Item 5 - Development of the Statement of Licensing Policy and Assessment of Overprovision
West Dunbartonshire Council · 27 June 2023
Back to Licensing Board — 27 June 2023 and its agenda
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WEST DUNBARTONSHIRE LICENSING BOARD Report by Clerk to the Licensing Board Licensing Board: 27 June 2023 Subject: Development of the Statement of Licensing Policy and Assessment of Overprovision 1. Purpose 1.1 To allow the Licensing Board to review and comment on the draft Statement of Licensing Policy and Assessment of Overprovision. 2. Recommendations 2.1 It is recommended that the Licensing Board authorises the Clerk to consult on the new Statement of Licensing Policy and Assessment of Overprovision, subject to any amends it instructs. 3. Background 3.1 The Licensing Board must adopt a new Statement of Licensing Policy and Assessment of Overprovision by November 2023. This Statement of Licensing Policy details how the Licensing Board will exercise its functions and the Policy must promote the licensing objectives of:- • preventing crime and disorder; • securing public safety; • preventing public nuisance; • protecting and improving public health; and • protecting children and young persons from harm. The Assessment of Overprovision narrates the extent to which the Licensing Board considers there to be overprovision of licensed premises or licensed premises of a particular description in any locality or localities within its area. 3.2 The Licensing Board has completed a pre-consultation exercise to inform the development of the new Statement of Licensing Policy and Assessment of Overprovision. The material ingathered through this exercise has allowed the Licensing Board to identify areas of the current Statement of Licensing Policy that requires to be reviewed as well as enabling it to complete an evidence led Assessment of Overprovision. 3.3 A number of reports have been considered by the Licensing Board while developing its Statement of Licensing Policy and Assessment of Overprovision at its meetings of 1 November 2022, 7 March 2023 and 9 May 2023. At the Licensing Board meeting of 9 May 2023, the Licensing Board agreed both: (1) the areas of the Statement of Licensing Policy to be
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reviewed and matters to be considered; and (2) its determination in relation to its draft Assessment of Overprovision. 4. Main issues Statement of Licensing Policy 4.1 The draft Statement of Licensing Policy is attached at Appendix A. As agreed at its meeting on 9 May 2023, the Licensing Board, having regard to the materials ingathered through the pre-consultation exercise, determined that the Policy largely remained fit for purpose subject to updates to reflect developments in best practice, guidance and licensing case law as well as the responses received in its pre-consultation exercise. Introduction 4.2 Paragraph 7 sets out the Licensing Board’s approach to the development of its Statement of Licensing Policy and Assessment of Overprovision. This allows the reader to understand how the Licensing Board arrived at its final policy position as well as the material considered. This paragraph will require to be updated further once the statutory consultation process has been completed. 4.3 Paragraph 9.2 sets out that the Licensing Board will request that the Licensing Forum will keep the Licensing Board up to date with any relevant developments from the strategies noted at paragraph 9.1. 4.4 Amends made to paragraph 12 confirm that disabled access and facilities statements will be required as part of premises licence applications and that Equality Impact assessments have been completed in the development of this new Statement of Licensing Policy and Assessment of Overprovision. The Licensing Objectives 4.5 Paragraph 14.1 has been amended to note that the Licensing Board expects – where appropriate – that Police Scotland will provide the Licensing Board with details of anti-social behaviour to it in terms of section 22(2A) of the Act. 4.6 Paragraph 15.3 confirms that in order to promote the licensing objective of securing public safety that the Licensing Board will consult with Building Standards in terms of the capacity of a licensed premises. 4.7 Paragraph 17 in respect of the licensing objective of protecting and improving public health, has been clarified so to include the impact on the wider public health as opposed to just patrons frequenting licensed premises. Further amends narrate that the Licensing Board will consider the foregoing licensing objective in relation to individual applications as well as its Assessment of Overprovision.
