Legal advice: combating cumulative impact
The answer is that they are certainly something to note and indeed to be wary of. They do not, however, mean the end to your plans for expansion.
Cumulative impact policies, sometimes known as stress areas or saturation zones, are a product of the Home Office's guidance to the Licensing Act 2003. In a nutshell, licensing authorities have the power to invoke a cumulative impact policy where they receive evidence that the number of licensed premises in a particular area of the locality has reached saturation point and this is impacting upon the promotion of the licensing objectives.
Where imposed, the policy creates a rebuttable presumption that an application for a new premises licence or a material variation to an existing licence will be refused unless the applicant can demonstrate that they will not add to the cumulative impact in the area which is subject to the policy.
Brewdog
It is almost impossible to demonstrate that the addition of a new outlet, selling alcohol and providing entertainment to an area, or a variation permitting those activities for longer, will not add to the cumulative impact in the area. Therefore proportionality is important and showing that the impact will be minimal can go a long way. Some cumulative impact policies are very specific and provide detailed evidence in support of their introduction.
These can be difficult to overcome particularly at a hearing before a licensing sub-committee and, in some cases, it will be necessary to appeal to the magistrates court. Other policies are vague and it can be easier to challenge the evidence in support of the policy or the principles of the policy. In any case the licensing sub-committee or, in the case of an appeal, the magistrates will expect you to show that your application creates an exception to the policy.
This was demonstrated in the case of Brewdog Bars Limited v Leeds City Council. Brewdog appealed against the licensing sub-committee's decision to refuse a licence for a premises in the city-centre cumulative impact zone.
On appeal, District Judge Anderson confirmed that cumulative impact policies ‘should not bring the iron curtain clanging down’ in order to shut out good operators. Brewdog had a customer base of what the Judge, rather unfortunately, described as ‘beer geeks’.
Therefore Brewdog was an exception to the type of premises the cumulative impact policy was trying to prevent and the appeal was allowed.
However, if you are looking to extend your hours, increase the capacity of your premises or add activities to your existing licence and you are in a cumulative impact zone, the key to success is not only to ensure that your application is an exception to the policy, but also that your premises are impeccable. A long list of incidents or complaints about noise will do nothing to rebut the presumption that the proposals will not add to the cumulative impact in the area.
Westminster
We were recently involved in an appeal against a decision by Westminster's Licensing Sub-Committee to refuse to allow up to 24 customers to purchase alcohol without food. The premises were incident-free but located in Westminster's stress area where the cumulative impact policy is notoriously difficult to overcome.
On appeal the District Judge found that both the premises and the operator were exceptional, justifying a departure from the policy and the granting of the application. It is also worth noting that a cumulative impact policy will only affect your application if relevant representations are received.
Our firm was also recently involved in an application to extend hours to 4am in a cumulative impact zone. The Police were happy with the operators and the premises and did not object. A representation was received from a local councillor which was vague about the possible effect of the grant of the variation and did not refer to the cumulative impact or the effect upon the area in which the premises were located.
The licensing sub-committee considered the representation, but not in the context of the cumulative impact policy. The application was granted as applied for. Daunting as it may seem, challenging a cumulative impact policy should not be seen as an impossible task.
If you are an exceptional operator offering something different to the market and are prepared for a battle to get your application granted, in some cases by way of an appeal, take the plunge and submit your application. You might just be surprised if that battle is not as fierce as expected.
