WEST COUNCIL

Report by the Clerk to the Licensing Board

Licensing Board : 30 June 2010

Subject: Licensing Policy Statement - Overprovision

1. Purpose

1.1 To submit information on:-

▪ Crime Rate ▪ Police Incident Rate ▪ Alcohol Hospital Admissions Rate ▪ Alcohol Related Death Rate ▪ Noise from Licensed Premises and ▪ Fire Statistics

across different localities in . Thereafter the Board is asked to consider whether it wishes to further consider and formally consult on overprovision within any of these localities. If so, what types of premises would the consultation apply to?

2. Background

2.1 Section 7 of the Licensing () Act 2005 provides that the Board’s Licensing Policy Statement shall include a statement as to the extent to which the Board considers there to be overprovision of (a) Licensed premises, or (b) Licensed premises of a particular description, in any locality within the Board’s area.

2.2 In considering whether there is overprovision in any locality the Board must have regard for the number and capacity of licensed premises in the locality and consult various people.

2.3 The Board’s present Licensing Policy Statement was agreed by the Licensing Board on 6 November 2007 and published on 15 November 2007. In terms of the Licensing (Appointed Day and Transitional Provisions) (Scotland) Order 2007 the Board’s Licensing Policy Statement runs from 30 November 2007 to 30 November 2010. As part of the Transitional Provisions the overprovision assessment did not need to form part of the first Licensing Policy Statement, but will need to be included in the new statement to run from 30 November 2010.

2.4 The 2005 Act essentially requires the Board to assess overprovision up front in its Licensing Policy Statement, before receipt of individual applications.

Page 1 of 23 Where a Board’s Licensing Policy Statement concludes that there is overprovision of a particular type of premises in a locality, there will then be a presumption that all such applications in the locality should be refused. Similarly if there is no such statement in the Board’s Licensing Policy Statement, it is very unlikely that a refusal based on overprovision could be substantiated at appeal.

2.5 Under Section 142 of the 2005 Act, Scottish Ministers may issue guidance to Licensing Boards. Guidance has been issued on overprovision and this is attached as Appendix 1. The key points from this guidance are:-

▪ There needs to be robust and reliable evidence which suggests that a saturation point has been reached or is close to being reached, always provided that a dependable casual link can be forged between that evidence and the operation of licensed premises in a locality.

▪ Factors which the Board can take into account: o Information provided by the Chief Constable o CCTV footage illustrating disorder associated with the dispersal of customers o Evidence that the density of licensed premises has resulted in levels of competition which has applied downwards pressure on the price of alcohol o Evidence from local residents of anti-social behaviour associated with licensed premise o Information from Environmental Health Service about noise complaints which can be attributed to the operation of licensed premises in a locality o Data supplied by the NHS Board or other health bodies such as accident and emergency department or alcohol action teams.

▪ The guidance states that the Board cannot take into account: o The manner in which individual premises are managed o Any concerns as to the quality of management of individual premises o The need or demand for the licensed premises in the locality. Commercial considerations are irrelevant to a policy which is designed to protect the wider interest. o Hours during which the premises in the locality trade o Member’s clubs providing they meet the criteria made under Section 125 of the Act

▪ Proper regard needs to be given to the contrasting styles of operation in different licensed premises and the differing impact they are likely to have on the promotion of the licensing objectives. In other words, if crime, health etc problems are caused by one or two types of licensed premises, the Board can make an overprovision finding in respect of these types of premises, leaving scope to allow other types of premises.

▪ The Board needs to consider both the number and capacity of premises in a locality which are to be the subject of an overprovision assessment.

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2.6 On 24 September 2009 the Board considered an initial report on overprovision. The Board agreed that:-

i) There would be a short formal consultation with the Chief Constable, Environmental Health and the Licensing Forum to seek their views on hot spot areas which maybe reaching saturation point by reason of crime, health impact, overall impact and the amenity of the area or otherwise.

ii) This information should be reported back to the Board and the Board would then use this information, as well as their own local knowledge of the area, to identify areas which require further information or investigation.

iii) The Board agreed that in considering overprovision they would distinguish between the following categories of premises, namely:-

▪ Vertical Drinking establishments, distinguishable from those catering predominantly and exclusively for persons taking meals (eg – pubs) ▪ Restaurants – i.e. premises catering for predominantly or exclusively for persons taking meals. ▪ Nightclubs ▪ Adult Entertainment venues (none at present) ▪ Mixed or Chameleon premises in which the facilities offered during the day are markedly different from those provided in the evening with, for example a switch from a food led operation to a nightclub style of operation. ▪ Town Hotel – where the bar facilities are ancillary to the accommodation. ▪ Large Supermarkets ▪ Off-Sales and Local Convenience Stores

iv) Thereafter Board Officers would prepare a document for consultation including the numbers, types and capacities of the premises within their areas plus guidance for consultees.

v) The Board would then formally consult with the Chief Constable, the Licensing Forum, Environmental Health, NHS, on the website and would consult all parties consulted in relation to the Gambling Statement of Principles (if relevant).

vi) The results of the consultation are then to be reported back to the Board who would consider if there was overprovision in any locality.

