EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Brodie Lord Wheatley	[2011] CSIH 29 XA6/10, XA143/09 and XA142/09 OPINION OF THE COURT delivered by LORD EASSIE in the Appeals by (1) BP OIL (UK) LIMITED Appellants; against THE CITY OF EDINBURGH LICENSING BOARD Respondents: and (2) BP OIL (UK) LIMITED Respondents and Cross Appellants; against THE CITY OF GLASGOW LICENSING BOARD Appellants and Cross Respondents: _______

BP Oil (UK) Limited: Sir Menzies Campbell Q.C.; Findlay; Harper Macleod LLP

City of Edinburgh Licensing Board: Douglas Armstrong, Q.C.; Morton Fraser;

City of Glasgow Licensing Board: Mrs Wolffe, Q.C., M Ross; Drummond Miller LLP

5 April 2011

Introduction

[1] These appeals arise out of four applications made by BP Oil (UK) Limited - "BP" - for a premises licence under section 20 of the Licensing (Scotland) Act 2005 - "the 2005 Act". Two of the applications were made to the City of Edinburgh Licensing Board which considered and determined those applications at a meeting of the board on 28 July 2008. The applications were refused. The other two applications were made to the City of Glasgow Licensing Board. One was considered and refused on 1 September 2008; the other was considered and likewise refused on 24 October 2008. Put very shortly, the ground upon which all of the applications were refused was that the premises in question for which a licence was sought were regarded as being "excluded premises" in terms of the 2005 Act.

[2] BP thereafter appealed by way of stated case in terms of section 131 of the 2005 Act to the relevant sheriff principal. In the case of the Glasgow applications the Sheriff Principal of Glasgow and Strathkelvin delegated, in terms of section 132(4) of the 2005 Act, consideration and determination of the appeals to Sheriff C. A. L. Scott. Sheriff Scott granted both of the appeals and remitted each case back to the Glasgow licensing board for reconsideration. The City of Glasgow Licensing Board has appealed, in terms of Section 132(6) of the 2005 Act, to this Court against the sheriff's decision in each of the two Glasgow cases. The appeals in the Edinburgh applications were heard by the Sheriff Principal of Lothian and Borders (Bowen, Q.C.) who refused each of them. BP has appealed to this court against each of his decisions. BP has also cross appealed against certain aspects of the decisions in the Glasgow cases.

[3] The premises in question in each of the applications are similar in their general nature and are described by the applicants as being a general convenience store with an off-sale facility situated adjacent to a petrol and derv filling station forecourt. They trade under the style of "BP M&S Simply Food" and offer a "substantial general convenience outfit with off-sales facilities separate from and supplementary to the offer of petrol/derv". The premises which are the subject of the applications to the Edinburgh licensing board are situated at 10 Builyeon Road, Queensferry and at 187 Slateford Road, Edinburgh, respectively. Those which are the subject of the applications to the Glasgow licensing board are respectively situated at 631/675 Paisley Road West, Glasgow and at 1057 Great Western Road, Glasgow. At the time of the applications BP held in respect of each of the four premises an off-sales licence under the Licensing (Scotland) Act 1976 - "the 1976 Act" - for the sale of alcoholic beverages.

The legislation

[4] The 2005 Act introduced a new regime for the licensing of the sale of alcoholic drinks in Scotland. Section 1(1) prohibits the sale of alcohol on any premises except under and in accordance with a "premises licence" or an "occasional licence". (No issue as to an "occasional licence" arises in any of the appeals.) The prohibition is fenced with criminal sanctions.

[5] The provisions respecting a premises licence are grouped in Part 3 of the 2005 Act. A fasciculus comprising sections 20-26 deals with applications for, and the determination of, applications for a premises licence. The applications in issue in these appeals were duly made in terms of section 20 of the Act and it is not necessary to set out the terms of that section. Within that fasciculus the material provision for present purposes is section 23, relating to the determination of such applications, and, of that section, the pertinent provisions are those from the beginning of section 23 to the end of sub-section 5(a):

"23. Determination of premises licence application

(1) A premises licence application received by a Licensing Board is to be determined in accordance with this section.

(2) The Licensing Board must hold a hearing for the purpose of considering and determining the application.

(3) In considering and determining the application, the Board must take account of the documents accompanying the application under section 20(2)(b).

(4) The Board must, in considering and determining the application, consider whether any of the grounds for refusal applies and -

(a) if none of them applies, the Board must grant the application, or

(b) if any of them applies, the Board must refuse the application.

(5) The grounds for refusal are -

(a) that the subject premises are excluded premises,'

........"

[6] The duration of a premises licence is treated in section 28 of the 2005 Act. In summary, it continues in force unless it comes to an end on the occurrence of one of a number of possible events, which are listed in sub-section 5 of section 28. Those events include among others the death, insolvency or dissolution of the holder of the premises licence but also include the revocation of the licence under a provision of the 2005 Act. In terms of Section 39(2)(d) of the 2005 Act, revocation of a premises licence is a step which a licensing board may take on review of a premises licence under the provisions gathered in the sub-group within Part 3 of the 2005 Act headed "Review of Premises Licence". A review may be sought on the application of "any person" (section 36(1)) but may be commenced by the licensing board of its own initiative (section 37(1)). The grounds for review are stated in section 36(3) as follows:

"(3) The grounds for review ... are -

(a) that one or more of the conditions to which the premises licence is subject has been breached, or

(b) any other ground relevant to one or more of the licensing objectives."

The "licensing objectives" are set out in section 4(1) of the Act:

"(1) For the purposes of this Act, the licensing objectives are -

(a) preventing crime and disorder,

(b) securing public safety,

(c) preventing public nuisance,

(d) protecting and improving public health and

(e) protecting children from harm."

[7] We revert now to the provisions of section 23(5)(a) of the 2005 Act, which prohibit the grant of a premises licence in respect of "excluded premises", that being the ground upon which the licensing board refused the applications in these cases.

[8] The term "excluded premises" is given definition in the Act, as passed by the Scottish Parliament. That definition is in section 123, which is in these terms:

"123 Excluded premises

(1) No premises licence or occasional licence has effect to authorise the sale of alcohol on excluded premises.

(2) For the purposes of this Act, "excluded premises" means -

(a) premises on land -

(i) acquired or appropriated by a special roads authority, and

(ii) for the time being used,

for the provision of facilities to be used in connection with the use of a special road provided for the use of traffic of class 1 (with or without other classes), and

(b) subject to subsection (5), premises used as a garage or which form part of premises which are so used.

