Cumulative impact policies: the fears over their use

These are new laws that have been introduced in an attempt to tackle drug and alcohol-fuelled violence. The measures include a 10pm finish time for offsales of alcohol, 1.30am ‘lock outs’ and cessation of on-sales of alcohol at 3am — although there are some exemptions for small bars and restaurants.

So far, so familiar, you might think, and these measures are similar to those experienced by operators in England and Wales, by way of a local authority’s cumulative impact policy.

Cumulative impact policies (also known as special policies, stress areas or saturation zones) are a product of the guidance to the Licensing Act 2003. Where a licensing authority receives evidence that the high density of licensed premises in one area is having a detrimental effect on one or more of the licensing objectives, they may consult on introducing a cumulative impact policy.

Effects

The effect of having a cumulative impact policy generally means any new premises licence applications or material variations that receive relevant representations will presume to be refused unless the applicant can show granting the application will not add to the impact.

The way that cumulative impact policies are designed and work varies across authorities. For example, some councils have cumulative impact policies that only apply to applications seeking licensable activities beyond certain hours. Some policies only apply the presumption of refusal where the applicant cannot demonstrate that they comply with particular requirements, often a very long list of operational practices and participation in various schemes.

Most cumulative impact polices allow very specific exemptions, such as for small premises and restaurants.

Interpretation

Some authorities will take a very strict interpretation of their cumulative impact policy and will defend it vigorously. Often, applications will receive representations simply on the basis of a cumulative impact policy being in place. Other councils may take a more relaxed approach and are open to engagement.

One thing that is clear is that cumulative impact policies are becoming more popular across England and Wales. There are now hundreds of cumulative impact policies in force, with many authorities having more than one in place, and only a handful have been reversed. A local authority is obliged to keep its cumulative impact policy under review and it can, of course, consult on expanding the area to which the policy applies, as long as the evidence supports such an expansion.

This is a controversial aspect and I remember speaking to one licensing officer whose experience of cumulative impact policies is that it pushes the problems complained of into the surrounding areas. Another criticism is it maintains the ‘status quo’, making it difficult for new operators or those who want to offer something different and who may put into place practices that would have a beneficial effect on the area.

Case law

This is supported by case law, which confirms that a cumulative impact policy should not “bring the iron curtain clanging down”.

Cumulative impact polices can be extremely difficult to overcome and demonstrating that your operation is an exception may not be straightforward. Having said that, much will depend on the approach you take to your application. We have been successful in cumulative impact policy areas to extend hours, increase capacity and obtain new premises licences for our clients.

These applications are often not for the faint hearted and we have also had to deal with appeals against the decisions of licensing sub committees.

However, often the key is getting the foundations of the application right, understanding your operation and your community and managing your relationships with the authorities and your neighbours.

Public health

What will also be interesting to see in the future is the interplay between public health and licensing. In England and Wales, public health is not a licensing objective. However, the Local Government Association recently carried out a survey of directors of public health and 89% of those who responded believed there was demand for public health to be a licensing objective.

Cumulative impact polices can only be introduced where there is evidence that the density of licensed premises is having a negative effect on a licensing objective. If public health were to become a licensing objective, it could widen the evidential opportunities to increase cumulative impact areas.

Meanwhile, back in Sydney, the new laws are causing considerable controversy and have sparked protest from people who fear their night life is further being threatened. A spokesman for one club, which has closed, said that following the introduction of the new laws it had “no confidence for the future”. Cumulative impact policies can be a huge hurdle for operators but it is important to remember that, with the right approach, they can be overcome.