Posted: Tuesday, 6 September 2016 @ 10:29
Licensing authorities have the option of introducing a cumulative impact policy which will apply to one or more defined areas or zones within their area of authority. So how do they go about introducing such a policy, and what effect will it have on existing licences and new applications?
Firstly, the relevant regulations are not to be found in the Licensing Act 2003. A rather back door method has been adopted to create this method of control. The provisions are to be found in the Statutory Guidance issued by the Home Office and approved by Parliament under Section 162 of the Licensing Act 2003, the latest of which is dated March 2015. The detail is in paragraphs 13.20 to 13.39.
Essentially the need for a cumulative impact policy is driven by the identification of a specific problem or problems caused by an accumulation of premises carrying out licensable activities within a given area. So the first criteria is that the premises involved are licensed to sell or supply alcohol, provide regulated entertainment, or provide late night refreshment. The second criteria is that the number of such premises in a given area is having a negative impact on one or more of the 4 licensing objectives, namely the prevention of crime and disorder, public safety, the prevention of public nuisance, and the protection of children from harm.
If there is evidence of such a problem then the licensing authority can consult about adopting a cumulative impact policy in its Statement of Licensing Policy. If it does so and decides to adopt a cumulative impact policy, it will issue a new Licensing Policy setting out the details of the geographical area or areas to which it applies, and the type of licensable activity affected.
For example Swindon has consulted on the adoption of a policy for a specific area centring on Manchester Road, and will decide this week if to adopt the policy following evidence of an increase in public complaints about anti-social behaviour related to alcohol which can be directly linked to an increase in alcohol outlets.
So what is the effect of a cumulative impact policy? The first thing to point out is that it will not effect existing premises licences. The existence of such a policy cannot be taken into account should an existing licence be subject to formal review. It will only effect applications for new licences or applications for variations of existing licences.
Another important point to note is that the policy will only come into play if anyone makes a formal valid representation in response to an application. If there are no representations the application must be granted. If there are any representations, the policy will mean that there is a "rebuttable presumption that applications for the grant or variation of premises licences or club premises certificates which are likely to add to the existing cumulative impact will normally be refused or subject to certain limitations...unless the applicant can demonstrate thet there will be no negative cumulative impact on one or more of the licensing objectives."
This does not mean that an application will automatically be refused. The licensing authority must consider each individual case. There may be applications which are very unlikely to cause any cumulative impact if granted. But it is vital that any applicant carefully considers the policy and likely effect of the grant of an application, and addresses any concerns in their application. It may be that conditions could dratrically reduce or eliminate any cumulative impact. "If the licensing authority decides that an application should be refused, it will still need to show that the grant of the application would undermine the promotion of one or more of the licensing objectives and that appropriate conditions would be innefective in preventing the problems involved."
So if you are faced with a cumulative impact policy which may effect an application for a new premises licence or variation of an existing licence, tread with extreme care and take early specialist advice.
Blog by Nigel Musgrove
Nigel has been providing dispute resolution advice as a solicitor for over 35 years. As well as advising SMEs and business owners on disputes he also offers a specialist licensing law service. View profile
This blog is not intended to constitute legal advice, nor is it intended to be a complete and authoritative statement of the law, and what we say might be out of date by the time you read it. You should always seek legal advice to confirm whether or how any information in this article applies to your particular situation. We offer a free telephone consultation
to discuss your particular circumstances.