(3) For the purposes of subsection (2)(a) -

(a) 'special road' and 'special roads authority' have the same meanings as in the Roads (Scotland) Act 1984 (c.54), and

(b) 'class 1' means class 1 in Schedule 3 to that Act, as varied from time to time by an order under section 8 of that Act, but, if that Schedule is amended by such an order so as to add to it a further class of traffic, the order may adapt the reference in this section to traffic of class 1 so as to take account of the additional class.

(4) For the purposes of subsection (2)(b), premises are used as a garage if they are used for one or more of the following -

(a) the sale by retail of petrol or derv,

(b) the sale of motor vehicles, or

(c) the maintenance of motor vehicles.

(5) Despite subsection (2)(b), premises used for the sale by retail of petrol or derv or which form part of premises so used are not excluded premises if persons resident in the locality in which the premises are situated are, or are likely to become, reliant to a significant extent on the premises as the principal source of -

(a) petrol or derv, or

(b) groceries (where the premises are, or are to be, used also for the sale by retail of groceries).

(6) The Scottish Ministers may by order amend the definition of "excluded premises" in subsection (2) so as to include or exclude premises of such description as may be specified in the order."

[9] Section 148 of the 2005 Act has the head - note "Index of defined expressions" and then reads thus:

"The expressions in the left-hand column of the table are defined or otherwise explained by the provisions of this Act specified in the right-hand column".

A lengthy catalogue of expressions follows in tabular form of which the only relevant entry is (in the left-hand column) "excluded premises" and (in the right-hand column opposite it) "section 123(2)".

[10] It is also appropriate to note section 142 of the 2005 Act which provides, in sub-section (1), that Scottish Ministers may issue guidance to licensing boards as to the exercise of their functions under the Act and, in sub-section (3), that each licensing board must "in the exercise of their functions under this Act, have regard to any guidance issued to them under sub-section (1)."

Transitional arrangements and commencement

[11] In order to arrange for the transition from the licensing arrangements in place under the 1976 Act to the new regime of the 2005 Act, the Scottish Ministers made, on 9 October 2007, The Licensing (Transitional and Saving Provisions) (Scotland) Order 2007, (SSI 2007/454). That order defined a "transitional period" running from 12:01 am on 1^st February 2008 until 5:00 am on 1^st September 2009.

[12] Section 150 of the 2005 Act provides that, apart from that section and sections 145 to 148
[1], the Act comes into force on such date as the Scottish Ministers may by order appoint. The Scottish Ministers made a number of commencement orders, of which the following are pertinent to the present proceedings. The Licensing (Scotland) Act 2005 (Commencement No 4) Order 2007 (SSI 2007/472) - "Commencement Order No 4" - was made on 18 October 2007. Article 2 of the order provides:

"2. The provisions of the Licensing (Scotland) Act 2005 specified in Schedule 1 come into force on 1^st February 2008."

A number of sections or groups of sections are listed in Schedule 1, including sections 20 to 51 of the 2005 Act, but the list does not include section 123 of the 2005 Act. No earlier commencement order had included section 123. Article 3 of Commencement Order No. 4 then provides:

"3. So far as not already in force, the Licensing (Scotland) Act 2005 comes into force at 5.00 a.m. on 1^st September 2009."

Notwithstanding the terms of that order, on 1 September 2008 Scottish Ministers made a further order, namely the Licensing (Scotland) Act 2005 (Commencement No. 5) Order 2008 (SSI 2008/292) - "Commencement Order No.5". Its only substantive provision is Article 2 which reads:

"2. 5^th September 2008 is appointed as the day for the coming into force of section 123 of the Licensing (Scotland) Act 1995."

The Licensing Board Decisions

[13] It may be noted from the immediately preceding paragraph that when the Edinburgh licensing board considered and determined the applications before it on 28 July 2008 the provisions of Section 23(5)(a) requiring a licensing board to refuse an application for a licence for "excluded premises" had been brought into force but the only provision defining or giving any meaning to that term - namely section 123 - had not. The same position obtained on 1 September 2008 when the Glasgow licensing board considered and determined the Paisley Road West application.

[14] The solicitor appearing for BP before the Edinburgh board submitted to it that since section 123 was not in force the ground of refusal in section 23(5)(a) could not be invoked; and therefore, there being an existing licence under the 1976 Act for both of the premises, the applications for a premises licence required to be granted. The City of Edinburgh Licensing Board did not accept this, taking the view that " ... the premises if section 123 were to be brought into force, would, at that time be excluded premises in terms of the Act"
[2]. On the hypothesis that section 123 were in force, and having regard to the exception in sub-section (5) of section 123, BP presented the results of market research which they had commissioned. That research indicated inter alia that at both sites a number of the customers interviewed while they were patronising the premises considered themselves reliant to a significant extent on the premises in question for the purchase of motor fuel or groceries or both. The licensing board rejected that contention for reasons whose adequacy is challenged in this appeal.

[15] Similar contentions were advanced to the City of Glasgow Licensing Board in respect of the Paisley Road West application. The Board, having been advised in private by their clerk that section 123 of the 2005 Act was in force, proceeded on that basis. They also did not accept the contention that in the light of similar market research evidence presented to them by BP, the exception in sub-section (5) of section 123 applied. The application in respect of the site at Great Western Road was considered after the date appointed by Commencement Order No. 5 for the entry into force of section 123 and in light of the existence of that commencement order the issue before the licensing board was accepted as being whether the premises came within the section 123(5) exception from the notion of "excluded premises". The Glasgow licensing board was presented with similar market research evidence, additional accountancy evidence relating to transactions at the premises, and also a petition signed by a large number of customers professing their reliance on the shop. The Glasgow licensing board refused to hold that the exception in sub-section (5) of section 123 applied, invoking its own knowledge of the existence of other fuel and grocery outlets throughout the city of Glasgow.

The Shrieval decisions

[16] With a view to completing the setting for the submissions advanced to us, it is appropriate at this point to summarise briefly the shrieval decisions from which appeal to this court is taken.

[17] In terms of chronology of decision the Glasgow appeals come first. The sheriff to whom the matter had been delegated by the sheriff principal held that, particularly in light of Commencement Order No. 5, the licensing board erred in rejecting the argument of BP respecting section 123 of the 2005 Act not being in force at the time of their determination of the Paisley Road West application. Drawing upon what had been said by the sheriff principal (Sir Stephen Young, Q.C.) in the earlier unreported decision of 21 January 2009 in Co-Operative Group Limited v Aberdeen City Licensing Board respecting the interpretation of the exception or qualification to the primary definition of excluded premises contained in section 123(5) of the 2005 Act, the sheriff found that the Glasgow licensing board had erred in its approach to that statutory provision as respects both applications (assuming section 123 to be applicable to the Paisley Road West application).

