Scottish Court of Session Decisions

William Hill (Caledonian) Ltd v. City Glasgow Licensing Board & Anor [2003] ScotCS 48 (25 February 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kirkwood Lord Johnston Lady Paton	XA184/2007 OPINION OF THE COURT delivered by LORD KIRKWOOD in APPEAL From the Sheriffdom of Glasgow and Strathkelvin at Glasgow in the cause WILLIAM HILL (CALEDONIAN) LIMITED Pursuers and Respondents; against CITY OF GLASGOW LICENSING BOARD First Defenders and Appellants; and LADBROKES LIMITED Second Defenders and Respondents: _______

 

 

Act: Keen, Q.C.; Harper MacLeod (Pursuers and Respondents)

Alt: Agnew of Lochnaw, Q.C.; Edward Bain, Solicitor, for City of Glasgow Council

(First Defenders and Appellants)

25 February 2003

1. On 27 October 2000 the City of Glasgow Licensing Board (hereinafter referred to as "the board") refused an application by the pursuers and respondents (hereinafter referred to as "the applicants") for the grant of a betting office licence in respect of premises at 183A Baillieston Road, Glasgow. The applicants appealed to the sheriff by way of summary application, and shortly before the hearing of the appeal the parties agreed that the board had erred in law, and the sheriff remitted the application back to the board for a rehearing. The application again came before the board on 9 March 2001 when it was considered de novo. Objections to the application were lodged by Ladbrokes Limited and by Garrowhill Community Council. The application was again refused. The applicants appealed to the sheriff by summary application and on 8 October 2001 the sheriff allowed the appeal and remitted the application to the meeting of the board on 26 October 2001 in order that it might be reconsidered. The board have taken an appeal against the sheriff's interlocutor of 8 October 2001.
2. The premises at 183A Baillieston Road, Glasgow are on the first floor and access thereto is by means of stairs. The applicants have investigated the possibility of installing a lift to enable non-ambulant disabled people to obtain access, but found that the provision of a lift was not practicable.
3. The statement of reasons issued by the board on 30 April 2001 was in the following terms:

"On 27 October 2000, the City of Glasgow Licensing Board considered inter alia an application by William Hill (Caledonian) Limited, as hereinbefore designated, for the grant in terms of the Betting, Gaming and Lotteries Act 1963 (as amended) of a betting office licence for the premises known as and comprising 183A Baillieston Road, Glasgow ('the application site'). That application was refused by the Licensing Board at its meeting on 27 October and the applicants appealed against that decision to the Sheriff Court. On 12 February 2001 the Sheriff remitted the application back to the Licensing Board for it to be reheard. Accordingly the Licensing Board, at its meeting on 9 March 2001, reheard the application in compliance with the Sheriff's decision. The application was heard of new. Objections to the grant of the application were received from Ladbrokes Ltd, 28 La Porte Precinct, Grangemouth, who were represented at the meeting on 9 March by Mr Menzies Campbell, Q.C. and Garrowhill Community Council, 179 Edinburgh Road, Glasgow. There was no appearance by or on behalf of the Community Council. After hearing submissions from the applicants' agent and from Counsel for Ladbrokes Ltd with regard to the competency of the Community Council objection, the Board ruled that objection to be competent. Following thereon, after consideration of both objections as written, together with the submissions made at the meeting on 9 March on behalf of the applicants and Ladbrokes Ltd, and such documentation as was lodged in support of these submissions, the Board decided to refuse the application on the grounds that (1) to grant the application would be inexpedient having regard to the demand for the time being in the locality for the facilities afforded by licensed betting offices and to the number of such offices and facilities for the time being available to meet that demand and separately, (2) having regard to the layout, character, condition or location of the premises, that they are not suitable for use as a licensed betting office.

The shorthand notes of the proceedings before the Board on 9 March, together with all documentation submitted in relation to the application are referred to for their terms.

