West Dunbartonshire Licensing Board’s overprovision policy for the period from 2013 -2016 - essentially a development of their policy for the preceding three-year period - identified a locality, comprising 17 sub-localities, considered to be “overprovided” with:
- Public houses
- Nightclubs
- Off-sales and local convenience stores.
- Supermarkets
However, in a material respect the new policy deviated from its predecessor by allowing a consideration of health benefits stemming from increased employment opportunities. An applicant for a licence in one of the sub-localities might therefore seek to argue that those benefits would “outweigh any likely harm” in seeking to rebut the presumption that the application ought to be refused.
This novel - indeed, unique - approach came under scrutiny in an appeal by Martin McColl Ltd against the Board’s refusal of a provisional premises licence application for an existing convenience store located at 19 Sylvania Way South, Clydebank. The grounds for refusal were: (i) inconsistency with the “public health” licensing objective; and (ii) grant of the application would result in overprovision.
At the same meeting the Board granted an application by the Co-op for a shop in the same sub-locality and located a short distance away at 2 Sylvania Way South (which has previously been licensed). The Board sought to justify the disparate treatment of the two applications on the basis of their modified policy having regard to new jobs which would created by the Co-op.
McColls appealed to the Sheriff Principal arguing that the Board had:
- failed to make it clear whether they had taken into account all licensed premises in the locality or restricted their consideration to licensed premises “of the same or similar description as the subject premises”*;
- erred in law by having regard to general health statistics for the area without making any causal link between the figures and the subject premises;
- had acted irrationally, unfairly, unreasonably and contrary to natural justice by granting the Co-op application at the same meeting: the creation of additional jobs by the Co-op was wholly irrelevant;
- erred by basing their decision entirely on the overprovision policy which was not of itself a ground for refusal; and
- failed to provide adequate reasons for their decision, absent an explanation of the Board’s approach to “types of premises” as well as the “numbers and capacities” of the premises taken into account; and why, having regard to these numbers and capacities, the grant would result in overprovision*.
Rejecting these arguments, save for (b), and refusing the appeal, the Sheriff Principal held that:
- It was “tolerably clear” that the Board had taken their decision on the basis of “premises types”.
- The Board had no evidential basis for concluding that grant of the application would be inconsistent with the “protection and improvement of public health”. “Studies” purporting to demonstrate a relationship between the availability of alcohol and alcohol-related health harms were not “sufficiently linked” to the McColls application.
- The Co-op application could be distinguished: it involved the creation of jobs while the McColl’s application would “secure” jobs. However, an issue arose as to whether health benefits arising from employment opportunities were a relevant consideration justifying a departure from the policy. In fact, this was the “critical question” on which the ground of appeal at (c) above turned. The Sheriff Principal said:
“I have… reached the conclusion that where the policy has a statutory derivation, follows on a required consultation process and the policy is published and available, this court in the context of a summary application should be reticent about questioning the policy underlying the exemption. The potential health benefits to the employees for whom jobs were to be created does, albeit tangentially, in the sense of relating to those involved in the sale of alcohol as opposed to its consumption, accord with the licensing object [sic] of protecting and improving public health. I therefore accept the [Board] was entitled to have regard to the provision in the policy permitting account to be taken of the health benefits to prospective employees…”
- Where there is a statutory requirement for an overprovision policy it was not essential for the exact licence numbers to be specified in the Board’s reason and inconsistency with the policy was “sufficient to found a refusal on any of the grounds in Section 23(5)”. The reasons in this case satisfied the classic test set out in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345.
He proceeded to conclude that McColls had not brought themselves sufficiently within the “health benefits” exemption and the Board had been entitled to reach a different conclusion in respect of the Co-op application.
The full judgment is published here.
The standout parts of the decision are: (1) the rejection of the Board’s decision so far as based on the “public health” objective; and (2) an acceptance that the Board were entitled to treat the creating of new jobs as a positive public health feature which might justify an exception to their policy on overprovision.
The first part resonates with the decision of Sheriff Malcolm Garden in Martin McColl Ltd v Aberdeen City Licensing Board. In that case, a “public health” refusal could not stand in the absence of a causal link between a grant of the particular application and a so-called “breach” of the licensing objective. Here, the lack of an evidential base was equally fatal. The Sheriff Principal said (at paragraph [33]):
“I am not satisfied that the [Board] had a proper evidential basis for stating:
‘and the fact that the grant of the application will result in the increased sale of alcohol, availability and consumption, and the relationship from studies between the availability of alcohol and alcohol related health harms, that the grant of the application would be inconsistent with the licensing objective of “protecting and improving public health”.’
I am not persuaded that the results of ‘studies’ may be said to sufficiently link this application and its effect with the general objective of ‘protecting and improving public health’. In these circumstances I do not consider that the [Board] was entitled to rely on contravention of Section 23(5)(c) as a stand-alone reason for refusal of [McColls] application.”
The second part vindicates the Board’s innovative approach to public health in a licensing context: a welcome recognition, for once, that the grant of new licences is capable of having positive outcomes.
* The overprovision ground for refusal has now been modified: see our blog on the changes.