It is important to be fully aware of the impact of Local Authorities' Cumulative Impact Policies on sites which are to be used for licensable activities.
WHAT IS THE USUAL EFFECT OF A CUMULATIVE IMPACT POLICY (CIP)?
Where a Cumulative Impact Policy (CIP) is in place, there is usually a presumption that applications for new premises licences or variations to existing premises licenses (increase in hours, capacity or change of conditions) will be refused.
This is unless it can be demonstrated that the grant will not negatively impact on the licensing objectives (usually the ones called into play are the Prevention of Crime and Disorder and Prevention of Public Nuisance).
CIP can apply to new builds, unlicensed sites or existing on and off licence premises e.g. restaurants, pubs, bars, cafes, supermarkets etc.
HOW MANY CIPs ARE THERE IN ENGLAND AND WALES?
There are currently a total of 205 CIPs in England and Wales but these do not cover 205 Councils. For instance, the London Borough of Newham has six areas subject to a CIP, Leeds has seven and the London Borough of Islington has six. Indeed, we believe that over approximately 60 of all Cumulative Impact Areas (CIAs) are within the London boroughs.
ARE THERE ANY AREAS WHERE A CIP SHOULD BE IMPLEMENTED BUT IS NOT?
Of particular note and surprisingly, there is no CIP in Manchester City Centre (Manchester has a Cumulative Impact Policy but relating to Fallow Field, Wilmslow Road and Withington).
There is also no CEP in place in Sheffield albeit the Licensing Authority do indicate in their Statement of Licensing Policy that several areas are approaching the point where a policy may be adopted.
Some areas which interestingly have a CIP are Monmouthshire (Chepstow), North West Leicestershire (Ashby-de-la-Zouch), South Gloucestershire District Council (Kingswood), Forest Heath District Council (Newmarket), Chiltern (Old Amersham and Chalfont St Peter). In addition, Chiltern has recently confirmed that their ClAs are to be removed from their Licensing Policy.
The only Licensing Authority, which we are aware of, that had a CIP but has got rid of it completely is Guilford following a significant reduction in crime and disorder within the town centre.
CAN A LICENCE BE PROTECTED IN AN AREA SUBJECT TO CIP?
A premises licence will lapse either by it being surrendered (by for example, a disgruntled tenant), if the licence holder ceases to he entitled to work in the UK, the death or insolvency of the holder. It can then prove very difficult to have the licence reinstated on the same terms and conditions. However, it is not impossible to protect the premises licenses, and indeed some Licensing Authorities do make specific exemptions.
Some landlords guard against losing a licence particularly in an area subject to a CM by applying for a second licence (shadow licence) in their name on the same terms and conditions as the "master licence". The Authorities can take this as an opportunity to update the new licence with their "standard" conditions.
HOW CAN A CIP BE CHALLENGED?
There are two aspects of legally challenging a CIP. You can appeal the refusal of an application for a new premises licence or a variation. On any appeal it would need to be demonstrated that the decision of the Licensing Authority was wrong and one of the things that the Appeal Court would consider is the fact that the premises are within a CIA.
The other way is by judicially reviewing the existence of a CIP. We are not aware that any operator has judicially reviewed the very existence of a CIA within a Councils' Statement of Licensing Policy.
An extract from CRBE November 2017 report.
To read the full report click here
For further information, contact Licensing Solicitor, Steve Burnett on 0203 859 7759.