Overprovision is still a minefield

Recent Aldi decision in Dundee serves as a warning to other boards

Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.
Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.

Two years ago, Dundee licensing board carried out an overprovision consultation exercise and then settled on a policy which created a “rebuttable presumption” against the grant of any new licences in the city – on or off-sale – with the exception of the central waterfront area (CWA).
The move was driven by a report from the local Alcohol and Drug Partnership (ADP) suggesting that the number of outlets in the city was fuelling crime and disorder, damaging the local economy and creating alcohol-related health harms.

The CWA is part of five riverside zones in Dundee presently undergoing a £1 billion redevelopment, including hotels, restaurants and bars, as well as a new V&A museum expected to be a major tourist attraction.
So, one can easily see why the board found it expedient to protect this jewel in the crown.
But the decision didn’t square with the crime and health data provided by the ADP.
The CWA takes in part of Maryfield, an area of Dundee with the highest overall crime rate in the city (relative to offences with alcohol as an aggravating factor), as well as the second-highest figures for alcohol-related hospital discharges and mortality.
Of course, there’s no point in a board having this sort of robust overprovision policy unless it’s prepared to take a step that at one time would have been totally unthinkable – knock back an application for a large supermarket.
Enter Aldi, seeking a licence for a £1.5 million supermarket development that would create around 30 living wage jobs and provide access to cheap groceries in one of the city’s most deprived areas.
NHS Tayside urged the board to stick to the policy, claiming that Aldi’s bid was “likely to have a detrimental impact on public health”.

The consultation failed to follow the requirements of the Licensing Act.

Quite properly, in my view, the board ditched that argument; forging a causal link between public health harms and a store that hadn’t opened its door was just an impossibility.
But they didn’t waiver on the policy; the application was refused; and Aldi took its case to the Sheriff Court.
In the course of a lengthy appeal hearing Aldi’s advocate sought to dismantle the policy brick by brick. Why had the board carved out the CWA from its policy?
Was that simply a cosmetic exercise because, until the law changes later this month, it’s unlawful to declare a whole board area as one “overprovided” locality?
If the policy was intended to block any type of licence, why had the board failed to identify the capacities of on-sales premises?
It was argued, successfully, that the consultation failed to follow the requirements of the Licensing (Scotland) Act 2005 and the guidance to licensing boards issued by the Scottish Government.
The public consultation had invited respondents to identify “overprovided” areas from a list.
That was not the correct approach: it was the board’s duty to identify localities that might be overprovided and then consult upon them.

• Dundee’s overprovision policy was successfully challenged by Aldi.

The exclusion of the CWA was never put out for consultation and only became a last-minute option, just days before the policy was formally approved.
Unusually, the sheriff ordered the board to issue the licence, when he might have told them to reconsider the application without regard to the policy, an exercise that would still have been possible, requiring a proper examination of potential overprovision.
On one view, this decision might be consigned to a textbook footnote.
After all, an Aberdeen sheriff had already ruled that the local board had tripped up by formulating an overprovision policy covering the whole council area apart from two improbable localities thought to have been artificially selected.
On the other hand, the judgment serves as a warning to boards that the procedural path required to formulate an overprovision policy is littered with banana skins – and carving out an area for extraneous reasons may well undermine a policy’s integrity.
For completeness, I ought to add that the licensing board has the option of appealing the sheriff’s decision to the Court of Session.
At the time of writing, the deadline for doing so had not expired.