Could the new licensing regime offer more flexibility to the trade in some situations than used to be the case?

Six months into the wonderful world of the 2005 Act, we are still encountering issues which even the most far seeing commentators failed to predict. Ironically, some of these may be to the advantage of the trade.

Some may allow a little more flexibility in trading in off-sale premises. Many supermarket operators have been reassessing their display needs, and finding what they have is far too restrictive. In many cases, of course, there was very little time to consider the impact of the new rules decreeing that alcohol could be displayed only in one single area to which the public had access. The Mandatory Conditions (No 2) Regulations came into effect only two months before the start of transition. They took most of us by surprise. They were promulgated as a result of the Justice Secretary being traumatised by the fact that people shopping for a barbecue might also want to buy some bottles of beer to accompany it. In an executive note, the Government pointed out that the regulations do not limit the amount of stock retailers can display. With breathtaking ignorance of the speed and cost of licensing practice, the note continues, “the size of the alcohol display area... may be altered at any time, for example, for larger Christmas displays, in agreement with the licensing board, subject to payment of licensing fees”.

That approach will find favour with few; however, retailers are beginning to realise that as the designated display area can also be used for soft drinks in normal times, they may be able to get greater flexibility to increase alcohol displays for busier times such as Christmas. There is no obligation to give detailed specification of what will be displayed where: the regulations require the plans to show location, maximum height, width and depth. If the Alcohol etc (Scotland) Bill is enacted in its present form (the stuff of nightmares, I know, but we must fear the worst), promotion of alcohol will be restricted to the approved display areas. This may impact on window displays. All shopkeepers, not just the big boys, should be reviewing their current layout plans.

For pubs, hotels, nightclubs, etc the maxim used to be that if you want to cough or blow your nose in your premises, assume you need board consent. An analysis of the requirements of the detail actually required for a licence shows that in some circumstances alterations, which would have required licensing board consent under the 1976 Act, may require no permission at all under the present regime.

A client with a large hotel wishes to remove a bar in a function room. It is not used for off-sales. This certainly would have required s 35 consent under the 1976 Act. It will not affect the capacity of the premises, nor will it involve any change to the operating plan or any other information contained in the licence. The question arises whether it will affect the layout plan, on which the bar counter was shown. My view is that if the change affects a matter of superfluous detail in the layout plan, over and above the requirements of the premises licence regulations, no such consent is required, and you can save your client the cost of a variation application.

Be aware that not everyone will share my views. In our patchwork system the local licensing laird reigns supreme. Perhaps the best advice is that when applying for the next new licence, keep the architect on a tight rein, and ensure that only necessary detail goes into your layout plan.

  • Tom Johnston, Young & Partners LLP, Dunfermline and Glasgow
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