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4.8 In terms of the licensing objective of protecting Children and Young Persons from harm, paragraph 18 details the matters that the Licensing Board will have express regard to when considering an application for Children and Young Persons’ access and makes clear that the Board expects certain measures to be in place. Further, a statement recognising the need to involve young people in the licensing process is included. Licences 4.9 The terms of Children and Young Persons’ access at paragraph 20 has been clarified so that Children and Young Persons are permitted on the premises for a “private pre-booked function” (emphasis added). This tightens the definition of such an event and makes it easier for Licensing Standards Officer and/or Police to enforce. Paragraph 20.2 alerts potential applicants to the fact that the Licensing Board will consider attaching conditions to a premises licence so to regulate Children and Young Persons’ access. Style conditions are listed at Appendix 1, Part A of the Policy. 4.10 Paragraph 21 introduces a requirement for off sales type premises to utilise a refusal register. Style conditions at Appendix 1, Part B of the Policy details the form of this register. The Licensing Board will determine whether to attach such conditions having heard from the applicant and any other parities. 4.11 Following feedback from the Licensing Board’s pre-consultation exercise (including the recommendations from the Licensing Forum), paragraph 22 details additional measures that the Licensing Board may have regard to when considering applications that incorporate permission for home deliveries of alcohol. This is to promote the licensing objectives of protecting and improving public health and protecting Children and Young Persons from harm. Style conditions for such premises are included in Appendix 1, Part C of the Policy. 4.12 Paragraph 23.2 includes a requirement for the applicant to narrate a separate capacity for outdoor drinking areas. This requirement is designed to promote the licensing objectives of preventing public nuisance and securing public safety as an outdoor drinking area with an excessive capacity may be a nuisance to local residents and pose a safety risk to patrons. This paragraph further alerts potential applicants to the fact that the Licensing Board will consider attaching conditions to regulate the use of outdoor drinking areas. 4.13 A requirement to display a docketed layout plan of the outdoor drinking area is introduced at paragraph 23.8. This is done so to allow local residents certainty as to the extent of a licensed premises’ permission. 4.14 At paragraph 24.8 the Policy confirms that the Licensing Board can vary the conditions of a provisional premises licence. 4.15 Concern was expressed by the Licensing Forum and other parties in relation to the continued high levels of occasional licence applications. Paragraph 25.6 sets out that the Licensing Board will consider attaching a range of
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conditions to occasional licences so to regulate their use and make sure that the licensing objectives are promoted. The foregoing conditions are at Appendix 1, Part E of the Policy. 4.16 The requirement for licence holders to advise the Licensing Board that premises are leased is deleted. Licensed hours 4.17 Paragraph 32 in relation to the licensed hours for on-sales type premises has been simplified so to make clear that the Licensing Board has standard licensed hours and that it will consider exemptions to these hours for: (1) restaurant type premises; and 2) entertainment type premises. The licensed hours remain unchanged. At paragraph 32.8 and 37 respectively there is confirmation that the Licensing Board had regard to the Scottish Government Guidance in relation to 14 hours of continuous trading and a presumption against 24 hour trading. Board Procedure 4.18 Having regard to Scottish Government Guidance and responses to the pre- consultation exercise, paragraphs 38 to 40 detail the following:- • how to make an objection or representation; and • the Licensing Board’s procedure in terms of grant, major variation, and review applications. This will hopefully assist both applicants and members of the public engage with the licensing process. As part of the Policy development an information pack for persons attending a Licensing Board meeting will be developed and will be made available online. Miscellaneous 4.19 All changes are, as stated, marked. Various minor changes have been made to address typographical errors and clarify the terms of the Policy where appropriate. 4.20 Further minor changes in relation to formatting, style or typographical matters may be made to the documents so to prepare them for public consultation. Assessment of Overprovision 4.21 At its meeting on 3 May 2023, the Licensing Board determined various matters relating to overprovision. At Appendix B members will find the draft Assessment of Overprovision that reflects the Licensing Board’s findings.
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5. People Implications 5.1 The work involved in gathering evidence and preparing the Policy has workload implications for the Board during 2023 but this can be accommodated within existing staffing resources. 6. Financial and Procurement Implications 6.1 The Policy will allow applicants to assess whether there are sufficient prospects of success should they proceed with an application. Therefore a clear policy will assist applicants in avoiding unnecessary expenditure on lodging and legal fees. 6.2 A Policy that is legally unsound or based on erroneous material is more likely to be legally challenged. Such a challenge, should it be successful, will leave the Board liable to possibly substantial legal fees. A well-evidenced Policy will diminish the chances of a successful legal challenge. 7. Risk analysis 7.1 It is a legal requirement to adopt a new Policy. This requires to be done by November 2023. Failure to do so would result in reputational loss for the Board. Furthermore, the lack of a Policy could undermine the Board’s ability to scrutinise applications. 8. Equalities Impact Assessment (EIA) 8.1 The Policy promotes the licensing objectives and is underpinned by probative evidence. The Policy will now be subject to a public consultation so to gather the view of the residents of West Dunbartonshire as well as partner agencies. The Licensing Board will consider the responses received before agreeing a final policy. A separate EIA has been completed in relation to the Assessment of Overprovision (see report to Licensing Board meeting on 9 May 2023). Both EIA will be updated following the statutory consultation. 9. Environmental Sustainability 9.1 The Environmental Assessment (Scotland) Act 2005 places a duty on the Council to identify and assess the environmental consequences of its proposals. 9.2 Under the provisions of the Local Government in Scotland Act 2003, the Council has to discharge its duties in a way which contributes to the achievement of sustainable development. In terms of the Climate Change Act, the Council has a general duty to demonstrate its commitment to sustainability and the community, environmental and economic impacts of its actions.
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9.3 The information contained within this report has been considered under the Act. However, no action is required as the Act does not apply to the matters presented in this report. 10. Consultation 10.1 The 2005 Act defines the persons that the Licensing Board must consult with as part of this exercise. In terms of the Statement of Licensing Policy, the Licensing Board must consult with the Licensing Forum, the relevant health board, and any such other persons as the Licensing Board thinks appropriate. In terms of the Assessment of Overprovision, the Licensing Board must consult with the Chief Constable, holders of premises licences within the locality, persons residing within the locality and any other persons that the Licensing Board thinks fit. The Clerk will also take steps to consult with a wider audience by way of a public consultation and engagement with stakeholders. Alan Douglas Clerk to the Licensing Board 2 June 2023 Person to Contact: Michael McDougall, Depute Clerk to the Licensing Board, Regulatory and Regeneration, West Dunbartonshire Council, Municipal Buildings, Dumbarton G82 1NR e-mail: michael.mcdougall@west- dunbarton.gov.uk Appendices: Appendix 1: Draft Statement of Licensing Policy Appendix 2: Draft Assessment of Overprovision Appendix 3: EIA in relation to Statement of Licensing Policy Background Papers: Section 142 Guidance (2023) Existing Statement of Licensing Policy Wards Affected: All