Overprovision No More — All change in Edinburgh's licensed trade landscape

With the Edinburgh Licensing Board scrapping its overprovision policy, is it all change in the capital’s licensed trade landscape? Scottish licensing specialist Caroline Loudon provides an expert’s view

The Edinburgh Licensing Board has decided to scrap its overprovision policy. The decision, reached by a split vote, was taken after a debate at the meeting of the Board on 23 June 2025 and has since attracted many headlines.

The decision is certainly significant news in the world of Scottish licensing, not just for those of us in private practice who appear regularly in front of the Board to represent the licensed trade, but for other stakeholders across licensing, such as other local licensing boards, health authorities, the police and beyond.

Edinburgh’s overprovision policy has been controversial since it was first adopted, for a variety of reasons. Under the Licensing (Scotland) Act 2005, a licensing board is entitled to adopt an overprovision policy, which means that there is a rebuttable presumption against the grant of any new licence in whatever locality they decide is covered by the policy. A board can elect to introduce a policy covering their whole jurisdiction, or parts of it.

Regional variations

Different licensing boards take different views on these matters. For example, the Highland Licensing Board has a policy of overprovision, but only in relation to off-sale premises, and then only in relation to proposed licences with an alcohol display greater than 30 square metres. In essence, it’s a policy targeted towards stopping national retailers opening new supermarkets (or licensed ones, at least).

Another useful comparison is Glasgow, the only real equivalent to Edinburgh in scale and numbers of licences. The Glasgow Licensing Board has an overprovision policy in which a number of different localities have been identified; this is based primarily on evidence around health-related issues. For example, Glasgow’s policy identifies a number of areas such as Bridgeton, Govan, Ibrox and Ruchill where the presumption against a licence applies. The Glasgow approach is that the evidence says these are the areas with the most alcohol harm, so these are the areas where overprovision should apply.

Edinburgh’s policy approach covered the city centre and West End, as well as some other localities. It was the fact the policy applied across the entirety of the city centre that was considered by some to be controversial; essentially, it was saying Edinburgh city centre was closed to new hospitality and retail business.

Policy in practice

However, what then became more controversial was how the Board went about applying the policy. It has been clear for some time that the councillors who sit on the Board are not of one mind on this issue, and recent years provide significant examples of licences being granted notwithstanding the policy. In fact, grants became so common that the NHS began objecting to applications again, after a hiatus of some years having given up arguing their points previously.

It has taken Edinburgh a long time to reach the decision to scrap its overprovision policy, so the final decision should not be seen as one taken lightly or without debate. The 2005 Act required licensing boards to have their new policies in place by November 2023. Edinburgh were simply unable to reach a consensus view and this resulted in a long-lasting exercise of debate, consultation, reflection, further debate, further consultation, before it all came to a head at the hearing on 23 June 2025.

Unlike other licensing boards, it is to be commended that Edinburgh was prepared to have these debates openly across a number of hearings as the journey progressed. For those sitting in the gallery at the Dean of Guild watching these debates, it was clear that very strongly held views meant there were two discernible camps among the councillors. In the result, it was those who felt the overprovision policy was not ‘fit for purpose’ who won the day, and so now there is no overprovision policy at all in Edinburgh.

Open season?

Some might have suggested it is now open season for new licences in the capital. Such observations would be uninformed and foolhardy. While there is no blanket overprovision policy anymore, overprovision still exists as a possible ground of refusal on a case-by-case basis. It is still very open for the Board to refuse a new licence based on an individual assessment of the locality on a merits, or demerits, basis.

In the debate on 23 June, some councillors who had not been so openly in one camp or the other talked of switching the assessment to focus not on an overarching policy, but on an evidence-driven approach relating to the five licensing objectives under the 2005 Act: preventing crime and disorder, preventing public nuisance, securing public safety, protecting children and young persons from harm, and protecting and improving public health.

We still have a licensing board with a number of councillors who fervently believe in overprovision as a tool to prevent alcohol harm, and it remains open to them to use that tool in seeking potential refusals on individual applications – although they would have to do so on a probative, evidence-led basis. Any licence application is a public process with any number of ‘x factors’, so those suggesting the decision means licences will be waved through like confetti may wish to reflect on those views.

As a solicitor who appears before Edinburgh Licensing Board, I for one know the councillors will continue to take a keen and forensic approach to all applications and will, as they always do, have questions, concerns and queries.

In with the new

Taking a step back, I think the decision creates a less-hostile environment for investment in new business. Whenever a new business has approached me to seek advice on opening a site in Edinburgh over recent years, the advice has been tempered because of the overprovision policy. This has put many operators off, not prepared to take a risk when they could go to Glasgow or Aberdeen, or invest somewhere else down south, and not face the same sort of policy. When overprovision policies are assessed, this side of the coin, that of how many applications never get off the ground, is unquantifiable.

Now, advice to business will be that there is no default refusal to overcome, but each application will be on its merits. The applications with the greatest chances of success will always be those handled by the people with ongoing experience of licensing in Edinburgh and the intricacies of its licensing board.

Written by Caroline Loudon, a partner in TLT LLP’s licensing team.