[18] In the Edinburgh cases the sheriff principal, having been favoured by counsel for the Edinburgh licensing board with a different and more elaborate argument addressing the commencement or transitional issue than had been before the sheriff in Glasgow, found that the licensing board was entitled, notwithstanding the section's not being in force, to have regard to section 123 when considering the applications. In its essence that argument was repeated before us and we shall come to it in due course. On the issue of the proper approach to sub-section (5) of section 123 of the 2005 Act, the sheriff principal, having considered the views expressed by his fellow sheriff principal in Co-Operative Group v The City of Aberdeen Licensing Board and the views of the sheriff in the Glasgow appeals, took the view that the language of section 123(5) was unclear; and that in those circumstances it was proper for the licensing board to have had regard to the guidance given by Scottish Ministers and to apply that guidance; and in light of that guidance the licensing board in Edinburgh was entitled to reach the conclusion at which it arrived in determining the two applications in question.

The statutory guidance

[19] In the light of, inter alia, the resort to the Scottish Ministers' guidance made by the sheriff principal in his Opinion in the Edinburgh appeals, and the invocation of that guidance in the debate before us, it is appropriate to set out the relevant parts of that guidance:

"8. Excluded Premises

224. Section 123 of the 2005 Act provides that no authority (being a premises licence or occasional licence) under the Act will have effect to authorise the sale or supply of alcohol on or from certain premises. This section of the Act has the effect of restricting the ability to use certain premises for the sale or supply of alcohol. Those specified are set out below.

[...]

Community Resource

227. However, under the 2005 Act if a premises (or parts of premises) are used as a garage they will be able to apply for an alcohol licence if the local community is (or is likely to become) reliant on the premises as a principal source of either fuel or groceries. The effect of this exception is not limited to rural areas, as there may be instances in urban or other areas where the community is reliant on the premises as their local shop.

228. This means that forecourt shops (including those forecourt shops who presently hold a licence under the 1976 Act to sell or supply alcohol) will only be eligible for consideration for a licence under the 2005 Act if they fall within a specified exemption for shops fulfilling a retailing need within the locality.

229. If a garage forecourt shop is not eligible for the above exemption it will not be eligible for a premises licence or occasional licence.

230. The 2005 Act changes the position which existed under the Licensing (Scotland) Act 1976 where it was a matter for the local Licensing Board to decide whether to grant a licence to a garage forecourt shop. A Licensing Board must now refuse such an application unless it believes the shop is fulfilling a retaining (sic) need within the locality. It is recognised that in rural areas the garage forecourt shop may be a local community's only retail facilities and that the shop may provide the economic support for maintaining a local fuel supplier especially in the more isolated communities. Licensing Boards should also recognise that in urban areas the garage forecourt shop may provide the only shop for its surrounding community, providing groceries for those who do not have access to transport to the larger, often out of town retailers."

The issues in these appeals

[20] In light of that background parties were agreed that the principal issues in the appeal were:

(i) The proper approach to be adopted by a licensing board to an application for a premises licence made in respect of premises which might (subject to the exception in section 123(5)) be "excluded premises", when s 123 of the 2005 Act had not been commenced at the time at which the board in question was required to determine the application. As a convenient shorthand, which we adopt, counsel referred to this as the "transitional issue".

(ii) The proper construction of section 123 of the 2005 Act - and in particular sub-section (5) of that section. By a similar shorthand this was referred to as being "the interpretation issue".

These issues were recognised as being of general importance. But there were also issues of a more particular nature, namely:

(iii) whether, at its hearing on 1 September 2008 the Glasgow licensing board acted contrary to the rules of natural justice in declining to hear the applicant's solicitor on the "transitional issue";

(iv) whether both licensing boards acted irrationally by plainly misunderstanding the nature of the market research evidence tendered to them; and

(v) whether the Edinburgh licensing board gave adequate reasons for rejecting the applications before it.

The transitional issue
[21] Counsel for the City Glasgow Licensing Board (who opened the debate before us) made clear at the outset of her submission on this matter that she did not seek to support the advice to, and the view of, the Glasgow licensing board that at the time of the board's determination of the Paisley Road West application section 123 of the 2005 Act was in force. In terms of the commencement orders that section was not in force. But, she contended, there were other means by which section 123 could be treated as being in force at the time of the Glasgow board's determination of the Paisley Road West application.

[22] First, bearing in mind that a premises licence would not come into practical effect until 1 September 2009, when the transitional period came to an end, and given that section 23 had been brought into effect as from the start of the transitional period, a licensing board might properly see section 123 as being implicitly in force both by reason of section 23 being in force and the listing of section 123 in the index in section 148 of the 2005 Act (which was in force). The notion that the terms of section 123 may have been implicitly brought into force was reinforced by the requirement on the licensing board to have regard to the statutory guidance, which appeared to assume that section 123 was in force from the earliest date.

[23] The second argument advanced was to the effect that as part of its interpretative function a court construing a legislative text could take note of, and correct, an obvious drafting error. The omission to bring section 123 of the 2005 Act into force contemporaneously with the entry into force of section 23 was, said counsel, an obvious drafting error. The principle that a court could, in interpreting a statute, correct such errors was set out in Inco Europe Limited v First Choice Distribution [2000] 1 WLR 586 per Lord Nicholls at pp. 592 to 593. The Inco principle had been accepted and applied in Scotland - Scottish Water v Clydecare Limited 2003 S.C. 330. The principle had also been applied in England to secondary legislative measures - Confederation of Passenger Transport v Humber Bridge Board and Another [2004] QB 310 - and to errors arriving from deficiencies in the formulation of transitional provisions in a statute - R (Crown Prosecution Service) v Bow Street Magistrates [2006] 4 All ER 1342. Commencement Order No. 4 should therefore be seen as containing an obvious drafting error and should be read and interpreted as including section 123 in the schedule to the order, thereby bringing section 123 into force on the same date as section 23 was brought into force by that order.

[24] In the event that the Inco principle was not to be applied, the third argument advanced by counsel for the Glasgow licensing board was to the effect that, albeit section 123 was not in force at the time of the consideration and determination of the application in question, the provisions of section 123 of the 2005 Act would, in terms of Article 2 of Commencement Order No. 4, be in force when the premises licence sought would, if granted, come into practical effect, namely on 1 September 2009. The licensing board could therefore anticipate the state in which the legislation would be at that date and give anticipatory effect to it.

[25] For his part, counsel for the Edinburgh licensing board largely adopted what had been advanced by Mrs Wolff for the Glasgow licensing board. He made the additional submission that it was a cardinal principle of statutory interpretation that every word used in a statute required to be given meaning. Reference was made to Auchterarder Presbytery v Earl of Kinnoul (1839), Maclean & Robinson 220; Curtis v Stovin (1899) 22 Q.B. D. 513 and Secretary of State for Defence v Spencer and Another [2003] 1 W.L.R. 2701. Accordingly, section 23(5)(a) of the 2005 Act required to receive effect as being included in the statutory text in force at the date of determination of the two applications in question. That could only be achieved by reference to section 123 of the Act. The legitimacy of reference to provisions not in force found some support in Securities and Investment Board and Another v FIMBRA 1992 Ch. 268. Therefore, regard should be had to section 123 to give effect to section 23(5)(a), albeit that it had to be recognised that the former section of the 2005 Act had not been brought into force.

