Date:

McColl’s v Aberdeen Licensing Board – an update on ‘whole area overprovision’

In considering the provisions of licensed alcohol premises within an area, the local authority licensing board must consider both the number and capacity of premises of particular localities before deciding if a particular locality is overprovided for.

The Air Weapons and Licensing (Scotland) Act 2015 (‘2015 Act’)(which received Royal Assent on the 4 August 2015) extends the power of Local Authority Licensing Boards to change the way in which they consider overprovision in a particular locality. Allowing them to effectively have a ‘whole area’ locality for the consideration of overprovision.

In a recent Appeal case Martin McColl’s v Aberdeen City Licensing Board (unreported) McColl’s successfully challenged Aberdeen City Council Licensing Board’s (‘the Board’) approach to their analysis in relation to overprovision. The decision of Sheriff Garden suggests caution when exercising this wider power in relation to overprovision.

This article explores the new powers of the 2015 Act in relation to overprovision in light of the recent decision in Martin McColl’s v Aberdeen City Licensing Board.

The Appeal

McColl’s applied for a provisional premises licence in terms of section 20 and 45 of the Licensing (Scotland) Act 2005 for their premises at Provost Watt Drive, Kincorth, Aberdeen. The premises were to become a small convenience store and the application sought for the permission for the sale of alcohol with a capacity of ten square metres at those premises. The application was considered by the Board at its public meeting on 11 November 2014.

The application was refused on the following grounds:

  • In terms of section 23(5)(e)(i) of the 2005 Act having regard to the number and capacity of licensed premises of the same of similar description as the subject premises, in the locality in which the subject premises are situated, there would, as a result be an overprovision of licensed premises of that description in the locality.
  • In terms of Section 23(5)(c) granting the application may be inconsistent with the licensing           objective of “protecting and improving public health. 

Sheriff Garden’s decision

The Sheriff allowed the appeal and remitted the decision of the application back to the Board for reconsideration.

Sheriff Garden was critical of the decision making process of the Board in relation to overprovision. The Board were not entitled to consider its whole area as one area for overprovision, although this is what they chose to do. “They have excluded two areas of no consequence in an effort to present the resulting locality as other than covering the whole area. This approach is plainly disingenuous but further it does not follow the requirements of the statute”.

The Air Weapons and Licensing (Scotland) Act 2015 will now change the powers given to Licensing Board’s powers in relation to determining the area to be considered for overprovision. Section 55 (2) of the 2015 Act will permit a board to adopt a ‘one locality’ approach.

However, the decision of Sheriff Garden suggests that ‘a whole area’ approach may still be scrutinised by the courts in the absence of careful assessment.

“[21] It would be inappropriate for this court to seek to instruct the defenders on their assessment of over provision. It was submitted on their behalf that the exercise was not arithmetical and that it should not be based on a quota system, I would accept that point, it does however, appear that the board are required to consider the levels of relevant licences and capacity and it is difficult to see how they could properly achieve that exercise without some level of counting and assessment. Any “all area” policy makes such an assessment more difficult”.

The Air Weapons and Licensing (Scotland) 2015 still requires that boards must consider the number of licensed premises and the capacity of licensed premises when granting an application. On logical consideration, if a whole area policy is adopted and considered to be overprovided for, this would create a rebuttal presumption for all new alcohol premises licenses. The corollary is that businesses should give detailed consideration to licensing applications at the point of application as there may be a presumption of refusal in future.

If you would like to know more please contact Lindsay Robinson. Lindsay is a solicitor in our commercial litigation team with an interest in Regulatory and Licensing Law.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Euan McSherry

Partner - Head of Real Estate Litigation (Scotland)

I provide litigation advice to clients in the retail, food and banking sectors. I am the first Scottish lawyer to be listed on the Register of RICS Accredited Mediators.