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Item 3 - New Statement of Licensing Policy

West Dunbartonshire Council · 11 October 2023
Back to Licensing Board — 11 October 2023 and its agenda

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WEST DUNBARTONSHIRE LICENSING BOARD
Report by the Clerk to the Licensing Board
Licensing Board – 11 October 2023
Subject: New Statement of Licensing Policy
1 Purpose
1.1 To allow Members of the Licensing Board to consider the responses
received in relation to the public consultation on its draft Statement of
Licensing Policy and Assessment of Overprovision and to finalise the said
documents.
2 Recommendations
2.1 It is recommended that Members of the Licensing Board:-
a) review and consider the responses received as a result of the
recent public consultation exercise;
b) approves the revised new Statement of Licensing Policy (see
Appendix 1) and Assessment of Overprovision (see Appendix 2)
subject to any amends as a result of their consideration of the
aforementioned responses; and
c) to delegate authority to the Clerk to finalise the draft Statement of
Licensing Policy (including the Assessment of Overprovision)
including finalising the foreword in consultation with the Convenor,
the content of paragraph 7 and all other typographic and typesetting
matters.
3 Background
3.1 The Licensing Board has, since 1 November 2022, been developing a
new Statement of Licensing Policy and Assessment of Overprovision. 
3.2 At the Licensing Board meeting of 9 May 2023, Members considered the
outcome of a pre-consultation exercise and authorised the Clerk to the
Licensing Board to prepare a new Statement of Licensing Policy and
Assessment of Overprovision. These foregoing documents had regard to
the responses received throughout the pre-consultation exercise. 
3.3 At the following Licensing Board meeting of 27 June 2023, Members
authorised the Clerk to the Licensing Board to consult on the new
Statement of Licensing Policy and Assessment of Overprovision.
Members were advised that a public consultation exercise would be
carried out involving a range of stakeholders. Members were further
advised that the Licensing (Scotland) Act 2005 (“the 2005 Act”) requires

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certain parties to be consulted and that this would be done. 
4  Main issues   
4.1  A public consultation was carried out in relation to both the Statement of
Licensing Policy and the Assessment of Overprovision with a range of
stakeholders. These stakeholders included:- 
• Police Scotland;
• NHS Greater Glasgow and Clyde;
• West Dunbartonshire Health and Social Care Partnership;
• West Dunbartonshire Alcohol and Drug Partnership;
• Alcohol Focus Scotland;
• Elected members;
• all Community Councils;
• tenant groups;
• the Local Licensing Forum;
• the Citizen Panel;
• Unite;
• premises licence holders;
• Building, Planning and Environmental Health Services of the
Council;
• Various industry trade bodies; and
• Fire Scotland. 
The link to the consultation document was made available via the
Council’s website and social media. 
In addition, additional modes of consultation were utilised, for example: 
• questions relating to the development of the Statement of
Licensing Policy were asked through a telephone survey; and 
• a workshop was held with representatives of the licensed trade to
discuss the practical impact of the draft Statement of Licensing
Policy and Assessment of Overprovision. 
Public responses – Statement of Licensing Policy   
4.2  24 responses were received from members of the public. In addition, one
response was received from an elected member of West Dunbartonshire
Council. The responses received are detailed in full at Appendix 3. The
changes proposed by the Licensing Board were by and large welcomed
by members of the public responding to the consultation. For example,
79% of respondents agreed with the proposal to tighten the terms of
access of Children to pre-booked functions, 75% of respondents
supported the addition of bespoke conditions where a licensed premises
proposes to carry out home deliveries of alcohol and 88% of respondents
felt that the additional information around the Licensing Board procedure

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was either very, fairly, or a little useful. 
4.3  A member of the public suggested that it would be useful for more
information to be given as to the role and function of the Licensing Forum.
Further wording clarifying the Forum’s role has been inserted at
paragraph 3 for Members’ approval with the existing paragraph relating to
the Forum being moved to the introductory part of the Policy for ease of
reference.   
Public responses – Assessment of Overprovision   
4.4  The public were supportive of the Licensing Board’s position in relation to
overprovision with 83% of respondents agreeing with the Licensing
Board’s approach to identifying the new localities and the data used to do
so. A majority agreed with the proposal to clearly capture variations in the
Assessment. Varying responses were received in relation to the impact of
licensed premises in the localities with no clear consensus as to their
impact. There was, however, widespread support from 83% of
respondents for the inclusion of licensed hours in the consideration of
overprovision and 75% of respondents either agreeing or strongly
agreeing to include variation applications in the Assessment of
Overprovision. Comments are at Appendix 4. 
Trade responses – Statement of Licensing Policy   
4.5  13 responses were received from members of the trade (see Appendix 5)
including two from trade associations and one licensing agent (see
Appendix 6). There was broad support for the Licensing Board’s
proposals with no negative comment around the conditions proposed in
relation to Children and Young Persons access and home deliveries.
There was a comment around relaxed Children and Young Persons
access for premises catering for tourists. The Clerk suggests that this is
something that the Licensing Board can deal with on a case-by-case
basis. 
4.6  The responses from trade associations and a licensing agent have been
analysed (along with all other responses) and the following comments are
highlighted:- 
• A licensing agent expressed concern in relation to the wording of
condition 4 of Part D (Outdoor area). It is now proposed to remove
the requirement for a member of staff to be present in an outdoor
area at all times as this may be overly onerous; instead the
premises should make sure that they are satisfied that
management of the outdoor area is adequate. 
• The Scottish Grocers Federation raised concerns with the
Licensing Board’s policy in relation to licensed hours for off-sales
hours and in particular the requirement for additional control
measures post 2000 hours. It is suggested by the Clerk that this

