Edinburgh Council is potentially seeking to create a café culture on Princes Street in order "to boost the area's vitality" by amending guidelines to permit a number of retail units to change into cafés and food and drink establishments.

The proposed Supplementary Guidance for the City Centre Retail Core Frontage (Princes Street) for the change of use of shop units to non-shop uses will only be of benefit if the unit: "is in a location that can safely accommodate outdoor pavement seating; and the change of use applies to a shop unit floor area of under 300 square metres (gross)."

Edinburgh Council's Planning Committee were due to convene on 16 May 2013 in order to consider the report with a view to then commencing public consultation on the proposals.

If the measures proceed then 25 retail units out of 78 on Princes Street would be affected. Pubs and hot food takeaways would not be caught by the changes.

he relevant document also suggested changes to the Tollcross area, which is already designated as an "area of sensitivity with regards to pubs and hot food takeaways". The proposals for Tollcross include a ban on "new hot food shops, pubs and bars".

Further to our previous item on this possible EMRO,  we have now learnt that a meeting to determine whether to launch a formal consultation on the adoption of an EMRO, which was due to have been held yesterday, has been postponed. 

We will update further when we are able.

At a Cabinet meeting on 21st May Cheltenham Borough Council resolved to consult upon the introduction the Late Night Levy.

Save for a narrow number of exemption (generally associated with residential premises) the Levy will bite on any premises licensed to retail or supply alcohol between the hours of midnight and 6am.

According to the Borough, there are currently 135 premises which fall into this category,

Affected premises will be entitled to vary their licence in order to avoid the Levy prior to implementation. Premises which choose to trade on will face annual fees of between £299 and £4,400 depending upon their rateable value.  

Councillor Peter Jeffries, cabinet member for housing, safety and communities, said:

"Cheltenham Borough Council has set out a priority to strengthen communities through making those communities feel safe and ensuring they are safe and as such it has agreed to make a proposal to adopt a late night levy in Cheltenham. If adopted, the revenue raised will be used to help manage the night-time economy particularly in relation to reducing or preventing crime and disorder, public nuisance and promoting public safety in the whole borough."

A consultation on the proposal to adopt the levy will start on the 3 June 2013.

We shall keep you updated as to details of the Consultationas they are announced.

The Gambling Commission have issued a number of press releases surrounding action on use of illegal gaming machines.

In one instance this has led to the successful prosecution relating to a pub in Ashford by Spelthorne Borough Council. The facts of the case were that a machine was in place which allowed a game where the maximum stake was £50 and the maximum prize was £140.  Generally (with the correct permit) a pub machine can have a maximum stake of £1 and prize of up to £70.  The machine also failed to display certain required information concerning under 18 use etc.

 We understand that the sole director of the company that operated the pub pleaded guilty to the charge of 'making the machine available' (an offence under The Gambling act 2005) and was given a fine of £400 and ordered to pay £500 towards legal costs of the prosecuting council.  We further understand that the Designated Premises Supervisor in that instance was also found guilty of making the machine available by virtue of emptying the machine each evening.

This is a timely and salutary reminder of the responsibility of the operator of premises to ensure that only the correct machines are made available and the correct permits are in place - but also that the DPS can also carry some culpability.

The ruling means that traditional dipping bowls and refillable jugs will apparently be banned.

The EU's justification for the ban, under special Common Agriculture Policy regulations, is "hygiene" and to protect the "image of olive oil" with a measure that will benefit struggling industrial producers in Spain, Italy, Greece and Portugal.

We are privileged to have been retained by Whitbread over many years as sole advisor in respect of licensing and particularly in respect of their entire and extensive new build programme throughout England, Wales and Scotland.

You may be interested in their recently released Premier Inn Property Update; this can be found by following the link below:

http://premierinnpropertyupdate.co.uk/

Blackpool Council has confirmed its proposals to introduce an Early Morning Restriction Order (EMRO) and intends to consult formally on the adoption of an EMRO, the second council to do so following on from Hartlepool who rejected the idea at a hearing last week.

