Scotland - 'Dundee overprovision policy failed to follow the law'

We have previously reported on the controversial overprovision policy adopted by the Dundee Board which determined that the whole Board area was over-provided save for the waterfront area – see our article 'Scotland - Dundee: Overprovision for the whole City...except the waterfront'.

This has been the subject of legal challenge and in Aldi Stores Ltd v Dundee City Licensing Board, decided on 12 August 2016, it is being reported that Dundee Sheriff Court determined that that the decision of the Board to refuse a provisional premises licence to allow alcohol to be sold from premises proposed for a site at Myrekirk Road, Dundee, was based on an overprovision policy which failed to follow the requirements of the Licensing (Scotland) Act 2005. As the only reason for refusal was that the application was inconsistent with that flawed policy, the court went on to order the Board to grant the licence for the premises.

As previously reported the policy was adopted in August 2014 against a background of a report from the Dundee City Alcohol and Drug Partnership which maintained that there was, by reasons of alleged adverse health and other alcohol related impacts, a general state of overprovision of licenced premises in Dundee and which suggested that the whole city be treated as a locality which was overprovided in terms of section 7(1) of the Act. The Board had claimed to have consulted so as to meet the consultation obligations imposed on it by the 2005 Act.  The Board also had regard to a further representation received from the Partnership, received outside of the consultation period, to the effect that the Central Waterfront Area (earmarked for development, including the flagship V&A site), ought to be exempt from any city wide overprovision policy.

However, after a two day hearing at Dundee Sheriff Court, it was found that the Board had adopted an illegitimate approach by suggesting that a possible option to go out to consultation on the possible adoption of an overprovision policy was to treat the whole city as overprovided and held that in so doing the Board had failed to meet their statutory obligations as it was for the Board to identify the locality that was the possible subject of overprovision before going out to consultation on whether a policy ought to be adopted.

Having accepted that prior to the recent amendments made by the Air Weapons and Licensing (Scotland) Act 2015 that a whole Board area could not be a locality for the purposes of overprovision, the court went on to hold that in fact what the Board had done was to “provide a list of options as to the possible locality or localities that may have been over-provided. The consultees were then asked to identify the overprovided areas from that list”. However “It was for the Board to determine the area over provided and then consult in respect of that locality.” The Court went on to hold “That basic and early error in the whole consultation process calls the entire policy into question. “In relation to the late representation by the Partnership he regarded that as “an attempt to bypass the fact that having the whole city as a single locality was not, at the time of the consultation, and option open to the Board.” This strengthened his “view as to the procedural improprieties of the whole consultation process.”

Advocate Scott Blair, licensing specialist with Terra Firma Chambers, appeared for Aldi.

Source – Scottish Legal News