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Cite as: [2003] ScotCS 199, [2004] LLR 158
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WGR Trading Ltd, Re application for Judicial Review [2003] ScotCS 199 (11 July 2003)
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OUTER HOUSE, COURT OF SESSION |
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P551/03 P552/03
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OPINION OF LORD NIMMO SMITH in the Petitions of (1) W G R TRADING LIMITED AND EWAN D R ANDERSON and (2) DONALD LAWSON Petitioners; for Judicial Review of decisions of Highland Licensing Board (Inverness Division) refusing applications for regular extension of permitted hours under section 64 of the Licensing (Scotland) Act 1976
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Petitioners: Skinner; Morton Fraser
Respondents: McCreadie; Biggart Baillie
11 July 2003
Introduction
[1] Two applications for judicial review came before me for a First Hearing. In the first application, the petitioners are W G R Trading Limited ("WGR") and Ewan D R Anderson. WGR have premises known as Barbazza in Young Street, Inverness. WGR hold a public house licence and an entertainment licence in respect of these premises. By application dated 6 December 2002 WGR applied to the respondent, Highland Licensing Board (Inverness Division) ("the Board"), for a regular extension of permitted hours in respect of the entertainment licence. Ewan D R Anderson was named in the application as the employee or agent of WGR to be responsible for the day to day running of the premises. The petitioner in the second application, Donald Lawson ("Mr Lawson"), has premises known as Johnny Foxes in Bank Street, Inverness. He holds a public house licence and an entertainment licence in respect of these premises. By application also dated 6 December 2002 Mr Lawson applied for a regular extension of permitted hours in respect of the entertainment licence. At a meeting on 14 January 2003 the Board decided to refuse both applications. The petitioners now seek judicial review of each of these decisions.
[2] It was agreed by counsel who appeared at the First Hearing that, apart from some differences of fact, to which I shall refer, the circumstances relating to both applications and the issues arising in the present proceedings are the same. Counsel accordingly addressed me on both applications together, and it seems appropriate for me likewise to frame this opinion with respect to both applications. Counsel also agreed that a Second Hearing was unnecessary, and that I should proceed on the basis of the facts as stated in the pleadings and the productions. I shall attempt to do this, though, as will appear, not all the facts are agreed in the pleadings.
The Statutory Framework [3] It is necessary to set out the relevant statutory provisions. The Board is constituted in accordance with the provisions of section 1 of the Licensing (Scotland) Act 1976 ("the 1976 Act") as one of the licensing boards for the administration of licensing with respect to alcoholic liquor. By section 9(1) a licensing board may, in accordance with the provisions of Part II, grant a licence to any person for the sale by retail or supply of alcoholic liquor by that person. By section 9(3) the types of licence which may be so granted are those specified in schedule 1 to the Act. Among these are a public house licence, which is defined as "a licence granted in respect of a public house specified therein which authorises the holder thereof to sell by retail alcoholic liquor for consumption on or off the premises", and an entertainment licence, which is defined as "a licence granted in respect of premises specified therein, being places of public entertainment such as cinemas, theatres, dance halls and proprietary clubs, which authorises the holder thereof to sell by retail or supply alcoholic liquor to persons frequenting the premises for consumption on the premises as an ancillary to the entertainment provided, subject to such conditions as the licensing board may determine to ensure that such sale or supply is ancillary to the entertainment provided". So far as an entertainment licence is concerned, reference may also be made to section 101(2), which provides that a licensing board, when granting such a licence, may attach conditions to the licence, including conditions placing restrictions on the permitted hours, in order to secure that the sale or supply of alcoholic liquor is ancillary to the entertainment, and the holder of the licence or his employee or agent shall be guilty of an offence if he contravenes any such condition. This reinforces the requirement that the sale or supply of alcoholic liquor must be ancillary to the entertainment. [4] Section 64 of the 1976 Act contains provisions relating to occasional and regular extensions of permitted hours. By sub-section (1) any person holding inter alia an entertainment licence in respect of any premises may apply to the appropriate licensing board for the grant of an occasional or regular extension of permitted hours, and at the same time as he makes the application he shall send