Category: Uncategorised

We are delighted that our relationship with Innpacked is going from strength to strength. Our clients are benefiting from our hook up with them and many are already taking advantage of the direct link into their training packages. We have also had some real success with bespoke packages being tailored to our clients needs.

Innpacked is one of the most successful training companies in the UK hospitality industry. Their client base ranges from large multinationals to individual clients who are just beginning their career. The reason for our hook up with them is their ability to provide training that suits our client’s individual needs. They deliver mandatory courses that vary from the Level 2 Award for Personal Licence Holders, which is required to gain a personal alcohol licence, to the Level 4  Award in Food Safety in Catering. They also design bespoke courses which are written and delivered to our client’s exact requirements, such as employee and management induction courses. Their  main goal is to not only deliver quality training, but training that is relevant and adds value to your business or career.

Please either click on the following link to see their APLH courses:

http://www.innpacked.com/course/aplh/

or for the whole suit of courses on:

http://www.innpacked.com/courses/

or email us direct on:

woodswhur@innpacked.com

Having concluded the successful appeal for fabric in 2015 the operators and myself hoped for a quiet year in 2016. Unfortunately the issues of young people taking recreational drugs at social gatherings and in music-led environments came to a head again this year.

Two further young lives were lost by individuals who were determined to take MDMA as part of their night out. Ultimately this led to the summary review of the premises licence at fabric, the suspension of the premises licence, the revocation of the licence and the eventual reinstatement of the licence after significant time was invested by the operator, the police and the licensing authority in coming to a compromise which all parties were able to sign off – removing the need for a week long appeal at Highbury Corner Magistrates’ Court.

The case in itself highlights the huge challenges to the leisure industry and enforcement agencies surrounding issues in the night time economy.

I think the hardest part for me in the whole process was attending the inquest at the Coroner’s Court when the family, friends, staff and medic who tried to save Ryan Brown’s life all gave evidence before the coroner. I had been working on this case for several months by that stage, and had looked after fabric’s licensing affairs for three years. Everything was brought into sharp focus when I saw young men similar to those who socialise with my elder daughters emotionally giving evidence about the loss of their friend. The Coroner highlighted that the evidence had shown a naivety in drug use and she expressed concern that whatever she would say, young people would still run the risks associated with taking recreational drugs. She highlighted the need for better education systems and praised the medical facilities that are available at fabric.

The proceedings before the Licensing Authority and in the run up to the appeal again stressed the difficult circumstances that operators have in keeping drugs away from their venues. I represent bars, hotel operators, restaurants and venues more traditionally associated with the late night sector. None of these types of premises are immune from people taking drugs within them. I am constantly surprised at where drug taking now takes place and by huge challenges for operators and enforcement officers alike.

The fabric case has re-emphasised the need for operators to never stand still. One of the key offers which has been put in place by fabric moving forward is a “Target Hardening Programme”. This will see significantly different types of searching and management of the front door of the premises in an attempt to make it harder for individuals to take drugs into the premises. The difficulty is that searching cannot be intimate and it is so easy for tablets and small amounts of powdered MDMA to be smuggled in intimate places.

The more I am involved in cases such as this, the more I am of the view that enlightened enforcement protocols, which include education rather than just prohibition, are the way forward. As the coroner emphasised, nothing she was going to say would stop young people who believe they are invincible.

The statistics which Professor Measham has shared with us during these proceedings all push in that direction. There are significant issues with creating environments where naïve drug users are prepared to risk taking all of their drugs in one go – the consequences being potentially fatal when individuals “Double Drop”.

One of the key issues that has come about during the fabric case is the potential loss of the cultural and late night entertainment sector in major cities.

There is a need to invest significant sums in opening and maintaining premises such as fabric. They clearly serve a huge, loyal market. I have never been involved in a case before where a review managed to engender 872 positive representations in the review. This then led to 160,000 people signing a petition to save fabric. Many thousands of people then contributed over £300,000 to create a fighting fund to give fabric an opportunity to fight the revocation and re-open. The press coverage and reporting of the case has been at a level that I’ve never seen before and this is not purely because of the premises themselves but also the fact that people are awakening to the possibility that summary reviews could be used to remove other premises in a similar fashion.

I formed a view very early in these proceedings that a summary review was a blunt tool used to deal with the issues at the premises. If you read the preamble to the Violent Crime Reduction Act (the legislation that brought in summary reviews to the Licensing Act 2003) and all of the guidance documents since, you will see that this mechanism was brought in primarily to deal with premises associated with serious violent crime and weapons at premises.