[26] In his submissions counsel for BP observed that there was no authority for giving effect to a provision of a statute which was not in force and he submitted that to do so would be wholly contrary to principle. Section 123 was the keystone to section 23(5)(a) of the 2005 Act and since that keystone was not in place at the time when the Edinburgh applications and the Paisley Road West application were heard and determined, the latter section could not receive effect in the determination of those applications. The reliance placed by counsel for the licensing boards on Inco Europe v First Choice Distribution and Scottish Water v Clydecare Limited was misplaced. The omission of section 123 from the list of sections in the schedule to Commencement Order No. 4 was not a drafting error. As was apparent from the correspondence (contained in the appendix to the Edinburgh appeals) between the Edinburgh licensing board and the Scottish Government, particularly the letter from the Scottish Government dated 2 September 2008, the Scottish Ministers had proceeded on the view that there was no need for section 123 to be brought into force prior to 1 September 2009, a licence granted for premises which were, on that date, excluded premises being in their view no longer effective. To interpret Commencement Order No. 4 in the manner advocated by counsel for the licensing boards presented the problem that a number of other licensing boards had indeed proceeded on the basis that section 123 was not in force with the consequence that section 23(5)(a) of the 2005 Act could not receive effect. Moreover, to interpret Commencement Order No. 4 in the manner contended for by counsel for the licensing boards would be in direct conflict with the intention of Scottish Ministers which received expression directly in Commencement Order No. 5, namely that section 123 should not enter into force prior to 5 September 2008.

[27] In approaching these competing contentions of counsel we observe that it was not really in dispute that the way in which the commencement powers bear to have been exercised has caused, and causes, difficulty. In our view there is a certain logic in approaching the problem presented by the manner of that exercise by considering first the submission contained in the second argument advanced by counsel for the Glasgow licensing board, namely the argument based on the Inco Europe principle of construction. That argument proceeded upon the contention that Commencement Order No. 4 contained a drafting error which this Court could correct as part of its rôle in interpreting or construing legislation, the drafting error in question being that section 123 should have been included in the lists of sections of the 2005 Act set out in the schedule to that commencement order. Were that argument to be sound, the other arguments of implied or anticipatory force being given to section 123 would be superseded.

[28] While the court in Inco Europe acknowledged a power in the court, as part of its function of interpreting legislation, to note and correct obvious drafting errors, it naturally recognised the existence of limits to that interpretative power. The matter is dealt with by Lord Nicholls in the following passage of his judgment at page 592-593:

"It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretive function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross's admirable opuscule, Statutory Interpretation, 3^rd ed(1995), pp. 93-105. He comments at p. 103: 'In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role'. This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way, the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see per Lord Diplock in Jones v Wrotham Park Settled Estates [1980] A.C. 74, 105-106. In the present case these three conditions are fulfilled."

That passage was approved by the court in Scottish Water v Clydecare Limited at paragraph 29 of the Opinion of the Court, where the court also observed that the circumstances in which it would be appropriate for the court to carry out such rectification would be rare.

[29] While counsel for the Glasgow licensing board argued that the terms of Commencement Order No. 4 contained a manifest error by omitting to include section 123 in the sections listed in the schedule to the order and while she submitted that such an error might be treated as one of drafting we are, in the event, unable to see that her contention can be brought within the limitations on the power to rectify by interpretation discussed in Inco Europe.

[30] First, as respects the last of the matters to which Lord Nicholls refers - certainty as to the substance of the provision which the legislator would have wished, absent the inadvertence on the part of the draftsman - the public steps taken by the legislator, that is to say in casu the Scottish Ministers, in making Commencement Order No. 5 after it had become apparent that Commencement Order No. 4 was posing difficulties - are not consistent with there having been some inadvertence on the part of the draftsman. The Scottish Ministers did not seek to make any order rectifying the terms of Commencement Order No. 4 on the basis that it was erroneously drafted so as to omit to bring section 123 into force contemporaneously with the provisions of, inter alia, section 23(5)(a) of the 2005 Act; nor did not they rest on the court's applying an Inco Europe approach to the interpretation of Commencement Order No. 4. Instead Commencement Order No. 5 was promulgated. Given the promulgation of that order it appears to us that one cannot say that the intention of Scottish Ministers, when making Commencement Order No. 4, was to include section 123 in the list of sections in the schedule to that order but by oversight or inadvertence the draftsman failed to do so. Further, inherent in the argument advanced by Mrs Wolffe, is the difficulty that interpreting Commencement Order No. 4 in the manner for which she contended would be in sharp conflict with the terms of Commencement Order No. 5. She accepted that there could not be two, or indeed more, different commencement dates for the same provision but she was not able to offer any real solution to that problem. These reasons in themselves are, in our opinion, sufficient for us to be driven to the conclusion that the argument for interpretative rectification of the terms of Commencement Order No. 4 advanced by counsel for the Glasgow licensing board and adopted by counsel for the Edinburgh board cannot be upheld.

[31] During the course of the debate before us on this issue we were referred, particularly by counsel for BP, to communications passing between the clerk to the Edinburgh licensing board and an official of the Criminal Law and Licensing Division in the Criminal Justice Directorate of the Scottish Government. As was submitted by counsel for BP, the terms of what was written by that official indicate that the view had been taken within the Scottish Government that it was sufficient to bring section 123 into force only on 1 September 2009; and thus that Commencement Order No. 4 did not contain any inadvertence on the part of the draftsman. Counsel for the Glasgow licensing board expressed reservations about the propriety, in the Glasgow appeals, of the court's having regard to such correspondence. However we were not addressed at any length on the matter. Some of the correspondence was before the Edinburgh licensing board. It is also to be noted that the text with which one is concerned - Commencement Order No. 4 - is not an expression of the will of Parliament but is an act of the executive in the exercise of powers conferred upon it by the Parliament. Given that one is thus concerned with the expression of intention by the executive branch we are not persuaded that it is illegitimate to have regard to what was said by an official of that executive when considering this particular argument; but it is unnecessary for us to express a concluded view on that matter. Counsel for the Edinburgh licensing board submitted in regard to the terms of the correspondence that it mattered not that, from those terms, the evident error was not one of draftsman but one of judgment of policy on the part of the maker of the order; the approach adopted in Inco Europe could, he submitted, be extended to errors of the latter kind. For our part we have considerable reservations as to the soundness of that submission, for which, as counsel recognised, there was no authority. (Indeed, Lord Nicholls, in the passage quoted above refers to the power being "confined to plain cases of drafting mistakes"). It is in our view one thing for a court, as part of its interpretative function, to note and correct an obvious error by the draftsman but it is another thing to correct an instrument deliberately framed in a particular way on the ground that the maker of the instrument might have done it differently had he better analysed and understood the legal position.

