|
OUTER HOUSE, COURT OF SESSION
[2006] CSOH 45
|
|
P978/05
|
OPINION OF LORD EASSIE
in the Petition of
ELIZABETH JOHNSTON
Petitioner;
for
Judicial Review of
a decision of the Western Isles Licensing Board dated 16 March 2005, refusing application for
regular extension of permitted hours under section 64 of the Licensing (Scotland)
Act 1976
ญญญญญญญญญญญญญญญญญ________________
|
Petitioner: Buchanan; Drummond Miller, W.S.
Respondents (Western Isles Licensing
Board): Wolffe; Brodies, L.L.P.
17 March 2006
[1] The
petitioner is the holder of a public house licence granted under the Licensing
(Scotland) Act
1976 - "the 1976 Act" - in respect of premises known as the Star Inn, South
Beach Street, Stornoway. The licence held by the petitioner has a
regular extension of permitted hours which enables the relevant part of the
premises to remain open past midnight
on Fridays until 0200 hours on the Saturday morning and on Saturday nights
the premises may remain open past midnight
until 0100 hours on the Sunday morning.
[2] On
16 March 2005 the
Western Isles Licensing Board, who are the respondents to this petition and to
whom I shall refer as "the Board", held a meeting at which they considered an
application for a further regular extension of the permitted hours. The further extension sought by the
petitioner was an additional hour on each of the two days for which there
existed already a regular extension, so that Friday night's closing time would
be at 0300 hours on Saturday and Saturday night's closing time would be at
0200 hours on Sunday. The Board was
addressed by the petitioner's solicitor, Mr Macdonald, who explained inter alia that the application for an
extension of the permitted hours related to that part of the Star Inn which was
known as "The Hebridean Night Club" (though No.6/4 of process suggests that the
trading style is "The Heb Niteclub"). Following
an adjournment to consider the application the Board reconvened and by a
majority decision resolved to refuse the application. In this petition for judicial review the
petitioner seeks to challenge that refusal.
[3] Section 64
of the 1976 Act deals with the grant of occasional and regular extensions of
permitted hours. It is unnecessary to
set out the whole of the section. But it
is convenient to quote the terms of subsection (3):
"(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 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."
The provisions of section 64
of the 1976 Act must however be read along with section 47 of the Law
Reform (Miscellaneous Provisions) (Scotland) Act 1990 - "the 1990 Act" - which is in these terms:
"47(1) A licensing board shall not grant an
application under section 64 of the principal Act [- the 1976 Act -] for
an extension of permitted hours unless it is satisfied by the applicant, taking
account of the factors mentioned in subsection (3) of that section -
(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.
(2) 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."
Section 47 of the 1990 Act
thus impinged on the discretion conferred originally by section 64 of the
1976 Act by requiring an applicant to demonstrate inter alia a need in the locality for a regular extension.
[4] The
ground on which the Board refused the petitioner's application for a further
extension of the permitted hours was summarised by the Board in its Statement
of Reasons (No.6/5 of process) as being the failure of the applicant to satisfy
the statutory provisions of section 47(1) of the Law Reform (Miscellaneous
Provisions) (Scotland) Act 1990.
[5] It
is appropriate at this point to set out the relevant parts of the Statement of
Reasons. The initial thirteen paragraphs
are concerned with preliminary matters and the status of certain letters of
objection none of which is pertinent to this petition. It is enough to say that, those matters
having been dealt with, the petitioner's solicitor, Mr Macdonald, was
invited to address the Board on the merits of the application and
paragraphs 14 to 21 of the Statement of Reasons contain a summary of some
of his submission to the Board. Compressing
the summary in paragraphs 14 to 19 yet further, what was submitted to the
Board, as recorded in those paragraphs, was that the premises in question were
the only premises in the Western Isles which could be regarded as a nightclub; that the petitioner wished the premises to be
treated as such; that the premises were
well managed and operated a "zero-tolerance" policy on drugs, violence and
anti-social behaviour; and that the
application had the support of the police.
None of what was said by Mr Macdonald as recorded in
paragraphs 14 to 19 is in controversy in these proceedings.
