On June 14, 2007, Westminster Magistrates Court decided to grant an appeal that would allow the extension of the terminal hour to 1am on Thursdays, Fridays and Saturdays for a premises situated in the heart of the West End stress area.
Westminster's blanket policy is that material variations in cumulative impact zones - so-called 'stress areas' - will normally be refused, if a relevant representation is received that refers to the stress area.
In these circumstances, the licensing committee has to be satisfied that the operator can demonstrate that the operation of the premises will not add to the cumulative impact already being experienced. In this case, the police, local residents and responsible authorities raised representations to the application. Westminster licensing committee refused the application.
The application was made by a 'restaurant/bar/nightclub' to vary the terminal hour on Thursday, Friday and Saturday from midnight to 1am. On refusal at first instance, the matter was appealed to Westminster Magistrates Court.
The magistrates granted the application on the basis that the applicant established "exceptional circumstances" existed, which meant that they were entitled to grant the application. They were swayed by four matters raised by the applicant in deciding that the premises was "exceptional". These were:
- the low level of residential occupation in the immediate vicinity
- a voluntary reduction of the capacity of the premises by 40 persons (amounting to nearly 17 per cent of the total capacity)
- a last entry time of 11pm on the Thursday, Friday and Saturday night to safeguard against the venue becoming a "destination premises" after core hourscustomers would mainly be departing from the premises along the main road and not into the residential area.
In overturning the decision of the licensing authority the magistrates considered that there was a sufficient accumulation of factors contributing to the premises being regarded as "exceptional".
The reduction in capacity, however, was highlighted in the magistrates' decision as being material in proving "exceptional circumstances". The fact that there was a minimum impact on residential properties in the vicinity and the last entry time further satisfied the magistrates that the premises would not add to the cumulative impact of premises in the area.
Some hope
If your premises are subject to a stress area policy, there has to be some hope that your application will be granted if all authorities are willing to follow this decision.
As it is a magistrates court decision, they are not bound to do so. However, it may be that this decision can be used to guide a committee. One will need to consider whether a reduction in capacity, for instance, would be beneficial when considered against the extended operating hours applied for.
The other factors mentioned in the decision will also be material in proving that the application will not add to the cumulative impact in the area and therefore impact to residents. Public transport and last entry times will all be material.
What, however, is the difference between the above factors (excepting a reduction in capacity) and those conditions one would consider offering if an application receives representations?
The answer, it would seem, is very little. This means that the normal test of whether an application 'undermines the licensing objectives' and the stress area test of 'adding to the cumulative impact' may not be as different as certain authorities would like to claim and the practice of local authorities giving single sentence reasons for refusing a grant in stress areas (i.e. the application will add to the cumulative impact in the area) will no longer be acceptable. Westminster Council still gives this as a reason, but Westminster Magistrates Court is starting to build up a body of cases that point in a different direction. The Movida case and now this case (Automa Ltd v Westminster Council, June 14, 2007) stand out. If costs start to be awarded against the council, we may see proper reasons for decisions.
However, we are not necessarily any closer to understanding when an application will be successful within a stress area, especially in the first instance. Judgments like these can only be of assistance to the industry in allowing parties to make informed decisions before applying. To those who are willing to go through the cost and stress of appealing, we are grateful.