Off-licence granted in cumulative impact area

01 Jan 2018

Licensing, Public Law and Judicial Review

Sainsbury’s Supermarkets Limited v Leicester City Council

A magistrates’ court has allowed an appeal by Sainsbury’s against a refusal of a premises licence in a cumulative impact area.

The premises fell in the London Road / Granby Street cumulative impact area, which had been designated by Leicester City Council expressly to create a presumption against off-licence applications, so as to tackle the issue of street drinking in the city centre.

Sainsbury’s argued that the issue had been addressed through licence reviews and dealing directly with street drinkers, and that its proposal would not add to any impact which remained. It offered a suite of conditions to deter street drinkers. The Council’s case was that its progress ought not to be threatened by yet further licensed premises, even by a well-run operator such as Sainsbury’s.
The court held that Sainsbury’s is a reputable and responsible organisation who can provide effective training, systems and support to a high level in the pursuit of good practice. It also noted that higher strength alcohol consumed by street drinkers, which Sainsbury’s would not sell, was being purchased outside the cumulative impact area. It stated:

“Whilst we fully understand and approve the implementation of the cumulative impact zone, we are strongly persuaded that this application will have no adverse effect on the objectives of the CIZ, the licensing policy and the overall situation in the area.”

The Court also heard an extended argument on costs. Sainsbury’s argued that the Council had behaved unreasonably a) at the point of decision by failing to understand its own policy (by looking for exceptional circumstances when all that was necessary was a finding that the licence would not add to the impact), and by failing to grapple with the specific proposal before them or deliver proper reasons; b) by failing to accept an offer made without prejudice save as to costs which contained all the conditions eventually imposed; and c) by failing properly to appraise the evidence once served. The Council argued that it had given the case proper consideration at all times, and that it could not have agreed to overturn the decision of its own Licensing Sub-Committee.

The Court decided to award costs to Sainsbury’s in the sum of £44,000, which was the sum incurred since service of the without prejudice letter. It stated:

“We are very disappointed that this case has come to court at all. We have to accept that the Council has failed to execute its role in the manner we would expect. It has failed to produce cogent reasons for its decision or evidence to support its decision in this case. The existence of a cumulative impact zone is not, in itself, a reason for refusal of a new application of this type. The Council was in possession in July of this year of a proposal containing all of the conditions recommended by all of the parties. We did not hear that any conditions proposed were rejected. We have heard no evidence to suggest that anything has changed since the offer in July. We therefore must conclude that it would be unreasonable for us to refuse costs to Sainsbury’s in the sum of £44,000 which we think is proportionate.”

Philip Kolvin QC stated: “This case demonstrates the critical importance of giving individual consideration to the merits of applications and appeals, even when an application is contrary to a directly applicable cumulative impact policy.”

Sainsbury’s was represented by Philip Kolvin QC of Cornerstone Barristers, instructed by Robert Botkai of Winckworth Sherwood.