Many people wrongly believe there is a prohibition against the sale of alcohol at motorway service stations (MSAs), and the opening of a pub at one this week shows how wrong they are, says solicitor Robert Botkai, partner at Winckworth Sherwood.

This week Wetherspoon’s opened a pub at the M40 motorway services near Beaconsfield, but safety campaigners said it should not be allowed because it would encourage drink driving.

“What the law says is that a licence that authorises the sale of alcohol will have no effect on ‘excluded premises’,” explains Botkai.

‘Excluded premises’ means:

(Test 1) premises which are situated on land acquired or appropriated by a special road authority and are used as a special road; or

(Test 2) premises used primarily as a garage.

Botkai says: “We are all now familiar with Test 2 and most petrol stations are able to establish that they are not ‘excluded’ as they are not primarily used as a garage.

“But what does Test 1 mean? There are two parts to Test 1. Are the premises acquired by a special road authority? This is a matter of checking ownership of the land. Is the land privately owned or is it owned by the Highway Authority?

“If it is privately owned then it does not matter if it is a motorway (which will usually be a ‘special road’) because for the premises to be excluded, it must be both situated or appropriated by the special road authority and used as a special road.

“If the premises satisfy Test 1 they must still pass Test 2. This will not have been an issue for Wetherspoon’s as their pub will obviously not be used primarily as a garage.”

However he warns that passing Test 1 and Test 2 does not automatically mean a licence must be granted. “Applicants must check their planning permissions as there may be restrictions against the sale of alcohol. Also, although no representations were made against the Wetherspoon’s application, it is quite possible that the police, Highways Authority or anyone else for that matter may object and the application would then be considered by the licensing authority at hearing in the usual way.”

Botkai points out that although Wetherspoon’s is the first pub at motorway services in England, applications have been granted to MSAs to allow off sales in petrol stations, shops in the service area and in hotels.

He adds: “Indeed, a government consultation on licensing law that closed in February 2013 stated that the Government is considering the deregulation of the law relating to the sale of alcohol at MSAs. We are awaiting the outcome of this consultation.

“As for the ‘sending out the wrong message’ argument, clients of mine know that I respond with a question. Why do pubs have car parks?”