Court action likely on licence cap policy

Almost three years since it came into effect, the 2005 Act is still sparking controversy, as the debate over Edinburgh’s overprovision policy shows.


CONTROVERSY has dogged almost every step of its journey, from its conceptual birth to its practical introduction.

Now, nearly three years since it finally became law, the Licensing (Scotland) Act 2005 is continuing to spark legal debate and uncertainty for the trade.
Despite premises licences being granted in perpetuity under the new system, licensing complexity means solicitors’ Blackberries continue to be red hot, as clients seek advice on boards’ shifting policies and indeed on further changes to the Act.
Last autumn a raft of changes were brought to licences by the Alcohol Act, while a recent consultation was held on extending the list of acceptable ID cards. Soon boards may be working out how best to ensure operators implement a minimum unit price for alcohol in their premises, after the Minimum Pricing Bill was passed by the Scottish Parliament.
In the meantime there’s plenty taxing the minds of the legal world – not least the Edinburgh licensing board’s recently-adopted overprovision policy.
Earlier this year, the authority decided that the capital had reached saturation point as regards the provision of off-sales, and changed its policy statement to the effect that pretty much any new application for an off-sales licence will now be refused.
The move came after the West Dunbartonshire board made headlines in 2010, when it declared it was overprovided with all licensed premises – a policy that’s halted the flow of applications for new licences in the area.
As our legal columnist Jack Cummins explained in the last issue of SLTN, the Edinburgh board will now view any new off-sales application or indeed an application to extend an off-sales area as “likely to be inconsistent with one or more of the licensing objectives”.
However, he does expect the policy to see some form of court ruling, particularly as Sainsbury’s is appealing the board’s decision to refuse it a licence for a new store on South Bridge. It’s in the context of such an appeal, rather than the costly pursuit of a judicial review of the entire policy, that fellow lawyer Andrew Hunter, of Harper Macleod, and others, reckon the policy will come under scrutiny.
“I think it’s unlikely that an operator will look to judicially review either of the two boards’ [Edinburgh and West Dunbartonshire’s] policy on overprovision ‘for its own sake’,” Hunter told SLTN. “It is perhaps more likely that an unsuccessful applicant will seek to challenge the determination of the board to apply the overprovision policy to their own individual licensing application.”
And according to Caroline Loudon, head of licensing and gambling at Lindsays in Edinburgh, the policy is “ripe for legal challenge”. The grounds lie in flaws in the way the board assessed the capacity of licensed premises in the city, she told SLTN.
“I fully expect Edinburgh’s overprovision assessment and the overprovision policy to be challenged in court,” Loudon said.
“In my view, the overprovision assessment itself is fundamentally flawed as 1) the capacity figures collated from granted on-sales premises licences were dictated by sanitary provision and building control and 2) the board asked for the off-sales measurement in square metres and number of shelves rather than linear meterage (as required by schedule 1).
“Capacities A) dictated by toilets and in contravention of section 27 (7) of the Act and B) wrongly calculated in my mind make the policy ripe for legal challenge.
“It takes a big operator to be able to stomach the costs of appeal against refusal of a grant. I understand that following the recent refusal of an application by Sainsbury’s for a site at South Bridge, we will hopefully have a decision from Sheriff Principal Mhairi Stephen later this year.”
While there seems consensus that the Edinburgh policy is bound for court action, there’s equally a view that other boards could take similar directions. But some might wait to see what happens in the capital before putting their head above the parapet.
“The health lobby is pressing very hard for other licensing boards to follow Edinburgh and West Dunbartonshire’s example,” said Audrey Junner, associate at Hill Brown Licensing in Glasgow.


“The Scottish Government has welcomed the lobby’s active participation in the licensing process and encourages them to engage with boards, so there is every possibility their message will filter through.
“I expect other boards will be closely following the litigation taking place in Edinburgh over the coming months.”
Yet for all overprovision could become even more of a theme in Scottish licensing, solicitors, it seems, remain to be convinced of the merits of declaring a cap on licence numbers.
“I am not aware of any hard evidence that capping the numbers or capacities cuts alcohol consumption though no doubt an academic survey somewhere will argue the contrary,” said Audrey Ferrie, head of licensing at McGrigors.
“If you take the refusal by West Dunbartonshire to increase the capacity of the M&S [Marks & Spencer] store in Dumbarton, is it seriously suggested that the refusal will reduce alcohol consumption in the area?”
Junner at Hill Brown agreed. “Alcohol abuse is a complex problem with a number of contributing factors,” she said. “In my view, it’s far too simplistic to conclude that this is purely a result of availability.”

Images: Neither Loudon or Junner are convinced capping licence numbers will cut alcohol consumption.