Cumulative impact policies can be extremely difficult to overcome
You may have recently read about the new so-called “Lockout Laws” which are being imposed in the entertainment district of Sydney, Australia. These are new laws that have been introduced in an attempt to tackle drug and alcohol fuelled violence. The measures include a 10pm finish time for off sales of alcohol, 1.30am “lock outs” and cessation of on sales of alcohol at 3am – although with some exemptions such as for small bars and restaurants. So far, so familiar, you might think, and these measures are similar to those experienced by operators in England and Wales, by way of a local authority’s cumulative impact policy.
Cumulative impact policies (also known as special policies, stress areas or saturation zones) are a product of the Guidance to the Licensing Act 2003. Where a Licensing Authority receives evidence that the high density of licensed premises in one area is having a detrimental effect on one or more of the licensing objectives, they may consult on introducing a cumulative impact policy. The effect of having a cumulative impact policy generally means that any new premises licence applications or material variations which receive relevant representations will presume to be refused unless the applicant can show that granting the application will not add to the cumulative impact.
The way that cumulative impact policies are designed and work varies across authorities. For example, some councils have cumulative impact policies which only apply to applications which seek licensable activities beyond certain hours. Some polices only apply the presumption of refusal where the applicant cannot demonstrate that they comply with particular requirements, often a very long list of operational practices and participation in various schemes. Most cumulative impact polices allow very specific exemptions, such as for small premises and restaurants.
Some authorities will take a very strict interpretation of their cumulative impact policy and will defend it vigorously. Often in these areas, applications will receive representations simply on the basis of a cumulative impact policy being in place. Other councils may take a more relaxed approach and are open to engagement.
One thing that is clear is that cumulative impact policies are becoming ever more popular across England and Wales. There are now hundreds of cumulative impact policies in force, with many authorities having more than one in place, and only a handful have been reversed. A local authority is obliged to keep their cumulative impact policy under review and they can of course consult on expanding the area to which the policy applies, as long as the evidence supports such an expansion. This is itself a controversial aspect and I remember speaking to one licensing office whose experience of cumulative impact policies is that they push the problems complained of into the surrounding areas. Another common criticism is that they maintain the “status quo”, making it difficult for new operators or those who want to offer something different and who may put into place practices which would have a beneficial effect on the area. This is supported by case law which confirms that a cumulative impact policy should not “bring the iron curtain clanging down”.
Cumulative impact polices can be extremely difficult to overcome and demonstrating that your operation is an exception may not be straightforward. Having said that, much will depend on the approach you take to your application. We have been successful in cumulative impact policy areas to extend hours, increase capacity and obtain new premises licences for our clients. These applications are often not for the faint hearted and we have also had to deal with appeals against the decisions of Licensing Sub Committees. However often the key is getting the foundations of the application right, understanding your operation and your community and managing your relationships with the authorities and your neighbours.
What will also be interesting to see in the future is the interplay between public health and licensing. In England and Wales, public health is not a licensing objective. However, the Local Government Association recently carried out a survey of Directors of Public Health and 89% of those who responded believed there was demand for public health to be a licensing objective. Cumulative impact polices can only be introduced where there is evidence that the density of licensed premises is having a negative effect on a licensing objective. If public health were to become a licensing objective, it could widen the evidential opportunities to increase cumulative impact areas.
Meanwhile, back in Sydney, the new laws are causing considerable controversy and have sparked protest from people who fear that their night life is further being threatened. A spokesman for one club which has closed said that following the introduction of the new laws they had “no confidence for the future”. Cumulative impact policies can be a huge hurdle for operators but it is important to remember that, with the right approach, they can be overcome.