, on the flip-side, from the point of view of enforcement and the prevention of noise nuisance, I and certainly residents would not want a watering-down of that issue because lots of other issues are being discussed. It can already happen at planning that noise is just one of many different issues. There are many consultees. Sport England and Natural England are consultees; there are different issues to do with diversity, ecology, archaeology and so on. Sometimes, because there are so many different things to discuss, the issue that I see as important, noise, which I am responsible for consulting on, gets watered down slightly. I would not want that; I would have some concern about that.
To go back to a point I made earlier, it makes more sense to me to do planning first and licensing later, because land use allocation is in a sense a bigger, more long-term issue. Because the licensing system is a bit more flexible and can be chopped and changed, depending on different operators, it feels that naturally it ought to come later.
The Chairman: You do not see the licence as being a use of land and the economy. Other countries have developed their night-time economy, yet we hear that in London 50% of nightclubs have closed. Having been an MP, I am well aware of planning issues and residents’ concerns. It is a question of trying to reach a balance.
Karl Suschitzky: Not for me personally. I think the land use issue is dealt with under planning. The other thing we deal with in environmental protection is environmental permits for certain operations. Licensing sits more with that. It is a regulatory control over the process—the activities going on. Planning is a bit more broad brush; it is, broadly speaking, about the use of land. The use classes are quite broad: offices, professional services and so on, and where those sorts of things can go. We can focus under the Licensing Act on the specifics of the particular application.
Peter Rogers: I have two fairly quick points. Without the training to deal with the distinction, there could be a problem of not having clear understanding as to what the two different regimes are expecting, but there is an opportunity. Noise is used as a proxy for many things; it can be an issue that has built up over a lot of time. I agree that planning would be the first point. I have seen scenarios where a licence is gained first and then used in a planning application to suggest that planning might be granted. That is wrong. To enable that planning be considered first and a licence then develops from that use makes complete sense. It deals with the concerns of communities that if we are to have a thriving late-night economy, it has been properly considered; that mitigation has identified that it can be conditioned at planning; that it can be further conditioned with detail in the licensing phase; and that when the next planning application comes along all those things can be considered.
Q180 Lord Brooke of Alverthorpe: I am trying to get the perspective in my mind. The number of applications for licences that are turned down is relatively small in the context of the whole of the UK. I am looking at the number of applications made for planning that have no link whatsoever to licensing, and I do not know what the relationship is. Can either Mr Rogers or Ms Aantaa-Collier give us any idea of what we are talking about there? Is the number massive or very small indeed?
Leenamari Aantaa-Collier: Most planning applications go through, because there is favour for development, as you probably know. It is a similar kind of approach. Most licence applications go through, just as most planning applications go through, and they are dealt with by the officer.
Lord Brooke of Alverthorpe: I am thinking about the interrelationship, where a planning application also has a link to licensing, and vice versa. Often, many planning applications have nothing whatsoever to do with licensing activity.
Peter Rogers: In my experience, to give you a rough figure, about 10% of what I deal with is in that scenario, but many other planning applications may have nothing to do with licensing. When we see society generally moving into built-up areas and we can no longer say, “You are a noise maker, so you go here; you are a sensitive receptor, so you go there”, people have to deal with it through good design. The opportunity for that goes across the board to achieve a sustainable outcome that can work for everybody. With good design as the link between the two, we can achieve closer proximity and the balance can be achieved.
Lord Brooke of Alverthorpe: Do the other witnesses want to comment?
Anthony Lyons: Not as a licensing solicitor.
Q181 Lord Smith of Hindhead: I apologise for being slightly late for your evidence. I have been given the last question to ask you today, although you almost summed it up following the Chairman’s last question to you. I think we would struggle to find a question on this subject, because we have teased out most of it. During our evidence process there has been criticism of the appeals process. Magistrates hearing licensing appeals often have no knowledge or experience of licensing matters. They used to deal with licensing under the old Act but times have moved on since then. There are delays and cost involved in it. However, planning appeals go to specialist inspectors. Would there be an advantage in having a similar system for licensing appeals, and, importantly, could the same inspectors deal with both?
Anthony Lyons: I am not that familiar with planning appeals. My area is licensing. I recognise the concern of the Committee with regard to the expertise of magistrates who have no licensing experience. After the Act was introduced, many magistrates’ courts had magistrates who had sat in that role as members of licensing committees. That waned as the years progressed. Currently, from a licensing perspective I think it would be preferable to have a professional dealing with the matter. District judges are available. In my experience of appeals before district judges, even though they may not have specific licensing experience per se, they certainly grasp the legal arguments far better than lay magistrates might. We can condense what may be a three-day hearing into two days because we are dealing with that professional individual. At the moment, that is where I would come from. I do not know where the future would lie with regard to an inspector-type person who would deal with both. Again, that is for debate.
Lord Smith of Hindhead: But magistrates’ courts are not courts of record, so it is difficult to get precedent case law, is it not?
Anthony Lyons: That is right. You would perhaps recognise a district judge’s decision with more authority than that of lay magistrates, but you could go from there on a point of law to a higher court.
Karl Suschitzky: The idea of having decision-makers on appeal with experience in the field is quite appealing to me, for the same reasons I gave about experience in committees. It is always an advantage. The idea of having a similar system to the one in planning, with planning inspectors, people dealing with appeals, or even committees themselves, having much more experience of dealing with licensing matters can only be a good thing.
Lord Smith of Hindhead: Do you think the same inspectors could do both with some training?
Karl Suschitzky: You would have to ask them. The regimes are different. We have talked about the extent of the different issues surrounding planning. Licensing is a four-issue system, whereas planning has many more than that. Licensing is obviously based on the four licensing objectives. In some ways, bolting it on is, I suppose, possible, but from my perspective the more expertise someone has and the fewer other things they have to think about, the better.
Leenamari Aantaa-Collier: A holistic approach would be much better, such that inspectors would look at both regimes. You have probably realised that there are links between the two regimes. An inspector would be perfectly capable of looking at licensing as well as they look at conservation, highways or environmental issues. They are used to looking at different things, gathering together the information and making a decision. There is no reason why an inspector could not do the same with licensing.
Peter Rogers: With training, it is possible, and it would be helpful to the process. It would streamline the situation and, crucially, make it consistent.
Q182 The Chairman: The original proposal of the Government at the time, in 2000, suggested that appeals should be to the Crown Court. That was dropped. I do not know whether it was done on the grounds of cost. I would not like to put ideas into their head. Would you consider that a better way forward?
Anthony Lyons: I would have no issue with the Crown Court sitting with two justices to consider appeals, except for the expense involved. We have delay with appeals. An appeal can take four to six months. You go through a case management meeting, and then a hearing can take one, two or three days. That is itself expensive, but in a Crown Court scenario it would be even more expensive.
The Chairman: The numbers we are talking about are quite small.
Anthony Lyons: The number of appeals.
The Chairman: Yes.
Anthony Lyons: They are, but highly significant to the appellant.
The Chairman: It would get round the problem of magistrates’ court judgments not being recognised as precedents.
Anthony Lyons: I agree. I always regretted the fact that you could not have a decision properly tested by a judge, with or without councillors in this case, but it was magistrates in those days.
The Chairman: It would obviously rule out many residents being able to appeal on cost grounds.
Anthony Lyons: We have known residents to do that.
The Chairman: On behalf of the Committee, I thank you for participating this morning and for being so generous with your time. You have been a great help to us in our deliberations. Thank you very much indeed.