Some months on we are in a position I genuinely believe we could have reached without the need for the premises to have closed for 4 months and this could have saved huge amounts of money on all sides, and the potential financial ruin of the business.

There have been instances during this period where I have been asked to advise police forces as to whether a summary review should be launched in certain circumstances. I have been slow to advise their commencement in a particular case which was associated with violence during football matches. We managed to set up a level of communication between the operator and the police, where everything was achieved by way of a minor variation rather than going down significantly costly litigation. It is still my advice that taking the foot off the gas and making a careful, considered approach can be significantly beneficial to all parties.

This is not written with criticism of the police in mind, in the circumstances of the fabric case. I accept entirely that the pressures in place are considerable when young people have lost their lives at licensed premises and there is a belief that the operator could do more to manage out drugs in their premises. However, as was borne out in the significant discussions with Islington Council and the police in the run up to the appeal in fabric, with a will on the part of all parties, a sensible conclusion can be reached which promotes the licensing objectives and hopefully allows the late night industry to flourish.

 

 

The increasing popularity of shisha smoking in recent years has led local authorities to consider the various powers at their disposal to address the activity. For councils such as Westminster, the issue might be said to be “smoking hot” at the moment, with the authority looking at measures to control it and seemingly set on a course to reduce the harm it perceives it to cause.

Westminster issued its draft strategy, “Reducing the Harm of Shisha” in December 2015, citing a British Heart Foundation study from 2012, which showed a 210% increase in the number of premises in the UK offering shisha over the five years to then from 2007. Westminster says that its document is aimed at enabling people to make informed choices, to help businesses operate in a sustainable and responsible way, and to protect and enhance the amenity of every neighbourhood within its area of responsibility.

Consultation on the document closed on the 12 February this year, with the final strategy due to be published this spring: it has yet to appear, and enquiries of the council this week revealed that publication has now been deferred until spring 2017, for undisclosed reasons. Nevertheless, the council has confirmed that the issue of shisha smoking is still very much in its spotlight.

Responsibility for public health shifted to local authorities from 1 April 2013 and in addition they have powers under licensing, planning and environmental protection legislation at their disposal.

Westminster’s Draft Strategy proposes a three-pronged approach to the issue, as follows:

• To educate people about the harm associated with shisha;
• To regulate the activity; and
• To lobby and form partnerships with other authorities and organisations such as the UK Healthy Cities Network and the Smokefree Alliance.

This approach, the council believes, will increase its effectiveness and ability to improve health outcomes and reduce nuisance.

Shisha involves smoking tobacco or herbal smoking products through a water pipe or hookah. Historically most prevalent in Africa, the Middle East and South East Asia, the activity has in recent years gained popularity in Europe and North America. Although traditionally carried on by members of the aforementioned ethnic groups, it has become popular with students and other young people from all ethnic backgrounds in recent years. It is instructive to note that shisha smoking is banned in public places in some countries such as Pakistan, with other Middle Eastern and Asian countries considering similar restrictions.

Shisha bars are found across the UK and, whilst they tend to be concentrated in cities such as Manchester and Birmingham and in other boroughs of London, such as Brent and Tower Hamlets, Westminster has seen an increase in the number of premises within its area offering shisha smoking, to a total of some 132 businesses at the end of 2015, with the number continuing to grow. In Westminster, the greatest concentration of such premises is around the Edgware Road Stress Area, although some are also found in the Queensway Stress Area, the West End Stress Area and elsewhere throughout the borough.

In the consultation paper, the council points to the fact that many of those who smoke shisha are unaware of its health impact, often wrongly believing that because the smoke is inhaled through a water pipe that is “safer” than traditional cigarette smoking. Studies looking at the long term health effects of shisha smoking are few and far between but, says the council, there is an increasing amount of evidence which suggests the health effects of shisha smoking are similar to, or worse than, those of cigarette smoke. It also points to health and safety issues arising from sharing water pipe mouth pieces and the fire risk associated with burning charcoal. In addition, the consultation paper highlights the possible amenity impacts of shisha smoking caused by noise and fumes and crime associated with the activity in terms of illicit tobacco and the evasion of excise duty.

