ON THE DECISION IN SHAMSHAD SHAFIQ v DUNDEE CITY LICENSING BOARD, unreported, 28 NOVEMBER 2013
This unreported but interesting little case explores the issue of refusal on overprovision. Mrs Shafiq applied for a provisional off sale premises licence for premises in Dundee. The application was refused on the basis of overprovision. No further ground of refusal was intimated in the statement of reasons.
In refusing the application, the statement explains that the boards reasoning was influenced by “problems in the past in this locality with underage drinking which seemed to have been eradicated. The Board felt that increasing the number and capacity of off-sales outlets in the locality could, at some point in the future, lead to the return of these types of problems, albeit there was nothing to suggest at the moment that granting this particular application would be inconsistent with any of the licensing objectives“.
Mrs Shafiq appealed, and won.
It was conceded in the appeal that there was no factual evidence before the Board other than the potential relevance of a past history of under age drinking which had now been eradicated. Sheriff Principal Dunlop QC says: “there is no explanation to be found in the board’s statement as to how that past history can be linked to the undermining of the licensing objectives over time by the grant of this application. More importantly, there is no evidential basis for that view since it was conceded that there was no evidence that any of the prior problems were related to premises in the locality“. He goes on to use a phrase which has appeared in a number of appeals under the 2005 Act on which I have blogged: “pure speculation“.
He also discusses the interplay between the licensing objectives and the overprovision ground of refusal: “It seems to me that that consequence [undermining the licensing objectives] still needs to be linked to the overall number and capacity of licensed premises which will exist in the locality if this particular application is granted. Lacking any suggestion that the previous problems were linked to the provision of alcohol within the locality in my view it is impossible to see how it can be said that the grant of this application would undermine the licensing objectives in issue on the hypothesis that the previous problems would re-emerge. In my opinion there is simply no evidence to warrant that link“.
On the face of it the decision is yet another reminder that a licensing board must base its decisions on probative evidence and not on clairvoyance or speculation. But it also raises an interesting discussion concerning the role of overprovision and the interplay with the licensing objectives. This was considered in the case of Tesco Stores Ltd v City of Glasgow Licensing Board 2013 SLT (Sh Ct) 75 which had adopted the jurisprudence on this issue from the earlier Buzzworks Leisure Ltd v South Ayrshire Licensing Board 2012 SLT 442, which itself results in the rejection of the previous decision in Tesco Stores Ltd v Aberdeen City Licensing Board  46 SLLP 15. In the Aberdeen case, the refusal of a new off sale licence on the grounds of overprovision had been overturned on appeal because the board had failed to explain how this finding would imperil the licensing objectives. The South Ayrshire board had followed this line of thinking in the granting of a new application – they could not make out that link in order to refuse – but in the Buzzworks appeal the sheriff did not follow the Aberdeen example and instead referred back to the Act, which of course lists overprovision as a separate ground of refusal (s.23(5)(e)) to that of inconsistency with the licensing objectives (s.23(5)(c)). That brings us back to the Tesco appeal in Glasgow. In that case, the Sheriff is on the side of the “Buzzworks” approach, finding that it is not necessary for a board to demonstrate inconsistency with the licensing objectives in order to make out a ground of refusal under overprovision: the two grounds sit separately.
It seems accepted by most then that an application may be perfectly consistent with the licensing objectives, yet still refused under the separate heading of “overprovision”.
Taking that into account, the Shafiq case raises some interesting questions about the development of case law and overprovision. In Shafiq, the board do make an effort to link the licensing objectives to overprovision, albeit that they do so without any evidence. Their statement of reasons even defined overprovision in these terms: “Overprovision is a means by which Licensing Boards can try to see that the licensing objectives contained in section 4 of the Act are not compromised over time“. (As an aside, it also interests me that the “future proofing” of the licensing objectives is swirling around here somewhere, a concept which has had judicial analysis in cases unrelated to overprovision such as LIDL and Trust Inns.)
What the Buzzworks and Glasgow Tesco cases seem to say is that assessment of grounds of refusal should be distinct: question one: would the grant of the licence lead to overprovision ; question two: would the grant of the licence be inconsistent with the licensing objectives. The Dundee Board appear, it may be argued, to have fallen into the same trap as Aberdeen in the earlier Tesco appeal and conflated the two from the very beginning. Overprovision appears to be analysed not of its own accord (as was the case in the Glasgow Tesco appeal) but solely with regard to the licensing objectives, and on an “ad hoc” basis with regard to the limited evidence of past difficulties.
But it is not as simple as that. The idea of a board analysing overprovision with regard to issues “over time” appears to find favour with the Buzzworks approach, which has regard to what we might refer to as “cumulative impact”. In other words, that future issues could be contemplated as part of a boards view on overprovision. It is certainly endorsed in the Glasgow Tesco case I refer to above. Remember that in Buzzworks, the Board had said they could not refuse on overprovision because they could not make out a link to show inconsistency with the licensing objectives. However, equally they had not in fact analysed the issue of overprovision as a separate concept (which of course they should have done). They had not looked at numbers, types of licences, or localities. So a common thread one may discern comes back to the quality of analysis by the Board of the overprovision question: on what evidence is there a concern, how and why does that evidence suggest that the grant would lead to overprovision.
The Sheriff Principal in Shafiq does not refer to Buzzworks or the Tesco/Glasgow case so it is unclear if those cases were in his mind. I suspect it may take a further appeal to try to draw the lines between these analyses and the thorny and controversial topic of overprovision will continue to evolve for some time.