2.7 The Licensing Forum held a special meeting on 24 November 2009 to consider overprovision. They were of the view that they would like to use the expertise of the Alcohol and Drug Partnership to inform the debate. The Partnership could bring information from accident and emergency, health boards, police, children and families, housing and community safety. On 7

Page 3 of 23 December 2009 the Board noted that it would be necessary to provide clear empirical evidence to demonstrate overprovision and agreed to await the information to be provided by the Alcohol and Drug Partnership. On 7 December 2009 the Board also received information provided by the Council’s Environmental Health Services on noise from licensed premises between 2005 and 2009. The Board agreed that this would be fully considered when it was in a position to consider the responses from the Alcohol and Drug Partnership. A presentation from the Alcohol and Drug Partnership was subsequently considered by the Forum at its meeting on 29 March 2010, the Forum agreeing that this information should be further refined and submitted to the Board. A copy of the report from the Alcohol and Drugs Partnership is attached as Appendix 2. A copy of the report from Environmental Health providing details of noise complaints from 2005 to 2009 is contained as Appendix 3.

3. Main Issues

3.1 The report from the Alcohol and Drug Partnership (ADP) (Appendix 2) summarises the considerable volume of statistical information obtained from Strathclyde Police, Greater and Clyde NHS, Strathclyde Fire Board, Council Services and national sources.

3.2 In terms of Section 7 of the Licensing (Scotland) Act 2005 the Board is required to consider overprovision in “any locality within the Board’s area”. The guidance also states that there has to be “a dependable casual link between that evidence and the operation of the premises in the locality”. It is up to Board to define its own localities. In the past the Board has defined its own localities for overprovision purposes from its local knowledge such as Town Centre. The difficulty with this approach is that police and NHS information is provided nationally on the basis of data zones. The information provided in the Alcohol and Drug Partnership report is provided for 18 intermediate data zones shown in Appendix 1 to the map attached to Appendix 2. Given the difficulties in obtaining robust and reliable evidence for any different localities it is recommended that the Board use the intermediate data zones detailed in the Alcohol and Drug Partnership report as its localities for the purposes of Section 7 of the 2005 Act.

3.3 The ADP report notes that there is national evidence to suggest an association between the number of alcohol outlets and the level of alcohol related problems. As such, restricting the number of such outlets may have a positive effect on alleviating these issues.

3.4 The ADP report contains statistical information relating to:-

▪ Off-Sales – the number of off-sales normalised to represent the number per 100,000 population, the average for each Council area being 110. ▪ The number of on-sales normalised to represent the number per 100,000 population, the West Dunbartonshire average figure being 152. ▪ The rate of alcohol indicative crimes normalised to represent the number per 100,000 population, the Council average per area being 8,275.

Page 4 of 23 ▪ The rate of alcohol indicative incidents normalised to represent the number per 100,000 population, the Council average being 20,829. ▪ The rate of alcohol hospital admissions, normalised to represent the number per 100,000 population, compared to the Scottish rate of 100%. ▪ The rate of alcohol related deaths, normalised to represent the number per 100,000 population and compared to the Scottish rate of 100%.

3.5 These are contained in a table on page 5 of the ADP report. In addition, fire statistics are detailed in the report.

3.6 The ADP report notes that Scotland has often been seen as the sick man of Europe when it comes to alcohol. Looking at health, crime, anti-social behaviour and fire statistics, West Dunbartonshire fair poorly by comparison against the Scottish standard. Only in three areas, being (a) Dumbarton East/ Bowling/Barnhill/Crosslet; (b) Balloch North East//Mill O Haldane and (c) are the figures below either the applicable Council or Scottish average. Accordingly there is clear and robust evidence that across West Dunbartonshire alcohol is having a significant and detrimental effect on the population. This is backed by further evidence, such as the review by Strathclyde Police of three separate weeks in 2009 which showed that between 60 and 100% of reported domestic incidents indicated alcohol as a factor for the suspect, victim or both. This is higher than the national statistics of 45%.

3.7 While the overall statistical picture is clear, it will be noted that with the exception of certain areas, e.g. , the figures do not show a clear correlation between the number of premises (or one type of premises) and the crime and health figures in that locality. In other words some areas with a lower density of premises have bad crime and health figures. / is an example. This is partly because as the Scottish Government’s own framework for alcohol (Changing Scotland’s Relationship with Alcohol 2009) indicates, the link between alcohol and social problems is far more complex than merely rejecting the number of outlets. For example, there is a correlation between alcohol related problems and areas of multiple deprivation. Price is another factor in alcohol availability. Local studies, including one in the Whitecrook area demonstrate that consumers will often purchase alcohol from outside their locality. In the Whitecrook area a considerable percentage of alcohol was purchased in a supermarket in Town Centre. There is also evidence that consumers will travel up to two miles for cheaper alcohol. Thus while there are clear alcohol related problems across West Dunbartonshire, the fact that consumers purchase alcohol across locality boundaries means that it is often difficult to demonstrate a clear cause or link between sale of alcohol in a locality and problems occurring in that same locality.

3.8 The approach taken in the guidance issued under the Licensing (Scotland) Act 2005 is simplistic insofar as it focuses on hot spot areas where a Board can demonstrate that crime, disorder and nuisance are caused by customers of a concentrated number of licensed premises. While this may be relevant for Friday and Saturday night town centre crime statistics, it is not a good model when considering health, fire and crime statistics outwith town centres.

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3.9 As recommended in the guidance, the Board will also need to consider the different categories of premises and the extent to which there is a clear casual link between the evidence and different types of premises. It appears that having regard to the evidence there is no clear casual link between alcohol related problems and with the following categories of premises:-

▪ Restaurants – i.e. premises catering predominantly or exclusively for persons taking meals. ▪ Adult Entertainment Venues (none at present) ▪ Town Hotels where the bar facilities are ancillary to the accommodation.