[32] In these circumstances we approach the remaining arguments in respect of the transitional issue on the basis that Commencement Order No. 4 is not to be read as having brought section 123 into force on 1 February 2008. On that basis it was contended by counsel for the licensing boards firstly that, because section 23(5)(a) of the 2005 Act had been brought into force on that date and because the term "excluded premises" has no conceivable meaning in the absence of section 123, it was necessarily implicit that section 123 should be treated as if it were in force at the time at which the Edinburgh and Paisley Road West applications were decided. At first sight that argument has some attractions. However we have come to the conclusion that it is unsound. Section 123 serves no purpose other than to define the notion of "excluded premises". So to apply its terms in order to give effect to section 23(5)(a) is indeed to give full effect to section 123 and thus, in our view, inevitably involves acting contrary to the terms of the Commencement Order which was made by the body upon whom the legislature conferred the sole power of commencement. To that extent one would be acting contrary to the intention of the legislature which confided that power to Scottish Ministers. As Sir Menzies Campbell pointed out, perhaps unsurprisingly, there is no reported case in which a court has given effect to, or applied, legislation which is not in force. It is of course the case that at page 283E of the report of his judgment in Securities & Investment Board v FIMBRA Morritt J. adverted to the terms of a section not in force as aiding his interpretation of sections which were in force but as counsel for the licensing boards recognised, that was a rather different exercise from that of giving effect and applying a legislative provision which is not in force. It may be added that it appears that all parties in Securities & Investment Board v FIMBRA were agreeable to that reference being made.

[33] Counsel for the Edinburgh licensing board placed emphasis on the canon of construction vouched by the decision in Auchterarder Presbytery v Earl of Kinnoul. We do not question the general validity of that rule of interpretation which proceeds upon the view that a legislature does not employ unnecessary words in its legislative text and hence every word should normally be seen as having significance. But in our view that rule proceeded on the basis of an integral text, fully in force. Were the 2005 Act fully in force at the relevant time there would be no question that section 23(5)(a) can be given effect (albeit subject to the difficulties of the "interpretation issue" to which we shall come). The present problem relates to the fact that the legislation has been brought into force by the executive at different times and the legislature cannot be held to have contemplated that the executive would exercise its commencement powers in that particular manner. The integrity of the legislature's text is thus disturbed by that particular executive decision. In these circumstances we do not find that, properly considered, the canon expounded in the Auchterarder Presbytery case can have any useful application in the present appeals.

[34] Counsel for the licensing boards also invoked both the fact that section 148, containing an index of defined expressions, was in force and also the terms of the statutory guidance as justifying giving section 123 the status of being in force by implication. We have come to the view that we cannot accept these suggestions. Section 148 came into force on the giving of the royal assent. The section is simply, as it says, an index. Were the sections defining the indexed expressions to be brought to force by the entry into force of section 148, much of the 2005 Act would thereby be brought into force at the date of the royal assent. That would be inconsistent with the commencement provision laid down by the legislature. As to the second suggestion, counsel for the licensing boards eventually accepted, in our view rightly, that Scottish Ministers, having been given the power to bring section 123 into force by statutory instrument could not do so by the indirect means of statutory guidance. In these circumstances we consider that the first argument advanced by counsel for the Glasgow licensing board, into which we have subsumed Mr Armstrong's supplementary submission, is unsound.

[35] The third line of argument followed by counsel for the Glasgow licensing board in respect of the transitional issue was that in determining applications (prior to 5 September 2008) a licensing board was entitled to look forward to 1 September 2009 when the entirety of the new licensing regime would be in place and take effect. Since, in terms of Commencement Order No. 4, the provisions of section 123 would be in force on that latter date, matters should be viewed prospectively and the state of the legislation anticipated. While initially this argument may appear attractive the difficulty which it encounters in our view is that a licensing board has to determine an application on the basis of the law and facts obtaining at the time of the application. The ground of refusal under section 23(5)(a) is that the premises are excluded premises. Moreover, as counsel for BP point out, the approach contended for would require an applicant and the licensing board to predict a future state of fact. For example, whether premises are excluded premises involves or may involve a number of factual matters - including such things as the shopping habits of people living in the locality. In our view, counsel for BP was correct in submitting that the legislation does not envisage licensing applications being determined other than in accordance with the law and fact applying at the time of the determination. In many respects what was advanced as a third argument is not essentially different from the first argument to the effect that by bringing into force section 23(5)(a), section 123 was implicitly in force. Essentially, it involves treating a statutory provision as being in force and giving effect to it as a provision in force at a time when it is not in force. Had, consistently with their apparent view that it was not necessary to bring section 123 into force, the view been taken by Scottish Ministers that subsection (a) of section 23 (5) should only be brought into force at the end of the transitional period, it is, we think, hard to see that a licensing board, required to decide an application before that date should be entitled to refuse that licence by anticipation of the entry into force of both statutory provisions.

[36] In these circumstances we have ultimately come to the view that neither of the Edinburgh applications nor the Paisley Road West application could properly be refused on the ground that section 23(5)(a) of the 2005 Act applied, the definition set out in section 123 being essential to the operation of that provision and that definition not being in force at the time at which the relevant licensing board was required to reach its decision.

[37] That said, it will of course be appreciated that, like any other premises licence, a premises licence granted on the basis that section 123 was not in force may be subject to review in terms of section 36 or 37 of the 2005 Act, if grounds for a review exist.

The interpretation issue

[38] We turn now to the second issue, which parties termed the "interpretation issue", namely the proper construction of section 123 of the 2005 Act, in particular sub-section (5) of that section.

[39] It is convenient at the outset of this chapter to record that while counsel for the licensing boards referred to the statutory guidance in support of the interpretations for which they respectively contended, both counsel accepted that the issue was ultimately one of the proper construction of the words used in the statute and that the Scottish Ministers could not, through the issuing of guidance, alter or qualify the meaning of what Parliament had enacted.

[40] While most of the focus of the debate before us was on the exception or qualification to the notion of excluded premises which is to be found in sub-section (5) of section 123, it is, we think convenient to note the principal provisions (ignoring those parts relating to motorway service stations). For convenience we quote these again:

"123 Excluded premises

(2) For the purposes of this Act, "excluded premises" means -

...