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long-standing policy remains fit for purpose. 
• A trade association requested that entertainment is deemed
sufficient reason for Children and Young Persons to be on
premises with reference being made to tourism. It is suggested by
the Clerk that this is a matter for Licensing Board members to
consider on a case by case basis. 
Trade responses – Assessment of Overprovision   
4.7  Trade members responses are at Appendix 7. Trade association
respondents (see Appendix 6) expressed concern that an Assessment of
Overprovision that identifies large parts of the authority’s area as
overprovided for may restrict trade and deter investment. For example,
the Scottish Grocers Federation wrote “Convenience stores provide a
range of key services for their customers, and this includes that ability to
be able to offer their customers a full range of products…Therefore, a
consequence of overprovision is that new entrants to the market are
unable to obtain premises licences…and are therefore, disadvantaged.”
This point was also made by licence holders in the localities to be
declared as overprovided for premises of a particular type during the
aforementioned workshop session. Attendees at this workshop expressed
concern around overprovision potentially restricting their ability to expand.
Members will be aware that the Licensing Board is entitled to introduce a
rebuttable presumption against the grant of a licence by way of an
overprovision policy provided that it is lawful and evidence based and
further, all applications will be considered on their own merits. 
4.8  In relation to the Licensing Board’s proposal to make clear within the
Assessment of Overprovision that increasing the capacity of a licensed
premises in an area of overprovision will face a rebuttable presumption
against grant, a member of the trade asked “How does a responsible
alcohol retailer increase or his alcohol offering if he is sited within a
current overprovision zone. Refits [usually involve] increasing or
decreasing popular retail categories…the policy appears to suppress the
normal means of business improvement.”. Notwithstanding confirming
that a variation triggers a rebuttable presumption against grant in terms of
the Assessment, it would be open to an applicant to argue that their
application should be treated as an exception to policy and further
increasing the capacity of premises within the overprovision locality is a
material consideration for the Licensing Board given that they had regard
to the capacity and licensed hours when preparing their Overprovision
Assessment.   
External bodies 
4.9  Responses were received from:- 
• Police Scotland;
• a joint response from the Environmental Health service of the

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Council; and
• a joint response from NHS Greater Glasgow and Clyde, West
Dunbartonshire Health and Social Care Partnership, and the West
Dunbartonshire Alcohol and Drug Partnership. 
All responses are at Appendix 8.     
4.10  Police Scotland’s response indicates that they are broadly content with
the terms of the document and does not advocate any amends in relation
to either the Statement of Licensing Policy or the Assessment of
Overprovision. 
4.11  Having considered the joint response from Environmental Health
Services, minor amends are proposed at paragraphs 15.3, 16.1, and 24.2
of the draft Statement of Licensing Policy so to clarify matters around the
Licensing Board’s approach to the licensing objective of preventing public
nuisance and the updated statutory position in relation to single use
plastics. 
4.12  The joint response from NHS Greater Glasgow and Clyde, West
Dunbartonshire Health and Social Care Partnership, and the West
Dunbartonshire Alcohol and Drug Partnership submits that the new
Statement of Licensing Policy very effectively promotes the licensing
objectives and supports various amends to the Policy including the
tightening of the terms of Children’s access to licensed premises, the
proposed standard conditions in relation to Children and Young Persons’
access, requirement for a refusal register and the inclusion of an
expanded section on attendance at Licensing Board meetings. 
4.13  The foregoing response does express concern in relation to a number of
matters including (but not limited to):- 
• it is suggested that delivery staff must have appropriate training to
make sure that the Challenge 25 scheme is complied with; the
relevant condition has been updated to address this concern (see
Condition 1 of Part C (Home deliveries) ;
• concern is expressed around the Policy narrating a 10pm terminal
hour for unattended Young Persons in licensed premises with it
being suggested that this “serves to promote this legality rather
than consider the impact the policy will have…”; it is the Clerk’s
view that it is important that applicants have certainty around the
Licensing Board’s expectations in relation to Children and Young
Person’s access;
• the response posits that the standard conditions in relation to
occasional licences are “alone are unlikely to be sufficient to offset
the risk that occasional licenses may generate harms in terms of
the licensing objectives (particularly if they are used recurrently
and are subject to less scrutiny).”; Members will be aware that the
Licensing Board has limited powers under the 2005 Act in relation