3.10 The evidence within West Dunbartonshire suggests that there is a casual link between particular alcohol related problems and different types of premises. For example:-

▪ Noise nuisance issues detailed in the Environmental Health report in Appendix 3 are predominantly related to vertical drinking establishments, e.g. bars and nightclubs. ▪ Youth crime/under age drinking – alcohol generally obtained from off-sales and local convenience stores. ▪ Town Centre crime and police incidents – particularly on a Friday and Saturday night are linked to the number of vertical drinking establishments (eg pubs) within the town centre. ▪ Alcohol related deaths, alcohol hospital admissions, domestic abuse, crime and police incidents outwith town centres and fire statistics are predominantly linked to alcohol bought from large supermarkets.

3.11 In relation to vertical drinking establishment (e.g. pubs) Appendix 3 to the ADP report contains details of visits made by Strathclyde Police to licensed premises over several months. This shows that these premises were considerably under occupied in comparison to their capacity. In the Dumbarton ward premises were on average running at 8% of capacity, in the Leven ward running at 3% of capacity, in the ward at 12% of capacity, in Clydebank/ and Central wards at 11% of capacity and in the Waterfront ward at 6% of capacity. The guidance suggests that over capacity can drive down price. However there is little evidence of this in West Dunbartonshire, possibly because a main competitor is now drinking at home.

3.12 In considering whether there is overprovision of ‘vertical drinking establishments’ such as pubs, two further points need to be borne in mind. Firstly, the mere presence of pubs in a town centre will provide a draw for patrons into the town centre on a Friday and Saturday night in particular, resulting in a higher proportion of crime and police incidents in these areas. However, not all of the alcohol consumed prior to such incidents may be consumed in the town centre locality. There is evidence that consumers are increasingly drinking at home and pre-loading before visiting pubs or nightclubs. Secondly, if overprovision is applied to off-sales but not on-sales, a point could be made that on-sales are also licensed to sell off-sales. Evidence obtained from the Licensing Standards Officers is that while such

Page 6 of 23 vertical drinking establishments invariably hold an off-sales licence, that off- sales are rarely sold. This is probably because such off-sales are expensive in comparison to off-sales from supermarkets and the smaller off-sales.

3.13 There are a number of different approaches that the Board could take being:-

i) The Board could take the view that on the basis of the statistics and the difficulty of linking the evidence with the operation of premises within the locality, that there is no overprovision in any area.

ii) The Board could in examining the statistics, take the view that in certain areas there is a clear link between certain types of premises and alcohol related problems in these areas. Dalmuir obviously falls into this category and other areas worth considering would be Dumbarton Centre – Silverton West/Townend, Jamestown – Rural moor land in relation to off-sales (albeit the alcohol related deaths figure is less than average), Alexandria (alcohol related deaths rate less than average). It should however be noted that this would not fully tackle the high alcohol related problems in Dumbarton West – Brucehill/ Dennystown/Kirktonhilll and Whitecrook in particular where the number of premises is less than the average. The Board would also need to agree which types of premises overprovision would apply to.

iii) The Board could take the view that there is robust evidence showing above average crime and health problems across all of West Dunbartonshire with the exception of Balloch North East/Gartocharn/ Mill O Haldane, Dumbarton East – Bowling/Barnhill/Crosslet and Duntocher. While there is a correlation between alcohol related problems and density of premises in an area, there are also correlations between alcohol related problems and deprivation, further complicated by cross locality purchasing. However on the basis that alcohol is generally purchased within two miles of a locality, an overprovision policy could arguably apply to all areas barring the three mentioned above. Once again it would be necessary to examine the different types of premises and detail which types of premises the overprovision policy should apply to.

iv) The Board also has to have regard to the number and capacity of licensed premises in the locality. If the Board is minded to pursue an overprovision assessment in relation to certain types of premises in certain localities, then it will be necessary for Board Officers to provide details of the number and capacity of such premises in the localities.

3.13 If the Board intend to investigate overprovision further, following either Option 1 or 2 it should be noted that if this is adopted in the Licensing Policy Statement that there would be a presumption that any application for the defined type of premise should be refused on the basis of overprovision. However it would still be open to applicants to argue that their particular premises provided an overall benefit to the licensing objectives, notwithstanding the overprovision policy. For example, it is generally

Page 7 of 23 recognised that a problem in areas of deprivation is in accessing good and reasonably priced food in local stores. Those with poor mobility, including the elderly, particularly benefit from local stores. One of the effects of putting in place an overprovision policy in areas of deprivation (which often have the worst crime and health figures) is that this could discourage new shops in such areas. While it is noted that the Board could consider such applications on their own merits having regard to the benefits of the licensing objectives, the mere presence of an overprovision policy in the Licensing Policy Statement would discourage applications.

3.14 Another possible example might be the proposed new supermarket in Clydebank town centre. From a planning point of view there is capacity for such a supermarket and if not granted it would possibly create capacity for an out of centre supermarket, resulting in a detrimental retail impact on Clydebank town centre. Such a supermarket would also fund new leisure facilities in Clydebank. These are just two examples of the difficult scenarios that may arise if the Board puts in place an extensive overprovision policy.

3.15 If the Board is minded to pursue an overprovision assessment then they will need to formally consult with:-

▪ The Chief Constable. ▪ Such persons as appear to the Board to be representative of the interests of holders of premises licences in respect of premises within the locality. ▪ Persons resident in the locality. The Licensing Forum is the primary means of consulting with such persons. ▪ Such other persons as the Board thinks fit. As previously detailed the Board has agreed that it would consult with Environmental Health, NHS, on its website and also consult all parties consulted in relation to the Gambling Statement of Principles where relevant.

