Two successes in one! Acting for a landlord of Central London premises within the “West End cumulative impact area”, Suzanne Davies (pictured below) has recently successfully applied for a “shadow licence”, i.e. a second premises licence for a property in which the tenant operates its late-night live music business under its own pre-existing separate premises licence. Not only that, but the shadow licence was granted in a cumulative impact area/zone.
This represented a notable success on Suzanne’s part, given Westminster City Council’s policy to refuse applications for new premises licences for such businesses that are located within a cumulative impact area.
Cumulative impact areas/zones
As reported by us earlier this year, cumulative impact assessments (“CIAs”) relating to cumulative areas/zones were given a statutory footing by the Policing and Crime Act 2017 (Commencement No. 8) Regulations 2018, when section 141 of the Policing and Crime Act 2017 came into force on 8 April 2018.
Following publication by the Home Office of revised statutory guidance under section 182 of the Licensing Act 2003, that focused on CIAs, a news item written by David Clifton (entitled “How will the Licensing Act’s revised guidance affect you?”) was published on the Pub & Bar website.
You can read our following Pub & Bar articles about shadow licences:
- “Chasing shadows” published in August 2013, following the High Court judgment in the case of Extreme Oyster and Star Oyster Limited v Guildford Borough Council, which established the concept of shadow licences by determining that a landlord “proposes to carry on a business” involving the use of the premises for licensable activities if it proposes to operate the business in the event of the insolvency of the tenant or if the tenant vacates the premises for some other reason.
- “Landlords beware” published in July 2015, relating to what were then Westminster City Council’s proposed policy changes, that subsequently came into effect in January 2016. The relevant policy provisions (that can be found at paragraphs 3.2.11 to 3.2.16 of Westminster’s Statement of Licensing Policy) are set out below:
- Increasingly, applications have been made for premises licences at premises where a licence is already in force. Typically the applicant is the landlord of the premises where the licence holder of the licence already operating is their tenant. The landlord in many cases is seeking what they term a “shadow licence” on the same or similar terms to the licence already existing.
- The Act permits more than one licence to be in effect at any one time at the same premises and it has been established in law that the landlord may apply for a second or subsequent licence.
- The council remains concerned however that the holding of additional licences has the potential to undermine the sanctions available to it in response to a review application under the Act. This would be the case if action was taken in respect of one of the licences in effect at the premises, but the premises continued to operate under the authority of a second licence which had not been affected by the review proceedings.
- The council recognises that landlords have powers over their tenants outside of the licensing regime and would expect responsible landlords to exert that control to promote the licensing objectives. Where the landlord is also a licence holder of a premises licence in effect at the premises the council considers that the landlord has further responsibilities in respect of the operation of the premises to promote the licensing objectives.
- In order to promote the licensing objectives the council will take a holistic view of the licensing circumstances at the premises. When the licensing authority makes an application to review a premises licence to promote the licensing objectives at a premises, it will also consider whether it is appropriate to review all the licences in effect at the premises in order to promote the licensing objectives. Where the applicant for the review is not the licensing authority it will encourage the applicant to also consider whether it is appropriate to review all the licences in effect at the premises, and will consider bringing a review of any other licence in effect at those premises if it considers it appropriate to promote the licensing objectives.
- To support the council’s approach to multiple licences for the same premises it is the licensing authority‘s policy that all licences take effect when granted and continue to have effect in accordance with section 26 of the 2003 Act, and that the imposition of a condition which purports to suspend the effect of a licence would not promote the licensing objectives.
If you require advice on applying for either (a) a shadow licence or (b) a premises licence in a cumulative impact area/zone, please contact Suzanne by email [email protected] or by phone on 07767666300.