In reaching its decision in respect of ground (1) above, the Board considered it reasonable to regard the locality in this case as within 200 metres of the application site. That being the case, the number of existing betting offices within that locality numbered one, being the premises occupied and operated by the objectors Ladbrokes Ltd at 21B and 21C Barrachnie Road which is between 135 metres and 180 metres distant from the application site.

It was the Board's view that, taking careful account of (i) the presence of this licensed betting office, occupied and operated by Ladbrokes Ltd, and the submissions made by the respective agents concerning the range, extent and type of facilities provided by these premises in the stated locality, and (ii) the information provided by Counsel for Ladbrokes Ltd in relation to existing demand for the betting facilities afforded by these premises, it would be inexpedient to grant the application.

Separately, in reaching its decision in respect of ground (2) above, the Board considered the location of the premises to be unsuitable by reason of the fact that they are situated on the first floor above the ground floor at 183A Baillieston Road, Glasgow and on the basis of all the information presented to the Board are thereby inaccessible to non-ambulant disabled people. The Board noted that the applicants had taken steps to address this by examining the possibility of installing a lift which would be capable of conveying disabled people, including anyone in a wheelchair, to the premises but had received advice to the effect that it would not be possible to install such a lift to serve the premises. The Licensing Board took the view that licensed premises in this case should be accessible to those ordinary people in the community generally who would likely want to use the betting and other ancillary facilities provided. This would include disabled people in the community which the premises would serve. The Board carefully considered all that was said by the respective agents with regard to the suitability of the premises and, in particular, with regard to their location and the issue of access for disabled people wishing to use the premises and preferred the views of the objectors in this regard.

In the foregoing circumstances, the Board determined to refuse the application on the basis of the separate grounds earlier referred to for the reasons hereinbefore provided."

4. Section 9 of the Betting, Gaming and Lotteries Act 1963 makes provision for applications for the grant of betting office licenses. Section 9(4) provides inter alia that, subject to sub-sections (2) and (3) of that section, Schedule 1 to the Act shall have effect for the purposes of betting office licenses. Paragraph 19 of Schedule 1 to the Act is in the following terms:

"19 In the case of an application for the grant or renewal of a betting office licence in respect of any premises, the appropriate authority-

(a) shall refuse the application if they are not satisfied-

(i) in the case of an applicant other than the Totalisator Board, that

on the date with effect from which the licence would come into force, or, as the case may be, would be continued in force, the applicant will be the holder either of a bookmaker's permit or of a betting agency permit; and

(ii) that the premises are or will be enclosed; and

(iii) that there are or will be means of access between the premises

and a street otherwise than through other premises used for the effecting with persons resorting to those other premises of transactions other than betting transactions;

(b) may refuse the application on the ground-

(i) that, having regard to the lay-out, character, condition or

location of the premises, they are not suitable for use as a licensed betting office; or

(ii) that the grant ... would be inexpedient having regard to the

demand for the time being in the locality for the facilities afforded by licensed betting offices and to the number of such offices for the time being available to meet that demand; or

(iii) that the premises have not been properly conducted under the

licence."

