Cumulative Impact Zones
Pubs, bars and restaurants require the grant of a Licensing Act 2003 premises licence from the local council to permit the sale of alcohol and other licensable activities. Arguably the greatest barrier preventing operators of any type of licensed premises from expanding or maximising the potential of their businesses is the presence of cumulative impact zones. Niall McCann, solicitor – who heads up the Licensing, Gambling & Regulatory Team at Joelson – advises on how best to navigate the license issue in a cumulative impact zone.
A relatively simple concept, cumulative impact is the potential impact on the promotion of the licensing objectives (which are the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm) that a significant concentration of licensed premises in one area could cause.
If, based on evidence, a council believes that an area or areas are experiencing negative cumulative impact they can adopt a cumulative impact zone (sometimes referred to as a stress or special policy area) whereby there is a ‘rebuttable presumption’ to refuse applications for new premises licences or variation to existing licences unless the applicant can demonstrate in their operating schedule that a grant will not lead to a negative cumulative impact on one or more of the licensing objectives.
Niall McCann, Joelson
If an operator has premises in cumulative impact zones here are some ‘tricks of the trade’ they can adopt to increase the likelihood of an application being granted:
1. Local knowledge is crucial
Not all cumulative impact zones are equal. Councils across the country have different ways of approaching the issue. Here are some trends operators need to be aware of:
- At their most liberal, some councils and statutory authorities treat their cumulative impact zones as simply an additional tool to resist the higher risk and undesirable operations. They genuinely do look at each application on its merits with applications in cumulative impact zones generally being granted provided the hours sought and conditions proffered in the application are realistic.
- Others tend to look favourably on restaurants and, provided the application is for a sensible terminal hour and alcohol is ancillary to the consumption of food, will grant the applications that have been well presented.
- Some are generally happy to grant, provided that the premises is closed before a certain time – usually 11.30pm or midnight.
- However, with some councils, an application for a new bar or pub is simply a no-go and, if that is the case, an operator should probably look elsewhere unless they are prepared to pursue a potentially expensive appeal.
Councillors will no doubt say that every application is made on its own merits; to a certain extent, this is true. If, however, an operator or their legal advisor does not know the area well, it would pay to study recent licensing sub-committee decisions and, if possible, have a word with those who have been before that committee recently.
2. Look for the exemptions
Where there is a special cumulative impact policy, it pays to read the policy statement carefully as some will include exceptions an applicant may be able to use to their benefit.
Clearly, if an applicant can show one or more of these exemptions are relevant to their premises and/or the application, the likelihood of the application being granted will increase.
3. Never ignore the exclusions
In addition to citing possible exemptions, council policies often state what will not to be considered. For example, some councils state that the following factors will not be taken into account:
- That the premises will be well managed and run
- That the premises will be constructed to a high standard
- That the applicant operates similar premises elsewhere without complaint.
This is because a council would expect all operators to meet such standards in any event.
That is not to say that submissions should not include reference to such matters. Many licensing sub-committees would find it odd if you didn’t make mention of your reputation and history as a licensee.
4. Be creative with conditions
To be persuaded to grant an application in a cumulative impact zone, many councils expect to see far more than just the standard conditions such as CCTV, signage and dispersal.
Often applicants will need to raise the bar in respect of best practice and include more imaginative conditions such as:
- ‘Future proofing’ by limiting the premises licence to the current holder so that it cannot be transferred
- Offering to ‘put something back’ (almost like a section 106 agreement in planning) by offering, for example, to pay into a taxi marshalling scheme or contributing towards litter picking
- Time limiting the licence; this is a risky option, but can work on a ‘suck it and see’ basis
- Setting minimum alcohol prices or instigating attractive promotions on non-alcoholic drinks.
These ideas show that you are the type of applicant that will embody industry best practice if your licence is granted.
5. Always look at all the evidence
Remember, the overwhelming majority of licensing decisions are based on evidence.
Rather than relying on generic arguments, an operator should analyse the substance of the representations made and provide evidence, where possible, to counter any potential arguments that, once granted, your licence will add to cumulative impact.
If your budget will stretch, instruct an independent expert who can, for example, undertake site visits and analyse the impact of similar premises.
6. Deviations to policy
It is often forgotten that council policies are not binding. Licensing Sub-Committees can deviate from them and grant against policy. Every application is different and, provided that a decision to grant is properly reasoned, it should not open the floodgates to all and sundry wishing to make similar applications.
7. Conditional leases
If you are looking to acquire licensed premises in a cumulative impact zone, the golden rule is that, if possible, acquiring an interest in the property should be subject to the successful grant or variation of the premises licence.
However do not settle for a licence that may not suit you if it comes with conditions such as:
- Restrictive times for opening and licensable activities
- Having to have door supervisors
- Restrictions on the use of an outside area
- The imposition of ‘restaurant style’ conditions whereby sales of alcohol have to be ancillary to the consumption of substantial food.
Cumulative impact zones are a hurdle not a wall. Every week licence applications are granted for premises in cumulative impact zones. Sometimes a successful application hangs purely on the applicant adopting a more thorough approach and a little more flexibility in their offer.
Founded in 1956, Joelson is a law firm that assists corporates, entrepreneurs, management teams and senior executives with a wide range of issues from its offices in central London at 30 Portland Place.