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Scotland - Would it be impossible or simply inconvenient?

In a recent article published by the Scotsman it has been revealed that the Edinburgh Licensing Board are considering appealing the recent decision of the Court of Sessions concerning the licensing of garages, upon which we have earlier reported in our article "Ruling on Scottish petrol stations and the sale of alcohol".  Any appeal would go to the Supreme Court in London and may take many months and thousands of pounds of taxpayers money to resolve.

The decision of the Court of Sessions concerned an application by BP for a licence for a proposed M&S store on one of their forecourts in Edinburgh; examples of these stores can be seen in locations throughout England and Wales.

Both Edinburgh and Glasgow boards have historically spurned similar applications for garages within built-up urban areas.

Generally the licensing of garages is prohibited under the Licensing (Scotland) Act 2005.  The Act does provide an exemption which the Boards have historically interpreted narrowly. 

S.123(5) Licensing (Scotland) Act 2005 provides the exemption that garages may be licensed if “persons resident in the locality in which the premises are situated are, or are likely to become, reliant to a significant extent on the premises as the principle source of Petrol or derv, or groceries.”

Guidance issued by the Scottish Executive states that:

“Subsection (5) provides that garage premises which are a principle local source of fuel or groceries are not excluded premises and can therefore apply for a licence to sell.”

This has been broadly interpreted by Licensing Boards that garages located in remote areas, where there are no other sources for alcohol such as a supermarket etc, should benefit from the exemption; garages in urban areas where off-licence shops are numerous are therefore not eligible. 

As with any “guidance” this cannot override the law does no more than represent the Scottish Executive’s views on the legislation; it cannot change the legislation itself. 

The Court of Sessions in the recent case were concerned with the wording of the Act and declared that the appropriate test should be whether local people would be "materially disadvantaged or inconvenienced were that shop not to provide those retail facilities" – a significantly different view on the section and a lesser hurdle for operator to clear.

Edinburgh is calling for the Scottish Executive to clarify this section of the Act, presumably with updated guidance, before any costly and time consuming Appeal to London is commenced, in order to help inform their decision.

We will keep up you updated as to any developments.