5. The sheriff, in reaching his decision of 8 October 2001, held that, in respect of the ground of refusal based on paragraph 19(b)(ii), which related to demand, the statement of reasons issued by the board on 30 April 2001 was inadequate. It was not enough for a licensing board to give as the reason for the refusal that, having heard the submissions and considered the information provided to them, they preferred the submissions made by the objectors. He held that the board must go on to say why they preferred the submissions of the objectors. The applicants and Ladbrokes Limited had both placed material before the board in relation to the question of demand. The applicants had lodged the result of a survey which had been taken of 103 customers of Ladbrokes betting office at 21B/21C Barrachnie Road, Glasgow, which was between 135 and 180 metres from the application site. Ladbrokes made submissions relating to the nature of their betting office in Barrachnie Road, and the turnover in that office, and objected to the grant of the application on the ground inter alia that their office met the demand in the locality. The sheriff took the view that, ex facie of the board's statement of reasons, they had not had regard to the information put before them by the applicants in relation to demand and had therefore appeared to have left out of account what must be a relevant consideration. He was not satisfied that the board had offered any intelligible explanation which would warrant their conclusion that it was inexpedient to grant the application. In the circumstances he held that it could not be said that the board had properly addressed the question of whether it would be inexpedient to grant the pursuers' application on the basis of relevant considerations, and that they had erred in law.
6. In relation to the ground of refusal based on paragraph 19(b)(i) of Schedule 1, the sheriff stated that it seemed to him that, looking at the statute as a whole, the mischief being addressed in paragraph 19(b)(i) was that of the unsuitable neighbour, and that that was how the provision has been interpreted in reported cases (Bruce v. Chief Constable of Edinburgh 1962 S.L.T. (Sh. Ct.) 9 and William Hill (Scotland) Limited v. Kyle and Carrick District Licensing Board 1991 S.L.T. 559). The sheriff held that it was not open to a licensing board to refuse an application for a licensed betting office because it was located on the first floor of premises and as a consequence the non-ambulant disabled could not gain access. The board had erred in law in refusing the application under paragraph 19(b)(i) of Schedule 1.
7. The board have lodged grounds of appeal in the following terms:

"1. The Sheriff erred in holding that the Statement of Reasons were

inadequate. Having regard to William Hill (Strathclyde) Ltd -v- City of Glasgow Court of Session 23 July 1992 unreported (1992 GWD 29-1721) and Noble -v- City of Glasgow District Council 1995 SLT 1315 the Statement of Reasons was sufficient and adequate in the whole circumstances to support the decision that a grant would be inexpedient. The Sheriff misunderstood the import of those cases.

2. The Sheriff erred (page 10) in holding that ex facie the Statement of

Reasons the board did not have regard to the submissions of the applicants and accordingly left out of account a relevant consideration. The Statement of Reasons states that 'after consideration of both objections as written, together with the submissions ... on behalf of the applicants ...'. Accordingly it cannot be said that the Board did not have regard to those submissions.

3. With regard to his decision on 'location' the Sheriff erred in holding

that the mischief being addressed was that of unsuitable neighbour. While 'unsuitable neighbour' is one of the considerations, which might lead to a refusal under this provision, 'layout, character, condition or location' is of wider import. Matters of 'access' for prospective patrons in general or patrons of a particular class is a matter that can be considered under this head. The board are entitled to have regard to changing social attitudes and in particular the fact that society considers that facilities should be made available to disabled persons in reaching a decision under this paragraph."