Thereafter following such a consultation, a report would come back to the Board for a decision.

4. People Implications

4.1 There are no people issues for the Council. For the community there are competing people issues. On the one hand a robust and targeted overprovision policy should have beneficial impact on the poor statistics for alcohol related deaths, alcohol hospital admissions, police incidents, crime and fire statistics. On the other hand a wide overprovision policy could act as a restraint on future investment and employment in licensed premises in West Dunbartonshire.

5. Financial Implications

5.1 While West Dunbartonshire’s alcohol related crime, health and fire statistics are some of the worst in Scotland, the overprovision model set out in the Licensing (Scotland) Act 2005 and the guidance thereunder is simplistic as

Page 8 of 23 the alcohol related problems in a locality may not directly and solely related to alcohol purchased in that locality. While successive Scottish Government Ministers have been supportive of Licensing Boards taking a robust approach to overprovision, the Board still needs to operate within the present legislative framework. A number of Boards have simply taken the view that it will be near to impossible to substantiate overprovision. In the case of West Dunbartonshire, the Board has the benefit of extensive work undertaken which clearly demonstrates the alcohol related problems in its area and which also demonstrate that these problems are some of the worst in Scotland. An extensive overprovision policy would be innovative but likely to face court challenge at some point. It could be a test case for the legislation resulting in substantial cost.

6. Risk Analysis

6.1 To do nothing would invite criticism that the Board is not tackling the serious alcohol related problems that has been brought to its attention. On the other hand the Board needs to work within the terms of the present legislation. While some other Boards have shied away from extensive policies on overprovision, the data presented to the Board is far more detailed and compelling. However and innovative approach carried the risk of challenge in the courts from big supermarkets in particular. Smaller outlets are less likely to challenge the policy as they will simply not choose to invest in West Dunbartonshire. Indeed that is one of the aims of the new Act, that businesses do not undertake the work and cost of a new development only to have a licence refused.

7. Equalities Impact

7.1 The Board will need to carry out an Equalities Impact Assessment during the consultation period on an overprovision assessment.

8. Conclusions and Recomendations

8.1 There is national evidence of a correlation between density of outlets and alcohol related problems. There is extensive and robust evidence to show that most areas of West Dunbartonshire have figures for crime, police incidents, alcohol hospital admissions, alcohol related deaths and fire statistics which are above or well above the Scottish average. There is also international evidence that the Scottish average figures are poor by comparison to other European countries. This evidence has been provided across 18 different localities within West Dunbartonshire.

8.2 Section 7 of the 2005 Act states that the Board’s Licensing Policy Statement, which needs to be adopted before 30 November 2010 needs to contain a statement as to the extent to which the Board considers there to be overprovision of licensed premises or licensed premises of a particular description in any locality within the Board’s area. The statutory guidance

Page 9 of 23 states that there is a need for robust and reliable evidence which suggests that a saturation point has been reached or is close to being reached, always provided that a dependable casual link can be forged between that evidence and the operation of licensed premises in the locality. The guidance states that the Board should distinguish between different types of premises and the differing impact they are likely to have on the promotion of the licensing objectives. In other words it is possible to have overprovision of one type of premises, e.g. off-sales, and not over provision of another, e.g. restaurants.

8.3 There is clear evidence of significant alcohol related problems across all except three localities in West Dunbartonshire. There is also evidence that most of this alcohol is bought within West Dunbartonshire. However given issues of cross locality purchasing and the often complex inter-relationship of alcohol related problems with deprivation it is not always the case that there is a direct correlation between the alcohol related problems of a locality and the number of premises therein. A wide overprovision policy in terms of geographic extent is likely to be innovative but also likely to face legal challenge at some point. A case could however be made that given the robust statistical information and the depth of the alcohol related problems of West Dunbartonshire that such an innovative approach is warranted.

8.4 The recommendations are:-

i) That the Board considers the localities and premises that it wishes to formally consult on for the purposes of an overprovision assessment and as part of this:-

a) The Board agrees the 18 intermediate data zones detailed in Appendix 2 as localities within West Dunbartonshire.

b) The Board considers the link between the data provided and different types of licensed premises and decides which of the eight categories should not be included in an overprovision assessment. It is recommended that restaurants, nightclubs, adult entertainment venues, mixed or chameleon type premises and town hotels where the bar facilities are ancillary to the accommodation are not included in an overprovision assessment. The Board is asked to consider whether vertical drinking establishments such as pubs should be included in such an assessment. If so evidence from the Chief Constable would be helpful in relation to town centre hot spots. In terms of the guidance it is open to the Board to distinguish between overprovision for all vertical drinking establishments and overprovision for larger superpub type premises.

c) That the Board agrees to consult as part of an overprovision assessment relating to either:-

▪ No localities

Page 10 of 23 ▪ Dalmuir, Dumbarton Central/Silverton West/Townend and possibly Alexandria; and Jamestown/rural moor land in relation to off-sales; or ▪ All areas of West Dunbartonshire with the exception of Dumbarton East – Bowling/Barnhill/Crosslet, Duntocher and Balloch North East/Gartocharn/Mill O Haldane

d) That the Board requests the Licensing Standards Officer to report on the number and capacities of relevant licensed premises within these geographic areas and premise types.

e) That the Board considers whether to request the Alcohol and Drugs Partnership, Chief Constable or Environmental Health to gather any further data or information and to report back to the Board.

ii) The Board formally consults on its proposals with the Chief Constable, the Licensing Forum, Environmental Health, NHS, on the Council website and consults with all parties consulted in relation to the Gambling Statement of Principles if appropriate.

iii) That the results of the consultation are reported back to the Board who would consider if there is overprovision in any type of premises in any locality.

