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Lord Redesdale: I thank the Minister for that response. The Bill creates some of the problems that the amendment is trying to solve. These difficulties do not exist under the present arrangements—so to say that the Bill will not create problems is somewhat disingenuous. However, I take on board what the Minister said and look forward to receiving a letter. Depending on that letter, we may return to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Clause 28 [Application for a provisional statement where premises being built, etc.]:

Baroness Buscombe moved Amendment No. 206:


The noble Baroness said: In speaking to Amendment No. 206, I shall also speak to Amendments Nos. 208 and 210. The amendments relate to Clause 28, on applications for a provisional statement where premises are being built. The clause also enables an applicant to obtain a conditional statement that would ultimately be turned into a full licence when certain conditions relating to the construction of works and other matters are met by the applicant. It is common for the procedure to be used so as to ensure that a developer does not spend an enormous amount of money on new licensed premises in the hope that he will be able to obtain a licence when he has completed them. It gives him the assurance that he will.

There is no objection to the idea of provisional statements in principle, as that is how local authorities operate already under their public entertainment licensing regime. They are concerned to ensure that they have enough detail to make a decision on whether the provisional statement should be issued. Under the clause, the applicant has to provide a "schedule of works", including,


    "a statement made by or on behalf of the applicant including particulars of the premises to which the application relates and of the licensable activities for which the premises are to be used . . . plans of the work being or about to be done at the premises, and . . . such other information as may be prescribed"—

in other words, prescribed by regulations made by the Secretary of State.

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Amendment No. 206 would ensure that the licensing authority has much greater influence over the type of information that it needs to make its decision. It would also ensure that the package sent to the licensing authority included proof that any planning permission required for the work was provided. It should be pointed out that the requirement for proof of planning permission should extend not only to planning permission for any development proposed but also for change of use—from shop to food and drink use, for example.

I turn to Amendment No. 208. Clause 28(7) defines what is meant by "satisfactorily completed" in relation to works that are intended to be carried out in pursuance of a provisional statement. It provides that "satisfactorily completed" means,


    "being completed in a manner which substantially complies with the schedule of works accompanying the application".

It is unclear what is meant by "substantially complies". It is akin to wording like, "to a significant degree", which is used in the Local Government (Miscellaneous Provisions) Act 1982 in the definition of a sex shop. Premises are a sex shop if they consist to a significant degree of the selling of sex articles. In a very helpful High Court judgment, it was decided that "significant" means "not insignificant". That is very helpful. Licensing authorities could find themselves at the end of a similar judgment in relation to what is meant by "substantial".

As an alternative, the amendment once again puts the ball firmly in the court of the licensing authority, as it currently lies in respect of public entertainment licensing, so that the works have to be completed to its satisfaction and the satisfaction of the fire authority and the local authority in so far as it deals with matters such as pollution of the environment.

Amendment No. 210 is a simple amendment to ensure that an application for a provisional statement is in the correct form before the substantive provisions of Clause 30 take effect. I beg to move.

11.45 a.m

Lord Brooke of Sutton Mandeville: I wish to speak to Amendment No. 207. The Bill sensibly provides that when premises need building work to be carried out before they can receive a full licence to operate, they may apply for a provisional licence. In the event that the licensing authority grants a provisional licence, it would allow the operator to carry out investment in the building in the certain knowledge that a full licence will subsequently be granted when the works have been carried out to the satisfaction of the relevant technical officer and the licensing authority.

The Bill makes no requirement for the application for the provisional licence to be accompanied by an operating schedule showing how the premises will operate. All applications for a full licence must be accompanied by an operating schedule, and the amendment simply makes the same requirement for an application for a provisional licence. When a

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provisional licence has been issued under Clause 30, there is little scope for further representations—I refer to Clause 31.

In determining the application for a provisional statement, the licensing authority must consider whether, on the work being satisfactorily completed, it will grant a premises licence in the form prescribed upon a premises licence application. Accordingly, it must be when the applicant applies for a provisional statement that he is required to provide the operating schedule.

Lord Redesdale: I wish to speak to Amendments Nos. 213A, 213B and 213C, which are in my name and that of my noble friend Lady Harris of Richmond.

The amendments are simply probing. We question the Government on the need for including "the relevant person". Paragraphs (a) and (b) of Clause 31(3) set out the conditions under which the "relevant person" obligations apply. We challenge the Government to say whether they really believe it necessary to include the "relevant person" in this part of the Bill.