a copy of the application to the Chief Constable. Sub-section (2) relates to occasional extensions. By sub-section (3), after considering the application and any objections made thereto, a licensing board may grant an application for the regular extension of permitted hours if, having regard to the social circumstances of the locality in which the premises in respect of which the application is made are situated or to activities taking place in that locality, the board considers it is desirable to do so, and such a grant shall authorise the person to whom it was granted to sell or supply alcoholic liquor in the premises to which the application relates during such period in the year succeeding the date of the grant and between such hours and on such days as may be specified in the grant. Sub-section (6) empowers a licensing board to attach such conditions as it thinks fit to the grant of an occasional or regular extension of permitted hours. By sub-section (8) the licensing board is not to grant an extension of permitted hours if it considers that the extension of permitted hours is likely to cause undue public nuisance or to be a threat to public order or safety. By sub-section (9), where a licensing board has refused an application under sub-section (1) for the grant of an occasional or regular extension of permitted hours in respect of any premises, the board is not, within one year of its refusal, to entertain a subsequent application for such an extension in respect of the same premises unless the board, at the time of refusing the first-mentioned application, makes a direction to the contrary. By section 47(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 ("the 1990 Act") a licensing board is not to grant an application under section 64 of the 1976 Act for an extension of permitted hours unless it is satisfied by the applicant, taking account of the factors mentioned in section 64(3) - (a) that there is a need in the locality in which the premises in respect of which the application is made are situated for a regular extension of the permitted hours; and (b) that such an extension is likely to be of such benefit to the community as a whole as to outweigh any detriment to that locality. Section 47(2) provides that in determining whether to grant an application for a regular extension to permitted hours in respect of any premises it shall not be a relevant consideration for the licensing board to have regard to whether any application relating to any other premises in its area has, at any time, been granted or refused or the grounds on which any such application has been granted or refused.
[5] By section 18 of the 1976 Act a licensing board may be required by inter alios the applicant to give, within 21 days of being required to do so, reasons for arriving at any of the decisions mentioned in section 5(2). These include (e) making a decision on an application for a regular extension of permitted hours. There is no statutory right of appeal against such a decision, hence the need for the petitioners to proceed by way of application for judicial review.
The Facts [6] As I have already mentioned, the petitioners hold both public house licences and entertainment licences in respect of Barbazza and Johnny Foxes respectively. In the case of Barbazza the licences are both dated 18 June 2002 and are effective from that date until the quarterly meeting of the Board in June 2005. In the case of Johnny Foxes the licences are both dated 15 October 2002 and are effective from that date until the quarterly meeting of the Board in October 2005. Each of these licences is for the full permitted hours provided by section 53 of the 1976 Act, i.e. 11.00am to 11.00pm every day except Sundays, when the permitted hours are 12.30 to 2.30pm and 6.30 to 11.00pm. In addition to these licences, the Board has granted to both of the petitioners a regular extension of the entertainment licences in respect of Barbazza and Johnny Foxes respectively. Both regular extensions were granted on 15 October 2002 for the period of one year. On Mondays, Tuesdays, Wednesdays and Thursdays the extension is from 11.00pm to 1.00am, on Fridays and Saturdays from 11.00pm to 1.30am and on Sundays from 11.00pm to 12 midnight. Both grants are subject to conditions that no patrons are to be admitted to the premises in question after 12 midnight on Fridays, 11.15pm on Saturdays and 10.45pm on Sundays, that music is to cease at 1.30am and that adequate stewarding is to be provided both at the door and inside the premises.
[7] It is clearly incompatible with the statutory definitions quoted above that the same premises should simultaneously be a public house and a place of public entertainment. Although the point is not of direct relevance for present purposes, counsel for the Board explained that, as the result of an oversight, the current entertainment licences in respect of each of the premises omitted a condition which had appeared in the licences which had previously been in force, from 1999 to 2002, that each licence would only come into effect at a time when the premises in question had ceased to be operated as a public house.
