David Hossack

The Licensing (Scotland) Act of 2005 is the key piece of legislation and underpinning that Act are five licensing objectives, which are enshrined in the law to guide licensing boards in the exercise of their functions at all times. These objectives are:-

1. The prevention of crime and disorder;
2. Securing public safety;
3. Preventing public nuisance;
4. Protecting and improving public health; and
5. Protecting children from harm.

A premises licence is required for every establishment from which alcohol is to be sold or supplied. Each premises licence is tailored to fit the business operation being carried on from a particular premises, and is granted in perpetuity, provided there is no change to the manner of operation of the premises. premises licences can be held either by an individual, a company or a partnership, and will be based on an approved operating plan. The operating plan needs to detail all activities to be carried on in the premises which are to be licensed.  This covers not only the sale of alcohol but also all other commercial or leisure activities which may be carried on within the building. It will require to state whether or not alcohol is being served on or off sale. There must also be a layout plan which sets out the areas to be licensed and includes detailed information on fire protection and areas where children and young persons are not permitted. Unlike in England, where only the drinking areas are licensed, the usual approach is that the whole building is licensed.

In order to allow alcohol to be sold from the premises there must be a named premises manager. That premises manager must be the holder of a personal licence obtained in Scotland. An English personal licence is not sufficient for these purposes. premises can only have one premises manager and an individual cannot be premises manager for more than one establishment.

If seeking to obtain a new licence for premises which have yet to be constructed or converted for the sale of alcohol, a provisional premises licence application can be made. To make such an application a detailed layout plan and operating plan are required together with a certificate of suitability from the planning department of the local authority. If granted, the licence has to be “confirmed” prior to it being ready to be operated and, for this to be done, certificates of suitability from Building Control and Environmental Services are required.  If there are any changes to the layout or operating plan these must be approved by a variation application prior to the confirmation of the licence. If, however, the premises are ready to be used, a full licence application can be made. For this to be done certificates of suitability from Planning, Building Control and Environmental Services are required. For grant of either a provisional or full licence application there is a requirement for a hearing before the relevant licensing board. Once the licence is granted an annual fee is payable to the licensing board.

Although a premises licence is, in theory, granted in perpetuity, any change to the business operation carried on from a particular premises, or to its layout, will require the approval of the licensing board. Certain changes, known as minor variations, can be dealt with administratively by licensing boards, without any need for a hearing.  Such minor variations include the substitution of a new premises manager and a change to the layout plan, which does not increase the capacity of the premises. If a variation is not categorised as “minor”, a full variation application will require to be made, which will require to be advertised and formally considered at a licensing board hearing.  This process is almost as cumbersome as applying for a new licence, and not one which the majority of licence holders will wish to undertake lightly. 

The primary means by which a premises licence can be transferred to another individual or corporate entity is at the instigation of the existing licence holder.  In some circumstances though, an application for the transfer of a premises licence may be made by someone other than the premises licence holder. Only certain designated categories of person can apply for such transfers, and such transfer applications must be made within 28 days of a specified event, failing which the licence “ceases to have effect”. These specified events include death, insolvency and business transfer.

Finally, whilst the law is the same throughout Scotland and the intention was that implementation would be uniform, the reality is that different licensing boards operate the legislation in accordance with their own procedures and policies. Each licensing board is required to have a policy setting out their approach to licensing. So not only is it necessary to appreciate that the regime in Scotland is different from that in England and Wales but also there are significant differences in approach throughout Scotland.

David Hossack is a partner at Morton Fraser. This article forms part of Morton Fraser’s annual Litigation in Scotland report.