Avoiding duplication between planning and licensing

R (Jaks Bars and Restaurants Limited) v (1) Secretary of State for Housing, Communities and Local Government and (2) Royal Borough of Kensington and Chelsea

On 24^th April 2026 Deputy Judge Dan Kolinsky KC gave judgment in a planning challenge brought by Jaks Bars and Restaurants Limited. His decision is potentially of great assistance to the licensed industry in cases where both planning and licensing consents are needed for a new development or a variation.

Jaks applies for planning permission

Jaks is a bar/restaurant on the King’s Road with planning permission to operate until 1 a.m. on Thursday to Saturday. It wished to operate until 2 a.m. for which it needed both planning permission and a variation of its licence. To test the impact of this on local residents it applied for a large number of temporary event notices to open until 2 a.m., all of which were agreed by the environmental health officer on the basis of dispersal management conditions culled from the premises licence. The TENs operated without impact or complaint.

On five of the nights, independent licensing consultants Shield Associates observed dispersal and produced a “licensing impact assessment” (“LIA”) concluding that the dispersal management procedures were effective. Jaks also produced a noise assessment from an independent acoustician based on one night of observations stating that no nuisance had been recorded.

There were objections from local residents and from the environmental health officer, who critiqued the noise assessment.

The planning authority refused permission on grounds of potential nuisance to local residents. Its notice of refusal stating that the noise assessment was inadequate but did not address the LIA.

Jaks appeal

In its appeal, Jaks relied again on the LIA and the noise assessment, and pointed out that all of the concerns expressed could be controlled under the Licensing Act 2003, which conferred a power of review on the licensing authority in the event of any actual disturbance. It also produced one of the TENs showing the management conditions applied.

The inspector dismisses the appeal

In her decision letter, the Inspector addressed the argument that licensing was a competent system to handle any issues on dispersal as follows:

“A premises licence has been granted by the Council to the appellant. This license has its own specific requirements and is governed under separate control. Even though the licensee is required to accord with the terms of the licence, and this comes under the governance of a separate regulatory part of the Council, as is my duty, I must consider the proposal under the planning regime.”

As for the question of potential nuisance, the Inspector also criticised the noise assessment, for including because it was only conducted on one night. Further, she stated that there was inadequate evidence of good management of dispersal or its success in controlling nuisance. She did not, however, refer to the LIA which, at least on its face, did contain such evidence.

The main issues on the appeal

The main issues were as follows:

Whether the Inspector properly considered whether licensing was a competent system to handle the risk of nuisance from the extended hours applied for?
Whether the Inspector had regard to the LIA or gave sufficient reasons for rejecting it.

Issue 1) Planning v licensing

Jaks relied on the decision of Mr Jeremy Sullivan QC sitting as a Deputy Judge in Gateshead MBC v Secretary of State for the Environment (1993) 67 P&CR 179 in which he stated that:

the existence of a separate control regime is a material planning consideration.
The planning inspector has a duty to consider whether to leave the matter to the other regime.

Jaks argued that the Inspector erred in three ways. First, she failed to treat the licensing system as material: she raised it only to discount it. Second, she stated that she was duty bound to refrain from considering the the competence of the licensing regime to deal with potential impacts. Third, she failed to consider whether to leave the matter to the other regime.

The Secretary of State initially argued that the Gateshead principles did not apply to licensing but only to parallel pollution control regimes. The Secretary of State also argued that in any event the Inspector had had regard to the licensing system.

The Deputy Judge disagreed. He held that the decision was silent on how the Inspector had evaluated the capacity of the licensing system to protect residential amenity, concluding:

“The Inspector did not address the suitability or otherwise of the licensing system to respond to concerns as to the impact on residential amenity from noise from dispersal. This was closely connected to her observations about the enforceability of dispersal and arrival policies as planning conditions. Given those concerns, the obvious further question was: would the licensing system (which had been described to her as more responsive) be better placed to regulate any issues relating to dispersal of customers? How that question was answered was a matter for the Inspector. But I am satisfied that it was an error of approach not to address it given the emphasis which the Claimant placed on the responsive nature of the licensing system in the material submitted.”

Accordingly, the claim succeeded on that ground.

Issue 2) Overlooking the LIA

During the proceedings, the Secretary of State produced a witness statement from the Inspector saying that she had in fact had regard to the LIA, despite the lack of any reference to it in the decision letter. The Deputy Judge took the Inspector at her word, but said that the lack of any reference to the LIA meant that she had not given adequate reasons for dismissing the appeal. The LIA was relevant in its own right, helped to contextualise the noise assessment and went to answer the Inspector’s suggestion that there were evidential omissions in Jaks’ case.

As the Deputy Judge stated:

“I consider that it was incumbent on the Inspector to refer to the LIA and give an indication of how she had “considered and balanced” it to inform her decision. Absent any reference to it, the informed reader simply does not know how she balanced it in reaching her decision. Given its (accepted and obvious) relevance to the main (and only) issue in the case (noise, and most specifically the impact of dispersal of patrons on the most sensitive noise receptors), I conclude that the Inspector failed to give adequate reasons in failing to refer to the LIA at all.”

Accordingly, the claim also succeeded on that ground.

Result

For those reasons, the Inspector’s decision was quashed and the appeal will now be redetermined by a different inspector. .

Conclusion

The notion that planning and licensing should be better integrated to avoid duplication and inefficiency is a laudable principle but one not often carried into practice.

This judgment provides a strong basis for avoidance of duplication between planning and licensing where the issues overlap. The advantage licensing enjoys over planning is that a grant is flexible and may be modified (upwards or downwards) in the light of actual experience. As such, it can and should be argued that planning should leave more detailed regulation, including matters such as hours, to licensing.

In this case, the Inspector decided the case while putting licensing out of her mind. That represented a legal error. She ought to have considered whether licensing was capable of rising to the occasion to handle any undesirable impacts from the extension sought. Her failure to do so means that her decision was quashed and the planning appeal will now be redetermined.

The lesson for applicants is to emphasise the important role of the licensing system in planning statements.

The lesson for planning authorities and inspectors is that they should inform themselves of the benefits of the licensing system, and leave the matter to licensing where licensing is capable of covering the issue. If they decide that it isn’t capable, they should be prepared to justify their view, or face the High Court, as happened here.

The judgment may be read here.

Philip Kolvin KC of 11 KBW and Ashley Bowes of Landmark Chambers acted for Jaks, instructed by Simon Ricketts of Town Legal