Decisions must be based on evidence when it comes to deciding on cumulative impact policies
There is little doubt that cumulative impact or saturation policies are having an increasingly significant “impact” on the licensing process. Recent Government statistics have confirmed that there are now 208 cumulative impact policies in England and Wales with several local authorities having more than one.
I have written about these before and I remain concerned that in some areas the case which is made for the policy’s introduction is not evidentially strong and that the process by which the local authority adopts it is not rigorous.
As an example I recently read the evidence provided to support a new cumulative impact policy in an area to prevent further off licences, and its lack of evidential quality was startling. It was written by a Community Protection Officer, and quoted as “evidence” amongst other things were articles in a national newspaper and comments made in the press. This statement was supported by a police submission but the council minutes confirm it was adopted without even a question being asked. I suspect that political “wheeler-dealing” had already taken place and that the Council were all too willing to embrace the policy no matter how flimsy the evidence. This is alarming because once the policy is in place and despite the ubiquitous reference to “treating each application on its merits” the reality is that an operator has to make an application in a cumulative impact area against the very policy which that tribunal has adopted.
I am also aware in the same city of a “creeping” geographical increase to the area covered by 'cumulative impact'. The policy was introduced in 2005 and has been periodically reviewed as required by law. The council minutes are often vague and there is scant evidence of any rigorous reassessment of the impact of the policy. At the same time police statistics make it clear that crime and disorder is going down and yet in 2011 and more recently in 2014 the size of the policy area has actually increased and seems to have been “nodded through” without any challenge. This issue is of course a political one; crime and disorder and public nuisance are huge issues for many people and why would a councillor stick his or her head above the parapet to challenge a policy which apparently so clearly helps the crackdown against both of these problems?
Once the local authority and the local Police Commissioner have adopted as their mantra a reduction in crime and disorder as being the principal aim - at the exclusion of other factors such as local culture, economy and diversity for instance - then it is highly unlikely that a saturation policy will ever be challenged, let alone reversed.
The difficulty for operators is that in many cities there are redevelopment proposals in mixed use (often riverside) areas and some of these are in cumulative impact areas. On occasions one department of the local authority is promoting these developments and will give positive messages to any operator, encouraging them to make an application which is contrary to the same council’s licensing policy because it is in a CIZ. It is difficult to explain this mixed message where one department is pro-business and optimistic and the other often appears quite the opposite.
This is compounded by the fact that CIZs tend to cover exactly those popular and successful areas where new licensed bars and restaurants wish to be.
There can also be an issue with existing businesses who wish to develop by making their premises larger. I can think of a recent example where a pub is looking to extend its ground floor operation to create a larger and better pub with more food and seating (following the national trend). However, the wording of the cumulative impact policy refers to a “variation”; doubtless the intention was largely to prevent a variation by way of an extension of hours but of course an application “to vary” is required and this is contrary to the cumulative impact policy.
In this case both the local police and local residents can use the policy as an opportunity to argue that the operator’s proposed considerable investment in the pub, the area, local employment etc should not be granted because it is an increase in the size of the premises and therefore likely to make the cumulative impact situation worse.
The operator is immediately on the back foot, trying to justify this proposed development and arguing that making the pub bigger will not actually make the situation worse. It is sometimes difficult to avoid what in practice can be a “back door Review” and an analysis of existing alleged difficulties. I am not suggesting that proposed extensions of premises should not always be considered to be against policy but that there should be more of a balanced view and that operators who are prepared to invest in a local area should be given more credit for doing so.