(b) subject to subsection (5), premises used as a garage or which form part of premises which are so used.

(4) For the purposes of subsection (2)(b), premises are used as a garage if they were used for one or more of the following -

(a) the sale by retail of petrol or derv.

(b) the sale of motor vehicles, or

(c) the maintenance of motor vehicles."

The word "premises" is defined in section 147(1):

"'Premises' means any place and includes a vehicle, vessel or moveable structure,"

[41] The definition of excluded premises thus extends to premises which form part of premises having one or more of the users set out in sub-section (4); or, applying, as one should, the definition of premises in section 147(1), to a place which forms "part of [a] place", in which there is carried on any one or more of those users. Counsel for the Glasgow licensing board acknowledged that the terms of section 123(2)(b), read with section 123(4), were apt to cover cases such as a large supermarket which sells petrol or derv within the curtilage of the supermarket building and its car parks, since the supermarket building would form part of those larger premises. However, counsel indicated that in practice supermarkets avoided that difficulty by delineating the extent of the relevant premises on the plans accompanying the application for a premises licence as excluding the petrol forecourt area of the larger supermarket premises. It was, said counsel for the licensing board, for the applicant to define the premises when making his application and the applicant might do so by drawing a line which excluded the area within his area of occupation on which petrol and diesel fuel was delivered and sold. While we record that submission and narration of practice we should not be taken as endorsing its soundness. It is however in our view to be noted that the draftsmanship of the primary provisions of section 123 gives rise to potentially difficult issues as to what constitutes a place or, perhaps more challengingly in this context, any part of a place. Its potential width is a matter to be borne in mind in considering the terms of subsection (5).

[42] Assuming that, in a given case, one overcomes the interpretative challenges set by the drafting of the primary provision of section 123(1) one then has the qualification in sub-section (5) of the section which, for convenience, we set out again:

"123 Excluded premises

...

(5) Despite subsection (2)(b), premises used for the sale by retail of petrol or derv or which form part of premises so used are not excluded premises if persons resident in the locality in which the premises are situated are, or are likely to become, reliant to a significant extent on the premises as the principal source of -

(a) petrol or derv, or

(b) groceries (where the premises are, or are to be, used also for the sale by retail of groceries)."

[43] In his decision in Co-Operative Group Limited v Aberdeen City Licensing Board the Sheriff Principal (Sir Stephen Young) said this of sub-section (5):

"The question the Board had to consider was whether as a matter of fact persons resident in the locality in which the premises were situated were, or were likely to become reliant to a significant extent on the premises as the principal source of petrol or derv or groceries. I have emphasised the words 'persons resident in the locality' since these are the persons who matter here, and not the local community as a whole. It is not even necessary that all the residents in the locality should be, or be likely to become, reliant to a significant extent on the premises as a principal source of petrol or derv or groceries. All that is required here to satisfy the text is that there are some persons (for example elderly persons who are unable to drive or, as counsel suggested, the residents of a sheltered housing scheme) who as a matter of fact are, or are likely to become, so reliant on the premises".

Rejecting the view of the Glasgow licensing board that any assessment must necessarily take account of the total number of residents in a locality and that those residents had to be seen as a "generic entity", the sheriff in the Glasgow appeals with which we are concerned largely followed the approach of the sheriff principal in Co-operative Group Limited v Aberdeen City Licensing Board. In the Edinburgh appeals the Sheriff Principal (Bowen Q.C.) took a different approach. He considered that in light of the absence of clarity in the statutory language a licensing board was entitled to follow and apply the statutory guidance. In that light, the question posed was whether there is a significant degree of reliance on the premises for certain purposes "by persons resident in the locality when viewed as a group".

[44] As is illustrated by the divergence of views in the decisions of the licensing boards and the shrieval decisions it is evident that on close consideration the text adopted by the Parliament in section 123(5) presents difficulty in its application as a legislative measure.

[45] During the course of the debate before us a variety of attempts were made to give further definition to the elements in the terms used in sub-section (5) and a number of reformulations were essayed. Put briefly, counsel for the Glasgow licensing board submitted, as respects the phrase "persons resident in the locality", that the phrase entailed the identification of a group or collective of people though, said counsel, it would not be necessary that the group or collective be defined by a particular characteristic or characteristics. For his part, counsel for the Edinburgh licensing board did not adopt that approach. As we understood him, it was not necessary or appropriate to identify a group or collective or to seek to identify a group or collective; it was sufficient that there were some - but more than a mere handful - of individuals in the locality who were, or were likely to become, reliant to the necessary extent. Counsel for BP submitted that the term "persons resident in the locality" was relatively clear. It plainly did not mean "the community" - whatever that might mean - and had been correctly construed by Sheriff Principal Sir Stephen Young in the Co-Operative Group case. It was not however BP's contention that it was sufficient that two or three people be reliant; one had to be talking of customers beyond a de minimis number.

[46] As respects the notion of "reliant to a significant extent", counsel for BP offered, subject to a modification, the formulation which he had offered to the sheriff principal in the Edinburgh cases. With that modification (indicated in italics) that formulation ran that:

"One relied on, and had confidence in, a facility and used it for one's convenience in a systematic way."

Counsel for the licensing boards contended, again in summary, that the notion of reliance connoted at least a significant measure of dependence upon the emporium in question for either groceries or fuel or both. It was something much more than personal preference for that shop and its goods. To that extent the existence of alternative facilities was relevant and important since the existence of alternative facilities would remove the essential element of dependence to be found in the notion of reliance.

[47] In approaching the task of endeavouring to give a proper and practical interpretation to the terms of section 123(5) we observe at the outset that we are conscious of the need to avoid the temptation of glossing the statutory language and, in effect, providing a reformulation of it.

[48] In going about the exercise of endeavouring to interpret the statutory language we begin with the phrase "persons resident in the locality". We agree with the view expressed by the sheriff principal in the Co-Operative Group case that, notwithstanding the language in the statutory guidance, that phrase is not equivalent to and is not to be treated as meaning "the community". The statute does not speak of "the community". Along with Sheriff Principal Bowen, we can understand why the draftsman has avoided that term. It appears to us to be a phrase which would present considerable difficulties of application in a legislative measure such as this. Counsel for the Glasgow licensing board, perhaps reflective of the approach which the board had taken, namely that there had to be a "generic entity", submitted that the phrase which is deployed in the statute required the existence of a group or collective. We are unable to accept that submission. Again the statute does not refer to the existence of a group or collective. Counsel for the Glasgow board stated that, while a group or collective was required, that group or collective need not be identified by any common characteristic or characteristics. For our part we have difficulty with the notion of a group or collective which is not identified by any particular common characteristic or characteristics. We have thus come to the view the phrase in question should be interpreted as meaning that there are a number of persons resident in the locality, going beyond what might be termed a de minimis, or, in the plainer language of Sheriff Principal Bowen, a "handful", who are reliant to the appropriate and necessary extent.