The council is engaged in various smoking cessation campaigns, including some that target shisha smoking specifically, particularly amongst students. It is also in the course of drawing up guidance for businesses on the range of regulatory requirements associated with shisha smoking that need to be met, and on good practice to address health and amenity concerns.

Turning to the regulation of the activity, Westminster’s Consultation Paper highlights the wide range of powers that the council has at its disposal to control shisha smoking. These include:

• Smokefree Legislation – The Health Act 2006 bans smoking in “substantially enclosed premises”, imposing various rules concerning the structures in which smoking can and cannot take place. Such matters are also governed by the Health and Safety At Work Act 1974.
• Highways Law – The Council’s Highways Department has various powers to prevent shisha smoking obstructing the pavement and to require tables and chairs on the pavement to be licensed.
• Environmental Protection Act 1990 – This gives the council various powers to curb statutory nuisance arising from fumes or noise. Such matters are also covered by the Anti-Social Behaviour Act 2003.
• The Licensing Act 2003 – Although public health is not currently a licensing objective under this legislation, many in the sector expect it to be introduced as one shortly. This notwithstanding, there may nevertheless be conditions on premises licences as matters stand, which serve to limit to shisha smoking by, for example, preventing the use of outside areas after a certain time, or limiting the number of patrons allowed in outside areas. Should premises be found to be causing a public nuisance through shisha smoking activity, the council has powers to add such conditions to the licence upon a licence review.
• Planning Legislation – The council has powers to tackle shisha smoking by alleging that, by offering it as an activity, premises have unlawfully changed planning use.

I am currently involved in a case in Westminster where the council, having attempted to use tables and chairs legislation to control shisha smoking at a set of premises, is now using the planning legislation and alleging that the shisha smoking at the premises amounts to an unlawful change of planning use from A3 (restaurant) to a mixed A3 and sui generis use. An application was made for a Certificate of Lawfulness on the basis that the shisha smoking at the premises is merely ancillary to the restaurant use. However, this was turned down flat by the authority, without any opportunity being given to lodge additional evidence. That decision has been duly appealed to the Planning Inspectorate, and a decision on that appeal is awaited early next year.

In what I believe to be a robust case, the arguments advanced included the following:

• Shisha smoking is demonstrably a very small part of the business’s turnover (being approximately 5%);
• There is no specifically designated shisha area at the premises;
• The number of customers partaking of shisha is very low;
• The number of menu items represented by the shisha activity at the premises is very low when compared to the number of food and drink items on offer;
• The appearance and presentation of the premises remain very much those of a restaurant;
• The shisha smoking at the premises isn’t leading to any intensification of their use; and
• Shisha smoking at the premises has never given rise to any complaints, whether they be about noise, fumes or anything else.

It will be interesting to see what the outcome of this appeal will be and also what Westminster’s final shisha strategy document looks like when it finally comes out. I know that there is considerable concern amongst the business community in Westminster, with an increasing number of outlets offering shisha or wishing to do so. We will update you on the outcome of the appeal and on Westminster’s strategy in future editions of this newsletter. In the meantime, should you have any questions or concerns, please contact one of the team.

We were all delighted with our first gambling seminar and networking event, held at the iconic Hippodrome Casino Theatre on Monday 6 June 2016. Eighty delegates from a broad spectrum of gambling operators and regulators attended. We should like to thank Rob Burkitt from the Gambling Commission, Kerry Simpkin from Westminster City Council and Sheila Roberts from London Borough of Newham Council for preparing and delivering such interesting presentations.

Please see the link below to the biographies of the speakers, the agenda for the day and each of the presentations.

Agenda

Biographies

Presentation

There were some very interesting discussion points raised as a result of the subject matters covered.

Andy Woods highlighted the change in focus from the early years following the introduction of the Gambling Act 2005 to the present day, and this was confirmed by Rob Burkitt in his presentation. There is clearly a move towards placing the onus on the gambling industry to modernise and to improve self-regulation, compliance and best practice.

Andy also emphasised that there is a greater focus on regulatory control and that the Gambling Commission are using more of their enforcement powers than they had previously.

One of the key issues raised was the closer control and monitoring of personal licence holders. Andy stressed that, after the introduction of the Gambling Act, enforcement and control had focussed on operating licence reviews. However, the industry needs to be aware that there will be more interaction with personal licence holders moving forward.

Rob Burkitt from the Gambling Commission touched on this too, and highlighted the Gambling Commission’s position on Personal Management Licences (PMLs).

