EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Clarke Lord Wheatley	[2011] CSIH 46 XA86/10 OPINION OF THE COURT delivered by LORD EASSIE in Appeal by BRIGHTCREW LIMITED Pursuers and Appellants; against THE CITY OF GLASGOW LICENSING BOARD Defenders and Respondents: _______

Act: Dean of Faculty, (Keen, Q.C.), Skinner; McGrigors LLP (Pursuers and Appellants)

Alt: S. Wolff, Q.C., M. Ross; Legal and Administrative Services, City of Edinburgh Council (Defenders and Respondents)

12 July 2011

Introductory

[1] This is an appeal under section 132(6) of the Licensing (Scotland) Act 2005 - "the 2005 Act" - against a decision of the sheriff at Glasgow on an appeal to him by way of stated case under section 131(2) of the 2005 Act. The appeal by stated case was brought by the appellants against a decision of the City of Glasgow Licensing Board - "the Board" - to refuse an application made by the appellants under section 20 of the 2005 Act for a premises licence.

[2] The application which the Board refused is sought in respect of premises in Drury Street, Glasgow, in which the appellants trade under the style of "Spearmint Rhino". The premises trade, and have traded for a number of years, as an adult entertainment venue, namely a nightclub with lap dancers. Prior to the adoption of the current trading name, the premises traded similarly under the style of "the Truffle Club". The premises were the subject of an entertainment licence granted under the Licensing (Scotland) Act 1976 and the application which was refused by the Board and which is the subject of this appeal was for "conversion" of the entertainment licence into a premises licence under the new licensing régime set up by the 2005 Act. The application for the premises licence was submitted to the Board in terms of paragraphs 17 and 18 of the Licensing (Transitional and Savings Provisions) (Scotland) Order 2007. The application was lodged with the Board on 15 January 2009 and was considered and refused by the Board at a meeting held on 15 May 2009. Had it been granted, the premises licence sought in the application would have superseded the entertainment licence on 1 September 2009 when the new régime entered fully into force.

[3] The operating plan which accompanied the application made plain that in addition to offering the sale of alcoholic drinks, the establishment would offer "adult entertainment", a term which is given specific meaning by the Licensing Conditions (Late Opening Premises) (Scotland) Regulations 2007:

" 'adult entertainment' means any form of entertainment which -

(a)   involves a person performing an act of an erotic or sexually explicit nature; and

(b)  is provided wholly or mainly for the sexual gratification or titillation of the audience."

[4] The operation of the premises in Drury Street as a lap dancing venue had not occasioned any complaint by the police, or anyone else, of its leading to public disorder, the commission of crime or problems connected with criminal activity. The appellant's application for the premises licence was thus unopposed by those having locus to raise such issues. No representations or objections in terms of section 22 of the 2005 Act were made.

[5] Section 23 of the 2005 Act, which is headed "Determination of Premises Licence Application", provides inter alia:

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

...

(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 -

...

(c) that the Licensing Board considers that the granting of the application would be inconsistent with one or more of the licensing objectives,

(d) that, having regard to -

(i) the nature of activities proposed to be carried on in the subject premises,

(ii) the location, character and condition of the premises, and

(iii) the persons likely to frequent the premises,

the Board considers that the premises are unsuitable for use for the sale of alcohol,

..."

The licensing objectives to which section 23(5)(c) refers are set out in section 4:

"(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."

[6] In determining that the appellants' application should be refused, the Board invoked two of the grounds of refusal listed in section 23(5) of the 2005 Act. The first of those grounds was that contained in paragraph (c) of section 23(5) and the licensing objectives to which the Board referred in that connection were (i) protecting and improving public health and (ii) preventing crime and disorder. The second ground of refusal invoked by the Board was that the premises were unsuitable for the sale of alcohol (section 23(5)(d)).

[7] The basis for the Board's holding that the second ground of refusal applied is set out in the penultimate and pre-penultimate sentences of the final paragraph of the case stated by the Board:

"In the Board's view, premises providing Adult Entertainment, involving a person performing an act of an erotic or a sexually explicit nature, and which is provided wholly or mainly for the sexual gratification or titillation of the audience, could only be considered to be suitable for the sale of alcohol where the Board was satisfied that its said policy on Adult Entertainment would be complied with - particularly with regard to the health and safety of dancers. Given the occurrence of several breaches of its current Code of Practice over a very short period of time, the Board was not satisfied that the applicant would so comply which therefore rendered the premises unsuitable as aforesaid."

