When enough is not enough

The most important point to be made about saturation zones, such as the one proposed in Brighton, is that they do not form a specific part of licensing law. Neither this term, nor "cumulative impact" is mentioned anywhere in the legislation - a fact that is recognised as late as page 92 of the statutory Guidance to licensing authorities issued by the Depart-ment for Culture Media & Sport (DCMS).

Although the issue of extra-statutory "legislation" has not come up for full debate in the higher courts, a case involving pub group JD Wetherspoon did address aspects of this type of policy and it was not considered beyond the powers of a council to specify a zone in this way. But it has to be carried out with infinite care and not as a knee-jerk reaction to a perceived problem.

Those who have seen the new Simpsons film will undoubtedly recognise the Brighton police's concept - encase Springfield in a great big plastic dome stretching for four kilometres and that will solve the immediate problem! Of course it won't. But it sets a very dangerous precedent for the use of this secondary power, and I am sure that if it goes ahead it could well be challenged by way of judicial review.

This is not a targeted response as envisaged in the Guidance. Knowing the area as I do, it seems to me to be a protective zone, involving streets of such benign residential status that to dub them as a saturation area makes no logical sense.

The police say that operators will move into these areas if they are not protected. But this is not the way to go about manipulating the leisure and entertainment requirements of a vibrant city like Brighton.

As last week's article rightly points out, the declaration of a saturation policy is not a "ban" on new pubs or bars. It moves the responsibility to the applicant to show that the establishment of their business will not undermine the licensing objectives, particularly those of crime and disorder, or public nuisance. There should not in those circumstances be any presumption of the type of premises to be allowed, and this indication by the council is quite wrong.

There is also the point that the council cannot unilaterally impose a ban on new licences. It must receive individual and targeted representations concerning the new proposal from responsible authorities or interested parties.

Clearly, given the origin of this proposal, the police are likely to respond to every application with the points they have raised during this debate. But it is then up to the council to act fairly in coming to a conclusion.

This is where the whole situation enters legally problematic areas: if you as an authority have accepted one side's view that there exists a problem of over-provision in this area, how are you going to come to the tribunal with an open mind? Unlike the magistrates, you have a vested interest in the issues. Although you can be persuaded that the grant will not make matters worse, you are under intense pressure from your voters and your police authority to support and uphold the saturation area.

You will, therefore, be prejudiced to refuse the application and let the magistrates deal with it on appeal, because then at least politically you can keep your hands clean.

Back to the DCMS. Is this a fair system? No, of course not. But it is local democracy

at work. That is all part of the package we bought into back in 2000 when the White Paper was published. We never promised you lack of bias, did we?