[6] The
remaining part of Mr Macdonald's submission is recorded in
paragraphs 20-22 of the Statement of Reasons and since these paragraphs are
of importance for the matters argued in this petition it is appropriate to
quote them in full:
"20. Mr Macdonald told the Board that
there was a need for this type of entertainment, that there was a need amongst
young people for this type of entertainment, that there was a demand from his
client's customers and that the premises in question was the only one that
could be classed as a night club in the whole of Lewis and Harris. Mr Macdonald suggested that there were
no towns with a similar catchment area that did not have a night club and that
is what he would classify in his submission as the need for the premises.
21. Mr Macdonald told the Board that as
far as benefit to the whole community was concerned, there must surely be of
benefit if it (the premises) was catering for the needs of young people between
18 and 25 who are looking for that kind of entertainment in a safe
environment. Mr Macdonald said that
as far as the regular extension of one hour on Saturday and Sunday nights
sought by the Applicant that it must surely be in the interest of everyone if
there are premises that close at 1 o'clock, some premises that close at
2 o'clock and some premises that close at 3 o'clock because, if this
were the case then the situation would not arise where the whole number of young
people who were out in a particular area all congregated together at the one
time. Mr Macdonald told the Board
that since the Board initially granted such regular extensions he thought that
there had been a change for the good in Stornoway because people went home
instead of congregating in the town.
22. Mr Macdonald concluded his
submission by advising the Board that there were no reasons why the application
should not be granted."
[7] As
already mentioned, the Board refused the application for a further regular
extension of the permitted hours on the view that the petitioner had not
satisfied the provisions of section 47(1) of the 1990 Act. The basis upon which the Board reached that
view is set out in paragraphs 28-30 of the Statement of Reasons which are
in these terms:
"28. The Board considered that under the
provisions of section 47(1) of the Law Reform (Miscellaneous Provisions)
(Scotland) Act 1990 the applicant for a regular extension of permitted hours
must demonstrate (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 permitted hours, and (b) that such an extension is likely to be of
such benefit to the community as to outweigh any detriment to that locality.
29. The Board noted that Mr Macdonald
addressed them in relation to the requirements of section 47(1) of the Law
Reform (Miscellaneous Provisions) (Scotland) Act 1990 (referred to above) per
paragraphs 14, 20 and 21 above. The
Board noted that Mr Macdonald had submitted that there was a need for the
service provided by his client i.e. the provision of a night club
(paragraphs 14 and 20 above). The
Board noted that Mr Macdonald had addressed them in relation to the
provisions of section 47(1)(b) when he stated that as far as benefit to
the whole community was concerned, there must surely be benefit if the premises
are catering for the needs of young people between 18 and 25 and, that it must
be in the interests of everyone if different premises close at different times
(per paragraph 21 above).
30. The Board did not consider that
Mr Macdonald had demonstrated, on the Applicant's behalf, that there was a
need in the locality of the premises for the regular extension of permitted
hours sought. The Board noted that
Mr Macdonald had addressed them at length as to the need for the service
that was provided by the Applicant i.e. the provision of a night club (see
paragraphs 14 and 20 above) and the Applicant's business objectives,
plans, practices and mission statement.
Mr Macdonald did not address the Board as to the need for the
regular extension sought, he merely submitted that there was a need for the
service that his client provided by operating a night club. The only parts of his submission where
Mr Macdonald specifically addressed the regular extension sought is
detailed in paragraph 14, where Mr Macdonald advised that the
premises are different from other licensed premises in the Western Isles and
that his client wanted the premises to be treated as such, and
paragraph 21 where he stated that it was in everyone's interests if there
are premises that close at 1 o'clock, premises that close at
2 o'clock and premises that close at 3 o'clock. The Board considered that these statements
did not satisfy the requirement of section 47(1)(a), the first merely
being an indication of his client's wishes whilst the second merely suggested
that there would be benefit in having different licensed premises close at
different times."
[8] In
his submissions challenging the validity of the Board's decision Mr Buchanan,
counsel for the petitioner, advanced what were initially listed as four
propositions but in the event the second and third of those propositions were
merged into one.
[9] The
first proposition was formulated in these terms:
"In an
application for a regular extension of permitted hours a board's satisfaction
that there is a need in the locality for a regular extension may be informed by
several factors, including the application form and the objections, the social circumstances
of the locality, the activities taking place in the locality and the
desirability of any grant."