He pinpointed the following:-

Para 4.3 of the Gambling Commission’s Statement of Principles (please click on the link http://www.gamblingcommission.gov.uk/pdf/statement-of-principles-for-licensing-and-regulation.pdf)

The Commission expects those occupying senior positions, whether or not they hold Personal Management Licences, to uphold the licensing objectives and to ensure the compliance of operators with the LCCP.

In particular, the Commission expects operators to:

• organise and control their affairs responsibly and effectively
• have adequate systems and controls to keep gambling fair and safe
• conduct their businesses with integrity
• act with due care, skill and diligence
• maintain adequate financial resources
• have due regard to the interested customers and treat them fairly
• have due regard to the information needs of customers and communicate with them in a way that is clear, not misleading, and allows them to make an informed judgement about whether to gamble
• manage conflicts of interest fairly
• disclose to the commission anything which the commission would reasonably expect to know
• work with the commission in an open and co-operative way

Anna Mathias’s Update on Current Developments and her Lotteries Update were particularly well received by delegates, as we learnt from the feedback received, and there were interesting discussion points raised in relation to the increase in the control and regulation of money laundering and the processing of cash transactions.

Kerry Simpkin’s presentation was thought-provoking and centred around the work that Westminster Council have been doing surrounding the potential areas of impact on vulnerable people by the activities of gambling premises. The fact that local authorities are potentially going to have greater control of the issue of premises licences was emphasised also in Sheila Roberts’s presentation about the challenges posed to a regulator in such a diverse Borough as Newham.

Clearly, local authorities’ statements of licensing principles and special consideration areas are going to be key when the powers are full understood by councils. Paddy Whur commented on the political dynamic at hearings before licensing sub-committees under the Gambling Act. He stressed that it will be very interesting to see how close these special consideration areas come to cumulative impact policies in licensing policies created under the Licensing Act 2003.

Anna also raised the issue of dementia training which is, again, something which is going to become far more topical in the coming years. Andy Woods pointed out to the operators in the room that the enhanced requirements placed on them will mean that the training of staff is going to be critically important in the future.

We were delighted with the interaction with the audience and the feedback we have received since the event. If there are any specific questions that those who attended, or who have received the slides, wish to be answered, then please do not hesitate to contact us.

Some of the feedback received:

“I thought that the seminar itself was very good and clearly well put together and delivered.” Operator

“I wanted to commend you all on a fantastic and worthwhile event.” Gamcare

“Fantastic event. Great content and ran to timings. Just the right amount of information.” Consultant

“Really useful to be able to attend such a wide ranging seminar. Looking forward to next year.” Local Authority

Paddy@www.woodswhur.co.uk

Andrew@www.woodswhur.co.uk

Anna@www.woodswhur.co.uk

We are delighted that our relationship with Innpacked is going from strength to strength. Our clients are benefiting from our hook up with them and many are already taking advantage of the direct link into their training packages. We have also had some real success with bespoke packages being tailored to our clients needs.

Innpacked is one of the most successful training companies in the UK hospitality industry. Their client base ranges from large multinationals to individual clients who are just beginning their career. The reason for our hook up with them is their ability to provide training that suits our client’s individual needs. They deliver mandatory courses that vary from the Level 2 Award for Personal Licence Holders, which is required to gain a personal alcohol licence, to the Level 4  Award in Food Safety in Catering. They also design bespoke courses which are written and delivered to our client’s exact requirements, such as employee and management induction courses. Their  main goal is to not only deliver quality training, but training that is relevant and adds value to your business or career.

Please either click on the following link to see their APLH courses:

http://www.innpacked.com/course/aplh/

or for the whole suit of courses on:

http://www.innpacked.com/courses/

or email us direct on:

woodswhur@innpacked.com

I have attended a Police meeting this week with a long standing trouble free operator.

The Police were uncomfortable with some instances which have come to light of the way in which people had been ejected from or refused entry to the licensed premises. The techniques for removal/ejection were called into question and we were shown some video footage from the Council’s CCTV system.

The Police thought that there was a need for some refresher training for the door staff and also a reintegration of management and door staff to work together. It reminded me of instances that I have dealt with previously where staff working behind the bar had been comfortable to sell alcohol to people without I.D checking believing this had already taken place at the door by the door supervisors.

