What is the future for cumulative impact policies?

We last wrote about cumulative impact policies (CIPs) and how they can make new premises licences and variations to existing premises licences challenging to obtain in January 2020 (click here to read the article). Shortly afterwards, whilst some clients were still proceeding with trying to obtain extended hours during the various lockdowns and other Government restrictions, the majority of licensed businesses were closing their doors to just survive the pandemic in the hope that they come out on the other side with their business intact.

Our Licensing department has recently seen an increase in instructions to apply for new premises licences or variations to extend capacity or trading hours in areas which are or were previously subject to a cumulative impact policy.

In some areas where the number, type or density of licensed premises (such as those selling alcohol or providing takeaway food late at night) is high or exceptional, serious problems of nuisance and disorder may arise. In these situations, the licensing authority may consult on introducing a CIP. Where a CIP is in place, there is usually a presumption that applications for new premises licences or variations to existing premises licences (e.g. an increase in opening hours, capacity or change of conditions) will be refused, unless it can be demonstrated that the grant will not negatively impact on the licensing objectives.

CIPs work differently across authorities. For example, some councils have what they call ‘framework’ or ‘core’ hours, and the CIP only applies to applications that seek licensable activities beyond these hours. Some authorities, such as Westminster, take a very strict stance and guard it robustly, and often in these areas all applications receive representations simply on the basis of a CIP being in place. Other Councils, such as Derby and Leeds, take a more pragmatic approach and are open to engagement and consultation.

In January 2020 there were over 200 CIPs in England and Wales. Since then, some forward-thinking authorities have reviewed the impact that CIPs have on licensed premises and have removed their policy completely. These include Oxford, Liverpool, Trafford, Hereford, Bristol, Birmingham City, Bournemouth, Christchurch, Poole, Bristol and Nottingham City (correct at the time of writing). These all had vibrant night-time economies prior to the COVID-19 pandemic, and it would appear that the councils are fully aware of the need to return to those levels again. Furthermore, no realistic assessment of cumulative impact has been possible over the last 18 months.

Some authorities have now decided to not just keep their CIP, but to extend it to cover more areas. The introduction of a CIP should be as a result of an assessment finding that crime and disorder associated with licensed premises and the volume of licensed premises in an area are having a significant cumulative effect. The critical point to consider on this is what evidence these authorities are basing their decisions on to either keep or extend their CIP.

Attitudes towards cumulative impact policies

Following the turbulence of all the pandemic-related changes and the success of England in the European Championships, some authorities are back to carrying out their enforcement related matters and are taking a robust approach to enforcing their CIPs. We recently acted for a client who wanted to extend their trading hours for a premises falling within a CIP. Before submitting the application, we consulted with the police, who confirmed they have no issues of crime or disorder with the venue. The police then contacted us to request adding conditions around door staff every Friday and Saturday and the use of an ID scanner, otherwise they would object. The reasoning for this request was because the premises is located in a CIP and the other premises nearby with similar hours have these conditions “so you should too”.

Licensing senior associate, George Domleo, said:

“From speaking with clients, it would appear that local community premises in the suburbs or destination venues are performing better than the city centre venues. This may be down to customers feeling more comfortable at present to stay local rather than venturing into the town or city for a drink, and also taking advantage of beer gardens when weather permits. We do, however, need people to return to hospitality premises in cities and towns and to do this we need councils to realise that they need to work with licensed premises to allow them to adapt and provide new, exciting, and dynamic concepts otherwise we will just be left with boarded-up units on our high streets, which are not good for anybody.”

Experienced operators who can demonstrate a proven track record of success, show evidence of no crime and have deep pockets for legal costs, may be able to overcome the legal barriers and obtain a premises licence in a cumulative impact area. However, a start-up wanting to break into the market might struggle in obtaining a licence. A leading licensing lawyer at a conference a couple of years ago even went as far as to describe CIPs as a cancer and other trade commentators refer to them as anti-business and anti-night-time economy.

Cumulative impact policies can be extremely difficult to overcome, but Flint Bishop has achieved success in extending hours within CIP areas, increasing capacity and obtaining new premises licences for its clients. The key to achieving this outcome is on the approach to the application, and although this may be a more drawn-out process, it helps to consult with the authorities on the proposed concept to win them over in the early stages. It is also important to understand your operation and your community as well as managing your relationships with your neighbours.

While it is very much welcomed that a number of councils have removed their cumulative impact policies, it will be interesting to see whether these are reintroduced at a later date when they have more evidence to go on. What is clear, though, is that cumulative impact policies are here to stay for the time being and are, in one way or another, enforced by the authorities. Should you be wanting to extend hours or obtain a licence in an area subject to such a policy, we would advise you to take a tactful approach and seek legal advice.