______Andrew Fraser Clerk to the Licensing Board

Person to Contact: Andrew A Fraser, Clerk to the Licensing Board and Head of Legal, Administrative and Regulatory Services, Council Offices, Garshake Road, Dumbarton, G82 3PU. Telephone 01389 737800 e-mail: [email protected]

Appendices: Appendix 1 – Licensing (Scotland) Act 2005 – Section 142: Guidance for Licensing Boards and Local Authorities. Appendix 2 – ADP report Appendix 3 – Environmental Health Noise Report

Background Papers: None

Wards Affected: ALL

Page 11 of 23 APPENDIX 1

Licensing (Scotland) Act 2005 - Section 142: Guidance for Licensing Boards and Local Authorities

3. The Overprovision Assessment

Overprovision: the previous law

29. In terms of Section 17(1)(d) of the Licensing (Scotland) Act 1976, a Licensing Board must refuse an application for a new licence if, having regard to:

"(i) the number of licensed premises in the locality at the time the application is considered; and (ii) the number of premises in respect of which the provisional grant of a new licence is in force, the Board is satisfied that the grant of the application would result in the overprovision of licensed premises in the locality."

30. The Nicholson Committee's Report concluded that this approach to overprovision results in a "largely arithmetical exercise" which is "imprecise and unworkable in any meaningful sense". As interpreted by the Court, it requires Licensing Boards to examine the facilities which the holders of licences in the locality are authorised to provide in terms of Schedule 1 to the 1976 Act. That authorisation is expressed in general or economical terms, particularly in relation to public house, hotels and off- sales. For example, the holder of a public house licence is simply "authorised to sell by retail alcoholic liquor for consumption on or off the premises". Subject to the provision of a minimum number of letting bedrooms, a similar authority is conferred on the holder of a hotel licence. An off-sale licence authorises the holder "to sell by retail alcoholic liquor for consumption off the premises only".

31. The Court has also said that the Licensing Board is not entitled to take account of the particular way in which each licence holder is in fact operating the premises or the facilities which an applicant proposes to provide.

32. This approach has produced undesirable results:

• the Licensing Board is disabled from drawing distinctions between different proposals, for example: o premises operating in the style of a high quality restaurant with a limited bar facility and a so-called "vertical drinking establishment" would both require to be the subject of a public house licence, although the latter is exclusively or predominantly used for the consumption of alcohol; o a small delicatessen offering a limited range of wines and spirits complimentary to specialist groceries, or a florist's shop with a limited range of champagne, cannot be distinguished from a large off-sales warehouse.

Page 12 of 23 o No account may be taken of the capacity of licensed premises. A "superpub" capable of accommodating 500 customers cannot be distinguished from a small, traditional public house.

The new approach to licensing and overprovision

33. The Act sets out a new approach to licensing and overprovision. In particular it:

• ends the seven fixed categories of licences; • introduces a single premises licence, based on an operating plan which gives a clear outline of an applicant's intentions and which may be modified and/or subjected to conditions; • requires Licensing Boards to take a pro-active position on overprovision and identify those localities in which it would not propose to grant new licences or licences for premises of a particular description; • allows Licensing Boards to take account of the "particular description" of premises (that is to say, their styles of operation) when assessing overprovision; and; • directs Licensing Boards to have regard to the number and the capacity of licensed premises in localities.

34. This approach:

• allows Licensing Boards to take account of changing market trends, such as the development of so-called "hybrid" premises; • provides potential entrants to the market with a clear signal that they may incur abortive costs if they intend to apply for a licence in a locality which the Licensing Board has declared to have reached overprovision; • improves public and licensed trade confidence in a system by setting out clearly the grounds on which overprovision should be determined. • recognises that halting the growth of licensed premises in localities is not intended to restrict trade but may be required to preserve public order, protect the amenity of local communities, and mitigate the adverse health effects of increased alcohol consumption resulting from growing outlet density.

A policy on overprovision

35. Section 7 of the Act requires each Licensing Board to include in its policy statement:

"a statement as to the extent to which the Board considers there to be an overprovision of -

(a) licensed premises, or

(b) licensed premises of a particular description, in any locality within the Board's area."

Page 13 of 23 36. The Licensing Board must have regard to (a) "the number and capacity of licensed premises in the locality"; and (b) consult the persons specified in Section 7(4) of the Act:

"(a) the appropriate chief constable.

(b) such persons as appear to the Board to be representative of the interests of -

(i) the holders of premises licences in respect of premises within the locality, (ii) persons resident in the locality, and

(c) such other persons as the Board thinks fit."

41. Section 6(3) of the Act requires the policy statement to seek to promote the licensing objectives:

• preventing crime and disorder; • securing public safety; • preventing public nuisance; • protecting and improving public health; and • protecting children from harm.

37. The duty to consult is subject to the over-arching obligation set out in Section 6(3)(b) of the Act. This means that the Licensing Board is also required to consult the Local Licensing Forum established for the whole of the Board's area and, where not represented on the Forum, those who appear to be representative of the interests in that area of:

• the holders of personal licences; • persons having functions relating to health, education, education or social work; • young people; • persons resident in the Forum's area.

38. Members' clubs may be discounted for the purposes of overprovision assessments carried out by Licensing Boards provided they meet the criteria in terms of regulations made under Section 125 of the new Act.