According to the Council website, police evidence previously put forward in support of an EMRO purported to show that:

• Alcohol associated crime, NHS and Local Authority services, as well as the cost of lost workforce productivity costs taxpayers more than £3 billion per year in the North West;
• One in four people in the North West are drinking at levels which pose considerable risk to their health and wellbeing;
• 48 per cent of all rape offences in Blackpool are alcohol-related;
• 47 per cent of all domestic violence is alcohol-related;
• 41 per cent of all assaults are alcohol-related;
• 37 per cent of all violent crime is alcohol-related;
• 28 per cent of all sexual offences are alcohol-related; and
• Alcohol-related violent crime is showing a significant upward trend post 3am.

This (and other evidence in support) will need careful scrutiny - and we anticipate that as with Hartlepool, we will be instructed to engage in this process of consultation. There is already a wide body of opinion which believes that the adoption of an EMRO will have a profound adverse impact on the night time economy in Blackpool. At present there are no confirmed dates however, having spoken to the Licensing Authority today it would appear that the intention is to start consultation on or around the 5 June 2013 with the Licensing Committee hearing for determination on the 4 or 5 September 2013 and if required full Council approval on 18 September 2013.

At present there is no detail on the Council's website as to the consultation but as soon as this is posted we will update you. If the proposed timescales are achieved the EMRO could be in place before the famous Blackpool illuminations are switched on this year!

Following hot on the heels of Blackpool, Chesterfield has become the latest Licensing Authority to consider the introduction of an EMRO with a full consultation due to take place.

In this instance they will be consulting upon restricting sales of alcohol beyond 03.00 in the Town Centre area.

We will provide a further update when details of the consultation period are announced.  

York City Council last night resolved to launch a formal consultation on the possible adoption of a LNL; this would affect all premises authorise to trade after 12.00 midnight.

We will update further when more detail is known. Newcastle have recently concluded a consultation on a levy (to which we responded) – and the outcome of which is awaited.

England & Wales: Queen's speech: No measures for alcohol and cigarette restrictions

No new laws have been set out by the Queen at the State Opening of Parliament in relation to alcohol and cigarette restrictions with immigration stealing centre stage. This has led to speculation that minimum pricing in relation to alcohol will not be pursued by the government.

However, Jeremy Hunt speaking on Radio 4's Today Programme has insisted no final decisions have been made "Just because something is not in the Queen's speech does not mean the government can't bring it forward as law, but we have not made a decision,"

He also went on to say that the ongoing legal challenge to an alcohol pricing law in Scotland, as reported below, meant that it "wasn't possible for us to consider what course of action to do" in time for Wednesday's speech.

Scotland: Minimum Unit Pricing - SWA to appeal decision

The Scotch Whisky Association (SWA) has announced that it will be appealing the recent decision by a Court of Session which deemed the proposed 50p per unit minimum alcohol pricing (MUP) legislation in Scotland legal.

On 3 May 2013 Lord Doherty refused the petition, holding that the Act was not outside the legislative competence of the Scottish Parliament; and that the proposed Order setting a minimum price was within devolved competence and within the powers of the Scottish Ministers. Click here to link to the full Opinion.

Gavin Hewitt, chief executive of the Scotch Whisky Association, said:

"We are disappointed our petition for judicial review has been refused. We are surprised at the ruling in light of 30 years of European case law on MUP. We will be appealing against this decision and we remain confident of our position.

"The view from Europe is very different to that expressed by the court and we are not alone in having concerns about the legality of MUP. We are joined in our legal action by spiritsEUROPE and Comite Vins. The European Commission and more than 10 member states have expressed their concerns that MUP contravenes European Union trading rules and their opposition to the Scottish proposals.

"We have consistently opposed MUP so our decision to appeal should not come as a surprise. The Scottish Government has agreed to not introduce MUP until the legal process, including appeals, is complete."

Representations had been received from several major operators, many of whom would not have been directly impacted, had the EMRO been adopted but who were concerned by the wider possible impact on the night time economy and the whole process generally. Leading trade organisations had also opposed the proposals.

Had the EMRO been adopted, it would have restricting sales of alcohol beyond 02.00 in the town centre area. Local operators were however encouraged to embrace and participate in 'best practice' schemes, such as Best Bar None. They will revisit the position next year to gauge the trade response to such initiatives.

This was the first occasion on which the possible adoption of an EMRO had fallen to be considered. A small number of other councils have it on a possible agenda with Blackpool due to consider whether to launch a formal consultation on 15 May.

We will comment in more detail shortly.

