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Lord Avebury: I particularly refer the Minister to the case study on Ealing. It found that landlords or proprietors could very easily convert from other uses to intensive drinking, and that the planning law did not allow for objections to be made in those

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circumstances. With regard to this clause, when someone applies to convert premises for intensive drinking from some other use, the person concerned will be able to say, "We have already got planning permission—we have A3 use—and intensive drinking should therefore be allowed". That is what happened in Ealing.

Lord McIntosh of Haringey: First, as I said, the A3 class is being reviewed. Secondly, the point raised perfectly validly by the noble Lord, Lord Avebury, is an issue for licensing law and involves the Bill; it is not for the Deputy Prime Minister. I believe that we have got the balance right and provided the assurance that developers and people spending money on premises need; that is, that provided that they stick to what they said at the beginning so far as they can, they will get their premises licence. At the same time, we have provided for representations when there are significant changes or good reasons to do so.

The Earl of Onslow: Will the noble Lord answer the question: does planning for a public house or entertainment area automatically mean that one is getting licensing approval? Secondly, can a 106 agreement obviate the need through the planning system to keep something open for 24 hours?

Lord McIntosh of Haringey: Just as the licensing regime that we are setting up in the Bill does not duplicate the work of the planning system, although it takes account of it, the planning system does not rule out the application of the licensing regime. Planning permission does not bring with it the certainty of a licence. A licence has to be applied for; that is what the whole Bill is about. I do not know offhand what a Section 106 agreement is, but I shall write to the noble Earl, Lord Onslow, about it.

The Earl of Onslow: The 106 agreement is extremely important. It adds a condition to a planning consent—for example, in my case, that a golf course is liable to be a pay-and-play golf course, not a membership golf course. Several golf clubs in the South of England are not allowed, through their 106 agreements, to use their club premises for outside entertainment; in other words, they cannot have functions there because local people objected. That involves a planning consent restraint. If that restraint is kept, that is all well and good, but if it is not, it could be used to drive a hole through the entire Bill. It is important that the issue is addressed in the Chamber rather than merely in a letter to me. I accept that the issue has tumbled into my mind only this afternoon, but I genuinely believe that it is important.

Lord McIntosh of Haringey: Let me set out the position as best I can. No planning permission, either positive or negative in the sense of a restraint, gives licensing permission to anything. In order to carry out licensable activities, one has to have a licence. If one has a planning permission that states that one cannot

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put on licensable activities such as entertainments, one must appeal against the planning regime and obtain a licence for it.

12.15 p.m.

Baroness Buscombe: I thank the Minister for his full response to an extremely worthwhile debate. As he said, the debate amplifies the difficult balance that we must strike between the interests of the local community and those of the entertainment industry. Frankly, I do not believe that there is an inconsistency between the amendments that I moved on behalf of Her Majesty's Opposition and that in the name of my noble friend Lord Hodgson. On behalf of the industry, and if I may interpret my noble friend, I point out that there is a need for a cut-off point at which the operator can, as he put it, draw the line and proceed with confidence. Local authorities are asking for mechanisms to allow them to feel comfortable about that cut-off point. They seek an assurance that they can give that provisional statement, comfortable in the knowledge that they have as much information as possible in front of them on which to base their decision at the relevant time. I want to revisit a number of issues when I have read in Hansard what the Minister said.

The noble Lord, Lord Avebury, once again alluded—if I may put it that way—quite rightly to the difficulty that we all share; that is, that much of what we have discussed in relation to the Bill impinges on planning. I have continually referred to the concern that if local authorities are not given sufficient assurances to make them feel comfortable about acceding to applications such as those for a provisional statement, they may feel less inclined—notwithstanding the fact that they may not be on both the planning committee and the licensing committee, although they are all part and parcel of the same authority—to be positive at the planning stage. We appreciate that we are not supposed to become caught up in planning matters, but we cannot help it because planning and licensing are important to each other. The point that concerns the industry, local authorities and us in the local community is the end product; the two go together.

The Minister said that planning law is perfectly good. We understand that there will be a planning Bill, so we are rather in the dark. I accept what he said. Having had some experience on a planning committee in local government, and notwithstanding the Minister's full reply to my noble friend Lord Onslow about Section 106 conditions, it is worth while the Government considering the question a little further just to make sure that what the Minister said is absolutely the case. I recall from my experience that such applications have had quite an impact on what a building or some form of operation has or has not been able to do.

Lord McIntosh of Haringey: I am conscious that I was speaking rather elliptically in response to the noble Earl, Lord Onslow. I should like to write to him

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more fully, although I believe that what I said was right and answers his point. I shall send a copy of the letter to other Members of the Committee.