[8] I was provided with a limited amount of information about the manner in which each of the premises is operated. It is averred in the first petition that WGR operate Barbazza from approximately 9.00pm onwards as a discotheque, and that they have done so since the entertainment licence in respect of Barbazza was obtained in October 1999. There are at the premises a dedicated dance floor, professional stewarding, professional sound and lighting systems and a dedicated DJ booth, occupied by a local celebrity colloquially known as Titch McCooey. The Board avers that Barbazza operates as a public house throughout the day and serves food and drink, being patronised by office workers, tourists and members of the public, and that it has a small dance floor. It is averred in the second petition that Mr Lawson operates Johnny Foxes from approximately 9.00pm onwards as a live discotheque, and that he has done so since he obtained an entertainment licence in October 1999. There are at the premises a dedicated dance floor, professional stewarding, professional sound and lighting systems and a stage area from which musicians perform live. The Board avers that Johnny Foxes operates as a public house, with an Irish pub theme, throughout the day, and serves both food and drink, being patronised by office workers, tourists and members of the public. The floor is occupied by tables and chairs in the course of the day and the plan approved by the Board shows no dedicated dance floor. No attempt was made before me to resolve the dispute as to whether there is a dedicated dance floor at Johnny Foxes, but it was not disputed that dancing takes place while music is being played after 9.00pm, so I assume that there is room for people to dance.
[9] The main factual disagreement before me was as to the description to be given to each of the premises at any particular time. There was no dispute that throughout the day until 9.00pm each of them is properly to be described as a public house. The Board claims that from 9.00pm onwards each of them remains a public house. As has been seen, it is averred by WGR that from 9.00pm onwards Barbazza is operated as a discotheque. I understand that a discotheque is a club or similar establishment at which recorded music is played for dancing. It is averred by Mr Lawson that Johnny Foxes is operated from 9.00pm onwards as a live discotheque, which I understand simply to mean that live music is played there for dancing. Counsel for the Board informed me that while the words "discotheque" and "nightclub" are synonymous in current usage, it is more usual for the latter description to be applied to premises where music (whether recorded or live) is played for dancing. Counsel for the Board insisted, however, that premises are only properly described by either name when they remain closed during the day and only open late in the evening. Two such premises in Inverness to which reference was made were Blue and Mr G's. There was some suggestion that these latter premises have large dance floors and that patrons pay for admission, but counsel for the Board could offer little help as to how in the essential features of their operations at, say, 11.30pm Barbazza and Johnny Foxes on the one hand might be distinguished from Blue and Mr G's on the other. The principal, if not the sole, distinction relied upon by counsel for the Board was that the former are operated as public houses during the day while the latter are closed then.
The Board's Guidelines [10] Whether or not this distinction is valid, it is of significance when regard is had to guidelines relating to extensions of permitted hours approved at the meeting of the Board on 14 January 2003 and applied by it in reaching decisions on the applications before it that day, including the petitioners' applications. The petitioners, and the solicitor who appeared for both of them at the meeting, were aware of the terms of these guidelines beforehand and that they would be applied by the Board, which announced its intention to do so. The main part of the guidelines takes the form of a table in which days and hours of extensions in respect of various types of licensed premises are set out. Under the heading "6. Entertainment" there are entries for "6.(a) Discotheques" and "6.(b) Other". In respect of discotheques the extended hours are from 11.00pm to 3.00am all week and in respect of "other premises" the extended hours are from 11.00pm to 1.00am on Monday to Friday inclusive, 11.00pm to 12.30am on Saturday and 2.30pm to 6.30pm and 11.00pm to 12 midnight on Sunday. Various conditions are set out. Those applicable to "clubs" provide for stewarding, a curfew at midnight (which I understand to mean no admission after midnight) and that all amplified music is to cease at 2.45am. Those applicable to "pubs, hotels and other entertainment" provide for stewarding on Thursday, Friday or Saturday evenings during extended hours unless the Board directs to the contrary. Counsel for the Board explained to me that the expression "clubs" in these conditions applies to discotheques or nightclubs, and not to registered clubs, for which provision is also made in the table. There is no provision in the guidelines as to the criteria by which the distinction is made between "discotheques" and "other" premises in respect of which entertainment licences are held.
[11] The policy considerations which led to the approval of the guidelines in 2003 were explained to me by counsel for the Board as follows. Prior to their approval the Board's policy on regular extensions allowed premises with an entertainment licence to remain open until 1.30am on Friday and Saturday evenings, 12 midnight on Sundays and 1.00am during the rest of the week (i.e. the same hours as the regular extensions granted to each of the petitioners, most recently on 15 October 2002). There was little difference in closing times between mainstream public houses and other premises with entertainment licences such as nightclubs. Barbazza and Johnny Foxes, which the Board described as "public houses", and Blue and Mr G's, which the Board described as "nightclubs", enjoyed similar extensions. During 2002 the Board decided to review its policy on regular extensions. It invited comments and consulted with a number of organisations. The clerk to the Board then prepared a note of the revised policy. A significant change in policy was that discotheques (i.e. nightclubs) holding entertainment licences could be allowed to open from 11.00am until 3.00am all week. The Board distinguished nightclub premises such as Blue and Mr G's because they were materially different from premises such as public houses which provided entertainment. Such premises traded all day serving drink and food whereas nightclubs only opened late in the evening (usually around 9.00pm), charged admission and had a substantial dance floor. The sale of alcohol was ancillary to the entertainment which they provided. Neither Blue nor Mr G's provided food. The Board was persuaded as a result of its consultations that "staggering" the closing times of public houses and nightclubs would have a beneficial effect on public order by reducing the number of people spilling into the town centre at one time. The police would be able to supervise persons leaving public houses first of all and thereafter be free to supervise "clubbers" leaving nightclubs.