The Court is further reported to have said:

"It held that in so far as the measures had equivalent effect to quantitative restrictions on imports, they were justified on the grounds of the protection of the life and health of humans."; and interestingly that

"The court was satisfied that it was unnecessary and inappropriate to refer any question of EU law to the Court of Justice for a preliminary ruling."

The decision is still open for appeal.

Whether this judgment will influence the Coalition Government's proposal to introduce a minimum unit price of 45p per unit in England and Wales remains to be seen.

At its meeting on the 29 April 2013, the Edinburgh Licensing Board confirmed that its Board policy had now been amended so as to allow premises to open from 11.00 am on Sundays (bringing forward the opening hour from 12.30pm) and thereby bringing it into line with much of Scotland including Glasgow.

The report states "licensing policy for the West End should ensure a clear distinction between the evening and night-time economies, whilst the area should be able to exercise greater powers to regulate or ban particular issues."

The report goes on to call for the Government to "modify" the late-night levy to ensure it targets "problem" premises also recommending that "a levy which works on the basis that the "polluter pays" makes a great deal of sense.

Further, it "recommends that the Home Office work with ACPO and the MPS and also the LGA to redesign the levy so that it can be applied more accurately to ensure that those premises which cause the issue make the largest contribution." The report then goes on to provide four examples of how the above may be achieved:

• "It can be applied across a Special Policy Area
• Certain types of premises which are not alcohol-led can be exempted (e.g. restaurants, jazz bars, casinos)
• Base the levy on venue capacity and not just rateable value
• Allow the council to decide conditions which, if included in the licence, would allow a premises to pay a reduced levy rate"

To view the report and in particular pages 52-55 which consider licensing click here: 'West End Commission Final Report April 2013'.

In December 2012, the Government published a consultation paper entitled ‘Judicial Review: Proposals for Reform’ which ran between 13 December and 24 January 2013. The consultation sought views on a package of measures to stem the growth in applications for judicial review.

The Government has now announced its response with Justice Secretary Chris Grayling stating that the Government intends to implement the changes to prevent claims being used as a “cheap delaying tactic” in planning appeals.

The main points of note are as follows:

• JR claims will have to be brought within 6 weeks from the grant of planning permission or other planning decision (currently 3 months).
• Claimants will have to pay a £215 court fee for an oral hearing to renew claims previously refused on the papers (currently £60).
• Claimants will be barred from seeking an oral hearing if the claim is considered to be entirely without merit.

The time reduction for bringing a claim from 3 months to 6 weeks should provide developers with more certainty when waiting to satisfy conditions in a contract or to start construction of a project after planning permission has been granted.

Albeit as the court fee has only increased by a nominal £165 it is unlikely that this will prevent objectors to a scheme from issuing a claim, particularly if they will be shielded from more significant costs under the new protective costs order (PCO) regime which came into effect on 1 April.

Both the original Consultation and its response just announced can be found here: 'Judicial Review: proposals for reform'.

The introduction of the tobacco display ban for large stores in Scotland comes into force today. This affects shops of more than 280 square metres / 3000 square feet (excluding all bulk tobacconists and specialists) and follows on from similar (but not identical bans already in force in England and Wales.

The ban on smoking related products only applies in places where tobacco products are also sold. These products are defined as: cigarette papers, cigarette tubes, cigarette filters, apparatus for making cigarettes, cigarette holders, pipes for smoking tobacco products.

The Tobacco and Primary Medical Services (Scotland) Act 2010 gives powers to Trading Standard Officers to issue fixed penalty notices for offences. Provision is also made for the level of fine to be escalated for second and subsequent offences committed within a 2 year period.

If a retailer is found to be in breach of tobacco sales legislation three times within a two year period, a Local Authority can apply to the courts to have the retailer banned from selling tobacco.

Guidance on the new provisions (which also include a ban on vending machine sales) is available here: 'Guidance'

For those shops of 280 square metres / 3000 square feet or less in area and all bulk tobacconists and specialists, the ban on the display of tobacco is due to be brought in throughout England, Wales, Scotland and Northern Ireland on 6 April, 2015

The Gambling Commission has imposed an £8,000 financial penalty on Celtic Racing (Credit Betting) Limited (“Celtic”), a licensed bookmaker, who persisted in operating betting in pubs in South West Wales.

