The Licensing (Scotland) Act 2005
Objections and Representations
This information is to help those persons who wish to object to or comment upon an application for a licence to sell alcohol. It is also a useful guide for applicants on what constitutes an objection or representation. This information is a guide for places where a licence has yet to be granted.
For further information please contact your Licensing Standards Officer.
Who Can Object?
When an application is made for a premises licence under The then by section 22 “any person may by notice to the Licensing Board –
- Object to the application on any grounds relevant to one of the grounds for refusal…,or
- Make representation to the Board concerning the application, including in particular, representations –
- in support of the application
- as to modification which the person considers should be made to the operating plan accompanying the application, or
- as to conditions which the person considers should be imposed”
The definition of “any person” is clearly very wide and is not limited to those in the immediate vicinity or those that have business interests affected by the application.
However, whilst there is no requirement to show a particular nexus or interest, the Ƶapp Licensing Board can reject frivolous or vexatious objections or representations. Interested persons should therefore be sure of the grounds before considering an objection or representation. In this regard please also see the relationship with other regulatory regimes below.
Where a Licensing Board rejects a notice of objection or representation, the Board may recover from the person who gave the notice any expenses incurred by the Board in considering the notice.
What are Objections and Representations?
The difference between objections and representations is clear from the Act. An objection should constitute an objection to the granting of a licence at all. On the other hand representations can be virtually anything. They are not an objection to the granting of a licence in principle. Rather they are more likely to be relevant to suggested modifications to the operating plan or conditions to be attached to the licence to make the application acceptable in the eyes of the representer.
Those intending to comment upon an application to the Ƶapp Licensing Board should therefore be sure of whether they wish to object to any licence being issued or whether they wish to make representations about possible changes.
Objections and Representations in General
The Ƶapp Licensing Board is concerned with assessing the suitability of the premises for the sale of alcohol. Matters that interested parties wish to raise must be on relevant grounds and must also relate to the sale of alcohol.
Representations
Representations should be relevant to one of the licensing objectives if you wish to suggest amendments or conditions. It should be borne in mind that representations can support an application as well.
Objections
Objections can only be on grounds relevant to the grounds for refusal. Therefore if you wish to object to the grant of a licence at all then you must relate your objection to one or more grounds for refusal, which are:
- that the subject premises are excluded premises – that they are excluded by section 12(3) of the Act as being premises on land uses or acquired for the purposes of a special road or premises being used as a garage;
- that the application must be refused under section 25(2) because the applicant has had a premises licence refused in respect of the same premises within the last year;
- that the application must be refused under section 64(2) because application has been made for a 24 hour licence;
- that the application must be refused under section 65(3) because hours for the sale of alcohol for consumption of the premises fall outside the times 10:00am to 10:00pm;
- that the granting of the application would be inconsistent with one or more of the licensing objectives.
- that, having regard to the nature of the activities proposed to be carried on in the subject premises, the location, character and condition of the premises, and the persons likely to frequent the premises, the Board considers that the premises are unsuitable for use for the sale of alcohol;
- that there is overprovision. However, interested persons should note that during transition (01/02/08 to 01/09/09) those premises that claim grandfather rights will be exempt from any assessment of overprovision and cannot be refused a licence on the ground of overprovision. Therefore any objection /representation in this regard will not be accepted
Police Objections
The police have limited powers to object. In fact, the appropriate Chief Constable may only object to a premises application on one ground that is that the Chief Constable has reason to believe that the applicant or any connected person is involved in serious organised crime and by reason of that involvement, the Chief Constable considers that it is necessary for the purposes of the crime prevention objective that the application be refused.
However, it should be noted that the Chief Constable, even if they cannot object, may still make representations as “any person”.
What is the Relationship with Other Regulatory Regimes?
As stated above, matters raised must be on relevant grounds and must relate to the sale of alcohol. Inevitably there will be a cross over between the licensing objectives and matters relevant to other regulatory regimes e.g. noise, planning, smoking, unsafe premises, fire prevention etc. Matters under these headings all relate to the Licensing Objectives. However they are also covered by other legislation and other regulators.