8. At the hearing of the appeal, counsel for the board invited us to allow the appeal in full and thus uphold the decision of the board. If we were not prepared to take that course, then we should remit the application back to the board for reconsideration, as the sheriff had done.
9. Counsel went over the statutory background and accepted that an application for a betting office licence should be granted unless there are valid grounds for refusal as set out in paragraph 19. So far as paragraph 19(b) is concerned, the board had a discretion whether or not to grant an application even if one or more of the grounds set out in that paragraph had been established. In particular, so far as demand was concerned (paragraph 19(b)(ii)), it was accepted that, even if it was shown that the other licensed betting office met the existing demand, the board was not bound to refuse the application but had a discretion to grant it. In relation to demand, the board had stated that they had considered the submissions made on behalf of the applicants and on behalf of Ladbrokes Limited and such documentation as was lodged in support of these submissions, and that included the survey report which had been lodged by the applicants. The transcript of the proceedings before the board showed that one of the members of the board had asked questions about the survey. Demand was the key issue and the board had accepted Ladbrokes' submissions to the effect that they were coping adequately with the demand in the locality. In these circumstances the board had been entitled to hold, in relation to demand, that it was inexpedient to grant the application. Counsel referred to Ranachan v. Renfrew District Council 1991 S.L.T. 625, 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, Glasgow District Licensing Board v. Din 1995 S.C. 244 and Caledonian Nightclubs Limited v. Glasgow District Licensing Board 1996 S.C. (H.L.) 29. It was submitted that, in light of the decision in Caledonian Nightclubs Limited, supra, the court should treat the decision, and the reasoning, in Din, supra, with caution. Counsel submitted that in the present case the reasons given by the board in respect of the ground of refusal relating to demand were comprehensible and adequate.
10. So far as the other ground of refusal based on paragraph 19(b)(i) was concerned, it was admitted by the applicants that a lift could not be provided, with the result that non-ambulant disabled persons would not be able to gain access to the premises. Accordingly, the issue between the parties was one of law, namely whether, on a proper construction of paragraph 19(b)(i), the board had been entitled to take account of the absence of disabled access. Counsel submitted that paragraph 19(b)(i) should be given a wide construction and that, in relation to the "location" of the proposed betting office, the board were entitled, particularly having regard to recent changes in social values, to take into account the lack of disabled access. In this connection counsel referred to William Hill (Scotland) Limited v. Kyle and Carrick District Licensing Board, supra, Leisure Inns (U.K.) Limited v. Perth and Kinross District Licensing Board 1991 S.C. 224, William Hill (Strathclyde) Limited v. South Ayrshire Council Licensing Board and Ladbrokes Limited, Sheriff H.K. Small, Ayr Sheriff Court, 22 February 2002, unreported and Hestview Limited v. Snaresbrook Crown Court, [2001] EWHC Admin 144. Counsel submitted that the facilities that could be provided were a relevant consideration in relation to paragraph 19(b)(i). If the applicants were proposing to set up in competition to Ladbrokes, then they should be able to provide access for all members of the community.
11. Counsel for the applicants dealt first with the ground of refusal based on paragraph 19(b)(ii) which related to demand. In terms of Rule 3.2.2(3) of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 (S.I. 1999/929) the clerk to the licensing board had to send to the applicants a written statement "setting out the reasons for the decision of the licensing board". It was not permissible to imply reasons that were not in the statement of reasons by reference to the transcript of the hearing before the board. An unsuccessful applicant should be able to be better informed after reading the board's statement of reasons. If the board preferred the submissions of one side rather than the submissions of the other side, the board should state why they preferred those submissions. In this case there was no reference in the statement of reasons to over-provision of betting office facilities, so that could not have been a reason for refusal. A re-statement of the statutory provisions cannot be a proper reason for refusal. The board had not stated why it was inexpedient to grant the application. Not only was there no reference to over-provision, but it had not been suggested that if the application was granted Ladbrokes would close their betting office, or that there would be redundancies or that the proposed new betting office would attract customers from other areas. Provision of betting office facilities and demand for such facilities are not the same thing. One betting office in a locality may meet the demand, but two betting offices would provide choice and would not necessarily amount to over-provision. The decision in Caledonian Nightclubs Limited, supra, was not relevant as that had related to section 17 of the Licensing (Scotland) Act 1976 where no question of the exercise of a discretion arose, as it did in the present case. Counsel submitted that the sheriff had been justified in holding that the board had not offered any intelligible explanation which would warrant their conclusion that it would be inexpedient to grant the application, and that on the face of the statement of reasons it appeared that the board had left out of account the material placed before them by the applicants in relation to demand. In the circumstances the first two grounds of appeal were without merit.
12. Counsel for the applicants then turned to the reason for refusal based on the absence of a means of access for non-ambulant disabled people, and he adopted the reasoning of the sheriff on this issue. The sheriff had not said that a narrow interpretation of paragraph 19(b)(i) was to be preferred. Paragraph 19(b) sets out grounds on which the board may refuse the application, but even if one or more of those grounds were established the board could still grant the application in the exercise of their discretion. In their statement of reasons, the board have founded on the "location" of the premises as being unsuitable because they would be inaccessible to non-ambulant disabled persons. It was submitted, however, that paragraph 19(b)(i) was concerned with the premises themselves, not with whether or not a particular class of persons would be able to have recourse to them. Paragraph 19(b)(i) did not refer to access or facilities, but paragraph 19(a)(iii) dealt specifically with access between the premises and a street other than through certain other premises. There was, it was submitted, a clear distinction between the location of premises and the class or classes of persons who may be able to resort to them. The board were seeking in this case to impose on the applicants a statutory requirement that did not exist. In that connection counsel pointed out that the present application had initially been refused on 27 October 2000 and that in their first statement of reasons the board had relied on the provisions of the Disability Discrimination Act 1995. While Parliament had legislated for disabled people, the fact that non-ambulant disabled people could not gain access did not thereby render premises unfit for use as a licensed betting office. In the case of the board's ground of refusal based on "location", counsel contended that the lack of disabled access was not a competent consideration and that by taking it into account, and founding on it as a reason for refusal, the board had erred in law.