39. Section 7 provides that references to "licensed premises" do not include references to premises which are the subject of an occasional licence.

Determining localities

40. An assessment of overprovision for the purposes of the 1976 Act has normally resulted in Licensing Boards selecting localities by reference to the town or city centre in which the premises will be situated or by taking a radius from the application premises or site.

41. The Act inverts this approach. In formulating its overprovision assessments the Licensing Board should closely scrutinise the provision of licensed premises across the whole of its area and then proceed to determine those localities which it

Page 14 of 23 proposes to examine. It is not necessary to divide the whole of the Board's area into separate localities.

42. The process by which the selection exercise is carried out is largely a matter for the Licensing Board and will no doubt involve the use of its own local knowledge. A locality could, for example, consist of a particular town, a city centre are, a street, a collection of streets or a council ward.

43. The identification of localities could be approached in a number of ways. The Licensing Board may consider that information which the chief constable is capable of providing is a reasonable starting point. The chief constable will be able to:

• identify "hotspot" areas within the Licensing Board's area where it can demonstrate that crime, disorder and nuisance are caused by customers of a concentrated number of licensed premises; • suggest other areas in which the number of licensed premises or premises of a particular description is moving closely towards overprovision; and • provide the Licensing Board with the geographical boundaries of those areas.

44. Once the Board has made this initial assessment and decided localities upon which to focus, it should identify the number of licensed premises, or premises of a particular description, in those localities; determine their capacities; and fulfill its consultation obligation.

A duty to consult and gather evidence

45. The Licensing Board's duty to carry out wide-ranging consultation prior to the formulation of overprovision assessments (see paragraph 37) illustrates the importance of partnership working in the achievement of the licensing objectives.

46. As well as consultation with representative bodies and organisations, Boards may wish to hold well-publicised 'open meetings' in particular localities at which members of the community can be afforded an opportunity to express their views on the formulation of policy.

47. The results of all consultation should be evaluated to identify robust and reliable evidence which suggests that a saturation point has been reached or is close to being reached, always provided that a dependable causal link can be forged between that evidence and the operation of licensed premises in a locality. Factors which the Licensing Board may take into account include:

• the information provided by the chief constable; • subject to the constraints of data protection legislation, CCTV footage supplied by the chief constable or another source which illustrates disorder associated with the dispersal of customers in any locations; • evidence from the licensed trade that the density of licensed premises in the locality has resulted in levels of competition which have applied downward pressure on the price of alcohol; • evidence gathered from local residents of anti-social behaviour associated with licensed premises;

Page 15 of 23 • information from the local authority's Environmental Health Department about noise complaints which can be attributed to the operation of licensed premises in a locality; • data supplied by the NHS Board or other health bodies, for example, local Accident and Emergency Departments or Alcohol Action Teams.

48. It will not normally be appropriate to arrive at a decision based on one particular factor alone; but rather consideration should be given as to whether aggregated information and evidence from a number of sources points compellingly towards a particular conclusion.

49. The Licensing Board should not take into account:

• the manner in which individual premises in a locality are managed, since it is possible that well-managed premises may act as a magnet for anti-social behaviour, or may eject a substantial number of customers who collectively produce disorder and nuisance to a degree which is unacceptable; • any concerns as to the quality of management of individual premises, which should separately be addressed through other statutory mechanisms; • the need or demand for licensed premises in the locality. Commercial considerations are irrelevant to a policy which is designed to protect the wider public interest; or • the hours during which licensed premises in the locality trade, since these will be controlled through operating plans.

50. The Licensing Board's policy should be expressed in such a way that interested parties are left in no doubt as to the reasons for its adoption, including the evidence upon which the Board relied and the material considerations which were taken into account.

Licensed premises or premises of a particular description

51. The consultation carried out by the Licensing Board may disclose that communities are placed under stress only by licensed premises sharing certain characteristics: for example, a concentration of off-sales in a residential area, or the density of "vertical drinking establishments" in a town centre. The Board should therefore consider carefully whether it wishes to state that overprovision exists in any locality simply having regard to the number of licensed premises and their capacities. Such an approach should only be adopted in exceptional circumstances. Proper regard should be given to the contrasting styles of operation of different licensed operations and the differing impact they are likely to have on the promotion of the licensing objectives. A policy which discourages premises where the primary activity is the consumption of alcohol may leave room for the introduction of licensed premises which are likely to produce positive benefits for the locality or which will have a neutral impact on the those objectives.

52. The Board must decide how it wishes to categorise premises by description. While the single premises licence introduced by the Act removes the seven fixed categories available under the 1976 Act system, it is still possible to differentiate premises according to the facilities which they provide for the sale and/or consumption of alcohol. For example:

Page 16 of 23 • "vertical drinking establishments" are distinguishable from those catering predominantly or exclusively for persons taking meals; • nightclubs are likely to have a more significant impact on town centres, city centres and communities than concert halls and theatres, although all may have a large capacity and provide entertainment; • the Licensing Board would be entitled to decide that premises specialising in adult entertainment such as lap-dancing and pole-dancing were entirely distinct from other entertainment venues; • in recent years, "chameleon" premises have developed in which the facilities offered during the day are markedly different from those provided in the evening, with, for example, a switch from a food-led operation to a nightclub style of operation; • a town or city centre hotel may have little or no impact on the licensing objectives and produce benefits for tourism and the local economy, while a hotel in a residential area with few letting bedrooms and extensive bar facilities may have a negative impact on the amenity of local residents; • in rural areas a hotel whose trade is mainly derived from bar sales may provide a valuable local function; • large supermarkets serving catchment areas larger than the localities in which they are situated and delicatessens selling speciality foods with a limited range of wines and spirits for consumption off the premises can be distinguished from shops devoted to off-sales and local convenience stores selling a general range of groceries. Convenience stores may provide an essential local service in some communities, particularly those with an elderly population where transport considerations make it difficult for residents to take advantage of more extensive shopping facilities available at large supermarkets in adjoining localities.

