Scottish Court of Session Decisions

On 14 October 1996, the defenders and respondents refused an application by the pursuers and appellants for an off-sale licence in respect of premises known as Sandymount Service Station, 23 Baillieston Road, Sandyhills, Glasgow. A written statement of reasons for the refusal was issued on 6 November 1996. The pursuers appealed against the refusal to the sheriff, in terms of the Licensing (Scotland) Act 1976, section 39(4).

At the hearing, the chairman of the Board moved that the pursuers' application be refused on the grounds contained in sub-sections (1)(b) and (1)(c) of section 17 of the Licensing (Scotland) Act 1976. The Board's reasons for their decision were in the following terms:

In their appeal to the sheriff, the pursuers contended that in refusing the licence, the Board had reached their decision on grounds which, in part at least, were relevant to section 17(1)(c) and were not relevant at all to section 17(1)(b) and yet in their Statement of Reasons there was no mention of section 17(1)(c). It was contended that this involved an error in law and unreasonable exercise of discretion in terms of section 39(4) of the Act. Under reference to the case of Noble v City of Glasgow District Council (1995 S.L.T. (Notes) 1315), the sheriff held that it was not necessary for the Board to refer to particular sub-sections of the Act, provided that their meaning was clear and the matters which they considered were those and only those which it was proper for them to consider. In the present case, it was quite clear that the Board had considered the factors relevant to section 17(1)(b) and then, in the paragraph commencing, "The Board also had regard" went on to deal with objections relevant to section 17(1)(c), albeit that they did not refer specifically to that sub-section.

It was next contended for the pursuers before the sheriff that the Board had applied a primary and ancillary use test which was inapplicable as a matter of law and that, in any event, they had failed to set out the criteria they applied in use of such a test. In reply on this point, it was contended for the defenders that the Board had not applied such a test but had applied the criteria set out respectively in sub-sections 17(1)(b) and 17(1)(c), basing their decision on the material before the Board relevant to those criteria, all as explained in their Statement of Reasons. The sheriff accepted the pursuers' contention that an ancillary test had been applied in terms of the Board's reasons, but concluded that the Board had considered all the evidence, productions, competent objections and submissions made and, with their knowledge of the premises, they would be entitled to conclude that the premises were too small to provide the range of goods to local shoppers which they considered appropriate to an outlet of this type for sales of alcoholic liquor. The sheriff accepted, however, the further contention for the pursuers that it was clear that the Board's reference to customers being mainly motorists and to the premises being unsuitable, taking account in this respect of the sensitive issue of and potential for drinking and driving, were clearly material to the Board's decision under section 17(1)(b) and this part of the Board's reasons was so vague as to verge on the meaningless. In the result, the Board's decision under section 17(1)(b) was unreasonable. However, the sheriff also accepted the submission for the defenders that the Board had considered the objections relevant to a Ground of Refusal falling under section 17(1)(c) without reference to, and quite separate from, any of the matters which they had considered in relation to section 17(1)(b) and that the Board's decision under section 17(1)(c) was one which the court was not justified in overturning and, for that reason, the appeal must fail.

Before this court, Mr Henderson, for the pursuers and appellants, submitted that the sheriff's decision with regard to section 17(1)(c) was wrong. He had misdirected himself in law in holding that the Board had decided the case under section 17(1)(c) as well as section 17(1)(b). The Board's Statement of Reasons made it clear that the only justification for refusal offered by the Board related to section 17(1)(b). In any event, on a proper assessment of the factors before the Board, there was no material to justify the conclusion that the "use of the premises for the sale of alcoholic liquor is likely to cause undue public nuisance, or a threat to public order and safety" in terms of section 17(1)(c). In particular, such evidence as there was of disorder in the vicinity of the premises related neither to the premises themselves, nor to periods when alcoholic drink would be on sale. Mr Henderson drew attention in particular to the premises comprising an already busy shop on a busy thoroughfare, the police being regular visitors to the premises, the staff being well-trained, the absence of police objections, the absence of police reports of disorderly incidents in the neighbourhood, the tight security and good lighting of the premises, the small scale of intended liquor sales, the area now being quiet, the garage being well-maintained and new prohibitions on drinking alcohol in the street.