The sheriff was satisfied that the Board's reliance on section 23(5)(d) was irrational and, to that extent, he accordingly upheld the appeal to him. The Board has not cross appealed against that part of the sheriff's decision, the soundness of which is thus accepted. Accordingly the present appeal is concerned only with the first ground of refusal, which also proceeded on what are the same alleged breaches of the Board's "current Code of Practice".

[8] In the course of her submission to us, counsel for the Board confirmed that notwithstanding references elsewhere, for example in the sheriff's note, to a statement of licensing policy, the references in the stated case were references to the Board's Code of Practice which had been drawn up in March 2005 with the title "Code of Practice relative to the provision of dance entertainment in licensed premises". Counsel for the Board also confirmed that there was no statutory basis upon which this code of practice was drawn up. Indeed, that is recognised by the preamble to the code which states, among other things,

"Whilst the Code has no statutory basis, the Board will generally expect compliance with it's (sic) terms and any failure to do so may be taken into account in assessing the continuing suitability of any affected premises for the sale of alcoholic liquor."

The Board later incorporated, without material amendment, the text of the code of practice in the licensing policy statement which the Board issued in terms of section 6(2) of the 2005 Act.

[9] The breaches of that code of practice to which the Board refers in the stated case are based upon a brief report by a licensing standards officer and may be summarised as follows:

(i) Risk Assessments: On 17 May 2008 the member of staff with whom the licensing standards officer in question spoke on the occasion of that visit was unaware of the location within the premises of the documents containing the risk assessments, (which had indeed been prepared). This was said to be an infraction of the provision of the Code of Practice which states:

"A risk assessment should be undertaken and appropriate control measures should be implemented in respect of

·       The precise work activities required of dancers

·       The personal safety of dancers

·       The use of chemicals which may come into contact with dancers' skin

This is not an exhaustive list and licensees should ensure that all hazards are assessed."

(ii) "Flyers": The report by the licensing standards officer stated that on 8 April 2009 the appellants had circulated what are described as "flyers" which breached the terms of the Board's code of practice. The relevant provision in the code of practice is:

"Dancers remaining in the public or private dance areas before, following or between performances should be suitably clothed at all times with no exposure of breasts or genitalia. Any advertising of performances outwith the licensed premises whether by way of newspaper advertisements or notices at the premises may only depict dancers suitably clothed as aforesaid."

A copy of the "flyer" is included in the appendix lodged in this appeal. The "flyer" is in fact a small card measuring 5cm x 8cm offering free entry to the establishment and gives a lateral view of the heads and upper torsos of two ladies who face each other. Superimposed on, and largely obscuring, that lateral view drawing of the heads and torsos is the text, in vertically arranged lines - "Spearmint Rhino" - "Rouge" - "VIP ENTRY" - "Admit one guest".

(iii) Drinks Promotion: On 27 April 2009 a promotion, said by the Board to conflict with the Board's policy on "happy hours" and the promotion of low cost alcohol, appeared on the appellants' website - apparently in the form of an e-mail message to patrons, or possible patrons, registered as such on the appellants' database of patrons - and was immediately withdrawn. On 7 May 2009 another promotion was sent to those on that electronic mailing list. As the Board was informed at its meeting, that message was generated by the appellants' central marketing team in England; the local manager believed that it did not conflict with any of the Board's requirements; and when the Board's licensing standards officer indicated a contrary view of the interpretation of that policy the promotion was immediately withdrawn as respects the Glasgow premises.

(iv) Two naked dancers: On 2 May 2009, when viewing the premises by means of closed circuit television, a licensing officer noticed at 23.45 hours that two of the dancers removed their lower garments to knee level thereby exposing the genital area. It was explained to the Board at its meeting that the two ladies in question were engaged only for that evening; that they were told at a "briefing" to retain their bikini bottoms; but they were accustomed to different practice in Edinburgh, whence they came. The actions of those two ladies were thus seen as infractions of the provision of the Board's code of practice which states: "Dancers' genitalia should be covered at all times."

(v) Contact: On the same occasion, and again using closed circuit television, but in a separate incident, the licensing officer in question reported having seen several dancers "making considerable contact with patrons whilst performing". No further specification was afforded in the report or in the proceedings before the Board. This inspecific allegation was said to be in conflict with the injunction in the code of practice that:

"There should be no touching between dancers and patrons at any time during a performance, the only contact allowed being the hand to hand payment of money at the conclusion of the performance."