Baroness Buscombe: I thank the Minister for that. I am grateful to my noble friend Lord Onslow for raising the issue in Committee. That is one of the many reasons why we take time in Committee to consider such matters in detail. It is always helpful when Members of the Committee offer a different perspective and focus on areas that others may have missed.

We are grateful to the Minister for his full reply. I have a feeling that my noble friend Lord Hodgson is not entirely content with that reply. We shall read carefully in Hansard what the Minister said. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 207 and 208 not moved.]

Clause 28 agreed to.

Clause 29 [Advertisement of application for provisional statement]:

[Amendment No. 209 not moved.]

Clause 29 agreed to.

Clause 30 [Determination of application for provisional statement]:

[Amendment No. 210 not moved.]

Lord Brooke of Sutton Mandeville moved Amendment No. 211:


    Page 17, line 3, leave out subsection (2) and insert—


"( ) In determining any such application the authority shall have regard to its licensing statement and to any other material considerations.
( ) A determination under this section does not have effect—
(a) until the end of the period given for appealing the decision, or
(b) if the decision is appealed against, until the appeal is disposed of."

The noble Lord said: In moving Amendment No. 211, I shall speak also to Amendments Nos. 220, 236, 244, 306 and 315. The last two are consequential and, therefore, I am speaking to them simply to say that that is what they are. My record for brevity may be mildly blemished on this grouping because there are several amendments on which I need to speak.

Amendment No. 211 might have been treated as consequential, but it is larger than my Amendment No. 199 on which the Minister has already spoken. However, I want to speak to Amendment No. 211 at large. I return to Clause 18. Subsection (2) would require the licensing authority to grant licences in accordance with the operating plan of the applicant in the absence of "relevant representations" from an interested party or responsible person, irrespective of whether it believes that granting the licence will promote the licensing objectives or whether it will interfere in the rights of individuals in its area. I put it that that is unreasonable.

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The licensing authority has duties: to promote the licensing objectives; to refrain from taking decisions that contravene the European Convention on Human Rights under Section 6(1) of the Human Rights Act 1998; to have regard to its own licensing statement prepared after consultation; and to do everything in its powers to reduce crime and disorder in its area in accordance with Section 17 of the Crime and Disorder Act. It cannot possibly discharge those duties without the powers to do so. I am conscious that I am, to some extent, going over ground that we have already covered, but this is the lead amendment in the group.

The amendment ensures that the licensing authority has the powers to discharge those duties. The fact that no relevant representations have been made is not always a decisive indicator of the lack of problems. That is because the licensing authority may know of reasons why relevant representations have not been made—for example, the fear of harassment or the sheer volume of applications that the police and interested parties have to deal with.

Licensing authorities obtain their knowledge of those issues from a wider range of sources than relevant representations. I shall not go through the totality of them. But, in such circumstances, it would be entirely inappropriate for the council simply to grant the application. Doing so may, in any case, require the licensing authority to act in violation of its obligations under the Human Rights Act 1998. That is a matter on which I have tabled a later amendment. The situation would be far happier if licensing authorities could be given powers to promote the licensing objectives at all times and to act in accordance with their obligations under the Human Rights Act.

I turn to Amendment No. 220. This section of the Bill deals with applications to vary a premises licence. Such variations may be relatively minor—for example, to improve facilities at the premises—or they may involve an extension of the hours of operation to an hour late into the night. These amendments would amend the provisions relating to applications to vary licences in the same way and for the same reasons as the provisions relating to applications for new licences.

Clause 18(2), to which I have already referred, requires the authority to grant the licence unless "relevant representations" have been made. This requirement is inconsistent with the overarching obligation imposed by the Bill to promote the licensing objectives and to have regard to licensing policy and to central government guidance.

Amendment No. 236 is largely consequential but I specifically want to add a few words to it. The amendment seeks to remove the requirement that the,


    "licensing authority must grant the application",

when an application is made to vary a premises licence so as to specify a new premises supervisor. It inserts a requirement to determine the application with regard to its licensing statement and any other material considerations.

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I turn to Amendment No. 244. The Bill, as drafted, requires that the licensing authority must transfer a licence in accordance with the application. That requirement removes any discretion to refuse a licence unless an objection is received from the chief officer of police. As such, it is unnecessarily restrictive. Other people may have relevant information which could be considered by the authority.

The amendment seeks to allow the authority to have regard to any material considerations and to its licensing statements. I acknowledge that this is a consequential amendment applying to the provisions on the determination of transfer applications the approach proposed in relation to the determination of new applications. I beg to move.


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