Gold Kebab Ltd v Secretary of State for Communities and Local Government  All ER (D) 48 (Sep) serves as a useful reminder to food and drink retailers not to place undue reliance on the licensing regime to assist in obtaining planning permission.
Five Woody Grill kebab restaurants are operated by Gold Kebab Ltd in Shepherd's Bush, Kilburn, Willesden and Watford. 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.
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.
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.
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.
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.
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.
The golden rule is that even where statutory schemes overlap, such as in planning and licensing, one set of facts may quite lawfully lead to different or incompatible outcomes. The main message to take away from this case is that success in one arena does not guarantee victory in another. Operators risk getting in a pickle if it is assumed that consent from the local authority’s licensing committee will avoid getting skewered by its planning committee.