[10] In addition to those five alleged breaches of the Board's non statutory code of practice, the report from the licensing standards officer also mentioned that the officer had received an unsubstantiated allegation that employees of the appellants handing out flyers [scilicet the flyers previously referred to] had unzipped their catsuits and exposed their breasts. This suggestion was strongly disputed by the appellants before the Board. Notwithstanding the recognition by the licensing standards officer that this allegation could not be substantiated, the Board in the stated case says:

"While the Board could not establish whether or not the alleged incident had taken place, it was nonetheless concerned regarding the nature of the allegations against a background of a number of admitted breaches of its Code of Practice which had occurred over a very short period of time despite the undertaking and assurances it had been given as recently as the meeting on 6 April 2009. For the avoidance of doubt, while the Board was of the view that there was a certain amount of credence to the allegations against the background described, they did not attach any particular weight to this matter in determining whether or not to grant the application."

As the note of argument for the appellants records, and as the Dean of Faculty observed in the course of his oral submissions, while the Board says that it did not attach particular weight to this allegation, the Board evidently gave it some weight and credence, and thus proceeded at least in part upon an allegation which was recognised as being wholly unsubstantiated.

Submissions for the appellants

[11] While thus proceeding upon an unsubstantiated allegation might open the Board's refusal of the application for a premises licence to successful challenge on the basis that they gave weight to an allegation which was unsubstantiated, the principal argument for the appellants advanced by the Dean of Faculty was of a wider and more fundamental nature.

[12] In summary, the Dean of Faculty submitted that the single function given to a licensing board under the 2005 Act was that of licensing the sale of alcohol; and the powers to licence the sale of alcohol could not be deployed to effect objectives not related to the sale of alcohol, but which the licensing board might yet find desirable. The generality of the objectives described in the 2005 Act as licensing objectives - such as "protecting and improving public health" - did not give to a licensing board, properly exercising its function under the 2005 Act, power to lay down conditions, however desirable those conditions might be seen, which were not linked to the selling of alcohol. By way of example, the Dean of Faculty instanced the imposition upon public houses and restaurants of a condition, or a policy - in the interests, and thus serving the objective, of improving public health - requiring that no meat pies or potato chips might be sold unless also accompanied by an organically produced vegetable or salad.

[13] In advancing the proposition that in refusing the appellants' licence application on the basis upon which it did the Board proceeded upon a misconception of its powers and functions, the Dean of Faculty examined various provisions of the 2005 Act. Part 1 of the Act, titled "Core Provisions", contained in section 1 the primary or leading provision, namely that alcohol is not to be sold on any premises
[1] except under and in accordance with a premises licence or an occasional licence
[2]. Sections 2 and 3 were essentially supplementary, by giving definition to alcohol and the notion of sale. Section 4 catalogued the licensing objectives - already set out above. The Dean of Faculty stressed that the objectives were licensing objectives which, it was submitted, thus related back to the core function of a licensing board, which was the licensing of the sale of alcohol. Consistently with that approach, section 17 defined a premises licence as meaning "a licence issued by a Licensing Board, under section 26(1) or 47(2) authorising the sale of alcohol on the premises."

[14] Section 6 of the 2005 Act required a licensing board to publish a statement of their policy "with respect to the exercise of their functions under this Act". But, in the light also of inter alia subsections (3) and (4), the requirement to publish a statement of policy was publication of a policy as respect the licensing of the sale of alcohol and the existence of that requirement did not empower a licensing board to lay down policies on matters not properly related to the licensing of the sale of alcohol. In that connexion the Dean of Faculty also pointed to the provisions of section 27 of the 2005 Act regarding the conditions which might legitimately be placed on the grant of a premises licence. While every premises licence was subject to the mandatory conditions contained in Schedule 3 to the 2005 Act, the power of a licensing board under section 27(6) to impose additional conditions was limited by the restrictions in section 27(7), of which paragraph (c) was particularly pertinent. That paragraph provides:

"(c) relates to a matter (such as planning, building control or food hygiene) which is regulated under another enactment."