Decision

13. Grounds of appeal 1 and 2 relate to the reasons given by the board for their decision to refuse the application on the ground set out in paragraph 19(b)(ii). In terms of Rule 3.2.2(3) of the 1999 Act of Sederunt the applicant for a betting office licence is entitled to "a written statement setting out the reasons for the decision of the licensing board". We agree with the observations of Lord McCluskey in Noble v. City of Glasgow District Council, supra, where he stated as follows:

"It is not necessary for the licensing authority when giving reasons to write something which resembles a judicial judgment of the kind appropriate to a contested litigation in the sheriff court or in the Court of Session. Nor is it necessary that the letter containing the reasons should canvass each piece of evidence or each assertion and say specifically whether or not it has been accepted or what effect, if any, it has had in the deliberations of the licensing authority."

Equally, it is clear that it is not sufficient for a licensing board simply to state that they had considered all the submissions made, and documents lodged, by the parties and then repeat the wording of one or more of the sub-paragraphs contained in paragraph 19(b) of Schedule 1 to the 1963 Act. If an application is refused, the applicant should be able to ascertain from the statement of reasons why it has been refused.

14. In the present case the applicants knew at the end of the hearing before the board that their application had been refused, but they did not know the board's reasons for refusing it. In their statement of reasons the board observed that, after consideration of the objections, together with the submissions made at the meeting on 9 March on behalf of the applicants and Ladbrokes Limited, and such documentation as was lodged in support of these submissions, they had decided to refuse the application, and they then set out the grounds contained in paragraph 19(b)(ii) and (i). The board went on to state their reasons for deciding to refuse the application. So far as the ground set out in paragraph 19(b)(ii) is concerned, the board stated that it regarded the locality in this case as within 200 metres of the application site, there being one existing betting office within that locality, namely the betting office in Barrachnie Road operated by Ladbrokes Limited. The board's reasons for refusing the present application on the ground contained in paragraph 19(b)(ii) are then set out in the following paragraph:

"It was the Board's view that, taking careful account of (i) the presence of this licensed betting office, occupied and operated by Ladbrokes Ltd, and the submissions made by the respective agents concerning the range, extent and type of facilities provided by these premises in the stated locality, and (ii) the information provided by Counsel for Ladbrokes Ltd in relation to existing demand for the betting facilities afforded by these premises, it would be inexpedient to grant the application."