As I understood the argument
advanced in support of this proposition, it was to the effect that where an
applicant sought an extra extension to the permitted hours on the basis that
there was a demand from young people for a nightclub facility, the inherent
implication was that the additional hour sought by the licensee was necessary
for a club of that kind. So, said
Mr Buchanan, any reference to the needs of young people, the catchment
area or the need for nightclub facilities contained in Mr Macdonald's
submission to the Board could only be in relation to the application for the
extra hour on each of the two days. It
was therefore unreasonable for the Board not to regard what was said about the
need for nightclub facilities as being directed to the extra hour.
[10] In response, Mr Wolffe for the Board submitted that where
a licensing board has to consider section 47(1)(a) of the 1990 Act a licensing
board is entitled to isolate those parts of the material before it which are
relevant to the need for the particular extension of the hours sought in the
application before the Board. That was
what had been done by the respondent Board in this case. The need for nightclub premises and the need
for an extra extension of the permitted hours for such premises were different
things.
[11] I agree with counsel for the Board that the question whether
there is a need for a nightclub, per se,
is different from the question of the actual hours for which the nightclub
should be permitted to operate. In the
same way the question whether there is a need for a public house in a given
locality is a different question whether, if there is such a need, the house
should close at 2200 hours or 2300 hours. In the present case the Hebridean Night Club
was already operating as a nightclub with a regular extension of permitted
hours. The question before the Board was
whether the further extension was justified by the need test in section 47
of the 1990 Act. In judging that issue
the Board was, in my opinion, well entitled to draw a distinction between the
need for a nightclub in general and the particular extension which was being
sought. Indeed, the submissions put forward
by Mr Macdonald and noted in paragraph 21 of the Statement of Reasons
appear to reflect his recognition of that distinction. I do not consider that there is any merit in
the first of the propositions advanced by counsel for the petitioner.
[12] Mr Buchanan's second and third propositions, which were
merged together in argument, may be summarised as a complaint that the Board
acted in breach of natural justice by refusing the application on the basis
that the petitioner had not satisfied the Board of a need for the extension
which was being sought. In essence, the
contention advanced by counsel for the petitioner was that the Board was
obliged to inform Mr Macdonald of their being minded to refuse the application
on that ground and thus give him a further opportunity to deal with that
issue. In support of this ground of
challenge reference was made to Freeland
v Glasgow District Licensing Board
1979 S.C. 226; Perfect Swivel Limited v City
of Dundee District Licensing Board (No.2) 1993 S.L.T. 112; Tomkins
v Glasgow District Licensing Board
1992 S.C. 73; Perfect Leisure Limited v City
of Edinburgh District Licensing Board 1996 S.L.T. 1267; and Macdonald
v Western Isles Licensing Board
2001 S.C. 628.
[13] In my opinion the authorities to which counsel referred do not
support the proposition that in the particular circumstances of the present
case the Board acted in breach of natural justice. In Freeland
the licensing board reached a decision, adverse to the applicant, in reliance
on material facts which were not disclosed to the applicant and the court
considered that natural justice required the disclosure of that information to
the applicant so that he might have an opportunity to answer it. No question of non-disclosure of material
fact arises in the present case. In Tomkins the applicant's representative
presented his submissions in such a way that it was clear that he believed a
particular possible ground of refusal (overprovision) not to be in any way in
issue. The board in that case allowed
him to proceed on that assumption, which was false, since the ground was an
issue in the mind of the board. It may
also be noted that - as was pointed out by counsel for the Board in the present
case - there was no statutory onus on the applicant to refute that particular
ground of objection whereas in the case of an application for an extension of
regular permitted hours there is a statutory onus on the applicant to
demonstrate need. In Perfect Leisure it was alleged that the
notorious practice of the licensing board in question was not to hear
submissions on certain matters and that it had refused the application of one
of those matters without alerting the applicant to any intention to depart from
the notorious practice. The Lord
Ordinary allowed a proof before answer on whether there was such a notorious
practice (paragraphs [14] to [16] of the judgment). The case is thus essentially in the broadly
same category as Tomkins in respect
that the application was refused on the basis of a possible ground of objection
assumed by the applicant not to be a live issue in circumstances in which no
indication was given that the matter was, contrary to the assumption of the advocate
for the applicant, a live issue for the licensing board. I would also record that counsel for the
petitioner properly referred me to the unreported decision of Lord Abernethy of
26 March 1992 in Perfect Swivel Limited for judicial
review of a decision of the Dundee Licensing Board. In that case the applicant's solicitor had
not attempted to address the requirement under the 1990 Act (only recently
come into force) to demonstrate the need for an extension of the permitted
hours. It was held by the Lord Ordinary
that in the absence of any attempt to address that matter, the licensing board
acted reasonably in refusing the application.
