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System? What system?

14 April 08

Difficulties with the new regulations and forms are causing as much variation in licensing board practice as ever - and the fees are hurting the small operator

by Tom Johnston

The waiting is over – they’re off! The transition period has begun with a vengeance.  At the time of writing, the exhaustion of having got past 7 March has faded, as has the initial euphoria. The relief has been replaced with the grim realisation that 6 June will be here all too soon.

The news from around the country is mixed. Most boards seem to be taking a sensible pragmatic approach, with all parties trying to make sense of the new regime. There are, of course, exceptions. It is depressing to realise that the patchwork system of licensing, much criticised under the 1976 Act, will be with us for ever.

Still a lottery

What are grandfather rights? In some jurisdictions they are being applied to any application seeking permitted hours within the board’s policy guidelines; in others a literal interpretation is being applied, so far as opening hours are concerned. This is causing particular confusion when applying for licences for premises which currently have an off-sale licence. Most want to take advantage of earlier opening on a Sunday. That’s fine in some areas – one application will do. In other areas a variation application was needed – not helped by the absence of a statutory application form, nor by the fact that many boards did not seem to have decided on their fees for what is a non-minor variation.

Plans and their interpretation have been a source of problem. The foolishness of the regulations has not helped. Why are both external and internal measurements required? Is the thickness of the walls so material? How do you measure this in the case of a landlocked building? The issue of capacity has also been causing confusion. One licensing standards officer recently told a client of mine that his pub’s capacity was grossly overstated – he, the LSO, had counted the chairs! There is in fact very clear guidance laid down in the Building (Scotland) Regulations, though anyone frequenting premises filled to capacity (two people per square metre) would have to be with close friends or of very liberal persuasions.

Bad form

The inadequacies of the application forms are now very clear. Much as I dislike bureaucracy, I have every sympathy with those boards which are seeking additional information. How can a board be expected to know how an applicant intends to comply with the licensing objectives if there is nothing on the application form? This is in stark contrast to the English experience, where a simple form requires to be completed with some information about their four licensing objectives. (The English were spared the task of promoting public health.)

My own practice is to submit a supplementary form. In pilot studies which I carried out in January, these were welcomed by my local boards, and throughout Scotland none has been bounced as yet. I do, however, struggle to find ways in which pubs can be seen to be complying with the health objective. Healthy food options on menus, condom machines and anti-drug posters have all featured as suggestions. Not much point in saying that you don’t sell to those under the influence – it’s illegal, and surely none of our clients would do such a thing?

Polluter doesn’t pay

What is coming through clearly is how much of a financial burden this whole process places on small independent operators. City-based politicians and civil servants should get out more. The fees originally proposed were already substantially higher than those applying down south. For them to be doubled on a whim by a new administration was not well received. But it is only when you are operating at the coalface that the inherent unfairness becomes obvious. The humblest pub and the smallest café-bar are being told to pay 40% of the fee paid to license a 60,000 square foot supermarket, and an annual fee thereafter. A report which advocated more family-friendly places has spawned a regime which is putting many of these rural places out of business. The polarisation of the licensed trade is accelerating.

Polluter pays? Don’t talk twaddle.

Tom Johnston, Young & Partners LLP, Dunfermline