In Scotland, obtaining an off licence can be a difficult task without a full understanding of the process. And with the Scottish Government having recently concluded a consultation on alcohol licensing laws, there is potential for significant change to the current legislation. Andrew Hunter, a partner in Harper Macleod and specialist in licensing north of the Border, looks at the state of forecourt licensing in Scotland and considers the key points to consider when applying for an off licence.

Is it possible to obtain an off licence for a garage in Scotland?

Yes, although premises which sell fuel are treated as ’excluded premises’ which cannot be licensed unless they satisfy exemption criteria set out in the Licensing (Scotland) Act 2005.

What is the exemption criteria?

In order to satisfy the exemption criteria, the premises must be relied upon to a significant extent by local residents as their principal source of fuel or groceries.

Is this the same as the ’primary use’ test under the Licensing Act 2003 in England and Wales?

No. The 2003 Act focuses on whether or not the primary use of the premises is the sale of fuel or the provision of groceries. In Scotland, the statutory test is concerned with reliance on the premises by local residents regardless of whether that relates to fuel or groceries.

But why is this of particular interest now?

The Scottish Government has recently completed a consultation on alcohol licensing laws, and this included petrol stations. The Consultation responses were split between those wanting to remove the exclusion in its entirety versus those who believe that the statutory test is not sufficiently robust to prevent garages selling alcohol. Opponents of the sale of alcohol from garages continue to cite drink driving, despite the absence of any evidence to support the conclusion that the sale of alcohol from petrol filling stations increases the risk of drink driving.

Therefore, if you are considering applying for a premises licence for a petrol filling station in Scotland, there is a potential that the window of opportunity is closing.

We do not yet know if amending legislation will remove the exclusion or make it more robust. There is therefore an argument to apply for a licence now.

Why is there a difference between Scotland and England and Wales?

In Scotland, the test arguably came about as an intention to preserve local shops in more rural areas which sold fuel and groceries, to ensure that they were not lost as the principal shop in an area, while preserving a general drink driving policy message. The exemption provisions, however, were far more widely drafted and have allowed for the granting of licences in both rural and urban areas.

How does the current statutory exemption criteria work in practice?

The proper interpretation of exemption criteria was set out in a case involving BP Oil UK Ltd and the licensing authorities of Glasgow and Edinburgh.

Reliance to a significant extent as the principal source of fuel or groceries means that there is a recognisable number of persons resident in the locality of the premises, who are not necessarily constituted as a group or collective but are more than a handful, who by virtue of their purchasing habits see and treat the premises in question as their principal source from which they ordinarily obtain either their groceries or fuel.

These customers will properly regard themselves as materially disadvantaged or inconvenienced if the shop does not provide that fuel or grocery. Independent market research can put these propositions to customers and be used as evidence before the licensing authority.

Does it matter that persons rely on premises for fuel more than groceries?

No. The existing Scottish legislation does not differentiate between reliance on the premises for fuel as opposed to groceries. Reliance for either is sufficient.

If I can satisfy the exemption criteria, will I be granted a licence?

Satisfying the exemption criteria is only part of the process. The licensing authority will still consider other relevant grounds for refusal, such as inconsistency with the licensing objectives or by an over-provision of licensed premises in a particular locality.

Harper Macleod provides expert licensing advice for all types of premises in Scotland, with particular expertise in the licensing of petrol forecourt type premises.