Using cumulative impact policies

Councils should be wary of the unintended consequences of cumulative impact policies, writes Paddy Whur.

I am delighted to say that I successfully persuaded Birmingham Licensing Sub-Committee to grant a new licence for a thousand-plus capacity, three-room Bierkeller Complex on Broad Street in Birmingham. The premises sit in the heart of the city council’s Cumulative Impact Policy and the application received representations from the police due to its location.

This case reminded me again of how Cumulative Impact Policies, if not dealt with carefully, can have a negative consequence to the quality and development of the entertainment sector in town centres.

I have recently been conducting training with a licensing authority where I have advised them to consider removing their Cumulative Impact Policy as it is stifling the introduction of new operators in to the town centre who are popping up in closely competitive city centres. The consequence is that the existing operators are not threatened by competition, resting on their laurels and not investing in their units. Everyone suffers as a consequence.

If an operator is of real quality and has a track record of promoting the licensing objectives in other Cumulative Impact Policy areas then, in my view, licensing authorities should seriously consider the relative merits of granting or refusing the premises licence application. If the scales tip heavily in favour of investment, new jobs, contribution to business rates, bringing back to life of a unit which is only ever going to be an entertainment complex and potentially make other operators improve the quality of their offer – then they should seriously consider granting the licence.

The circumstances in Birmingham were as follows:

• The application premises sat in the heart of a Cumulative Impact Policy area.
• They had previously traded as a Brannigans – with the premises failing when the company went in to administration in 2003.
• They had been empty with a dead frontage ever since.
• The premises had stayed vacant since that date but had planning permission stating that they were to be used as licensed premises with music and dining to be offered at all times.
• The Birmingham City Council “Big City Plan” strategy document highlighted that this area was in need of regeneration as one of the entertainment areas for Birmingham.
• The Cumulative Impact Policy had been brought in to Birmingham’s Statement of Licensing Policy after the previous occupier had left the premises.
• The operator runs similar premises in Leeds, Manchester, Liverpool and Cardiff and had recently been granted a licence in the Cumulative Impact Policy area for Nottingham.
• The police maintained their objection to the application albeit highlighting that their background checks had suggested that the operator was promoting the licensing objectives elsewhere and had submitted, through ourselves, a very robust operating schedule.

I was delighted that having heard all of the evidence, considered the submitted documents and having debated the application for a considerable time the Licensing Sub-Committee came back to express the view that we had rebutted the presumption of refusal within the Cumulative Impact Policy area and that the licence should be allowed.

The relevant section of Birmingham’s Statement of Licensing Policy highlights at paragraph 14.9 “For any application in these areas the council will expect the applicant to demonstrate the steps it will take to promote the licence objectives. Where relevant representations are made the council will consider the application on it’s individual merits and decided whether to apply the special policy. Where it is of the view that the application is unlikely to add to the cumulative impact on the licensing objectives the application will be granted”.

Many statements of licensing policy, which promote a Cumulative Impact Policy, have similar text within them as to the process that the licensing authority will go through in considering applications within a Cumulative Impact Policy area. The text tends to follow closely the text in the Section 182 Guidance to Licensing Authority documents issued by the Home Office. As I always remind licensing authorities when I am making an application in the Cumulative Impact Policy area these policies are not part of the primary legislation (they are not contained in the Licensing Act 2003) but are capable of being created within the localised Statement of Licensing Policy.

We have been particularly successful in recent times in persuading licensing authorities to grant new applications in Cumulative Impact Policy areas around the country including major new developments in Cardiff, Nottingham, Birmingham and other places.

It is still my real concern that new applications, and applications to vary premises licences need to be carefully assessed by licensing authorities and they must not forget that the Licensing Act 2003 is meant to provide a “light touch” licensing process. In addition, there are significant powers available on review for any premises that subsequently fall back on the promises that they offer licensing authorities as to how they will promote the licensing objectives.

What authorities must be very wary of is the potential for operators to look at other areas / cities to apply in and take their investment elsewhere. I represented an operator sometime ago in Leeds who made, what I thought, was a compelling application. This still received representations – purely because it was in the Cumulative Impact Policy area. The application was granted and the premises operator has not fallen foul of any regulatory concerns since opening. In addition, they have now been granted two other licences in Leeds and Yorkshire. What is concerning is that when we made the first application they said to me that if they had known that the hoops were going to be so significant to jump through they would have gone to Manchester rather than Leeds!

That in itself encapsulates for me the fact that Cumulative Impact Policies, if not used judiciously, can stifle development and improvement by keeping out operators which every city should be proud to accommodate.

Paddy Whur is a partner at Woods Whur. He can be contacted on 07738 170137 or by email.