Sir Crispin Agnew, for the defenders and respondents, submitted that it was clear that the Board had made their decision under both section 17(1)(b) and section 17(1)(c). So far as the Board's reasons under section 17(1)(b) were concerned, the Board explained in their reasons that they applied the same considerations as they had done in other applications involving petrol service stations and, in particular, had assessed what amounts to the relative scale of operations in the selling of petrol on the one hand and shop goods on the other. Their reference to the predominance of motorists as customers and to "the sensitive issue of and potential for drinking and driving" was a comprehensible and reasonable explanation for the approach which they took. The adverse factor in allowing sale of alcoholic liquor in a comparatively small shop operation provided at a filling station lay not in concern that a motorist would purchase drink and proceed to consume it thereafter while driving, or even while temporarily stationary before resuming driving, but in the undermining effect upon publicity against drinking and driving of the combination of sales of petrol and alcohol. In Texaco Limited v North Lanarkshire Licensing Board (1998 S.L.T. 726), it was held that the Board's decision to refuse the grant of an off-sale licence to premises that were primarily a petrol filling station could not be described as unreasonable or an error of law and that it was not irrational for a licensing board to have regard to the Government's policy against drinking and driving and to reach a view that the grant of a licence to premises that were primarily a petrol service station might threaten the robustness of the message. The Board's reasons for refusal under section 17(1)(b) were comprehensible and reasonable and should not be interfered with. So far as the Board's refusal under section 17(1)(c) was concerned, the sheriff was correct to conclude that the Board had given adequate reasons to justify refusal under that sub-section. In particular, the Board had before them evidence as to disorder which they were entitled to conclude would be exacerbated if the application was to be granted.

In our view, the reasons given by the Board for its decision show that it was primarily a decision under section 17(1)(b). There is no explicit reference to section 17(1)(c) and, while there is material in the decision which might be relevant to section 17(1)(c), the reasons are not expressed in such a way as to suggest that the Board had that paragraph in mind as a primary reason for refusal. It seems to us therefore that the refusal should be treated as a refusal under section 17(1)(b). If it is so read, the Board has given adequate reasons, in our opinion, to justify their refusal of the application. We accept the submissions for the defenders and respondents to that effect. It is clear that the Board approached consideration of the application in the same way as they have done in the case of previous applications concerning filling stations. The factors to which the Board had regard were factors which they were entitled to consider in the light of the decision in Texaco Ltd. v. North Lanarkshire Licensing Board (supra), and the weight to be given to these factors is a matter for the Board. In our view, they were quite entitled to conclude as they did that in the present case the application should be refused because the shop operations, properly viewed, were too small to make it appropriate to allow the sale of alcohol at premises where the principal activity was that of petrol sales, having regard in particular to prospective adverse impact on the Government's policy against drinking and driving. We disagree with the sheriff's view that the sentence identified by him is so vague as to be meaningless. It is not, perhaps, particularly well expressed, but it seems to us sufficiently clear that the Board had in mind the line of reasoning which was held in the earlier Texaco case to be one which a Board was entitled to adopt.

On the other hand, we disagree with the sheriff that the Board was justified in refusing the application under section 17(1)(c) as an independent ground of refusal. We accept Mr Henderson's submission so far as that matter is concerned. In particular, the Board did not in their reasons purport to conclude that the application, if granted, would be "likely to cause undue public nuisance, or a threat to public order and safety", as required by section 17(1)(c). Furthermore, in our view there was no material before the Board which would have entitled them so to conclude.

One further matter remains. At the time of announcement of the Board's decision, Mr Henderson, for the pursuers and appellants, asked for a declaration under section 14 of the 1976 Act at the same time as he asked for a statement of reasons for the Board's decision. The notes of the proceedings which we have disclose that immediately thereafter the chairman stated, "A statement of reasons will be given. Section 14 refused." As section 14 prohibits further application for a period of two years following refusal unless a direction to the contrary is made under that section, this matter is now academic with the lapse of time, but we record that an issue before the sheriff and before us was whether the pursuers and appellants could competently appeal against the absence of the declaration sought on the grounds that the chairman had taken upon himself to purport to decide a matter which required a decision of the Board as a whole. The matter being now academic, it suffices to say that where an application is made for a section 14 declaration the chairman must not take it upon himself or herself to determine that matter but must obtain the decision of the Board on that matter by vote, with or without retirement to consider the point before such vote is taken.

Accordingly, on the whole matter, the effect of our allowing the pursuers' and appellants' appeal so far as refusal under section 17(1)(c) is concerned and of allowing also the cross-appeal by the defenders and respondents so far as the sheriff's decision with regard to refusal under section 17(1)(b) is concerned, is that we sustain the Board's refusal of the application based on section 17(1)(b).