Terra Firma Chambers’ Scott Blair successfully represented the Pursuer in an appeal against a decision of Dundee City Licensing Board.

In Aldi Stores Ltd v Dundee City Licensing Board, the Sheriff ruled that the Board’s decision to refuse the pursuers’ application for a provisional premises licence at their proposed new-build modern supermarket at Myrekirk Road, Dundee, was based on an overprovision policy which failed to adhere to the requirements of the Licensing (Scotland) Act 2005.

The policy was adopted following a report from the Dundee City Alcohol and Drug Partnership which maintained that there was, by reasons of alleged adverse health and other alcohol related impacts, a general state of overprovision of licenced premises in Dundee.  The report further suggested that the whole city be treated as a locality which was overprovided in terms of section 7(1) of the act.

The board had considered a further representation from the Partnership, received outwith the consultation period, to the effect that the Central Waterfront Area (earmarked for development, including the flagship V & A site), ought to be exempt from any city-wide overprovision policy.

After a two day hearing at Dundee Sheriff Court, Sheriff Veal held that the board had failed to meet their statutory obligations to identify the locality that was the possible subject of overprovision before going out to consultation on whether a policy ought to be adopted.  Prior to the amendments made by section 55(2)(a) of the Air Weapons and Licensing (Scotland) Act 2015, a whole board area could not be treated as a locality for the purposes of overprovision.

What the board had done was to “provide a list of options as to the possible locality or localities that may have been over-provided. The consultees were then asked to identify the overprovided areas from that list”. However, “It was for the board to determine the area over provided and then consult in respect of that locality.”

In respect of the late representation by the partnership, Sheriff Veal regarded that as “an attempt to bypass the fact that having the whole city as a single locality was not, at the time of the consultation, an option open to the board.” This strengthened his “view as to the procedural improprieties of the whole consultation process.”

The board were represented by Steven Stuart QC, also of Terra Firma Chambers.