It was thus evident that the legislature expressly did not intend that a licensing board, whose function was the licensing of the sale of alcohol, should thereby use that function to intervene beyond the proper bounds of that function and trespass on matters subject to regulation by other areas of the law. The same applied as respect matters which were the subject of express regulation by the mandatory conditions. Thus, paragraph 8 of schedule 3 to the 2005 Act defined in detail the notion of an "irresponsible drinks promotion" and it was thus not for a licensing board by the imposition of a particular condition to intervene with or add to that notion.

[15] The Dean of Faculty further pointed to the terms of the statutory guidance issued by the Scottish Ministers pursuant to section 142 of the 2005 Act. He referred in particular to paragraphs 1-4, 15, 16, 23, 33, 52, 112, 116, 117 and 126, all of which he submitted were consistent with and supportive of his construction of the terms of the 2005 Act. It was evident from that statutory guidance that the powers of a licensing board were directed to the authorisation of the sale of alcohol; and did not give authorisation for regulation of matters going beyond the proper ambit of that power.

[16] Following that exposition of principle, the Dean of Faculty then pointed to aspects of the Board's policy statement
[3] which demonstrated the Board's misconception of the proper ambit and use of its powers as an authority whose function was the licensing of the sale of alcohol. Thus the Board's attempt to regulate the making of a risk assessment respecting the work performed by dancers (a matter for other authorities, such as the Health and Safety Executive) went beyond their powers. Similarly, the various other provisions in the policy statement (or code of practice) relating to the provision of chilled drinking water for the dancers or the provision of changing facilities or a kettle for the use of dancers were provisions which took the Board outwith that proper ambit - unless possibly, in very particular factual circumstances, those matters could be demonstrated to be properly related in the individual case to the sale of alcohol. The requirements thus made by the Board might all be very desirable objectives, but they were not "licensing objectives".

[17] Adverting more particularly to the Board's decision in the present case, the Dean of Faculty took, as exemplifying the error of law into which he submitted the Board had fallen, the Board's treatment of the flyers. As already recorded
[4], this was seen by the Board as being in breach of the provision in the code of practice interdicting any display of a naked breast in promotional materials. In the stated case the Board said:

"In the Board's view this breach with regard to the content of the flyers displayed a blatant disregard for the terms of the Board's Code of Practice, and a lack of respect for the authority of the Board, gave the Board concerns that the future operation of the premises as from 1 September 2009, when the premises licence would take effect if granted, would be inconsistent with the said licensing objectives as set out in the Board's policy on Adult Entertainment in Part 10 of its Licensing Policy Statement. The Board considered that breaches of its current Code of Practice were relative to its determination as to whether the granting of the application would be inconsistent with one or more of the licensing objectives as per terms of said section 23(5)(c)."

That passage showed that the Board proceeded upon the basis that, having edicted a code of practice or policy as respects the extent of nudity which they were prepared to contemplate on promotional materials, any breach of that code of practice or policy could then be translated into inconsistency with the licensing objectives in section 4 of the 2005 Act without the introduction of any consideration of any meaningful link to the sale of alcohol. In other words, the Board took the view that any infraction of its code of practice or policy on various aspects of adult entertainment could be visited by the deprivation of a licence to sell alcohol, notwithstanding the absence of any objective relationship of the infraction to its effect, so far as the licensing objectives were concerned, of the sale of alcohol. That constituted a material error of law.

Submissions for the Board

[18] In response to the argument thus advanced for the appellants, counsel for the Board submitted first that the appellants' approach, which she described as a full frontal approach, constituted an attack upon the vires of the Board's policy (at least as respects the provisions of the policy respecting adult entertainment). If the vires of the policy were to be challenged, that ought to have been done by a petition for judicial review. Not having adopted that course, the policy statement stood, and could not be questioned in an appeal under the 2005 Act against a refusal of a premises licence on the basis of that policy.

[19] Counsel for the Board then renewed the submission made to, and in large measure accepted by, the sheriff, the essence of which is encapsulated in paragraphs [25] and [26] of the note to the sheriff's interlocutor in which the sheriff says:

"[25] The preamble to the 2005 Act, in my opinion, undermines the appellants' central proposition regarding the need to focus upon the sale of alcohol and not beyond. The Act is said '... to make provision for regulating the sale of alcohol, and for regulating licensed premises and other premises on which alcohol is sold, and for connected purposes'. The preamble is, in effect, replicated at paragraph 15 of the ministerial guidance document. Therefore, the Act itself is not merely 'about regulating the sale of alcohol'. It is, additionally, designed to make provision '... for regulating licensed premises and other premises on which alcohol is sold.'

