Licensing (Scotland) Act 2005 section 142: guidance for Licensing Boards

14. Excluded and Exempt Premises

Introduction

14.1 As outlined at Chapter 8 a premises licence is tailored to the individual premises by means of an operating plan, licensing objectives risk assessment and a layout plan. For the purposes of the 2005 Act, "premises" means any place and includes a vehicle, vessel or moveable structure. Some premises are excluded from holding a licence and some premises are exempt from holding a licence.

14.2 The Criminal Justice and Licensing (Scotland) Act 2010 made minor amendments to sections 127 (trains) and 128 (ferries) of the 2005 Act by repealing the word "knowingly" from the offences set out in those sections. Where criminal conduct has been allowed to take place in terms of the listed offences, an offence will be committed whether or not the person involved has knowledge of the conduct taking place.

Excluded premises

14.3 Section 123 provides that certain premises are excluded from the alcohol licensing regime and consequently the sale of alcohol would not be permitted on these premises. Motorway service stations are prohibited from holding a premises licence. Premises used as a petrol station, or parts of a premises used as a petrol station, are prohibited from holding a premises licence. Premises are used as a petrol station if they are used for the:

• retail sale of petrol
• retail sale of diesel
• sale of motor vehicles
• maintenance of motor vehicles

14.4 However, in certain circumstances a Licensing Board may be prepared to consider a premises licence application.

14.5 For example in its statement of licensing policy, Midlothian Licensing Board state:

• "An application for a premises licence must be refused if the subject premises are 'excluded premises'. Excluded premises are defined as motorway service stations and, with certain qualifications, garage premises or petrol/derv filling stations. These premises are not excluded if the applicant can demonstrate that local residents are reliant to a significant extent for the premises to be a principal source of petrol/derv or groceries.

• "In determining such an application the Board will expect the applicant to provide sufficient information to enable it to consider the locality in which the premises are situated, the other sources of petrol or derv and/or groceries in the locality and the extent to which the persons resident in the locality are, or are likely to become, reliant to a significant extent on the premises as a principal source of petrol or derv, or groceries.

14.6 Licensing Board clerks will be familiar with the 2011 BP Oil (UK) Limited v City of Edinburgh Licensing Board and City of Glasgow Licensing Board case. A link to the judgement is provided on the Scottish Courts and Tribunals Service website. This case law is important in assisting Licensing Boards in their use of provisions in section 123.

Exempt premises

14.7 As mentioned in Chapter 13 Other Offences Section, the 2005 Act makes provision for regulating the sale of alcohol, and for regulating licensed premises and other premises on which alcohol is sold. Section 1 establishes that a licence is required to sell alcohol unless the premises are exempt as defined in section 124 or to trade. Section 124 covers the following premises:

• an examination station at an airport designated for the purposes of this section in an order made by the Scottish Ministers,
• an approved wharf at a port or hoverport so designated,
• an aircraft, a hovercraft or a railway vehicle while engaged on a journey,
• a vessel while engaged on—
  • an international journey, or
  • a journey (other than an international journey) forming part of a ferry service, and
• premises which are occupied (whether indefinitely or temporarily) for the purposes of the armed forces of the Crown, except while being used for other purposes.

14.8 Under section 124, the Scottish Ministers may designate an airport, port or hoverport as exempt premises. No ports or hoverports are presently so designated. The Licensing (Designated Airports) (Scotland) Order 2007 [SSI 2007/97] exempts from the requirement of the 2005 Act those airports which handle a significant amount of international traffic. Aberdeen, Edinburgh, Glasgow, Glasgow Prestwick, Inverness and Sumburgh airports are so designated.

14.9 It is however important to note that the exemption only applies to premises in the "examination station" of the airport, that is the area beyond the security controls to which only passengers arriving or departing have access (airside). Premises before security controls (landside) will be subject to the provisions of the 2005 Act and an application in respect of them will need to be made to the Licensing Board in the same way as for other premises.