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New premises licence

Our team of expert licensing solicitors knows that every business has different needs, and we can advise and assist in all aspects of licensing and regulation.

There can be a number of reasons for a new premises licence. This is generally because the premises in question do not have a current premises licence. If existing premises are being extended that generally requires a variation, not a new licence.  There are a number of considerations, including the type of operation and whether the premises have any history of operating as a licensed premise.

Licencing

Premises – complete or a shell?

The first thing to consider is whether the premises are complete. Are they fully built and are they fully kitted out. If not a provisional licence is required. This has similar steps and almost the same level of detail as a full premises licence but once granted, cannot be traded with. The provisional premises licence application will be considered by a licensing board, just as a full licence application is. If it is granted it then has a life of four years at which point it requires to be extended or confirmation needs to be in place prior to the end of the four year period. The confirmation application is lodged at the stage where the premises are completed. It is the confirmation application which allows the premises licence to be used and the premises to sell and supply alcohol. It does not have to be heard by a board and is “delegated” usually to the Clerk.

Section 50 Certificates

The second consideration is the certificates required from various council departments. These have to be lodged with the application. Licensing boards do not have time to check with various departments in the Council if the premises has already ticked certain boxes. The legislation (the Licensing (Scotland) Act 2005) provides a checklist for them in the form of three certificates. They come within section 50 of the 2005 Act and are often referred to as “section 50 certificates”. These are required from: planning; building control; and environmental services for a full premises licence. For a provisional premises licence, only a certificate from planning is needed.

New certificates are applied for by the applicant/its solicitor direct to the three departments. Each Council has its own forms and its own fees for lodging. Some do not charge anything, others charge over £200. The application for provisional/premises licence cannot be lodged until the section 50 certificates are available and this can cause a delay at the beginning of the process, particularly with the ongoing effects of the pandemic and working from home or where a back log has built up.

It is important to ensure the property you wish to licence has the correct planning in place and that any work done to the property has building warrants with completion certificates.  If planning is not in keeping with the proposed use, a planning application may be required.  If there are old building warrants which have been applied for by previous owner or tenant and these have never been taken to their conclusion, building control can insist that the work under these warrants is now done and that retrospective completion certificates are obtained. This can cause significant delays. To protect yourself as a potential licence holder when buying or leasing a property it is important to make sure there are clauses in the purchase or lease documentation which require the seller or landlord to take responsibility for the cost of lodging these completion certificates and any loss to you if this causes delays. While many sellers and landlords maybe reluctant to take on such responsibility, it is at least something a new purchaser or new tenant should be aware of. Investigation into warrants and planning can then be carried out prior to signing the lease or completing a purchase.

Putting the section 50 certificates in place requires not only an application to the Council but the draft new licence application, operating plan and layout plan also have to be produced therefore these have to be drafted and the layout plan has to be considered before the certificates can be applied for.  We can assist with the drafting of all of these.

Layout plan

For any premises licence application the layout plan must be produced. There are strict regulations on what information this has to contain. We can advise you and your architect on the content of the layout plan. Plans used for building control and other applications may be too detailed for a licence application. Information such as fixed seating does not require to be included. If this is included it can lead to further cost and unnecessary applications at a later date. The flip side of that is there is a lot of other information which is a necessity on layout plans. It is best to speak to us before plans are prepared as amending them after the fact can be expensive. We can work with your architect from the beginning to ensure the process of drawing or amending layout plans is done as cost effectively as possible. Even if applying for a provisional grant of licence, detailed layout plans are still required and a basic layout plan is no longer acceptable.

The application

This may seem obvious, however, there is a need to produce an application form with details of the applicant. If the applicant is not an individual then information about those involved in the entity (a partnership, a limited company, trust, charity or other body) is necessary. This can be a lot of information and if information is missed or is incomplete it can result in the application being returned by the licensing board which causes delays. Due to the time scales for having application heard and the fact applicants often want licences to be granted as quickly as possible, any delays can cause issues and are best avoided. We can assist you in the application process from start to finish to ensure it is accurate. We are well versed in the various stages of licence applications and the policies of licensing boards throughout Scotland.