The Board's Decisions [12] When the Board came to consider the petitioners' applications at the meeting, there were no objections, either from the Chief Constable or from any other person. The petitioners' solicitor placed information before the Board about the manner in which each of Barbazza and Johnny Foxes is operated, as referred to above. The Board refused each of the applications. On being required in terms of section 18 of the 1976 Act to give reasons for arriving at each of these decisions, the clerk to the Board sent letters dated 6 February 2003 to the petitioners' solicitor in respect of each of the premises. In respect of Barbazza the material part of the letter was in the following terms: "I refer to your request for a Statement of Reasons in respect of the decision of Inverness Divisional Licensing Board to refuse an application for a regular extension until 3.00am. Prior to the commencement of consideration of applications, the Board had agreed upon a number of alterations to the existing Board's Policy in respect of the grant of extensions to hours. A copy of the draft Policy had been circulated prior to the meeting and the draft had been adopted subject to one amendment which was not relevant to the consideration of the application. In the context of the particular application, the Board had formed the view that Discotheques or Dance Halls where dancing is the main entertainment might be granted an extension to 3.00am subject also to the required scrutiny under Section 64 of the Licensing (Scotland) Act 1976 the Board would also take into account the type of licence held, location, trading hours and the size of the premises. In support of your clients' application, you maintained that it would be an injustice if the Board was to refuse the grant of this application. The premises had an entertainment licence, had traded without objection in the past and the Chief Constable had not objected nor submitted observations in respect of the current application whereas in the past he had attempted to do so and by the nature of the licence itself the licensee could only sell alcohol at present as ancillary to the entertainment provided. In addition you maintained that these were an independent run premises and had a dedicated D.J. booth frequently occupied by a local celebrity colloquially known as "Titch McCooey". The Board adjourned to consider the application. Having considered the terms of Section 64 and the Policy thereunder, the Board concluded that the application should be refused. Whilst the premises had a number of the badges which the Board looked for, the premises significantly failed to meet two important criteria, (I) the premises traded all day under a Public House licence and the Board recognised that the premises changed in character during the evening and (ii) the dance element was not in their view the predominant facility. The Board did not consider the lack of an observation of objection from the Chief Constable to be material in this application as at the last lodging date for objections and observations the Board had not formulated this policy and therefore the Board could not comprehend how the Chief Constable could object to an application being outwith the Policy when the Policy itself did not exist at the time he would have had to object. The Board reconvened and on a motion from the Chairman unanimously refused the application." The letter in respect of Johnny Foxes was in identical terms, except that the last sentence of the third paragraph read: "In addition you maintained that these were an independent run premises." I have preserved the original punctuation in the text of the letters as communicated to the petitioners, though counsel for the Board suggested an improvement to that of the second paragraph. The Test to be Applied [13] Counsel were agreed that the test to be applied to the adequacy of the reasons given by a licensing board for arriving at any decision is as set out in Mirza v City of Glasgow Licensing Board 1996 S.C. 450, where it was held inter alia that where a challenge was made as to the adequacy of reasons given for a decision, the test to be applied was that referred to in Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T. 345, in that there had to be proper and adequate reasons for a decision so that the decision left the informed reader "in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it." Reference was also made to Robertson v City of Edinburgh District Licensing Board 1995 S.L.T. 107, Noble v City of Glasgow District Council 1995 S.L.T. 1315 and R W Cairns Ltd v Busby East Church Kirk Session1985 S.L.T. 493. It may be taken from these latter cases that, while not every matter put before a licensing board need be expressly referred to in its decision, there may nevertheless be "gaps [which are] sufficiently formidable to warrant the conclusion that the board had not exercised its discretion properly by failing to give due consideration to the subject-matter of the gaps in reaching the decision" (see Cairns at p.496).