The Earl of Onslow: I had better first declare an interest, in that I have a planning consent for a health and fitness club on my land. As Members of the Committee know, I shall personally never go near the club, but that is not the point.

It seems rather odd that when a planning authority gives planning consent for a pub to be built, its other arm can say that the pub cannot have a licence. Does not the fact that a planning authority gives consent for a new public house to be built mean that it will automatically get a licence?

Lord Avebury: Perhaps I can help the noble Earl, Lord Onslow. We are dealing with the very broad A3 class of use, which can embrace ordinary restaurants or cafe's and extend all the way up to a 1,500 person nightclub. The subject of converting from one of those uses to another has come under intensive scrutiny, as the noble Baroness will be aware.

The Office of the Deputy Prime Minister recently published a report on planning for leisure and tourism, which featured eight case studies dealing extensively with the way in which planning permissions already granted under A3 for purposes not to do with entertainment and the sale of alcohol were extended automatically because of the breadth of use in that class. There is nothing in the Bill to deal with that problem. This clause, which deals with works that may have to be carried out to comply with licensing requirements, seems to be the only place in which it is possible to raise the issue.

Perhaps the noble Baroness will explain the thinking that the Government have developed as a result of the ODPM's leisure case studies and whether they believe that the A3 class of use should be retained so that an event such as that described by the noble Earl, Lord Onslow, can occur. With the carrying out of works under this clause, an ordinary cafe or restaurant

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could become a 1,500 person all-night drinking establishment without any change of the use of class. We are missing a fundamental point in the Bill, which the noble Earl, Lord Onslow, has put his finger on.

Lord Hodgson of Astley Abbotts: My Amendment No. 213D is in this group. The issue is hugely complex. I had the pleasure of spending Tuesday touring about seven pubs in the Derby and Burton area. When you meet the tenants, licensees or free house operators, you need the Minister's team of civil servants standing behind you to answer all their questions. There is a huge job of explaining and winning hearts and minds to be done. They have hundreds of questions that, even with the time that we have spent here, I could not answer. Those questions will need to be answered. The guidance is crucial and will need to be very detailed.

This is a probing amendment to Clause 31. It deals with what I call the second bite at the cherry—an ability to make representations following the grant of a provisional statement. This will be particularly serious where new pubs are being developed. I should like to detain the Committee briefly on the methodology. A developer who builds a housing estate will decide that he wishes to have a family pub on one corner. It will be a community pub, not one that is open 24 hours a day. Arrangements will have to be made with the developer. Planning permission will have to be gained, which obviously requires architects and a great deal of negotiation with the local authority. The building will then have to be put up, fitted out and opened. That will amount to 2 million or 3 million for a good quality, modern pub that will be attractive on a modern housing estate.

The present position is that if a provisional licence is granted, an automatic final licence will subsequently be granted so long as the finished building is as planned and the licensee is fit and proper. Both those conditions are entirely fair. It is not clear to me that Clause 31 as it stands will give that certainty. It contains phrases such as "material change in circumstances" and,


    "to the area in the vicinity of".

That gives rise to considerable opportunity for legal argument on interpretation.

The worry is not just that the application will be refused. That is probably unlikely. However, the conditions attached to it may be changed. The original development will have been planned on certain opening hours, but as a result of the second bite of the cherry they might be reduced, affecting the economic viability of the scheme. Equally importantly, bearing in mind that the operator has 2.5 million or 3 million of investment lying idle, there is a danger of considerable delay in the opening as the legal arguments are worked through.

I seek the Government's reassurance that my fears are groundless. The Explanatory Notes on Clause 31 give the example that,


    "a person may have been confined to hospital during the period in which representations could have been made".

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Such people will have a chance of what I call a second bite at the cherry. Would that apply to someone who had been on a prolonged holiday? These issues arouse strong feelings. I do not want to be paranoid, but those who feel that there should not be a pub—they are entitled to express those views and should do so—may find someone who would fulfil the conditions set out in the Explanatory Notes, someone who had been on holiday or in hospital, and use that person to open up the issue of the grant again. Of course residents' wishes must be taken into account, but that will already happen under the Bill. It cannot go on happening. There must be some point at which the potential operator of the pub can draw the line and say that the local authority has made the decision and the development must now happen. I emphasise that mine is a probing amendment. It would remove "without reasonable excuse" as a basis for us to have a debate and hear the Government's views.

The noble Lord, Lord McIntosh, may hope to tempt me to talk against my Front Bench on the lead amendment. Having considered the issue, I am not inclined to do so, but no doubt he will tell me why I should have done so.


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