The management controls in the premises will determine whether there will subsequently be a review of the Premises Licence. The Premises Licence attaches to the premises and is in the owner/operator’s control. If door supervisors are seen to be behaving in a way which compromises any of the four licensing objectives there could be a review of the Premises Licence. Clearly if the Premises Licence is put into potential jeopardy as a result of this action then there could be serious ramifications for the owner/operator.

It is therefore very important that the owner/operator does not allow a door team to be the tail that wags the dog. Good quality door companies will provide a senior door man who understands potential issues that could be created at the premises as well as the continuity of door staff. One of the issues that arose in our Police interview was that the premises was located on the corner of two roads and some of the ejections could lead to people being thrown on to the carriageway of the road and therefore causing potential issues to their safety.

These live issues should be risk assessed for every venue and door teams should be constantly looking at what management controls are needed. Drug use in toilets is another significant risk to licensed premises and door supervisors (and/or toilet supervisors) have to be vigilant that a significant number of people carrying drugs with them are looking for a “soft” place to be able to take them. I was once involved in a pub premises licence review which had difficulties with their toilets. When the Premises Licence was reviewed the issue surrounded the gentlemen’s toilets and in particularly one cubicle. The DPS told us they had tried to put sloping surface blocks on the window ledge which had been removed and admitted they had given up at that point and not looked for any other ways to deal with the issues…not a good response.

One enlightened operator who we acted for asked all of their senior management to do the SIA door training course and all of their door supervisors to do the NCPLH course. We then had a training day where the management and the door supervisors integrated with role play in live scenarios so that both understood the issues that the other had to deal with at the premises.

This has brought back into sharp focus my view that I have always had that training is imperative and that any external agencies employed at licensed premises – for example door supervisors – do not put the long term life of the business in jeopardy by bringing the Premises Licence in for review.

 

Well its been a significantly busy start to 2016 and it does look as if Leeds has been a particularly vibrant market. Recent statistics have put Leeds in the same league table as Cardiff and Liverpool as leading for regional openings of new licensed premises. Whilst places like Manchester, Birmingham, Leeds and Cardiff have always been well stocked with pubs and bars, their range of restaurants has per capita been well below that of London. However, this is not the case now as these regional heavy weights are starting to offer a wide range of premises for customers to choose from. We have been fortunate to receive a significant number of these instructions and continue to assist operators when they are looking at new sites within the city.

We are delighted to be instructed in relation to the new Dakota Hotel on Greek Street in Leeds which will be a significant addition to the hotel sector. Clearly there is still a need for new reasonably priced beds in Leeds to cope with the increasing demands as a leisure destination city.

In our last newsletter I did comment on the issue of takeaways and the potential need for toilet provision due to the recent High Court ruling. At that stage I didn’t have a copy of the Decision. However, please find the link below to the reported case and can I thank James Rankin of Francis Taylor Buildings for sending me the case. We will of course continue to report on this matter if and when the Court of Appeal looks at the Decision.

http://www.bailii.org/ew/cases/EWHC/Admin/2016/1064.html

The case of Hemmings which deals with the ability of public authority to recover enforcement costs has now been litigated in the European Court of Justice. We may have to wait until the end of the year until we see the Decision of this case. Clearly Licensing Authority’s will be interested to see the final Determination of this Decision.

What is the current state of play with EMRO’s and the Late Night Levy

There has not been a great deal happening in relation to the EMRO and the Late Night Levy. We still do not have an EMRO in place. The only public hearing so far has been in Blackpool and other Licensing Authority’s seem to be reluctant to go through the protracted procedure when Blackpool reported a significant cost for the process with no positive result.

It appears that the Late Night Levy is also now stuttering as Blackpool have also voted against the implementation of the Levy as recently as the 25th May. They are going to review this decision later, probably in six months time but may favour a more structured review of their Statement of Licensing Policy. Tower Hamlets are currently in the process of consulting on the potential of the introduction of late night Levy. The consultation was due to conclude in mid May but we have not yet seen a decision as to how Tower Hamlets are to move forward. However, most other areas that have gone out to consultation have rejected the Levy and we will have to see whether any more Authorities look to introduce a Levy.

In April Nottingham announced their Levy raised £150,000 less than they had expected. Clearly there is a huge amount of bureaucracy to go through to secure a late night Levy and if the financial remuneration is not what was expected we can understand why many authorities are going cold on the concept.

