Licensing and Planning - R (Jaks) v Secretary of State

Licensing and planning have long been treated as distinct regimes, a principle embedded since the Licensing Act 2003 and repeated in the latest s.182 Guidance (para 8.7) and many local licensing policies. Despite this separation, the two often overlap, particularly around nuisance, leading applicants for new or extended Licences to face similar objections in both processes, sometimes after issues have already been addressed in one forum.

The recent case of R (Jaks) v Secretary of State offers helpful clarification. Jaks Bars and Restaurants Ltd  (‘Jaks’), represented by Philip Kolvin KC, sought to vary its planning permission to extend trading from 1am to 2am on Thursdays to Saturdays. Before applying, it operated five TENs, during which an independent consultant produced a Licensing Impact Assessment (LIA) concluding dispersal was well managed. An acoustician also monitored on one evening and found no noise nuisance.

Residents and the environmental health officer objected, criticising the noise assessment. The authority refused permission for potential nuisance, stating the assessment was inadequate and ignoring the LIA.

On appeal, Jaks relied again on the LIA, the noise report, and the safeguards of the Licensing Act 2003, including the power of review. It also provided evidence in relation to one of the TENs showing management conditions in practice.

The Planning Inspector dismissed the appeal, stating she must consider the proposal solely under planning. She criticised the noise assessment for being based on one night and said there was insufficient evidence of effective dispersal management—again without referring to the LIA.

Jaks challenged the decision asking the Court two principal questions:

1. whether the Inspector properly considered the licensing system as a competent mechanism to manage any nuisance; and
2. whether she had regard to the LIA or gave reasons for rejecting it.

Jaks also relied on the earlier judgment of Mr Jeremy Sullivan QC in Gateshead MBC v Secretary of State for the Environment (1993) 67 P&CR 179. In that case, the Court confirmed two key principles:

• the existence of a separate regulatory regime is itself a material planning consideration; and
• a planning inspector must consider whether it is appropriate for the issue to be left to that other regime.

These points formed an important part of Jaks’ argument that licensing was the more responsive and suitable mechanism for managing any potential nuisance.

The Court held that the Inspector erred on both points. She failed to address whether licensing could adequately regulate dispersal-related nuisance, despite this being central to the applicant’s case. She also failed to mention the LIA at all, leaving the reader unable to understand how it was weighed in the decision. Given its relevance to the sole issue, noise from dispersal, this omission rendered her reasons inadequate.

The decision was quashed and will be redetermined by a different Inspector.

For applicants, the judgment reinforces the need to highlight the responsiveness and regulatory strength of the licensing system when addressing overlapping issues in planning, and to ensure that licensing evidence, such as LIAs and TENs, is clearly positioned as material that must be considered.