The Licensing (Scotland) Act 2005 has been with us since September 2009, and with it came a new regime for Liquor Licensing in Scotland. Much has changed since the “good old days” of the previous legislation and one of the first changes that will come to a licence applicant’s attention is the costs involved.  Now there is a considerable amount of time and money that needs to be invested if a licence for the sale of alcohol is to be achieved, and it is entirely possible for this investment to run into thousands of pounds.  As well as the application fees , which can be anything from £200 to £2000 depending on the rateable value of the property, other significant costs can be involved in preparation of premises layout plans, obtaining planning and other consents, along with all the other documentation required, and the requirement to show compliance with the licensing objectives. 

Under the previous regime, with all the contract negotiations and planning permissions needed in a development, an applicant already had a considerable amount on their minds, and any liquor licencing requirements were often little more than an afterthought, with the ability to obtain the licence being considered almost a certainty. While some areas are more affected than others, it can no longer be said that such “certainty” exists, even for the largest of national chains.

The 2005 Act introduced five objectives for liquor licensing against which all applications are measured. These are to:

  1. Help prevent Crime and Disorder;
  2. Enhance Public Safety;
  3. Prevent Public Nuisance; 
  4. Protect and improve Public Health; and
  5. Protect children from harm.

Some of these objectives are relatively straightforward to deal with, but others can prove to be far more problematic.   For example, it is difficult to argue how the provision of alcohol can protect and improve public health.

In efforts to address this particular matter, many of the larger cities have areas where certain types of liquor licences (typically off sales) are already considered to be well catered for, and further sales of alcohol are considered to be detrimental to the health objective. Indeed, as the Press has commented, almost amounting to a blanket ban, in such areas of “over provision” the presumption is for a refusal of any further licenses unless evidence can be led to rebut that presumption. Overprovision can mean that after the costs of lodging an application (even at the stage of a provisional application) have been met, let alone all the other costs involved in site acquisition and planning, the outcome is in the balance, and potentially wreck the planned development, often at the last minute. 

If refused, there may be scope for appeal against a Licensing Board’s decision, but again the costs involved, as well as timescale, can be considerable and, with extensive discretion available to the Licensing Boards in their decision making process, there is no guarantee of a successful appeal, unless of course an error in law has been made.  Sheriffs are often loath to interfere with a Licensing Board’s exercise of discretion.

Applicants and practitioners alike would do well to consider any licensing requirements they may have, and the wider issues involved, at an early stage in their development to ensure that there are no last minute setbacks that might prove harder than anticipated to overcome.