Licensing law ‘an ass’, say councilors as petrol stations win alcohol bid

The law was branded “an ass” as councillors found themselves unable to refuse two petrol stations at East Lothian’s biggest town the right to sell alcohol under legislation introduced to protect rural communities.

East Lothian Licensing Board was asked to approve an off sales licence for one petrol station in Musselburgh despite the fact it has several other alcohol outlets within 800 yards.

And board members slammed the “badly written” legislation which left their hands tied.

At a virtual meeting of the licensing board on 4 November, members were told that a petrol station could be exempt from licensing bans excluding them from selling alcohol if they could prove they were the principal source of fuel or groceries for customers.

Andrew Hunter, the lawyer for Motor Fuel Ltd who were applying for an off sales licence for the Musselburgh service station at Fisherrow Harbour and Monktonhall petrol station, said in both cases they had met the statutory requirements.

Despite neither petrol station being a principal place for groceries for any of its customers a large percentage of local residents did say it was their main fuel source.

And Hunter said as the law was written they only needed to prove they were a main source of fuel to meet the requirements.

He added a percentage of those customers stated in a market survey that they would be disadvantaged if they could not use the petrol station consolidating their case.

Councillor Lachlan Bruce said of the legislation: “I can’t help of think of Mr Bumble from Oliver Twist when he says ‘if the law supposes that then the law is an ass’.

“I think the law has been terribly drafted here and if it was written differently I probably wouldn’t be granting this.”

He was backed by fellow board member Councillor Jim Goodfellow who added: “I think this legislation was originally drafted to ensure rural communities where the shop and the service station were the only two facilities available to them and they combined would allow alcohol to be sold.

“The legislation as written does not ensure that happens because it uses the word ‘or’ rather than ‘and’ and to repeat Councillor Bruce’s statement  if that is the law the law is an ass but we have to go by the law.”

Hunter admitted himself during the hearing for the two applications that the legislation was flawed.

He told board members: “As a member of the legal profession I probably ought not to describe the law as an ass in a public forum but if it is any consolation to members in previous consultations to Scottish Government I did make a submission about revising the terms of this legislation because of the difficulties in utilising it.

“However on deaf ears it appears to have fallen.”

The board granted an off sales licence to Monktonhall petrol station, which is off the A1 at the entrance to Musselburgh and next to new housing being built at the moment.

Members heard there had been several objections to the Fisherrow harbour petrol station, which is at the entrance to the town centre,  also being granted a licence, however was reminded by its licensing standards officer Rudi Fruzynski that it no longer had an overprovision policy.

The board dropped that policy in 2018 despite warnings from its licensing forum that it would be “vulnerable” to applications.

Fruzynski said: “We did state that we would look at all new applications for off sales and next door to this petrol station we have Lidl, Aldi, Iceland, Home Bargains, a public house and another small off sales in North High Street.”

He said it would be for the board to decide whether there were sufficient premises but did not object to the application.

Objectors pointed to antisocial behaviour in the harbour area of the town, the number of off sales already operating nearby and incidents of fire-raising and vandalism local.

After taking time to discuss both applications behind closed doors members returned to approve them both unanimously with Goodfellow saying he granted the harbour station licence “regrettably”.