We have seen the first prosecution for selling alcohol at a cost which is below the permitted minimum price. In May a shop keeper in Gateshead was found guilty of four charges relating to the sale of Kommissar Vodka which was found to be unfit for human consumption. The prosecution for the breach of the mandatory condition on minimum price was therefore wrapped up in a more broad prosecution relating to the sale of counterfeit vodka. He was fined £3,200 and ordered to pay costs. We have been involved in cases where alcohol was sold below the minimum price but the Police and Licensing Authority concerned dealt with the matter by way of a formal caution for the criminal offence and a review of the Premises Licence.

What will the rest of the summer bring?

Well we move into the height of summer and have the Queen’s 90^th birthday extended licensing hours and also the Euro 2016 Football Championships to look forward to. It is going to be important that Premise Licence holders ensure that plastic bottles and glasses are used in outside areas – when the sun arrives! If there are conditions on Premises Licences they will be monitored and it is important in the circumstances that plastic/polycarbonate glasses are used. In addition should England, Wales and Ireland perform well there could be euphoria in licensed premises and it is important in the circumstances for licensees to remember that selling to someone who is intoxicated is a criminal offence and can lead to criminal prosecution and/or review of a Premises Licence.

I have been involved in a serious Summary licence Review this year in which the Premises Licence holder was being threatened with the revocation of his licence. A great deal of the evidence produced by the Police was of the level of drunkenness/incapacity of people in and leaving the venue. Operators often forget this is a critical part of the management of their premises and if not handled correctly could lead to the threat of prosecution and/or the loss of licence.

Lets hope that all the teams do well – with England winning the tournament – the sun comes out and we can all have a glorious summer.

Its hard to believe that it has been twenty years since we watched France play Spain at Elland Road in Euro 1996 and then saw Gazza score the wonder goal against Scotland. What a fabulous day and the pubs were all closed by midnight!

 

We are delighted that Colin Manchester has committed to a new edition of Manchester on Alcohol and Entertainment Licensing Law, which will be the 4th edition, and will be published by Woods Whur Publishing in 2017.

Colin told us, “There continue to be changes to the primary and ancillary legislation, as well as development in the law through High Court and Court of Appeal decisions, all of which means that licensing law continues to be a fertile area for litigation. I am pleased that 2017 will see me release the 4th edition of my text. It is also great news that Woods Whur Publishing are reducing the cost of the current 3rd Edition to £40 per copy as a mid-publication discount.”

To place an order please email info@www.woodswhur.co.uk

I have recently had the opportunity to discuss the action Hull City Council has taken to the High Court about the provision of toilets in take away outlets with their head of legal. This High Court decision may have significant implications for takeaway food stores that also provide an element of seating for customers.

The case involved Gregg’s the bakers and sandwich shops. Hull City Council successfully argued that the provision of seating for customers within the premises necessitated the provision of toilet accommodation for those customers. This is potentially hugely impactful for a significant number of similar operations.

The case was brought under Section 20 of the Local Government (Miscellaneous Provisions) Act 1976 which provides for the requirement of sanitary facilities in certain circumstances. This section allows local authorities to require the provision of toilets at places of entertainment or other ‘relevant places’, and to maintain them. The ‘relevant places’ definition include places where food or drink is sold to members of the public for consumption at that place.

There is guidance which suggests that ‘food premises’ which are predominantly takeaway operations (where customers are not encouraged to stay and consume food for a significant length of time, and provide less than 10 seats for occasional use by customers) would not generally be regarded as a ‘relevant place’ within the meaning of the Act and therefore would not normally be expected to provide toilet accommodation for customers.

Hull City Council said that approach could not be right, as such an interpretation gave the two local Greggs’ bakeries an “unlawful and unfair” commercial advantage. Greggs have changed their style of operation significantly, and in many areas now compete with other late night operators and have premises licences to allow them to sell hot food between 23:00 and 05:00.

In a hearing at the High Court in Leeds the judge decided that Hull council’s claim was well-founded. He went on to say: “It is obvious that if a person sits down in a Greggs outlet at the seats provided and proceeds to eat a pasty and a fizzy drink just purchased at the counter for that purpose, that is a normal use of the premises. The fact that most customers take away their purchases and those who stay do not normally stay long, does not change that.”

We have not yet been able to see the full judgement of this potentially impactful decision and have been told that Greggs will seek leave for the High Court decision to be reviewed by the Court of Appeal. We will keep you updated as to any further developments.

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 it’s 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 weary 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.