An occasionally vexing problem

Occasional licences are likely to come under the spotlight again

 

THE occasional licence: a lifeline for hundreds of businesses trading in outside areas during the pandemic – but also one of the most problematic parts of licensing legislation.

Since 1903, it’s been possible for licence holders to conduct alcohol sales away from their own premises on unlicensed premises: for example, when catering for a wedding reception in a village hall.

But the Licensing (Scotland) Act 2005 significantly changed the nature of this permission in a manner that’s given rise to major controversy.

Under the previous system, a licensing board was empowered to grant an occasional licence to the holder of a licence allowing him or her to cater “for an event taking place outwith [his or her] licensed premises”.

Note the requirement for an “event” – which wasn’t carried over to the 2005 Act. In the result, there have been concerns that operators seeking to avoid the considerable expense of obtaining a ‘permanent’ licence – as well as the annual fee – could trade under a ‘rolling’ series of 14-day occasional licences each attracting a fee of just £10.

There have been long drawn out attempts to address this weakness.

In 2010, the 2005 Act was amended so that regulations could place a limit on the number of occasional licences granted to the same applicant or for the same premises in a 12-month period.

Further provision was made for potential controls on the duration of the licences with a power to prevent them being used on a back-to-back basis. (Caps already exist in relation to licences granted to voluntary organisations and where certain clubs obtain licences for their own premises.)

By 2019 these regulations had failed to materialise and mounting concerns prompted the Scottish Government to launch a consultation exercise. The aim was to seek views on how the regulations might be implemented.

A question also arose as to the adequacy of the £10 fee which simply cannot cover the costs of processing an application – an issue which had been raised as far back as 2014 in the context of an overall fees review that failed to bear fruit.

While there have been no further developments on the legislation front, the use of consecutive occasional licences came under judicial consideration earlier this year when pop-up bar operators, Keasim Limited, challenged the refusal of applications by Glasgow licensing board. Keasim asked the board to grant occasional licences for a gap site in the Merchant City – a so-called ‘Festival Village’ – running for some 14 weeks until August 2021.

Licences had been successfully obtained and operated without complaint during the summer of 2020; and, as Keasim’s lawyer explained to the board, the fresh applications were precipitated by a delay in the residential development planned for the site.

The board’s refusal of the applications was based on inconsistency with two licensing objectives: preventing public nuisance and securing public safety; and, so far as I can gather, there was a concern that the proposal was not subject to the full scrutiny afforded to a premises licence application.

I understand that the sheriff’s written judgment upholding Keasim’s appeal has yet to be issued as this page goes to press.

But if the ruling is broadly in the terms I’d expect, it’s possible that the reform of occasional licences will find itself back on the Scottish Government’s agenda yet again.

Of course, while the Keasim case raised long-standing issues, the trade has every reason to be grateful for the latitude afforded by many licensing boards in their approach to the licensing of beer gardens and other outdoor areas during the pandemic.

Operators who have invested substantial sums creating these facilities are already looking to make them permanent.

For many that step could face weighty regulatory challenges, particularly since the easing of planning and building control regulations is expected to end in March next year.