Changes to Cumulative Impact Areas
The concept of Cumulative Impact Areas has been around for many years. In brief, they were often brought in by licensing authorities through their licensing policies where there was evidence to show that the number or density of licensed premises in the area had a cumulative impact in undermining the licensing objectives. The CIA would then create a presumption that any application caught by it would be refused on receipt of a relevant representation unless the applicant could provide evidence rebut that presumption – often a difficult bar for an applicant to meet.
On 6 April 2018, Regulation 2 Policing and Crime Act 2017 (Commencement No. 8) Regulations 2018 brought into force s.141 Policing and Crime Act 2018. This made changes to s.5 Licensing Act 2003 and also introduced the new s.5A Licensing Act 2003 - both relating to ‘Cumulative Impact Assessments’.
Changes to s.5 Licensing Act 2003
In respect of their licensing policies, Licensing Authorities must now have regard to any Cumulative Impact Assessments (CIAs) published by it under s.5A Licensing Act 2003 when either determining or revising their policies. Further, the licensing statement must summarise any CIAs published by the licensing authority under s.5A and explain how the licensing authority has discharged its duty to have regard to any CIAs.
New s.5A Licensing Act 2003
This new section effectively puts Cumulative Impact Assessments on a statutory footing in that before introducing a CIA a licensing authority must consult with the same persons that must be consulted over licensing policies and provide:
- the reasons why it is considering publishing a CIA;
- a general indication of the part or parts of its area which it is considering describing in the CIA; and
- whether it considers the CIA will relate to all licences or those of a particular kind.
The evidential basis for its opinion that it is required must also be provided.
In practical terms for operators, there should be little difference between ‘old CIAs’ and the new ones issued under s.5A Licensing Act 2003. Licensing authorities will retain the flexibility to apply to a CIA to part or multiple parts of its area, to include premises of a specific type (such as late night refreshment only venues or off licences) and if it will apply only to new licences or variations as well.
Interestingly, the newly re-issued Guidance (April 2018) states that “Licensing authorities are not restricted to using general terms such as on-trade, off-trade and late night refreshment providers, and can apply their own descriptions such as vertical-drinking bars and night clubs if appropriate.” With no definitive legal definitions existing in licensing law for “vertical-drinking bars” and “nightclubs” etc. this could lead to different definitions being applied to such venues throughout the country.
The major change is the need for not only a full consultation to implement the CIA (as mentioned above) but a new requirement to review the CIA every 3 years (commencing with its publication or revision), including a full consultation. If the licensing authority chooses to keep the CIA in place then it must set out the evidence as to why it came to that conclusion.
An interesting question therefore arises as to the legitimacy of those CIAs operated by licensing authorities not implemented under s.5A Licensing Act 2003, which at the moment will be the vast majority (if not all) of the CIAs currently in existence. The Guidance states:
14.37 - In each case the three year period for reviewing a CIA begins with the original date of the publication of the CIA or the date that a CIA was last revised. Where a licensing policy statement as a whole is due for review, under the five year review period under section 5(4), and this occurs before the end of the three year CIA review period, licensing authorities may wish to use this as an opportunity to carry out a review of the evidence in support of the CIA. However, licensing authorities are free to carry out consultations and reviews of their CIAs (and/or licensing policy statements) at more regular intervals if they consider this to be appropriate.
14.38 - As Cumulative Impact Policies were not part of the 2003 Act, there are no transitional provisions that apply to CIPs that were in place before 6 April 2018. However, any existing CIPs should be reviewed at the earliest practical opportunity to ensure they comply with the legislation. It is recommended that the review should take place within three years of the commencement of the legislation on CIAs or when the licensing policy statement is next due for review, whichever is sooner. This will ensure that any CIPs in place before the commencement of the provisions on CIAs adhere to the principles in the legislation (in particular concerning relevant evidence and consultation).
Licensing authorities with old CIAs would therefore be best advised to check the detail of their last licensing policy review to see if the CIA was appropriately re-considered. Although the Guidance recommends the CIA review should take place within 3 years of the commencement of the legislation at the latest, this could in practice mean that those licensing authorities who last reviewed licensing policies in 2016 would not need to review either their licensing policy or CIA until 2021 – meaning the CIA will be reviewed for 5 years (or longer should it not have been properly reviewed with the last licensing policy).
The safest approach for licensing authorities would be for any current CIAs to be reviewed as soon as practicable.
Temporary Event Notices (TENs)
Another point of interest is that relevant authorisations subject to CIAs are defined as premises licences and club premises certificates. Indeed, the Guidance confirms CIAs do not apply to TENs, although “it is open to the police and environmental health authority (as relevant persons) to refer to evidence published within a CIA when objecting to a TEN.”
There are a number of old CIAs that sought to include Temporary Event Notices within the CIA but with TENs not included in s.5A it would seem somewhat perverse if such provisions were argued to still be valid.
Regardless of all the technical changes that have occurred, the advice to operators is still the same. If you are submitting an application caught by a CIA policy, early engagement with the authorities is recommended, as is obtaining legal advice - particularly if the application receives adverse representations.
Should you have any queries about these matters, or be considering an application that will be subject to a CIA, please contact one of our solicitors.