New Legislation Begins to Bite
Posted: Thursday 8 July 2010
The Licensing (Scotland) Act 2005 (“the 2005 Act”) has been in force for almost a year, and we are now beginning to see the effect of the new regime.
Improvement of public health was one of the long term aims of this legislation and, indeed, is enshrined as one of the five statutory licensing objectives in the Act itself. In several recent decisions by Glasgow Licensing Board, we have seen just how far interpretation of the 2005 Act can be pushed in order that the licensing objectives are upheld.
Five licensing objectives are enshrined in the 2005 Act, namely:-
- Preventing crime and disorder
- Securing public safety
- Preventing public nuisance
- Protecting and improving public health
- Protecting children from harm
These underpin every decision taken by licensing boards throughout the country, from the content of the Statement of licensing policy, to their consideration of every application for or for the variation of a premises licence. Indeed, where a Board considers that the grant of a premises licence application, or variation, would be inconsistent with one or more of the licensing objectives, it is duty bound to refuse that application.
This gives Licensing Boards extremely wide discretionary powers to refuse applications and to set out their reasons as being non-compliance with the licensing objectives. Examples of such powers in practice can be seen in recent decisions of Glasgow Licensing Board.
Glasgow Licensing Board has recently received a number of applications from large supermarket operators, including Waitrose, Sainsbury’s, Asda, Morrisons and Marks & Spencer seeking to extend store space for the sale of alcohol. Thirteen such applications have been refused by Glasgow Licensing Board on the basis that none of the applicants could demonstrate that their proposals would protect and improve public health.
The reason for these applications stems from the fact that every premises licence which contains provision for off sales must be accompanied by a layout plan detailing the exact area from which alcohol is to be sold. Any change to this area which will result in an enlargement of the area given over to off sales, necessitates an application to vary the premises licence, which must be considered by the Licensing Board in question at a hearing.
While Glasgow Licensing Board has clearly stated that the merits of every application is considered before a decision is made, this does on the face of it appear to be a bold stance on the part of Glasgow Licensing Board. However, having reconsidered their position, and no doubt being faced with the defence of a number of expensive appeals, the Board has now stated that it will re-visit the applications it had recently refused. Despite its u-turn, the chairman of Glasgow Licensing Board has requested increased powers from the Government in order tackle what it calls “yet another major flaw in the new licensing legislation.”
Susan Leslie, Senior Associate