Submissions of Counsel on the Main Issue [14] Counsel for the petitioners submitted that the Board exercised its discretion improperly in that it failed to provide proper and adequate reasons for its decisions. The only part of the letters dated 6 February 2003 which purported to set out the Board's reasoning process was the last sentence of the fourth paragraph, quoted above. This was utterly unintelligible and such as to leave the informed reader in a real and substantial doubt as to what were the reasons for each decision and what were the material considerations taken into account in reaching it. There was no intelligible explanation as to how the factors set out in section 64 of the 1976 Act and section 47 of the 1990 Act had been applied. There was no explanation of the "badges" which the Board was looking for. It was not open to the Board to apply secret criteria, and applicants should be told what the Board was looking for so that if necessary they could make appropriate modifications to their operations. There was no explanation as to why the fact that the premises traded all day under public house licences militated against the grant of the applications, when the Board recognised that the premises changed in character during the evening. If the change in character was not to that of a discotheque, there was no explanation of what it was. It was irrational to suggest that premises could not be a discotheque because earlier in the day they operated otherwise than a discotheque. The statement that the dance element was not the predominant facility was incompatible with the fact that each of the petitioners held an entertainment licence, so that when each of the premises was being operated after 9.00pm otherwise than as a public house, the sale or supply of alcoholic liquor was ancillary to the entertainment, which was that of dancing to music. There was no explanation of what was the predominant facility, if it was not the dance element.
[15] Counsel for the Board submitted that the informed reader would be aware of the guidelines and their underlying policy. With this knowledge, the informed reader would find intelligible reasons for refusal in the letters dated 6 February 2003. It was necessary to look at each of the premises as a whole, and until the evening each of them was operated as a public house in which the sale of alcohol was predominant. The Board had to decide into which category the premises fitted. It was not difficult to infer what the "badges" were which the Board looked for in a discotheque, in which dancing was the main entertainment. The change in character of each of the premises in the evening was not to that of a discotheque. Over a 24-hour period, dancing was not predominant. While there were certain shortcomings in the Board's statements of its reasons for refusing the applications, they were sufficient for their purpose.
Discussion [16] I proceed on the basis that the informed reader would be aware of the Board's guidelines and of their underlying policy. In particular, the informed reader would be aware of the desire that the closing times of public houses on the one hand and discotheques or nightclubs on the other should be at different times, so that their respective patrons would not all come out onto the street at the same time as each other. Although this was not specifically stated, the informed reader might understand that people who have been drinking in a public house until a late hour are more likely to cause trouble than people who have been dancing in a discotheque or nightclub. The informed reader would of course be aware of the relevant statutory provisions, particularly those relating to public house licences and entertainment licences. The informed reader would, however, in my opinion have difficulty in understanding, in the first place, the distinction in the guidelines (for which there is no statutory basis) between discotheques and other premises in respect of which entertainment licences are held. All such premises are the subject of entertainment licences, which require that the sale or supply of alcoholic liquor should be ancillary to the entertainment provided. If the entertainment is dancing to music (whether recorded or live), the distinction between the two sub-categories in the guidelines is not obvious. This is not to say that there may not be a valid distinction, but it is one which in my opinion requires to be spelt out by reference to explicit criteria, which can be addressed by applicants. The main submission of counsel for the Board relied on the concept of the predominant use made of premises, so that premises which were operated as a public house during the day and until 9.00pm should be regarded as being predominantly a public house, even though from 9.00pm onwards they were operated under an entertainment licence as a discotheque. In my opinion it requires to be explained why this is the proper approach, when regard is had to the terms of the legislation and of the guidelines and their underlying policy. It may or may not be the case that the clientele of such premises from 9.00pm onwards behave at closing time more as public house patrons than as discotheque patrons do. If so, this might justify treating such premises differently from discotheques: but it is not obviously so when regard is had to the conditions under which an entertainment licence is held.
