Update of The Licensing (Procedure) (Scotland) Regulations 2007

The current provisions relating to neighbour notification are not fit for purpose. This is especially evident in light of the recent growth of rural businesses and ‘pop-up’ venues for restaurants, bars and music events.


‘Notifiable interest’ and ‘neighbouring land’:


The definition of ‘notifiable interest’ should be extended from solely ‘occupier’ to also include ‘owner’. This is particularly important in rural areas. With the increase of rural events businesses, it is possible that neighbouring land to a venue is technically viewed as ‘unoccupied’, however, it may be used for rearing livestock or growing crops. Loud music from events, fireworks or wandering guests could have a very detrimental effect in these circumstances - possibly endangering livestock,damaging crops and/or causing harm to traditional rural businesses. Whilst it can be difficult to know the exact ownership of land in many rural areas, more can be done to ensure all those with an interest are notified - for example, a requirement that if ownership is unknown, a notice is attached to all entry ways to the land.


The definition of ‘neighbouring land’ must also be extended to reflect countryside environments and to avoid applicants and their agents actively submitting applications that are misleading with regards to notification requirements. In my personal experience, for example, a neighbouring business submitted a licence application for buildings on their property that are no more than 30 meters from our home - because of the 4 metre rule, we were not notified and a licence was granted without opportunity for my neighbours and I to raise concerns and this led to almost three years of complaints having to be dealt with by local council as a result of noise disturbance, breaches of privacy and security and ongoing nuisance. The definitions of ‘neighbouring land’ must be sufficiently broadened to include a reasonable area that may be affected by the activities of a licensed premises. Further, the definition must be broadened to ensure all properties that share a physical boundary with the proposed licensed premises should be notified.


It is in the best interest of all parties to ensure that appropriate notification of a licence is given - and this should apply not only to new licences but also for variations and, importantly, occasional licences. Appropriate notification periods and procedures and opportunities for considered consultation are essential in ensuring that licensed premises operate in a manner that does not cause nuisance to neighbouring property, communities or environment. Failure to do so will inevitably lead to complaint, investigations by council staff and local police, potential licence review and other avoidable interventions.


Documents to accompany a licence application:

In my personal experience of licensing matters, the online web page that details applications for new, occasional and variation licences does only lists the basic information (name of applicant, premises, type of licence and application date) and does not allow the opportunity to view the associated documents - to do so, one has to visit the licensed premises for a copy or visit the local authority office with office hours. This is frustrating and for many, will be an obstacle to involvement in the licensing process.

I understand other local authorities (although not all), operate an online portal system where the documents that accompany a licence application can be viewed. This should be standard practice across all local authority areas.

Availability of these important documents will allow any party with a notifiable interest to have access to all the relevant information, displayed transparently and comprehensively and will encourage community involvement in licensing decisions.


Publicity as to applications:

I agree that license applications should be advertised in the newspaper circulating in the local area and on the local authority website. However, I believe that with advances in technology and communication more can be done. I believe the regulations should state in 6(1)(a) that notice should be available on the local board’s website and published by associated social media.

Further, consideration should be given to a licensing distribution list in each local authority area members of the public can join to receive notification of all licensing applications in their local authority area. This would be a simple, low cost and resource way of ensuring maximum community participation.

Consideration must be given to licensed businesses operating in rural areas - regulations that ensure owners of land, who are not necessarily occupiers, are also consulted. This is essential in rural environments to ensure no negative consequences for rural property and businesses.

There should be a requirement within the regulations that all community council areas be informed of all license applications (including occasional and emergency licences) in, and in close proximity to, their boundary areas.


Occasional Licences:

Occasional licences have just as much potential to cause harm and nuisance as any other type of licence, yet it appears that applications for occasional licences are not subject to the same level of scrutiny as other types of alcohol licence.

The granting of occasional licences can also be contradictory to reasoning laid out in premises licence applications, or in contradiction to licence breeches. In my personal experience, for example, occasional licences have been granted for a neighbouring business extending the operation hours, which were discussed, debated and decided at a premises licence hearing in response to neighbour and Police Scotland opinion. The application for and subsequent granting of the licence undermined the integrity of the initial premises licence hearing. In addition, in my experience, an emergency occasional licence was also granted within 48hours of the business being served a breach of licence notice (the breaches had caused nuisance and disturbance).