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to the determination of occasional licences and that this is a matter
that the Scottish Government are considering having regard to the
impact of Keasim Ltd v City of Glasgow Licensing Board; and
• it is noted within the response that the Licensing Board has not
refused an application on the grounds of overprovision.
The Licensing Board has refused applications on the grounds of
overprovision, most notably an application for a premises licence
for a convenience store in Clydebank (see Martin McColl Limited v
West Dunbartonshire Licensing Board) and furthermore, the
Assessment of Overprovision has a deterrent effect as Officers
heard when consulting with the trade. 
West Dunbartonshire Licensing Forum   
4.14  The West Dunbartonshire Licensing Forum wrote to the Clerk to
commend the recommendations it made during the Licensing Board’s
pre-consultation exercise (see Appendix 9). 
Licensed trade workshop   
4.15  On 16 August 2023 a workshop was held with members of the licensed
trade. The principle aim of the workshop was to identify practical issues
that may arise as a result of the draft Statement of Licensing Policy and
Assessment of Overprovision. There was broad support for the
amendments in the draft Statement of Licensing Policy. Attendees did
identify potential technical issues with the wording in relation to conditions
for home deliveries and the requirement for a refusal book and the
updated draft Statement of Licensing Policy has been revised to reflect
this feedback. Members of the on-sales licensed trade requested that
consideration be given to recognising both the Scottish Pipe Band
Championships and Highland Games as significant events where the
grant of an extended hours application would be delegated to the Clerk.
The Clerk is of the view that sufficient discretion is already contained
within the Policy to determine this type of application in the appropriate
circumstances. 
Telephone survey   
4.16  Respondents were asked to comment on various licensing matters. 
Premises selling alcohol: 
Perceived impact that licensed premises have on the local area:

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Distance usually travelled to purchase alcohol: 
4.17  It is suggested that these survey results reinforce the Licensing
Board’s understanding that the Statement of Licensing Policy is
broadly fit for purpose. 
Miscellaneous amends   
4.18  Various amends have been made to the Statement of Licensing
policy. All changes are highlighted. In particular Members should
note:- 
• paragraphs 32.5 and 32.6 have been amended to clarify that
the later terminal hour for restaurants and premises offering
significant entertainment facilities are part of the Licensing
Board’s policy in relation to licensed hours albeit will only be
granted to particular types of premises;
• paragraph 7 has been updated to reflect the work carried out
by the Licensing Board since the draft copy was prepared; and
• amends at paragraph 32.4 clarifies that where an early
commencement hour is granted then it must be linked to the
activity taking place on the premises.

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4.19  The Assessment of Overprovision has been amended as highlighted
in the document. These amends have been made to clarify various
matters within the Assessment and the Licensing Board’s position.   
Next steps   
4.20  The new revised Statement of Licensing Policy including the
Assessment of Overprovision – subject to any amends Members
instruct – will take affect from November 2023. It is open to the
Licensing Board to revisit its Statement of Licensing Policy by way of
a Supplementary Statement of Licensing Policy. It is expected that
the Local Licensing Forum will alert the Licensing Board to any
matters that it thinks requires to be considered by way of a
Supplementary Statement of Licensing Policy. 
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. A
clear policy will therefore assist applicants in avoiding unnecessary
expenditure on lodging applications 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
damage 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  EIA 786 refers to the EIA in relation to the Statement of Licensing
Policy and concludes that the Policy promotes the licensing
objectives and is underpinned by probative evidence. The
development of the Policy has been informed by an extensive pre-
consultation exercise and then a public consultation exercise. All

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material ingathered has been carefully considered by the Licensing
Board in formulation of the new Policy.   
8.2  EIA 785 refers to the EIA in relation to the Assessment of
Overprovision. The Licensing Board’s Assessment of Overprovision
is an important tool in mitigating the health harms and anti-social
behaviour caused by alcohol (where it can be shown that there is a
link between these factors). The Assessment is based on evidence
provided by Police. NHS and LSOs as well as taking into account the
views of a wide range of stakeholders. The consultation responses
suggested broad support for the Overprovision Assessment. 
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.   
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  As set out in this Report, an extensive consultation process has been
carried out when developing the Statement of Licensing Policy and
Assessment of Overprovision. The Licensing Board’s statutory
obligations around consultation, as set out in the 2005 Act (primarily
sections 6 and 7) and Statutory Guidance issued further to section
142 of the 2005 Act, has been discharged. 
Alan Douglas
Clerk to the Licensing Board
15 September 2023 
Person to
contact: 
Michael McDougall, Depute Clerk to the Licensing
Board, Regulatory and Regeneration, West
Dunbartonshire Council, Municipal Buildings,
Dumbarton G82 1NR
Email: michael.mcdougall@west-dunbarton.gov.uk

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Appendices: Appendix 1: Statement of Licensing Policy
Appendix 2: Assessment of Overprovision
Appendix 3: Public comments re: Statement of
Licensing Policy
Appendix 4: Public comments re: Assessment of
Overprovision
Appendix 5: Trade comments re: Statement of
Licensing Policy
Appendix 6: Trade representatives comments 
Appendix 7: Trade comments re: Assessment of
Overprovision
Appendix 8: Comments from external bodies
Appendix 9: Licensing Forum response
Appendix 10: EIA 786 - Statement of Licensing Policy
Appendix 11: EIA 785 - Assessment of Overprovision