Philip Kolvin QC reports on two recent licensing cases concerning the application of cumulative impact policies.
Cumulative impact policies have been, for licensing authorities, a valuable tool in the control of town centres, preventing an over-concentration of licensed premises and the consequent problems for the service and transport infrastructure of such centres. But it is important to remember that they are a portcullis and not a blockade, and they can be lifted for the right applicant, without damaging the objectives of the policy overall.
Two recent cases in which I have been involved demonstrate that where there is no actual harm to the licensing objectives, licences ought to be granted, rather than technical reliance being placed on the wording of cumulative impact policies. In one of these, a police force was made to pay costs to a licensee, thought to be the largest award against the police in a licensing case.
The Mansion Nightclub trades on York’s Micklegate, formerly famous for a pub-crawl known as the Micklegate Run. Its application to extend its trading hours to 5 a.m. was opposed by North Yorkshire Police but granted by York City Council, on the grounds that, although sited in the cumulative impact area, the policy did not apply directly to variations of hours and anyway the police had brought no evidence of harm.
The Police appealed, and brought to court copious evidence of crime and disorder in the cumulative impact area, but none associated with Mansion. They submitted that even if the policy did not apply, the fact that the club was in the cumulative impact area was relevant, and that it was inevitable that longer hours would lead to more drinking and more problems.
The club stated that it was basically a music venue, rather than an alcohol-led venue, and that its extended hours would attract music lovers and not drinkers. It submitted that, cumulative impact area or not, the system was designed to usher through applications which would not harm the licensing objectives and that its record of trading the longer hours since the grant demonstrated the absence of harm.
In dismissing the Police’s appeal, the court held that it had no evidence to demonstrate that the council’s decision to grant was wrong. In other words, the Police had brought nothing to Court to dislodge the finding that there would be no harm. More in sorrow than in anger, I asked the Inspector whether he could point to one single fact telling against Mansion. He could not.
Costs were claimed against the Police, on the basis that it is clearly unreasonable, even in a cumulative impact area, to rely only on the policy but to bring no evidence at all to demonstrate harm, particularly when the venue in question is already trading until 2 a.m. The Police agreed to pay £34,464 in costs.
The case is a salutary lesson that licensing policies are not statutes, and where an application can be granted without harm, it should be. In this case, the council, which elected to remain neutral in the appeal, got it right, while the Police placed excessive reliance on the policy and gave insufficient scrutiny to the merits, a costly error.
In Thirugnanam v London Borough of Redbridge, the appellant ran a small convenience store in Ilford Town Centre, which is the subject of a strict licensing policy against further alcohol venues. She was refused a licence to sell a small amount of alcohol to complement her food offer, in reliance on the policy and in particular a concern that a further licence would exacerbate the issue of street drinking.
In this case, we went carefully through the council’s licensing policy and proposed conditions to meet each of the council’s concerns. Shortly before the appeal hearing, the council decided to concede the appeal on the basis of the conditions and so Mrs. Thirugnanam got her licence after all.
One twist in the case in this. Many policies state that they are to be strictly applied and will only be overridden in exceptional circumstances, and that the good management of premises is not to be regarded as exceptional. The origin of that stricture is Westminster, where the policy point made (I know because I drafted it) was that where there are simply too many premises so that regardless of management further premises will create problems, the quality of management provides no answer to the policy.
However, where the quality of management is relevant to whether there will be an increase in cumulative impact, that quality is plainly relevant to the all-important issue of whether there will be an increase in cumulative impact if the application is granted.
In similar vein, sometimes perfectly good applications are met with the mantra that good management is not by itself exceptional since such management is expected to be the norm. All well and good, but if not good management then what? The colour of the carpets? The true position is that there are cases where how the premises to be managed will indeed provide justification for a licence to be granted despite the policy. Mrs. Thirugnanam’s was a case in point.
Cumulative impact policies can certainly be used to prevent unmeritorious applications. They can also be used to raise standards of licensed premises through creative licence conditions so as to eliminate harm. Care should be taken by authorities to ensure that the former is not a kneejerk reaction to any application crossing their radar.
In Mansion, he acted for the club owner, instructed by Richard Taylor of Gosschalks.
In Thirugnanam he acted for the shop owner, instructed by P Sivashankar of Compliance Direct Limited.