Legal Q&A: cumulative impact policy, TENs and capacities

Cumulative impact policy may affect variation

Q: I am seeking to make a variation of premises licence application to extend hours for alcohol and regulated entertainment on weekends by an additional hour. ​

I understand a variation is required and the appropriate timescale and processes, however, the licensing authority officer has told me that the council has a cumulative impact policy in place and my premises is within the policy area. ​

Please could you explain how this would affect my application?​

A: One of the first enquires I make when a client instructs me on a new licence application or a variation of their premises licence is to check whether the council has a cumulative impact policy, and whether the premises is located within this policy area.

This can be crucial to developing your strategy and assessing your chance of success with regards to the application. Here, the licensing officer has confirmed the premises is located within the cumulative impact policy area. You will need to carefully review the council’s statement of licensing policy and the section on the cumulative impact policy.

You need to understand which types of applications and premises are affected, the reasoning behind why it was adopted and how the policy affects the determination of a relevant application.

Usually councils adopt a cumulative impact policy on the basis that there are too many licensed premises within the relevant area and this is undermining the licensing objectives (usually prevention of crime and disorder and public nuisance).

Therefore, a presumption is created that any new licence applications or material variations (which include extensions of alcohol hours usually later into the evening) will be refused.

This presumption is rebuttable, however, the onus is on the applicant to prove that their application will not add to the existing impact, which can be quite difficult to prove.

Nonetheless, although the application is more difficult, it is by no means impossible to obtain later hours. In the first instance, I would strongly suggest you consult with the responsible authorities, in particular, the police, licensing authority, environmental health, in an effort to get them ‘on side’ before submitting your application. This may include offering robust conditions and measures to ensure you will promote the licensing objectives and not add to the existing impact.

Applications that fall within a cumulative impact policy can be tricky, and we would advise seeking legal advice from a licensing specialist to give you the best chance of success with your application.

TENs and capacities

Q: I have submitted a temporary event notice (TEN), which has been granted for an event I am hosting in a few weeks, but I have noticed the capacity figure stated was incorrect, and in fact the TEN needs to cover a larger capacity.​

Can I still continue to use this TEN but operate under a higher capacity than what I have applied​

for given my fire risk assessment allows me to do so? Or do I need to withdraw this TEN and re-submit another TEN instead with the correct, higher capacity requested for the event?​

A: In short, if you have applied for a TEN, you need to operate under the permissions of that TEN. In this case you applied for a TEN for your event to cover certain hours, for certain licensable activities, to the capacity you had stated under the TEN.

The capacity, along with other aspects, forms part of the TEN permission. Therefore, if you are going to be operating under this TEN, you need to operate under the stated capacity.

If you now wish to operate to a higher capacity, I would suggest you withdraw this TEN and submit a further TEN for the higher capacity you are now looking for within the required timescale. Ideally, you can resubmit the TEN as a standard TEN if time permit. One would hope that, given there were no objections to the current TEN, the authorities are unlikely to have an objection to any subsequent TEN. However, the increase in capacity would, of course, be an additional factor for authorities to consider.

For any legal enquiries please visit Poppleston Allen's website​.​