Operating plan

The operating plan is an important stage of the application process. It is a separate document which outlines the “activities” which the premises licence holder wishes have in the premises. This takes into account some matters which are out with licensed activities such as if premises were to open early for breakfast or offer take away or delivery of food.  The operating plan requires detailed consideration of what will take place within the premises and covers matters such as: whether there will be off sale, on sale or both; if the premises will be able to have food, televised sport, dancing and similar; whether children and young persons will be allowed access to the premises and if so, where, during what time and on what basis. It also provides information on the capacity of the premises and the designated premises manager (DPM).

Disabled Access and Facilities Statement

This document has to be lodged with the application and outlines what facilities are in place within the premises for those with disabilities. Applicants often do not recognise some of the facilities they already have in place for disabled persons. An accessible toilet (often called a disabled toilet) is a necessity for a new premises licence and it is very unlikely an application could proceed for on sale (consumption of alcohol on the premises) without this unless for very limited numbers. If you have a small premises where you are concerned about the space and whether an accessible toilet will be necessary, please contact us to discuss.  We can advise you and work with your current architect or refer you to an architect experienced in licensing able to consider how a premises might secure a premises licence even though they may be small with a lower number of covers than others. The things to think about in this are not just access but also services provided for those with disabilities.

Premises capacity

Capacity has to be included on the layout plans. Capacity is really important as premises generally want to secure as many covers (seats) or people (if it is a standing venue, called vertical drinking) as possible but must to do so within building regulations. This needs to be expressed properly on the layout plan and in the operating plan. Capacity calculations can cause issues and there can be differing interpretations of the building regulations from Council to Council when it comes to capacity. Off sale capacity is often confused – off sale capacity should be square meters, not cubic meters and not floor area. This is calculated through looking at a picture on a wall – height x width in metres.

Designated Premises Manager (DPM)

The DPM in premises is really important. The DPM must have a personal licence. When applying for a new licence it is important to ensure you have someone within the business who holds a personal licence and is able to be appointed as the DPM. If no one is immediately available, a provisional licence may be required first. No DPM is required for a provisional licence application. The DPM has to be named at the confirmation stage, discussed above. If there is no personal licence holder this can delay a full premises licence application. For information on how to obtain a personal licence see our blog on personal licences or contact Jo Millar, details below. To get a personal licence, training has to be completed and passed. Once the training is completed, an application for personal licence has to be lodged within the licensing board area which the person lives. If the applicant is living out with Scotland they can apply to any licensing board although it is usually sensible to apply in the same board area as the premises are located. If someone is located out with Scotland they should not be appointed as the DPM unless they are moving to the area or are able to ensure they are completing regular shifts within the premises. There are reports which have to be carried out before a personal licence can be granted, one of which is by Police Scotland. Police Scotland has 21 days to report and that time period should be factored into any application for personal licence.

The Process

Once the new licence application is lodged, a notice is required to be produced by the licensing board. This is not immediate as the licensing board must check the application and process it through their systems. Different boards have different processing times: anything from two weeks to three months. Once the notice is produced it requires to be displayed at the premises where it can be seen easily by members of the public for 21 days. Once that period has ended any objections or comments (both positive and negative) will be collated by the Licensing department and a hearing date will be fixed. A new licence application must be heard by a licensing board sitting and cannot be granted otherwise.

When hearing a new licence application there are a number of things for a Licensing Board to consider.  One is their Statement of Licensing Policy referred to above, and their over provision policy. The overprovision policy is very important.  Applicants should consider instructing our licensing team to represent them at any hearing as there is a lot to think about. Over provision does not come down to solely the number of licensed premises but a range of other considerations. If there are objections, the reason for those objections can be very wide, from over provision to nuisance and considering any or all of the five licensing objections.

Appeals

If all information is not produced at the board and fully discussed, this may affect prospects of success of an appeal.  The appeal is to the relevant Sheriff Court and is a reasonably complex procedure.  An appeal can be lodged, however, that is not a re-hearing of the application.  If all of the information which should have been put to the board at the first hearing was not, the appeal is not an opportunity to do so.  This could mean the application may remain refused and the applicant has to consider whether to re-apply or not. An application cannot be made for one year after refusal unless there is successful appeal or change in material circumstances. There is no list of what would be accepted as a change in material circumstance and this has to be taken on case by case basis.

If you need assistance to identify when you would you be able to obtain a premises licence and all the various steps, please contact us. Taking advice can save time and money and we can quote fixed fees for most parts of the application process.

For information, guidance or just to talk through the above please contact Jo Millar in our Licensing Department on jmillar@gilsongray.co.uk or on 0141 370 8116

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