[49] We turn next to the phrase "reliant to a significant extent". As was evident in the discussion before us the word "reliant" imports a number of meanings or connotations which may vary in the context in which the word is deployed from absolute dependency to simply having confidence in a person or arrangement or the like. While the Antarctic explorer (at least in earlier times) might be reliant, as his food supplies become exhausted, entirely on the arrival of a single supply ship in order to remain alive, that is not the position of anyone in contemporary Scotland. There will always be an alternative source of supply of food or motor fuel, albeit at some additional inconvenience or possible travelling cost. At the other extreme, a person may habitually buy food items from a given retailer because he has confidence in the quality of that retailer's goods and the service offered by him. He therefore relies on that retailer by reason of the quality of the goods or services as his principal source of supply. As we see it, the problem for the court is discern, within that spectrum of meaning, the appropriate sense in which the wording is employed by the legislature.

[50] It is, we think, relatively clear that the legislature did not intend either of the extremes. Hence we do not consider that the formulation proffered by counsel for BP, which in stressing the customer's confidence, approaches the second of the extremes, can be what was intended by the legislature. Equally, the view taken by the Glasgow licensing board invoking the presence of other fuel and grocery outlets throughout Glasgow as defeating any possible reliance on the appeal shops by persons resident in the locality seems to us to approach the other extreme in respect that it looks for something akin to absolute dependency.

[51] Recognising that we have to deal with an unquestionably difficult legislative provision, and having regard to the general nature of the policy apparently underlying the provision, we have come to the view that what the language of sub-section (5) envisages is that there be a recognisable number of persons in the locality, not necessarily constituted as a group, who as a matter of their purchasing habits see and treat the shop premises in question as the principal source from which they may in ordinary course obtain either groceries or fuel and who would properly consider themselves materially disadvantaged or inconvenienced were that shop not to provide those retail facilities. In judging that matter, evidence of alternative retail outlets for groceries or motor fuel (or the local knowledge of the licensing board to that effect) is plainly not excluded; but the existence of some alternative facilities within the locality will not in itself prevent the giving of a positive answer to the question. We appreciate that in what we have just said we may be seen as "glossing the statute"; but given the recognised unclarity of the text, we think we have little alternative but so to express ourselves in deciding these appeals and endeavouring to discern the proper sense in which the legislature should be held to have intended the phraseology which it deployed.

[52] Before moving to the other issues in these appeals we consider it appropriate to record that there was before us discussion of section 123(1) which, for convenience we set out again:

"(1) No premises licence or occasional licence has effect to authorise the sale of alcohol on excluded premises."

[53] Counsel for the licensing boards suggested, particularly in the course of discussion of the "transitional issue", that any premises licence granted on the view that section 123 was not in force at the time of its grant would automatically cease to have validity when section 123 came into force were the premises in respect of which it had been issued to be de facto excluded premises. In support of that view Mr Armstrong referred us to the commentary on section 176 of the Licensing Act 2003 in Paterson's Licensing Acts 2010. Counsel for BP disputed that suggestion.

[54] It is not necessary for us to reach any concluded view on that matter in order to determine these appeals. However, we would observe that the definition of "excluded premises" depends on concepts which may be fluid. In the first place, whether the exclusion applies depends upon whether the area in which alcoholic drinks are sold is a "place", or "part of a place", in which petrol or derv is sold or maintenance of motor vehicles is carried out. While we have noted (paragraph 42 supra) what was said by counsel for the Glasgow licensing board about the liberty allowed to an applicant suitably to delineate in his application the "place" for which the licence is sought so as to exclude the area in which he sells motor fuel it may be that a more objective approach to the physical determination of the premises could be adopted by other authorities. Even so, the notion of a place which is part of a place presents evident difficulty. Perhaps more importantly in the present context, whether the exception in sub-section (5) of section 123 applies potentially raises difficult questions of fact. And the factual situation may vary over the time. Changes in the number or nature of retail facilities available to people in the locality may well alter; shopping habits may thus alter, perhaps gradually over time. The point in time at which premises within the exception, for which a premises licence has been granted, may cease to be within the exception may thus be difficult to identify. Likewise, on yet further change the premises may fall again within the exception. Given that invalidity of a premises licence exposes the licence holder and his staff to possible criminal liability the suggestion made by counsel for the licensing boards is one which in our view would require a closer examination than was given in the discussion before us. Prima facie the notion that a licence holder and members of his staff should be liable to prosecution and conviction in the absence of review or revocation of the licence because of some changes in the retail environment to which the relevant licensing board has not reacted by initiating review proceedings and obtaining revocation, or a differing view as to the physical extent of the premises, is unattractive.

[55] With those observations we turn now to the more particular issues argued in the appeals.

Breach of natural justice (Paisley Road West)

[56] The essence of this complaint is that, at its meeting to consider the BP application respecting Paisley Road West, the Glasgow licensing board refused to hear BP's solicitor on the contention that, since section 123 was not in force, the licensing board could not refuse the application on the ground set out in section 23(5)(a) of the 2005 Act. We have a transcript of the hearing from which it is clear that Mr Hunter, the solicitor for BP, sought to advance this contention but was effectively prevented from doing so by the Board on the basis that the licensing board had been advised, privately and in advance, that section 123 was in fact in force.

[57] We consider that the Glasgow licensing board erred in not allowing Mr Hunter to advance that submission. Counsel for the Glasgow board indicated in her submissions that the solicitor should have been more insistent and assertive. We disagree. It is plain that the licensing board had made up its mind ab ante and indicated this to Mr Hunter. To have gone through the exercise suggested by counsel would not be likely to assist his client's application.

[58] All of that said, the point which the solicitor for BP wished to argue was one of law. The same point was ventilated successfully before the sheriff; and it has received a similar, successful ventilation before us. So this particular point has, in the event, no practical consequence so far as the substance of the matter is concerned. Recognising that, counsel for BP submitted that it might yet be relevant to disposal in particular whether the application should be remitted to the Glasgow licensing board for reconsideration.

Unreasonable exercise of discretion

[59] This issue also arises in BP's cross appeal from the sheriff's decision in the two Glasgow applications and can, we think, be summarised relatively briefly.

[60] As earlier narrated, in both applications BP submitted market research evidence resulting from the interview of a number of customers. In the case of Paisley Road West the research disclosed that, of the 40 persons interviewed, 14 expressed reliance to a significant extent on the application premises. The licensing board expressed this as being "only a small number of persons resident in the locality". In like vein, in the Great Western Road application the licensing board stated that the information produced disclosed that:

"only a very small number of persons resided (sic) in the locality (12 persons of the 150 interviewed) within the accepted locality ... perceived that they were reliant to a significant extent on the subject premises ..."