[14] In my view, in approaching these cases it is necessary to bear
in mind that there is a distinction between the possible need for the applicant
to anticipate grounds of opposition, raised as objections to his application,
and the indisputable need for him to address the statutory hurdles which he has
to overcome if his application is to be successful. In the context of the present case it is
clear that one of the statutory tests which an applicant to a licensing board
has to satisfy in his application for a regular extension of permitted hours is
the "need" test under section 47 of the 1990 Act. It was not disputed that the onus was on the
applicant to satisfy that requirement.
Further, it was not suggested before me that when addressing the Board,
the petitioner's solicitor was ignorant of that requirement. Indeed, the Statement of Reasons indicates -
as one would expect of a solicitor - that he was aware of that need and that he
sought to address it. As is evident from
the Statement of Reasons, Mr Macdonald sought to do so in particular by
pointing to the advantages of having differing closing hours for licensed
premises so as to reduce the likelihood of young people from the Western Isles
congregating together in Stornoway and so causing a public nuisance. In the event, the Board did not consider this
consideration to be a sufficient justification for the extension of the regular
permitted hours sought by the petitioner.
In my opinion, the Board was entitled to reach that view and to refuse
the application. They had been addressed
on the need for the further regular extension by a solicitor who was aware of
the need to address that issue and it does not at all follow that because they
were not favourably impressed by his submissions on that aspect they required
to indicate their dissatisfaction and afford him a further opportunity to
address their concerns. In short, the
principles of natural justice did not require the Board to give
Mr Macdonald what might colloquially be referred to as "a second bite at
the cherry". For completeness, I would
record that it was not suggested to me by counsel for the petitioner that there
were material facts, or some other cogent argument, which Mr Macdonald would
have put forward as a "second bite".
Indeed since Mr Macdonald was evidently aware of the statutory
requirement and had done his best to address them, no evident purpose would
have been served in allowing the opportunity of a "second bite".
[15] The final argument for the petitioner was described by counsel
for the petitioner as a matter of statutory construction. Counsel adverted to the fact that
section 64(3) of the 1976 Act referred to "regular extension" by employing
the definite article - "the" - and section 64(8) also used the definite
article. However, section 47(1)(a)
of the 1990 Act differed in that it referred to "a" regular extension. There
was thus a difference in the employment of the definite as opposed to the
indefinite article in the 1976 and 1990 Acts respectively. Counsel for the petitioner sought to
attribute material significance to the use in the 1990 Act of the indefinite
article. He submitted that it was simply
necessary, in terms of the 1990 Act, to show a need for some extension or other
and once that threshold was passed only the factors in section 64 of the
1976 Act applied. In the present case,
since the nightclub had an extension already granted, the need for an extension
of the permitted hours had plainly been established and the application for the
further extension was not subject to considerations other than those in
section 64 of the 1976 Act.
[16] Counsel for the Board submitted that one had to have regard to
the whole context of any statutory provision and that on any reasonable reading
of section 47 of the 1990 Act it was clear that the text was concerned
with the actual extension being sought.
The argument for the petitioner involved the proposition that if, for
example, an argument had been presented for a need for a regular extension on
Friday evenings, the need test would fly off for any requirement on any other
days in the week.
[17] I agreed with counsel for the Board. The statutory interpretation advanced by
counsel for the petitioner would produce absurd results. It would mean, for example, that were a board
to be satisfied that there was a need for an extension of regular permitted
hours on a Monday, and application for extension on a Friday must automatically
succeed, so far as the need test is required.
It is impossible to believe that such a result, flowing simply from the
use in 1990 by parliamentary counsel of the indefinite article, as opposed to
the definite article selected by his predecessor counsel in 1976, was the
considered intention of the legislature.
[18] In these circumstances I consider that this petition must be
refused.
