Statistics alone aren’t enough to determine overprovision in an area
SEVEN years ago West Dunbartonshire licensing board introduced an overprovision policy designed to ban new licences in 15 zones accounting for 85 per cent of the local authority’s area.
Driven by public health considerations, it covered almost every type of premises: pubs, nightclubs, specialist off-sales, convenience stores and supermarkets.
In effect, the drawbridge was pulled up save for exceptional cases where an applicant could make a robust argument that a licence wouldn’t undermine the policy.
Policy-based decisions put licensing boards on much firmer ground.
Of course, it caused a huge stir; and inevitably trade opinion was divided.
For the Scottish Licensed Trade Association, Paul Waterson said that the board’s radical stance “brought the overprovision argument to a head”, would “stabilise” existing businesses and give them “more value”.
On the other hand, the Scottish Grocers’ Federation feared that an inflexible approach would stifle opportunities for the local economy, including new services and jobs.
Many commentators expected a court challenge, but the board stuck to its guns and proceeded to reject a number of applications, including bids by Marks & Spencer and Lidl to increase their alcohol displays.
When the board reviewed its policy in 2013, it took the same tough stand – even increasing the number of “overprovided” localities to 17.
But there was a material change.
The amended policy allowed account to be taken of health benefits stemming from increased employment opportunities: a licence applicant could seek to persuade the board that those benefits would “outweigh any likely harm”.
There’s plenty of medical evidence that work is good for you. In fact, according to the Royal College of Psychiatrists, the figures are stark: people who are unemployed for more than 12 weeks are between four and ten times more likely to suffer from depression and anxiety.
There’s also a body of research suggesting that long-term unemployment poses a greater health risk than heart disease.
The new approach finally came to be considered by a court in rather unusual circumstances.
Martin McColl Ltd sought a licence for an existing convenience store located at 19 Sylvania Way South, Clydebank. The bid was rejected on two grounds: inconsistency with the public health licensing objective; and a failure to overcome the overprovision policy by justifying an exception. But at the same meeting, the board granted a licence for a Co-op store situated just a short distance away at 2 Sylvania Way South, which held out the promise of new jobs.
McColls took its case to the Sheriff Principal. The judge’s decision essentially falls into two parts, both of which are highly significant for overprovision decisions.
In the first place, echoing the approach taken by a Sheriff in another McColls appeal (involving the Aberdeen board), he decided that “studies” purporting to demonstrate a link between alcohol availability and health harms were not “sufficiently linked” to the McColls application. It just wasn’t possible to conclude that a particular application would prejudice the public health objective by looking at general health statistics for the area.
But when it came to the argument that the board had no right to use health benefits as a justification for a policy departure, the Sheriff Principal came down on the board’s side: the health benefits accruing to those for whom the Co-op would create jobs accorded with the objective.
The messages from this landmark decision are clear.
Research materials proposing a connection between the number of alcohol outlets and health harms, coupled with local statistics, will not of themselves be sufficient to justify the refusal of an application on the ground of inconsistency with the protection and improvement of public health.
But policy-based decisions put licensing boards on much firmer ground.
Where the policy is formulated using the correct procedures and takes into account relevant considerations – which, on the basis of the judgment, could include employment-related health benefits – overturning a refusal will be a very tough nut to crack.