CASE ANALYSIS OF THE DECISION IN MARTIN McCOLL LTD v ABERDEEN CITY LICENSING BOARD, ABERDEEN SHERIFF COURT, 26 AUGUST 2015
I am grateful to Jack Cummins for sending me a copy of this recent and as yet unreported licensing appeal. A copy of the judgement can be downloaded here: McColl v Aberdeen 2015.
This case concerns the refusal of an off sale licence by the Aberdeen board for a proposed RS McColls premises in Kinkorth, Aberdeen. The application was refused on the basis of overprovision and the public health objective. The overprovision element of this judgement is of interest but for reasons I explain below is only of limited use due to changes in primary legislation. The appeal as regards the public health objective is much more interesting.
Background to the Case
The Aberdeen board has a virtual blanket overprovision zone across it’s whole jurisdiction in respect of off sales, save a forested area and a green field site used for farming (Anguston and Kirkhill). A copy of the policy can be accessed here.
The policy states: “Having excluded these two localities, the Board identified the rest of its area as a locality which has overprovision of off sales premises. The Board, having regard to the number and capacity of liquor licensed premises in this locality and, with the supporting evidence provided by consultees, adopted this locality as having an overprovision of liquor licensed premises for off sales. The Board realised that there were premises which sold alcohol for off consumption only and other premises which sold alcohol for both off and on consumption. It decided to restrict overprovision to premises that sold alcohol for off consumption only which, according to the information from the Health Board, is where the source of cheap alcohol lies“.
They go on to say: “The Board also realised that this figure was likely to change in future should any off sales premises close by way of surrender or revocation. The Board was also aware from the Health Board’s advice that described their evidence as “the tip of the iceberg” and that there was a lot of under-reporting. The Board therefore considered that this would not automatically lead to a successful application for a new licence on the basis that an existing licence had been surrendered or revoked. Should that occur the Board may consider carrying out a further overprovision assessment before determining such future application.”
The board also say: “The Board realised that the terms of section 7 of the 2005 Act did not support calculating overprovision to cover its entire area“. This will prove important shortly!
In this case, the applicant sought an off sale display area of 10m2 for the shop premises. The application representations from Police Scotland and the Licensing Standards Officer, both of whom drew the board’s attention to their own policy. The application was refused.
Overprovision and Localities
In relation to overprovision, the board state in its policy (see above) it could not adopt it’s whole jurisdiction. The sheriff seems to take the view therefore that the selection of the Anguston and Kirkwall localities amount to excluding two areas “of no consequence, in an effort to present the resulting locality as other than covering the whole area“, that the subtraction of these two areas was a “cosmetic exercise” and therefore the 2005 Act had not been followed, requiring as it does localities to identified and assessed. The Sheriff recognises that the Air Weapons and Licensing (Scotland) Act 2015, which is now enacted but not yet commenced, will clarify that a board is entitled to adopt its entire jurisdiction.
The Sheriff also criticises the Board for the absence of dealing with the steps required under s.23(e) in order to find a ground of refusal with regard to overprovision, namely to have regard to the number and capacity of licensed premises, or licensed premises of the same or similar description as the subject premises in the relevant locality.
Further criticism is levied in that the board did not refer to the locality within its policy (that is, the whole jurisdiction minus Anguston and Kirkwall), but instead chose to consider a second locality which was determined at the hearing (1 kilometre from the application premises). The statement of reasons did not specify in which of these localities overprovision would have resulted with the grant of the licence.
This part of the decision is likely to become a footnote given the amendments which will be brought in by the 2015 Act. However, there is much more to consider here which will be of interest to those exorcised by the role of the public health objective.
Possibility vs Probability: the role of Public Health and Licensing
A second ground of appeal upheld by the court was that, in refusing the application based on the licensing objective of protecting and improving public health, the board looked to whether the application “may” be inconsistent with that objective; whereas the legal test in s.23(5)(c) is that the grant “would” be inconsistent. The difference between “may” and “would” is critical. This passage from the decision will be of assistance to those who seek to argue that speculation about potential health harm (or indeed, speculation about imperilment of any of the objectives) should not be sufficient grounds on which to refuse an application. The sheriff says: “It is very clear that [the Board] require, when applying such factors as are relevant, to come to a view that these would be [my emphasis] inconsistent with one or more of the licensing objectives (Section 23(5(c)) and in that event that the board must refuse the application. That is, however, a completely different test from a set of circumstances which may be so inconsistent [my emphasis again]. This is the difference between possibility and probability. The defenders have adopted a substantially lower than test than required.”
This passage seems to suggest that refusing a licence on the basis that it is possible that it may lead to inconsistency with the licensing objective is therefore not good enough. A board requires to have sufficient evidence that that the inconsistency is not merely possible but is probable. Considering the wider jurisprudence on which I have blogged in these pages, such evidence would have to be targeted in terms of the specific application and premises and would also require to be probative and capable of assessment. This brings sharply into focus the contrast of certainty and speculation; the contrast between causation and correlation. There is a higher evidential threshold to demonstrate causation and probability compared to correlation and possibility. These issues are discussed at length in my blog post “Licensing: Public Health Evidence and Causality” from 8 January 2015.
To ask or not to ask, that is the Question
As a final vignette, the sheriff does, however reject the argument that natural justice was breached because part of the statement of reasons referred to possible domestic violence; a matter which had not been raised at the hearing: “I tend to agree with the Defenders’ solicitor that the board are not obliged to raise every aspect of its consideration with the representatives of the applicant. The policy statement gives notice to applicants of the relevant factors and it is for applicants to select the topics on which they wish to address the Defenders in support of their application“. This statement will no doubt create some debate amongst licensing practitioners although it can perhaps be considered obiter. Is it correct, for example, that an applicant can come away from a hearing having no idea why his application was refused because the board was silent on the particular issues which vexed it, and without being afforded the opportunity to respond to those criticisms? Typically the matters which cause concern are the ones which the board do raise in a hearing and allow the applicant to react to that.
If an applicant was to speak to every element of a licensing policy, licensing board hearings would be very long affairs indeed!
The overprovision and localities element of this decision is of time-limited effect. The wider debate about “possibility vs probability” is one which should have longer lasting import.