Summary

53. The formulation of the statement required by Section 7 of the Act involves the following process:

• the selection of appropriate localities based on a broad understanding of provision across the Board's area; • the identification of the number of licensed premises or premises of a particular description in those localities and their capacities; • consultation with the relevant persons; • an assessment of the information gathered from those persons, taking into account only relevant considerations and material which has a proper evidential base; and • reaching a decision as to whether it can be demonstrated that, having regard to the number and capacity of licensed premises or licensed premises of a particular description in a locality, it is undesirable to grant further licences or further licences for premises of a particular description on the ground of overprovision; • producing a statement in its published policy which meets the requirements set out in paragraph 35.

Page 17 of 23 The effect of the overprovision assessment

54. Where a Licensing Board's policy statement has concluded that in a particular locality there is an overprovision of licensed premises, or licensed premises of a particular description, an application for a new premises licence or for the variation of an existing licence in that locality should normally be refused on the ground provided by Section 23(5)(e) of the Act, either:

• because it would simply add to the number of licensed premises; or • because it would increase the number of premises of the relevant description, depending on the approach which the Licensing Board has taken in the policy statement.

55. The application need not be the subject of an objection.

56. The effect of the policy is to create a rebuttable presumption against the grant of an application. Each application still requires to be determined on its own merits and there may be exceptional cases in which an applicant is able to demonstrate that grant of the application would not undermine the licensing objectives, or those objectives would not be undermined if the applicant's operating plan were to be modified or the grant of the licence made subject to appropriate conditions.

57. Because the application of the policy must leave room for exceptions, the policy statement should not set a numerical quota of licensed premises or premises of a particular description for any locality.

Arrangements for dealing with overprovision during transition

58. Ministers have decided that the duty under section 7 of the Act to carry out an assessment of licensed premises to determine whether or not there is overprovision of licensed premises in a locality should not be brought into force until completion of the transition period. During transition the guidance set out above will apply but Boards are not required to have regard to the number and capacity of all licensed premises within their area.

59. Set out below is how the Executive expects Boards to deal with overprovision during the transition period.

Arrangements for transition

Step 1 - Boards should determine localities or a locality in their area based on their local knowledge and understanding of their areas and in consultation with their Local Licensing Forum where they are aware of problems caused by the density of licensed premises;

Step 2 - Boards should use the services of local authority Building Standards Managers to determine capacity of licensed premises in those localities using the methodology for calculating capacity set out in the guidance on overprovision;

Step 3 - Boards should provide a statement in their Policy Statement (although Boards are not under a statutory duty to do so for the first Policy Statement) setting

Page 18 of 23 out a clear indication that a locality or localities have been deemed to be overprovided for. As such, it should be assumed that no more applications would be accepted in relation to that area or those areas. Boards will then be in a position to refuse licenses in a locality deemed to be overprovided for "having regard to the number and capacity of licensed premises", as provided for in section 23, (the capacity of premises having been determined by the Building Standards Officers).

60. This is not a statutory duty for the first Policy Statement but it would be good practice for Licensing Boards to undertake this work so as to provide licensees and the local communities with a clear indication of how they will implement their statutory ability to refuse applications on the grounds of overprovision.

Capacity of licensed premises

61. The recommendation of the National Licensing Forum, agreed by Ministers, is that, for the purposes of the overprovision assessment, the operating capacity of licensed premises should be determined by local authority building standards officers. Any operating capacity figure that is determined should only be used for the purposes of overprovision under the Licensing (Scotland) Act 2005 and for no other purposes. The definition of operating capacity for on-sales and off-sales is set out in section 147 of the Act. Based on these definitions the proposed methodology for calculating capacity for on-sales and off-sales is set out below.

Off-sales

• the maximum linear measurement, in metres, of the frontage used to display alcohol, including the areas utilised for off-shelf seasonal or any other promotional displays.

On-sales

• The Buildings (Scotland) Regulations 2004 assessment methods set out in the Technical Handbooks issued in support of these regulations.

Existing premises

62. Existing premises applying through transition on a "like for like" basis will be exempt from the overprovision assessment. This policy will still apply. During transition, this category of premises will be exempt from the statutory grounds of refusal on overprovision grounds under section 23 of the Act.

Page 19 of 23 APPENDIX 3 Noise from Licensed Premises 2005 to November 2009

1. Introduction

The following is the summary of noise complaints to Environmental Health. The district has been divided up into four areas. These are: 1. Balloch 2. Vale of Leven 3. Dumbarton 4. Clydebank

Where there has been a complaint against licensed premises the date of complaint and a description of the noise source has been reported.

2. Results

Balloch Total-18 Complaints against 7 premises. Of these, 8 are attributed to Desire nightclub and 3 to Lomond Park Hotel. One complaint related to a dog owned by a staff member barking excessively and one to a noisy extractor fan. One complaint related to the Moss O’Balloch venue operated by WDC. This complaint was made prior to the event taking place. One complaint related to the noise from a beer garden at Tigh an Uisge. All other complaints relate to loud music. There are several licensed premises in Balloch and it can be very busy in the summer months.

