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Is that overprovision policy watertight?

17 October 16

Licensing briefing: a new decision illustrates how a board must proceed carefully in finding overprovision in relation to a particular area, and will not be saved by a pending change in the law

by Tom Johnston

The recently decided case of Aldi Stores Ltd v Dundee City Licensing Board, Dundee Sheriff Court, 12 August 2016 raises a number of interesting issues, some of which will undoubtedly survive the forthcoming changes in the law relating to overprovision policies. It is a long and complex decision which is difficult to summarise accurately in this short column. The first 42 pages are taken up with summarising the pursuers’ incredibly detailed arguments. A triumph for Scott Blair, advocate, instructed by Caroline Loudon at Lindsays.

In 2014 the Dundee board issued an overprovision policy in terms of s 7 of the 2005 Act, in which they decreed that the whole of their board area was overprovided with the exception of what was referred to as the Central Waterfront Area (“CWA”). Aldi applied for a provisional premises licence for a store in an area outwith the CWA. The application was refused on the ground of overprovision. The board stated that the applicants had failed to overcome the rebuttable presumption against the grant of new licences in this area. For many of us, that might have been that. Not so, however, for the redoubtable Aldi.

Genuine consultation?

The appeal was based almost entirely on an attack on the policy and the procedures which had brought it into existence. It is obvious that a refusal had been anticipated and the initial submissions were planned and made with an appeal in mind. In making an overprovision policy a board must follow s 7. In summary, it must (a) determine locality or localities, (b) have regard to number and capacity of licensed premises within those localities, and (c) consult with certain specified parties. Once the reforms made by the Air Weapons and Licensing (Scotland) Act 2015 come into force, boards will be expressly permitted to treat their whole area as a locality. The procedures, however, will remain broadly the same, subject to a few modifications.

It must be said that the Dundee board officials did not help their cause in beginning a consultation paper by stating: “the board is satisfied that there is, in principle, overprovision of licensed premises in Dundee”. That was based on an Alcohol & Drug Partnership report which it had already received. Still, the pedants might say one should consult before declaring oneself satisfied. The genuineness of the consultation process which followed, and every minute step of that process, were subject to merciless scrutiny, resulting in a successful appeal, the licence being granted by the court.

Whole area powers

I have always taken the view that, even with the law as it stands, a board may, if it proceeds according to law, hold its whole area to be overprovided. The contrary view comes from a strict reading of s 7(1), which says that such a policy may be made in respect of any locality within the board’s area. If an area is within a board’s area, the argument runs, it cannot comprise the whole of that area. Senior counsel for the defenders argued that there was no reason why a board could not look at each and every locality within its area and conclude that there was overprovision in all of them. I concur with that view; however, as it was quite clear that his clients had not done that, it was not germane to the decision.

He also argued that if a policy was ultra vires, that was relevant to an appeal; however, where the criticism was in the making of the policy, that was a matter for judicial review. The sheriff was having none of it. He said: “Whether or not a petition for judicial review was taken, this consultation process was – by the very nature of the questions that were asked of the consultees – flawed from the outset. Thus, the vires of the policy can properly be called into question during the consideration of an appeal when refusal of an application on the ground of overprovision is used.”

All clerks should read this case closely. While some of the criticisms of the Dundee board are self-evidently correct, others, especially of the questionnaire which it used, seem harsh. Yet that lies at the heart of the sheriff’s decision. Do not think that the change in the law to allow a whole board area to be considered overprovided will help you. If the Aldi case is correct, and is followed, we could see many similar appeals by those with deep pockets. It will be interesting to see what a higher court will make of it all.

Tom Johnston, Ormidale Licensing Services

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