The Alchemist of the North

01 Jan 2018

Licensing, Public Law and Judicial Review

Newcastle upon Tyne is renowned for many things, one of them being a rather lively drinking economy based around the historic Bigg Market and, more recently, The Gate development. But it also has a developing, higher end economy based around Grey Street, a stately, Victorian and Georgian street sweeping and curving from Grey’s Monument past the lovely Theatre Royal downhill towards the river.

Fortunately for Newcastle residents, its City Council has taken an enlightened view of the development of its night time economy. It has not brought down the portcullis altogether, but set out a vision for what it wants and how it intends to get it. In its “Special Stress Areas”, classic cumulative impact policies are applied. There, you won’t get an alcohol licence unless you can show that your case is “exceptional.”

But in its ordinary cumulative impact areas, you can still get a licence, even for a pub or club, if you can show that your proposal will not add to cumulative impact. And in other parts of its policy, the City explains what may pass muster.

Alchemist is part of the Living Ventures Group, which has tried to set new standards for high-end bar and restaurant operations, including Artisan, Australasia and Gusto. Its reward has been that it is sought after as an occupant of new and existing developments and has an excellent record of licensing compliance and promotion of the licensing objectives. Its Alchemist brand is based around great fit outs, dining during the day and early evening, and theatrically produced cocktails, discussing, choosing and waiting for which is all part of the entertainment.

In Newcastle, the shopping centre operators, intu, were converting part of the main shopping mall in the city, Eldon Square, into a complementary food and beverage offer and wanted Alchemist as a key driver, facing both into the mall and out onto the city centre. To demonstrate that it complied with the policy, Alchemist offered a series of measures. These included a seated outside terrace closing at 10 p.m., high minimum prices for its alcohol offers, and seating covering 70% of its customer floor space. These, and clear evidence from its other trading locations that they were highly thought of by statutory authorities, landlords and neighbours alike, was enough to convince the licensing authority that they met the test, and a licence was duly granted.

However, appeals were brought by the operators of Harry’s Bar, a trade rival in the city, and also by the landlord of nearby apartments, who had commissioned survey evidence purporting to demonstrate that Alchemist was not all it was cracked up to be, and was effectively just another bar. Surveillance evidence was produced from Alchemist venues in London, Manchester, Leeds and Liverpool, with counter-evidence produced by Alchemist to demonstrate that it is genuinely a cut above, and did not harm the licensing objective locally.

After a three day hearing, the grant of the licence was upheld. The Court held that Alchemist was a well-run business which had set out its operating plans comprehensively and had co-operated fully with other interested parties in agreeing satisfactory conditions. The Court was content that Alchemist was a pub with dining as an integral part of the business wishing to attract a more mature and family-oriented clientele. It would provide a different experience from the premises in the Bigg Market and The Gate, whose customers are predominantly interested in loud music and cheap alcohol. The court was also confident that the company had shown a willingness to engage in dialogue with residents and the authorities in the event of later problems and to put in place extra safeguards if necessary.

The court concluded with important language, which might resonate in other cases:

“It is absolutely right and proper that the Local Authority’s starting point is the refusal of a licence given the problems that excessive drinking and nightlife cause. But it is also right that the policy should allow – as it does – the Council to grant a licence in certain circumstances. We do not share the view that no licences should be granted at all otherwise there would be no opportunity at all to address those issues. Because we believe that the applicant has discharged the burden of demonstrating that such a licence will not have a negative cumulative impact on the wider area or on one or more of the licensing objectives he decision of the Local Authority was made properly and was not wrong.”

Alchemist had incurred a substantial bill of costs in defending the appeal, partly because of the need to respond to the surveillance evidence relied on by the Appellants. Before its costs application could be heard, it accepted 75% of the costs in settlement of its claim.

The case is a further reminder that a cumulative impact policy should generally act as a filter and not a bar. It should allow for proposals to come forward which will further the vision of the local authority. Otherwise, licensing acts purely as a steriliser and never as a sculptor of night time economies. As I sometimes say, if nothing is allowed to change, then nothing changes. The objective, rather, must be to articulate the vision for the night time economy and then to use all tools at the disposal of the authority – planning, licensing, regeneration, voluntary programmes – to get it. I hope that Alchemist proves to be an asset to the night time economy of Newcastle, and is one small step along the way to a change in perception about what a late night time economy can be.

Philip Kolvin QC, who is head of Cornerstone Barristers, acted for Alchemist.