Vale of Leven Total-20 complaints against 9 premises The Rowantree Tavern in Jamestown was the source of 7 complaints and enforcement action was taken. There are two public houses in Jamestown, although it is within walking distance to Balloch and the several public houses that exist there or to . Most of the complaints relate to loud music, although patron noise has been the cause of complaint at the Riverside Inn, Renton Bowling Club, the Central Bar in Renton, and Lodge Leven St. John.

Dumbarton Area Total-14 complaints. 6 premises The Horseshoe Inn in Bowling was the source of 5 of these complaints, one of which related to the ventilation system and the others relate to loud music. This premise is no longer operating. The Railway Tavern was the source of 3 complaints from the same resident. A beer garden was the source of noise disturbance at the Waverley Bar, and patron noise was a consideration at Dixon Bowling Club. All other complaints relate to loud music. Notably there were few complaints relating to Dumbarton Town Centre where there are several public houses although this may be because there are relatively few residents in the area.

Clydebank Area

Page 20 of 23 Total-25 complaints against 13 premises. There are many licensed premises in Dumbarton Road from Old Kilpatrick to Clydebank. The most complained about public house is the Cabin Inn with 4 complaints, then Club T with 3 complaints and Bar Budda with 3 complaints although it is not currently trading. All the complaints relate to loud music, with the exception of Lodge Barns O’Clyde which was mainly in respect of patron noise. In total, there were complaints against 13 premises, one of which was the Shimla Palace which did curry karaoke and elicited 2 complaints. Complaints were received for Dalmuir Bowling Club and Lodge Barns o’ Clyde. All other complaints relate to public houses or a night-club.

Page 21 of 23 Note of Complaints

Date of Licensed Premises Complaint Comment Balloch Area The Dog House 21/03/2005 Loud Music 05/05/2009 Loud Music Corries 19/12/2005 Barking dog La Scarpetta 17/01/2006 Extractor fan Lomond Park Hotel 17/01/2006 Loud Music 03/06/2008 Loud Music 29/06/2009 Loud Music Tigh an Uisge/Waterhouse 09/06/2006 Loud Music 28/07/2006 Beer garden Desire 16/12/2005 Loud music 17/01/2006 Loud Music 13/06/2006 Loud Music 21/07/2006 Loud Music 24/07/2006 Loud Music 07/07/2008 Loud Music 04/08/2008 Loud Music 01/12/2008 Loud Music Moss O'Balloch venue 22/12/2008 Loud Music

Vale of Leven Area Jack Dempsey's, Alexandria 16/12/2005 Loud Music Rowantree Tavern Jamestown 10/05/2006 Loud Music 26/06/2006 Loud Music 11/09/2006 Loud Music 11/11/2006 Loud Music 20/04/2009 Loud Music 29/06/2009 Loud Music 29/06/2009 Loud Music Fenton's, Jamestown 16/10/2006 Loud Music Riverside Inn, Bonhill 30/07/2006 Loud Music 24/01/2007 Patron noise 11/02/2008 Patron noise Beechwood Bar, Bonhill 29/07/2006 Loud Music Renton Bowling Club 01/03/2006 Patron noise Resolved 04/08/2006 Loud Music 24/10/2008 Loud Music 05/05/2009 Loud Music Beer garden/patron Central Bar, Renton 08/08/2005 noise Early morning grass Vale of Leven Bowling Club 07/05/2009 cutting Lodge Leven St. John 30/05/2006 Patron noise

Page 22 of 23 Dumbarton Area Railway Tavern, Dumbarton 09/05/2006 Loud Music 16/03/2007 Loud Music 16/04/2009 Loud Music Cheers, Dumbarton 29/10/2007 Loud Music 21/09/2009 Loud Music Waverley Bar, Dumbarton 18/09/2007 Beer garden Date of Licensed Premises Complaint Comment Dixon Bowling Club, Loud Music + Patron Dumbarton 23/03/2009 noise 25/05/2009 Loud music Eastfield Bowling Club, Dumbarton 21/02/2008 Loud Music Horseshoe Inn, Bowling 05/06/2006 Ventilation system 23/07/2006 Loud Music 28/07/2006 Loud Music 29/07/2006 Loud Music 21/08/2006 Loud Music Clydebank Area Ettrick, Old Kilpatrick 23/07/2006 Loud Music Beer garden + Loud 05/06/2008 music Premises Telstar, Old Kilpatrick 11/09/2007 Loud Music closed West End Bar/Village Beer Garden + Loud Tavern, Duntocher 19/06/2006 Music 03/11/2006 Loud Music The Cabin Inn, Clydebank 25/04/2005 Loud Music 02/06/2006 Loud Music 01/06/2009 Loud Music 29/06/2009 Loud Music Premises Bar Budda, Clydebank 27/06/2005 Loud Music closed 13/10/2005 Loud Music 29/09/2006 Loud Music Club T, Clydebank 28/07/2008 Loud Music 09/02/2009 Loud Music 03/03/2009 Loud Music Shimla Palace, Dalmuir 09/05/2005 Loud music 16/12/2005 Loud music Horse and Barge, Dalmuir 19/11/2007 Loud Music 18/03/2009 Loud Music Park Tavern, Dalmuir 28/07/2006 Loud Music Dalmuir Bowling Club 08/05/2006 Loud Music 11/10/2006 Loud Music Chandlers, Clydebank 23/07/2006 Loud Music Boundary Bar, Clydebank 08/02/2008 Loud Music Lodge Barns O'Clyde, Clydebank 23/06/2009 Patron Noise

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