[61] Counsel submitted that this demonstrated failure on the part of the licensing board properly to understand the import of the market research evidence. Effectively the members of the board viewed the number of those interviewed who expressed reliance as an absolute number, and did not recognise that that number constituted but a proportion of those interviewed. Plainly, those interviewed by no means constituted the totality of customers, even of customers on the day of interview (since not all customers might have time to be interviewed and while the researchers were engaged in interviewing one customer they could not interview other customers passing through the retail premises). In the case of the Great Western Road application there was, in particular, further evidence of the number of transactions carried out which, despite its being expressly referred to in the application for the stated case, the licensing board had ignored.

[62] While in her response counsel for the Glasgow licensing board referred to various authorities on the nature of the test for the unreasonable exercise of discretion, which we do not think it necessary to rehearse, it appeared to us that she had no clear answer to the particular nature of this complaint, which in our view appears to have some merit. It does indeed appear that the licensing board may not have fully appreciated that the research data were disclosing a ratio among those interviewed, who, of course, did not constitute a totality of customers attending even within the period of interview. The data were not expressing matters in absolute terms. In so far as the licensing board thus appears to have misunderstood the significance of the material before it, the exercise of its discretionary decision-taking powers is, we think, to that extent, validly impugned.

Want of adequate reasons

[63] This issue arises in respect of the Edinburgh applications and is directed to what the Edinburgh licensing board gives as reasons for refusing the applications on the hypothesis that section 123 of the 2005 Act was in force. In the case of the Queensferry application, the reasons given by the Board for rejecting the notion that the premises came within the exception of qualification in sub-section (5) of section 123 is contained in paragraph 9(b) of the stated case in which the Board says that it determined:

"(b) Having considered the terms of the market research report, that the applicant's argument that the premises are relied on to a significant extent by persons resident in the locality as a principal source of petrol/derv and/or groceries could not be accepted. In the overall context of the area which was known to the Board and in respect of which there were alternative facilities 44 persons was not a significant number;"

The stated case was of course preceded by the statement of reasons issued following the decision. The relevant part of the statement of reasons for the Queensferry application reads:

"So far as the merits of the application were concerned, the Board, having considered the terms of the market research and all that had been said by Mr Hunter for the applicant, determined that the premises will be excluded premises."

[64] As respects the Slateford Road application the reason given by the licensing board in the stated case is contained also in paragraph 9(b) as follows:

"(b) Having considered the terms of the market research report, the applicant's argument that the premises are relied on to a significant extent by persons resident in the locality as a principal source of petrol/derv and/or groceries could not be accepted;"

The earlier statement of reasons contains the following:

"So far as the merits of the application were concerned, the Board took considerable issue with the terms of the market research carried out. They were of the view that the research was misleading and did not list all local premises supplying groceries and alcohol. The Board took advice from the clerk confirming that for the purposes of section 123(5) they should direct their attention to reliance on the premises for groceries and petrol. The market research stated 71 respondents not reliant."

Counsel for the Edinburgh licensing board sought to explain this passage by stating that the Slateford market research omitted a supermarket - an Asda supermarket - from its note of other outlets within a one mile radius from the application site.

[65] There was discussion before us as to whether the obligation on a licensing board to provide adequate reasons arose, and was to be tested, at the stage of the issue of its statement of reasons or whether it could be satisfied by the reasons given in the stated case. Counsel for the Edinburgh licensing board observed that the ground of appeal of lack of adequate reasons which existed under the 1976 Act was no longer mentioned in the statutory provisions of the 2005 Act. That was explained on the view that the stated case should provide a proper exposition of the reasoning of the licensing board. We consider that this observation is no doubt correct, in the sense that any inadequacy or brevity in the statement of reasons can be made good by the furnishing of full and adequate reasons in the case stated by the licensing board.

[66] Whether the reasoning in the stated case can be supplemented by reasons given in the statement of reasons which precedes the application for the stated case is perhaps another issue; but since Sir Menzies Campbell was content that both be read together we proceed upon that basis. As respects the Queensferry application, Sir Menzies submitted that to say merely that "44 persons was not a significant number" was wholly insufficient as a basis for determining that section 123(5) could not apply. Apart from the fact that the relevant number of those interviewed and giving that response was 62, and not 44, the licensing board failed to appreciate that one was dealing with a ratio. Absolutely no assistance could be obtained from the statement of reasons given in the Queensferry case, that statement of reasons being wholly uninformative. Turning to the Slateford stated case, counsel submitted that simply to say that the applicant's argument could not be accepted provided nothing by way of reasons. While the statement of reasons said something more, it did not begin to explain why, or in what respects, the licensing board considered the market research to be misleading, unless it be that the list of premises within one mile omitted the Asda supermarket. But that omission did not affect the fact that the persons interviewed considered themselves reliant on the premises. In invoking the number of those interviewed who were not reliant (as opposed to those who said they were reliant) the licensing board was patently addressing the wrong aspect of the research.

[67] While counsel for the Edinburgh licensing board sought to persuade us that what had been stated by the Board was adequate by way of the furnishing of reasons we have in the event come to the conclusion that there is merit in the criticism advanced on behalf of BP. The Edinburgh licensing board was presented with uncontroverted marketing research evidence. What is offered by reasons for its rejection is exiguous. It does not, in our view, properly explain to the informed reader the basis for rejecting the contention that section 123(5) applied in the light of that market research evidence. We appreciate that the argument advanced under this head in respect of the Edinburgh applications may overlap to some extent with the contention advanced as respects the unreasonable exercise of discretion in the Glasgow appeals in that the Edinburgh board similarly does not have appeared to have understood that the market research was dealing with proportions rather than absolute numbers. But that said, we are persuaded that such as was offered by way of reasoning falls short of the test set out in Wordie Property Co Limited v Secretary of State for Scotland 1984 S.L.T. 345, which all parties accepted as being the applicable test.

Disposal

[68] For the reasons given in our decision on the transitional issue, we have concluded that on its determination of the applications before it the Edinburgh licensing board should have granted those applications. The same conclusion applies to the Paisley Road West application to the Glasgow licensing board. We shall therefore remit those applications to the boards with a direction that they grant those applications, effective from the date of the original determinations. For the avoidance of doubt, that direction is without prejudice to the boards' powers to initiate review proceedings, if so advised.

[69] As respects the application to the Glasgow licensing board in respect of the Great Western Road premises, we uphold the sheriff's decision to remit to the licensing board for reconsideration, this time in light of the views which we have expressed on among other things the interpretation of section 123(5) of the 2005 Act.