Occasional licences MUST be subject to a greater degree of scrutiny and must also be subject to appropriate notification and consultation periods.

I believe that it is important, that when considering ways to improve and simplify the licensing procedure, the opportunities for notification, consultation and representation are in no way diminished. This is a vitally important step in the process.. With a proper, inclusive and amicable forum to discuss an application and tease out any potential problems with an application, harm to members of the public can be avoided, precious local authority and Police Scotland resources can be saved and a licensed business should be able to operate without need for review.

18. Occasional Licenses

As stated above, occasional licences have the capacity to cause as much harm, nuisance and disturbance as a premises or variation licence. They should therefore be treated with the same degree of scrutiny, with the same level of requirements for notification and consultation.

The granting of occasional licences to businesses can also be contradictory to reasoning laid out in premises licence applications, or in contradiction to licence breeches. In my personal experience, for example, occasional licences have been granted for a neighbouring business extending the operation hours, which were discussed, debated and decided at a premises licence hearing in response to neighbour and Police Scotland opinion. The application for and subsequent granting of the licence undermined the integrity of the initial premises licence hearing. In addition, in my experience, an emergency occasional licence was also granted within 48hours of the business being served a breach of licence notice (the breaches had caused nuisance and disturbance).

Occasional licences MUST be subject to a greater degree of scrutiny and must also be subject to appropriate notification and consultation periods.

Further, occasional licences should be for rare, one of a kind events - such as community events or fundraising events. They should be actively encouraged for these type of events and at a low cost for the application. Occasional licences should not be abused by business and venues that either should have, or do have, a premises licence - for example a hotel that has a premises licence should be required to obtain a variation to licence to hold 20 weddings per year in a marquee on it’s grounds, rather than obtain 20 separate occasional licences that are not subject to the same level of scrutiny.

It is my opinion that the definition of an occasional licence be narrowed to exclude businesses that should have their activities covered by a premises licence or variation to licence.

Finally, to ensure the occasional licence procedure is not abused, there should be a maximum number of occasional licences that are able to be sought a year and this number should be consistent across all boards.


10. Objections and Representations

Section 10 should include the opportunity to make objections and representations in respect to occasional licences for the reasons outlined above.


13. Representation at Hearings

In my opinion, this is an area of the licensing regulations that requires further investigation and consultation. My overarching feeling regarding the hearing procedure is that it is designed in to produce an adversarial and intimidating environment for ‘objectors’ and does not best facilitate sensible, reasoned discussion. Further, although objectors have the right to representation in the regulations, in reality the situation is that it is the applicant most likely to have legal representation from an experienced licensing lawyer and objectors faced with raising their concerns in an intimidating environment without support, advice and legal representation.

By way of a personal example to illustrate, in the run up to the licensing hearing for the business that neighbours our property, my other neighbours and I attended licensing meetings to gain an understanding of the process. At the meetings we attended, there was one licensing lawyer who represented each and every applicant - that lawyer was not only clearly well known to the licensing board and the elected members, he was also adept at using his knowledge of the licensing law and regulations to shut down any argument put forward by objectors. The objectors, who had legitimate and understandable concerns about the applications were in contrast, unsupported, unknown to the board, unable to articulate their arguments in the context of licensing law and they were quite clearly nervous and intimidated in the environment. Their concerns were tokenistically noted, but were not captured in the grant of licence or the conditions imposed.

From the perspective of social justice, the licensing regulations relating to hearings are inherently unjust.

It cannot be the case that every objector will be able to afford personal representation, or indeed want it, but there must be support and representation available to all who need and would want it. A solution would be to adapt a role of a member of the licensing board, known to board members, skilled in negotiation and with knowledge of licensing law, to represent objectors. Their role could be to have a discussion with objectors, understand their concerns and consider compromises, develop a statement that is presented to the board outlining key concerns framed in licensing law and the licensing objectives and provide suggested conditions if necessary. Such a role would likely increase involvement in the licensing process, ensure fairness of the process and, importantly, likely lead to the granting of licenses that are fit for purpose - thus, potentially removing opportunities for complaint, local authority and Police Scotland investigation and potential review proceedings.

