Scotland - Overprovision Policy

A recently published Judgement of the North Strathclyde Sherriff has confirmed the right of Licensing Board to reply upon their over provision policy when determining applications, along with a number of other significant clarifications.

The Appeal was brought on behalf of Martin McColl Ltd against a decision by West Dunbartonshire Licensing Board to refuse their application for a new off-sale licence.

At the same Board meeting an application on behalf of the Co-Op was approved, this was a fact raised on behalf of McColl in the Appeal. The Board had distinguished the Co-Op’s application as they were satisfied their application had the potential to create additional employment in the locality which was an economically disadvantaged area. This distinction was endorsed by the Sherriff and consistent with the legislation.

As the Sherriff confirmed in their Judgement the Board were entitled to rely upon their Policy as originally drafted. A Board is not legally required to update themselves on the numbers and capacity of licenced premises in the locality. They are entitled to rely on the figures that applied when the policy was initially adopted unless an Applicant raises, and presumably can evidence, a change in figures since then.

However it was also made clear in the judgment that there was a difficulty in seeking to relate public health data to individual premises (and thereby justify a refusal on health grounds), something we have long believed to be the case (paragraph 33).

The Board were represented in the Appeal by Licensing advocate Scott Blair of Terra Firma Chambers.