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Robert Botkai writes for Petrol Heads-Up: Alcohol licensing. Is it about to become more difficult?

Tue 15 Nov 2016

This article first appeared in Petrol Heads-Up in November 2016

Robert Botkai, Winckworth Sherwood

As many of you know, the petrol sector team at Winckworth Sherwood handles acquisitions and sales of petrol stations, but we developed our reputation as sector experts through our pioneering work in achieving the grant of alcohol licences for petrol stations. Our first success was in 1994 and we have since secured licences in more than 2,000 petrol stations throughout England and Wales.  Securing a license might be about to get considerable more difficult.

A House of Lords Select Committee is currently interviewing witnesses as it considers making proposals to reform the licensing laws. Any recommendations will not be binding on the Government but are likely to be persuasive.

This article will look at possible recommendations that could impact on petrol retailers. To understand this, I must start with the basics.

Licensing: the basics

The regulation of licensing is administered by local authorities (“licensing authorities”). The Licensing Act 2003 (“the Licensing Act”) sets out the framework for the law in England and Wales in relation to the following activities relevant to petrol stations:

  • The sale of alcohol by retail; and
  • The provision of late night refreshment (“LNR”) – the sale of hot food and hot drinks between 11pm and 5am.

It is unlawful to carry out either of the above activities unless authorised under a premises licence.

The Licensing Act is underpinned by four licensing objectives:

1.    The prevention of crime and disorder

2.    Public safety

3.    The prevention of public nuisance

4.    The protection of children from harm

Every decision taken by a licensing authority, whether to grant a licence or to take it away, must be made by reference to one or more of the licensing objectives. 

Cumulative Impact

Generally, a licence will be granted unless an objector can demonstrate that the grant will be contrary to one or more of the licensing objectives.

However, if the application is for premises that fall within an area designated as a cumulative impact area, the burden is reversed. There is then a presumption that the application will be refused unless the applicant can demonstrate that the grant will not or is unlikely to impact on the licensing objectives.

Without a crystal ball, this test can prove to be an extremely problematic hurdle for an applicant. How does one prove the future?

What is the Select Committee considering?

There is a considerable lobby for the introduction of a fifth licensing objective - the protection of public health and wellbeing.

We struggle to see how a Licensing Committee can possibly predict whether the grant of a single licence will have an effect on public health. As such, the new objective could be pointless. However, if the site is in a cumulative impact area, it will be for the applicant to prove that the grant will not impact on public health. This really is an impossible hurdle!

We already see certain areas where it is almost impossible to secure a new off licence, due to the stringent adherence to a cumulative impact policy. These policies are on the increase which means that more applications will be refused.

I attended the House of Lords on 8 November where senior police officers argued for a public health objective. They were closely questioned by peers who could see the difficulties. I hope that this scepticism will win the day.

Other matters being considered are minimum unit pricing, pre loading, 24-hour licensing, greater controls on delivery of alcohol and restrictions on the sale of high strength alcohol.

Licensing, particularly for off licences, is unlikely to get any easier. If you are considering applications for new grants or extended hours, it may be best to progress these before any reforms are implemented. I cannot say if such reforms would be retrospective.

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