[17] The letters dated 6 February 2003 cast no light on these matters. On the contrary, they add to the difficulties. There appears to me to be considerable force in the criticisms advanced on behalf of the petitioners. There is no indication as to how the Board went about applying the relevant statutory tests. It recognised that each of the premises changed in character during the evening, but it did not explain why this led to an adverse conclusion. In its own terminology, it was looking for "badges" in deciding into which category the premises fell, but neither in the guidelines nor in the letters is there any explanation of what these badges were. While it may or may not be legitimate to consider what is the "predominant facility" in the case of premises which are operated under a public house licence throughout the day until 9.00pm and under an entertainment licence from 9.00pm onwards, as I have already said, some justification requires to be given for this approach. It must be borne in mind that each of the petitioners was applying for a regular extension of permitted hours in respect of an entertainment licence, so that the Board was considering premises which by the end of the full permitted hours on each day were being operated in terms of entertainment licences, and indeed premises in respect of which regular extensions were already in force. In this situation, much fuller explanations were required, both in the guidelines and in the letters containing the Board's statements of reasons, so that the petitioners might know both in advance how the Board might go about the making of distinctions between various categories of premises, and subsequently why the Board decided that any particular premises fell within one category rather than another. There are accordingly gaps, of the kind recognised in Cairns. For these reasons the letters containing the Board's statements of reasons appear to me not to give proper and adequate reasons for the decision and to leave the informed reader in real and substantial doubt as to what the reasons for the decisions were and what were the material considerations which were taken into account in reaching them. The appropriate course therefore appears to me to reduce each of the decisions.
The Section 64(9) Issue [18] My opinion on the main issue makes it unnecessary for me to express a concluded view on the section 64(9) issue, but I think it nevertheless appropriate to give a brief account and to comment on one aspect of it.
[19] The matter arises in this way. The Board refused both of the petitioners' applications for regular extensions of permitted hours by formal vote, each member holding up a coloured card to indicate his or her vote (a red card signifying refusal). Thereafter, the petitioners' solicitor sought, in respect of each refused application, a direction under section 64(9) of the 1976 Act, which, if granted, would have enabled the petitioners to make subsequent applications for regular extensions of permitted hours within one year of the refusal. No vote was taken. What seems to have happened was that, as averred by the Board, the Chairman paused to ascertain whether there was any motion in favour of such directions from members of the Board, and no such motion was made. The Chairman then stated that the requests were refused. So the only persons who spoke were the petitioners' solicitor in making the requests and the Chairman in stating that they were refused. No overt expression of view was made by any member of the Board. No reasons were given, then or subsequently, for these decisions. The letters dated 6 February 2003 simply concluded by stating: "The Board further declined to make a direction under section 64(9) of the Act."
[20] The petitioners' main criticism of these events is that the Board failed to vote in public on the question whether to grant section 64(9) directions. Counsel for the petitioners referred to Simpson v Banff & Buchan District Licensing Board 1990 SC 347, in which it was held inter alia that a licensing board's decision must be taken in public in such a way that it is plain to the public how each member of the board would have voted, if a formal vote had been necessary, so that the clerk of the board may record the vote of each member of the board. Reference was also made to the unreported decision of Lord Macfadyen in Redbrae Ltd v City of Glasgow Licensing Board, 1 July 1998. Counsel submitted that what had taken place did not constitute a proper vote, and was no more than a decision of the Chairman of the Board. Counsel for the Board explained that, although it did not always follow this procedure, the purpose of the Chairman's pause was to enable any motion in favour of the requests to be moved.
[21] While this may have been the Chairman's intention, the procedure was not such in my opinion as to amount to a public ascertainment of the views of the members of the Board, such that the decision, when it was announced by the Chairman, could properly be regarded as being that of the Board. While procedure may legitimately vary according to the circumstances of each case, and perhaps also the known practice of each licensing board, nevertheless in my opinion the appropriate course would be for something to be said by the Chairman which would reasonably be understood as an invitation to the other members of the Board to indicate whether or not they were in favour of the application. This could of course be expressed in such a way that silence by members could be interpreted as an expression of view one way or the other. But a pause following the making of an application does not in my view constitute such an invitation, nor does silence from the members following the pause amount to an unequivocal expression of opinion such as to constitute a vote for or against the application. To an onlooker, the decision to refuse an application would, in such circumstances, appear to be that of the Chairman. The procedure need not be time-consuming, but it does need to result in an unambiguous, public decision by the Board and not merely by the Chairman. I have thought it appropriate to say this much, because as a result of my decision on the main issue, the applications will require to come before the Board for further consideration, and it may be, depending on the result, that it will then require to consider applications under section 64(9).