DUNDEE licensing board has launched a consultation that could lead to an overprovision policy banning all new licensed venues across the city, apart from hotels and food outlets.
The move – like the ‘old’ overprovision policy – is largely driven by a report presented to the board by the local Alcohol and Drugs Partnership.
A groundbreaking initiative – or a path well trodden?
In August last year, the board’s overprovision policy took a fatal tumble when a sheriff upheld an appeal by Aldi, ruling that the policy was fundamentally flawed since the consultation process hadn’t followed statutory requirements.
The policy sought to pull up the drawbridge on any new licences except for premises to be located in the “Central Waterfront Area” (CWA).
It wasn’t difficult to see the reason for that carve out. The CWA is one of five waterfront zones stretching along the River Tay that is currently undergoing a £1 billion development; and the V&A Museum, due to open next year, is expected to be a major magnet for tourists – forecast to bring around 350,000 visitors to Dundee each year.
Before going public with the consultation on a revised policy approach the board considered a number of options.
One possibility was an outright embargo on every type of new licence across the whole of the board’s area.
Another, less restrictive approach involved an exception for restaurants, cafés and hotels in the city centre and CWA.
In August last year the board’s overprovision policy took a fatal tumble when a sheriff upheld an appeal.
The board’s currently favoured proposal would allow that exception across the whole of its area.
When the shape of the proposed policy was first mooted back in June, the type of on-sales operations that might escape the net wasn’t totally clear.
It appeared that premises “selling alcohol with food” might be excluded from the ban.
Such an approach would potentially offer a lifeline for pubs operating in the style of, say, a Brewer’s Fayre – not the sort of place that could be characterised as a ‘vertical drinking establishment’.
But it seems that any bar element would be enough to create a block.
According to the consultation page on Dundee City Council’s website, “the board did not consider that premises which principally serve food with alcohol or hotel bars were particularly likely to undermine the licensing objectives”.
On the other hand, the clerk’s report to the board explicitly refers to an onus on “applicants for premises other than restaurants, cafés and hotels to demonstrate… that their application would not compromise the licensing objectives or otherwise undermine the policy”.
We could well find ourselves in familiar territory.
In 2013 West Dunbartonshire licensing board caused a stir by taking an unprecedented stand on overprovision, declaring 85% of its area was saturated with licensed premises (at the time it was doubtful whether the whole of an area could be the subject of an overprovision policy – a doubt now removed by a change to the legislation).
In effect the only new ventures standing a chance of success were those where the supply of alcohol would be ancillary to a meal.
New licence applications submitted to the licensing board all but dried up; and bids by Marks & Spencer and Lidl to add extra alcohol display space were rejected.
The expected heavyweight challenge never materialised.
The current, revised policy creates possible room for developments promising the creation of new jobs on the view that putting people into employment serves the public health licensing objective.
Quite possibly, Dundee’s approach will change following the consultation process – and, of course, as in the case of every overprovision policy, applicants seeking a licence outwith the policy will have an opportunity to overcome the “rebuttable presumption” against its grant – although that is invariably a tough proposition.
The Dundee board’s convener, councillor Stewart Hunter, will discuss the policy proposals at the SLLP (Scottish Licensing Law and Practice) licensing conference on December 1 (essentialupdate.co.uk).
Do you have a legal question for Jack Cummins?
Email firstname.lastname@example.org or write to Legal Clinic; Freepost PEEBLES MEDIA GROUP
Jack Cummins is unable to enter into personal correspondence on readers’ questions.
The advice offered in SLTN is published for information only. No responsibility for loss occasioned by persons acting or refraining from action as a result of material contained on this page or elsewhere in SLTN can be accepted by the author or publisher.