Licensing Board vindicated in overprovision challenge

Licensing advocate Scott Blair of Terra Firma Chambers has secured a notable success in the widely anticipated case of Martin McColl Ltd v West Dunbartonshire Licensing Board, a decision of Sheriff Principal Murray of 19 April 2017.

Acting for the Board, Scott defended their widely acclaimed health based alcohol overprovision policy in resisting the appeal brought by Martin McColl Ltd against the refusal of an application for an off-sales licence for premises in Clydebank. The Board operate a policy of presumed refusal in respect of new off-sales applications.

After a two-day hearing and in a wide-ranging judgment, the Sheriff Principal rejected the arguments of the appellants and held that the Board had by applying policy not misapplied the statutory test in refusing the application; that the reasoning of the Board was not unclear; that the Board had not breached natural justice in relying on policy and that there had been no need to update themselves on the numbers and capacity of licenced premises in the locality; and that they were entitled to rely on the figures that applied when the policy was initially adopted unless the solicitor for the appellants had raised a change in figures since then.

In response to a further attack he also held that the Board had been entitled, on the same day, to grant an off-sales licence to another operator, essentially because that application, unlike that for the appellants, had the potential to create additional employment in the locality which was an economically disadvantaged area.

In so doing he dealt with the argument presented by the appellants that such economic considerations were irrelevant to a health based overprovision policy.

As with his ruling on the proper use of policy as a basis for the statutory test of refusal on overprovision grounds in section 23(5) (e) of the Licensing (Scotland) Act 2005, this aspect of the judgment has clarified an area of uncertainty as to the scope of the health objective.

Robert Skinner, also of Terra Firma Chambers, acted for the appellants.