Cumulative Impact Policies: More a Malteser than a Mars bar

I have wondered recently whether this sort of false dilemma has been faced around the country by councils in respect of early morning restriction orders (EMROs), the late-night levy (LNL) and cumulative impact policies (CIPs).

The Government, in line with its general ‘nudge’ agenda, has now given licensing authorities so many blanket powers to deal with alleged problems in the late-night economy that it could be quite easy to forget that there are other options available, including doing nothing at all (not to mention the raft of voluntary schemes such as Best Bar None and business improvement districts or BIDs).

We have talked recently of proposals around the country for the LNL and EMROs, but what of their poor relation, the CIP? I say ‘poor relation’ because a CIP has no statutory basis (unlike an LNL or an EMRO) with its criteria and procedures outlined in the statutory guidance together with case law.

Saturation point​
You will remember that a licensing authority can introduce a CIP if it is satisfied that such a policy is appropriate to address evidence that crime and disorder or public nuisance have reached ‘saturation point’ in a particular area.

If a CIP is imposed there will be a presumption against the grant of any new licence or material variation to an existing licence (normally additional hours), unless the applicant can show that he will not add to the existing cumulative impact. There are already 96 CIPs in place with two of the geographically largest (Brighton and Croydon) either introduced or about to be introduced. Since 2005 only two CIPs have been removed (Southend-on-Sea and soon to be Rushmoor, Hants), so the general trend is an increase in such areas around the country.

Unlike EMROs and the LNL, CIPs have had time to ‘bed down’. Licensing authorities that do not have such policies in place can see how fellow authorities have introduced CIPs (to avoid legal challenge) and also how such a policy affects the night-time economy.

In that sense, CIPs are safer than EMROS and the LNL, and it’s interesting to see that Peterborough is proposing the first CIP (to our knowledge) outside the main high street — a largely residential area made up of cafés and off-licences serving immigrants from two European countries, which apparently has its own problems.

So CIPs are changing and developing, both in terms of geographical area and the type of premises they affect. It would be tempting, therefore, to see a CIP as a dynamic thing, reflecting the changes in the night-time economy. However, in the main, CIPs are anything but — they effectively freeze the hours of existing premises, preventing new operators from entering the market, save in exceptional circumstances (the case of BrewDog in Leeds being the most notable).

Therefore, unless you run a bona fide restaurant or other non-alcohol-led premises, or you sell craft beer in Leeds, the chances of opening up as a new operator in an existing CIP area are relatively small. CIPs, therefore, are not generally dynamic; they effectively lock in the status quo.

More flexibility​
This may work well for existing operators, but will the issues with the night-time economy really be solved by allowing some existing irresponsible operators to continue to trade in a CIP area just because they were lucky enough to operate at the time it was introduced, at the exclusion of new and possibly more responsible applicants?

That being said, because of its non-statutory basis, CIPs are more flexible and can be amended from time to time (and have been). Take Newport, for example, which has a CIP in place, but apparently takes a more ‘relaxed’ view on applications now than it did when the CIP was first introduced.

As for those councils, such as Brentwood in Essex, that are having public meetings in the near future to consider all three options — LNL, EMRO and CIP — I hope they will think very carefully before committing to any proposal that further burdens the night-time economy.

If they do choose one, however, then perhaps a CIP is the fairest of the three — it at least maintains the status quo, and allows existing operators to address any problems on a voluntary basis.
Perhaps in that respect it’s more of a Malteser.