Please note that the Scottish Government has made it clear that the new licensing system must not duplicate other regulatory regimes. This means that the Ƶapp Licensing Board will not allow licensing to be used simply as a means of putting additional pressure on an applicant where matters complained of should be dealt with by another regulator.
Where it is considered that the objectors or representers are merely using the licensing system to their own ends rather than addressing the licensing objectives then matters raised may be rejected as vexatious.
This is an example relating to noise:
A theatre has established in an area close to residential housing. Certain performances at the theatre are considered to be particularly noisy by the neighbouring residents. The neighbours consider this to be a nuisance. They may, or may not have complained previously to the theatre owner. They may or may not have complained previously to the Council Environmental Health Department.
The owner of the theatre then applies for a licence to establish a theatre bar and sell alcohol. The neighbours notice that there happens to be an ongoing licence application and decide to make objections or representations relating t o the licensing objective of preventing public nuisance. This is designed to place pressure on the theatre owner to reduce noise. It is an easy way of complaining. In this scenario where the noise constitutes a statutory nuisance then the appropriate enforcement agency would be the Ƶapp Council’s Environmental Health Department. The licensing system should not be used as a convenient means of placing pressure on the applicant. The neighbours would no doubt find it difficult to establish a link between the noise and the proposed sale of alcohol. The Ƶapp Licensing Board would be entitled to consider the premises suitable for the sale of alcohol and leave enforcement in respect of noise problems to environmental health.
How do I Object or make a Representation?
Objections and representations must be made in writing and must be addressed to:
The Clerk to the Ƶapp Licensing Board, Ƶapp Council HQ, Kilmory, Lochgilphead, PA31 8RT.
Please note that objections and representations must be received on time by the Clerk. In time means within the time period for objections and representations as set out in both the premises licence advert and the premises notice of application. Proof of posting is not proof of delivery and late items will not be accepted.
What will Happen if I Object or Make a Representation?
Firstly the objection or representation will be screened to determine whether it is valid i.e. relevant grounds are disclosed and it is not frivolous or vexatious. Then if the objection or representation is accepted the Ƶapp Licensing Board will ensure that a copy is delivered to the applicant for comment. It is necessary for you to deliver a copy to the applicant.
As objections go to the heart of the licence it will be necessary for all objections to be dealt with at a meeting of the Ƶapp Licensing Board with the attendance of all parties. You will be called to a meeting in due course and you will be provided with the details of the hearing procedures at that time.
Where representations are concerned we will first review the applicant’s response. It may be possible to agree amendments to the operating plan or conditions for the licence that would be acceptable to all parties. In such a situation the matter would be put before the Ƶapp Licensing Board to sanction any agreement without the need for parties to attend. In the absence of agreement between parties or sanction by the Board the matter will again be dealt with at a full hearing with all parties being required to attend.
There are no longer set quarterly meetings for the Ƶapp Licensing Board. Meetings will be called as and when business demands. Therefore we may not be able to tell you precisely when a particular matter will be heard.
How Will the Board Decide?
In respect of objections the Ƶapp Licensing Board must still consider whether any grounds for refusal exist as above. If not then the Board will go on to consider whether it would be appropriate to address matters by an amendment to the operating plan or by placing a condition on the licence.
Personal Licences
Where a Licensing Board receives a personal licence application, the Board must give notice of it, together with a copy of the application, to the appropriate Chief Constable. The appropriate Chief Constable must respond to the notice by giving the Licensing Board notice as to whether or not the applicant has relevant convictions.
Where convictions exist and the Chief Constable is of the opinion that, having regard to any conviction, it is necessary for the purposes of crime prevention objective that the personal licence application be refused then they may include a recommendation to that effect.
No one else has the opportunity to object or make representations on an application for a personal licence.
Exclusion of liability – In no event does Ƶapp Licensing Board or Ƶapp Council or their employees or agents offer legal advice or accept liability of any description, including liability for negligence for any damages or losses (including, without limitation, loss of business, revenue, profits or consequential loss) whatsoever resulting howsoever including but limited to the use of or inability to use this information. We accept no responsibility for keeping the information in these pages up to date or liability for any failure to do so. If you are in any doubt you must seek advice from a solicitor.