As reported, Celtic knowingly provided facilities for betting from a number of alcohol licensed premises. They were caught following a joint investigation run by the Gambling Commission which was supported by Pembrokeshire and Carmarthenshire Local Authorities. Celtic also received a formal warning from the Commission and an additional licence condition has been placed on its operating licence.

We would stress, however, that it is not just the Operator of bookmakers who should not be allowing this practice to happen; operators of licensed premises (pubs etc) should not be allowing betting to take place on their premises either.

To clarify the legal position…no commercial betting at all, regardless of the level of stakes, is allowed in pubs and clubs. Any person who facilitates such betting – whether designated premises supervisors, publicans or club officials – will be providing illegal facilities for gambling and will therefore be breaking the law.

Even where designated premises supervisors, publicans or club officials accept bets on behalf of licensed bookmakers, or just facilitate betting through their own telephone accounts, they are acting as betting intermediaries and could be prosecuted.

Customers can of course watch racing in licensed premises and bet using their own telephone account or take a betting slip direct to a bookmaker themselves.

It is also legal to have betting slips in a pub or club as long as when the customer completes the slip they take it to the bookmaker themselves. If a designated premises supervisor, some other employee of the pub, or club official take all the betting slips that their customers / members have completed along with the stake money to the bookmakers before the event they will be deemed to be acting as a betting intermediary and risk prosecution.

A very recent case in relation to a food hygene prosecution has recently been in the High Court.  It centred on the questions of abuse of process and the policy of when to prosecute.  It was not a case in which we were involved.

The High Court was given three questions to determine as follows:

1. whether the operator being prosecuted could challenge the decision to prosecute otherwise than through an abuse of process application;
2. whether the Local Authority had failed to have regard to its enforcement policy in deciding to prosecute; and
3. whether the operator had to show there had been oppression.

The High Court found on each as follows;

First the Magistrates' Court had no power of review of a prosecutorial decision other than through an abuse of process application. A challenge to a decision to prosecute had to always be made in the criminal proceedings unless there was some reason why it could not be. An abuse of process application in the magistrates' court was itself an exceptional remedy, and it was only in the very rare circumstances where that was not possible that there could be an application to the instant court.

Secondly the local authority's enforcement policy set out what their Code of Practice described as a "hierarchy" of enforcement measures. It had followed that hierarchy and fully complied with its policy. A warning had been given and an opportunity to clean the premises. The operator had failed to clean them to an acceptable standard and had desisted from voluntarily closing the premises to do so. They had been given sufficient time. Given the grave risks to health that could arise from a kitchen in the state found, the enforcing officer was entitled to consider that there had been a serious breach of the Regulations that an informal warning had failed to remedy. There was strong evidence of a serious breach of the Regulations which justified prosecution.

Third and finally the court held that proof of oppression was essential if an abuse of process application was to succeed.  Where a policy had been considered but wrongly applied, oppression above and beyond the ordinary consequences of initiating a prosecution would have to be shown.

Save in an exceptional case, decisions to prosecute were for the prosecutor. The task of a criminal court was to determine whether the prosecution had proved its case on the merits. Such matters as an operator might establish about the way in which it conducted its premises and the attempts it made to clean them constituted mitigation.

Rather unusually the Court apparently suggested that it was far from helpful to the operator that its solicitors had engaged in lengthy correspondence aimed at finding fault with the decision to prosecute instead of defending the case on the merits. Justice in the magistrates' court was meant to follow a fair, swift summary procedure and diversions such as those achieved by the operator’s solicitors were to be strongly discouraged as inimical to the proper administration of justice.

R (on the application of BARONS PUB CO LTD) (Claimant) v STAINES MAGISTRATES' COURT (Defendant) & RUNNYMEDE BOROUGH COUNCIL (Interested party) & DIRECTOR OF PUBLIC PROSECUTIONS (Intervener) [2013] EWHC 898 (Admin)

Recently we provided figures showing the number of prosecutions in England and Wales for the sale of alcohol to someone who is drunk (see link).    

Figures have apparently now been released in Scotland according to press reports which show that just four persons have been prosecuted for selling alcohol to drunks in the past three years.  The statistics show one prosecution in 2009-2010, two in 2010-2011 and one in 2011-2012.