15. So far as demand is concerned, the board stated that they had taken careful account of the information provided by counsel for Ladbrokes Limited in relation to existing demand for the betting facilities offered by these premises, but did not state that they had also taken into account the applicants' submissions relating to demand, including the survey of 103 of Ladbrokes' customers. Even if it could be inferred from what was said earlier that that survey had been taken into account, the board did not state why it was inexpedient to grant the application. They did not set out what conclusion they reached in relation to the demand, nor was it said that the existing demand in the locality was already met, or that the granting of the application would result in over-provision, and it has to be borne in mind that a refusal of an application on the ground contained in paragraph 19(b)(ii) involves an exercise of the board's discretion. In our opinion, the sheriff was justified in reaching the conclusion that the board's statement of reasons, in relation to the ground contained in paragraph 19(b)(ii), was inadequate, and that the board had thereby erred in law.
16. We now turn to the third ground of appeal. It was made clear to us that it was not being suggested on behalf of the applicants that the reasons given by the board for refusing the application on the ground set out in paragraph 19(b)(i) were lacking in specification and therefore inadequate. Indeed, the board made it perfectly clear that the application had been refused on this ground because the premises were inaccessible to non-ambulant disabled people, the premises being situated on the first floor and the provision of a lift having been found not to be practicable. The applicants' case was that the board had not been entitled to refuse the application on the ground which they had stated.
17. Paragraph 19(b)(i) refers to the lay-out, character, condition or location of the premises, and the board, in deciding to refuse the application, founded on the "location" of the premises as rendering them unsuitable for use as a licensed betting office. The board took into account the fact that the premises are on the first floor and that a lift cannot be provided, and decided that premises to which non-ambulant disabled people would be unable to gain access are not suitable for use as a licensed betting office. The sheriff observed that, looking at the statute as a whole, the mischief being addressed in paragraph 19(b)(i) was that of the unsuitable neighbour, and that that was how the provision had been interpreted in reported cases (e.g. Bruce v. Chief Constable of Edinburgh, supra). He also observed that in William Hill (Scotland) Limited v. Kyle and Carrick District Licensing Board, supra, there had been a debate as to whether the word "location" should be given a wide or a narrow meaning. In our opinion, there is no need to give the word a restricted meaning, and the reference to location in paragraph 19(b)(i) is not limited to the issue as to whether a proposed betting office is an unsuitable neighbour. A licensing board are always entitled to consider where a proposed betting office is located, and the broader issues of amenity and environmental impact, including the likely effect of its location on adjoining and nearby premises, such as a school. Further, we can see no reason in principle why a board, in considering whether the location of proposed premises render them unsuitable for use as a betting office, should not be entitled to have regard to the effect which the location would have on the ability of potential customers to gain access thereto. For example, if the premises were on one side of a busy dual carriageway, all the local housing was on the other side and there was no bridge or pedestrian crossing in the vicinity, the view could well be taken that the location of the premises made them unsuitable for use as a betting office in view of the difficulty which members of the public would have in obtaining access. Similar considerations might apply if the proposed premises were several floors up from ground level and access could only be obtained by means of stairs, or if they were situated at the end of a long stretch of unlit road. Each case must, of course, depend on its own particular circumstances. In the present case the only adverse consequence of the location of these premises, which are on the first floor and cannot be provided with a lift, is that non-ambulant disabled persons would not be able to gain access. The position of the board was that they were entitled to have regard to changing social attitudes and, in particular, the fact that society considers that facilities should be made available to disabled persons. Accordingly, the question which arises sharply, and which we have found to be attended with some difficulty, is whether the board were entitled to hold that the premises, which are not said to be unsuitable in any other respect, are not suitable because one particular and limited class of persons would be unable to gain access. The conclusion which we have reached is that a licensed betting office is intended to be open to members of the public generally and that the fact that non-ambulant disabled people would not be able to gain access to the premises, due to its location, is a factor which the board were entitled to take into account and on the basis of which they were entitled to refuse the application. It follows that we consider that the third ground of appeal is well-founded.

Disposal

18. In the event, the board have succeeded on one ground of appeal but have failed on the other grounds of appeal which related to the question of demand. The determination by the board under paragraph 19(b) implies an exercise of discretion, and it cannot be said that the board would necessarily have refused the application if they had found that only the ground of refusal contained in paragraph 19(b)(i) had been established. In these circumstances parties were agreed that the application will, once again, have to go back to the board for reconsideration. We will allow the appeal, recall the interlocutor of the sheriff dated 8 October 2001 and remit the application to the sheriff in order that he may of new remit it to the board for reconsideration.