There may be an opportunity for local licensing forums to be involved in developing/undertaking such a role.


15. Statement of Reasons

It should not require an interested party to request a statement of reasons. These should be provided to all parties involved at the hearing, including objectors, and should be publicly available on the local authority website. A licensing portal or register, containing relevant licensing documents, would be a transparent way of publicising, informing and confirming details of premises licences. I understand that some local authorities have something like this (Perth and Kinross Council) but others do not - a national portal, similar to that for building warrants and planning would be beneficial.

Site Visits: Regulations relating to site visits in the determination of license applications should be included to ensure all local boards follow a set procedure. In my personal experience, site visits undertaken where there is not an explicit site visit policy can be farcical. Site visits are useful tool in familiarising members of a licensing board with an area, premises and the benefits/risks of granting a licence, however these must be expertly managed to avoid potential influencing of board members. In my opinion site visits should be conducted solely by a member of licensing board of licensing forum (clerk for example), the applicant, applicant’s agent and any supporters/objectors should not be present. The person leading the site visit should also familiarise board members with the location of objectors and the nature of representations received.


Planning and Building Warrants: Licensing may very well be separate to planning and building regulations, however they are integrally linked. Clearly, it would not be sensible to grant a licence for a venue in a building that is unsafe or for a use that is not permitted in planning law. The regulations should specify a robust procedure for ensuring planning and building regulations have been met before the granting of any licence, including occasional licences. Increased penalties for not submitting this information, or indeed submitting misleading information, should be imposed.


Vexatious Representations: There is no provision in the regulations for how vexatious representations should be dealt with by local boards. This requires to be addressed to ensure all local bodies deal with vexatious representations in the same manner. Whilst vexatious complaints must be discouraged, consideration must also be given to vexatious ‘support’ which can undermine the integrity of the licensing process. To illustrate with a personal example, during the licensing hearing for the neighbouring business, another neighbour in the employ of that business used the opportunity to represent at the hearing and in writing to accuse objectors of fabricating their complaints in an attempt to undermine the legitimate (and proven) complaints that had been raised. It is my view that the regulations should recognise all types of vexatious, or misleading, representation and require local boards to a have consistent policies in dealing with these.


As suggested above, having a dedicated member of the licensing board as an advocate for members of the public who have provided representations (whether they be objectors or supporters) would be beneficial in improving the fairness of the licensing process. Such a role would also be a means to filter out any vexatious or unsubstantiated claims.


The Quasi-judicial body:

“A Licensing Board is a quasi-judicial body and consists of locally elected councillors, with support from local authority staff. However, a Licensing Board is an entirely separate legal entity from a local authority.”

I personally struggle to understand how a licensing board can be ‘entirely separate’ from a local authority, when the majority of the members of the board are in the employ of the local authority or elected to represent it. It is difficult to have confidence in a body that may have prior knowledge of, or have worked with an applicant - and a body that is made up of elected councillors who can be prone to influence (both by supporters and objectors).

The later point is of particular concern and again, I will highlight with personal examples. During the two hearings I attended to discuss the licence for a neighbouring property, the same councillor said at the first meeting that he had been unaware of the business, at the second meeting he claimed that he had been privileged to watch the business grow and develop over the years. A second councillor, who had attended a site visit and engaged in a private discussion with a supporter of the business, then made factually inaccurate claims at the hearing based on that conversation.

One wonders, in the interest of transparency, fairness and integrity of the licensing process, it is time to consider a truly independent judicial body as final decision maker.


Enforcement: It is my view that licensing decisions are often made with an unreasonable burden on local residents to 'complain if there is a problem' and a burden on local authorities and Police Scotland to then investigate and deal with arising concerns. A robust licensing procedure, which fully encourages, supports and facilitates good quality public engagement is the only way to ensure licences that are issued are fit for purpose from the outside.