[26] The analysis of the way in which the 2005 Act operates requires to be taken further. The Act itself makes it obligatory for every licensing board to publish a licensing policy statement (see section 6); section 142 of the Act provides for the issue of ministerial guidance to licensing boards and obliges each board to have regard to such guidance; and certain conditions can be attached to premises' licences (see section 27). Senior counsel for the board in the present appeal referred to all of these features as substantiating her submission to the effect that the 2005 Act had created an interlocking, schematic arrangement with a far broader impact than the old 1976 Act legislation. In my view, it is, impossible to escape that conclusion."

[20] Counsel for the Board further observed that under the former régime adult entertainment might be regulated by licensing requirements - at the option of the local authority - under section 41 of the Civic Government (Scotland) Act 1982 if no alcohol were sold at the entertainment; but if alcohol were sold, an entertainment licence under the 1976 Act was required. The code of practice to which the Board had referred in the stated case had been drawn up, albeit with no statutory authorisation, by the Board in respect of entertainment licences under the 1976 Act. Schedule 5 to the Premises Licences (Scotland) Regulations 2007 (SSI 2007/452) included adult entertainment as an activity which might be included in the necessary operating plan. So, said counsel, it was "explicit" that adult entertainment was to be regulated under the 2005 Act. In incorporating its non-statutory code of practice into the statement of licence policy published under section 6 of the 2005 Act, the Board was simply securing continuity in its regulatory approach to all aspects of activity on any licensed premises in which adult entertainment took place.

[21] As to the particular circumstances of the present appeal, counsel for the Board submitted that compliance by a licensee with other regulatory regimes - such as health and safety requirements - might not always be an irrelevant consideration in determining an application for a premises licence. The concern of the Board in the present case was that there had been instances in which its code of practice had not been fully observed. The number of those instances could be seen as justifiably creating an apprehension that their code of practice, incorporated into their policy statement, might similarly not be fully observed in the future.

Discussion and decision

[22] In considering these competing submissions we deal first with the contention advanced on behalf of the Board that the appellants' argument involved an attack on the vires of the policy statement published in terms of section 6 of the 2005 Act and that, absent any successful proceedings by way of judicial review in the supreme court, in the exercise of its supervisory jurisdiction, no aspect of the policy set out by the Board could be impugned in an appeal to the sheriff principal under the statutory provisions of the 2005 Act.

[23] We do not accept that contention. As the Dean of Faculty pointed out, since section 123 of the 2005 Act gives a right of appeal on, inter alia, a point of law, any petition for judicial review would encounter the objection that resort to the supervisory jurisdiction of the Court of Session was not appropriate where statute provided a right of appeal on such a ground. Further, in the absence of a decision in concreto applying the policy, the objection of lack of title and interest might also be taken to a petition for judicial review. If the particular aspect of the statement of policy upon which a licensing board sought to rely in refusing an application for a licence were beyond its proper powers, that, in our view, constitutes a point of law susceptible of decision as part of the statutory appeal.

[24] Turning to the substance of the issues before us, we consider that, in general terms, there is force in the submission advanced on behalf of the appellants that, on a proper construction of the statute, the essential function conferred on a licensing board by the 2005 Act is that of licensing the sale of alcohol. It is, in our view, clear from what the 2005 Act terms its "core provisions" that the statute is concerned with the regulation of the sale of alcohol by means of the grant of licences. Of significance also, in our view, are the terms of section 27(7) of the 2005 Act which limit the extent to which a licensing board may impose particular conditions. In particular, a licensing board may not impose such a condition which "relates to a matter (such as planning, building control or food hygiene) which is regulated by another enactment." Counsel for the Board accepted, in our view rightly, that by the means of including, and insisting in the observance of, provisions in its published licensing policy statement, a licensing board could not thereby indirectly impose conditions upon a licensee which it would not be empowered to impose under section 27 in an individual case. Accordingly, the inclusion in a published policy statement of provisions purporting to regulate activities on, and off, licensed premises does not give those provisions any status going beyond the proper exercise by a licensing board of its function of licensing the sale of alcohol.

[25] The contention advanced by counsel for the Board and accepted by the sheriff that the 2005 Act created "an interlocking, schematic arrangement with a far broader impact than the old Act" proceeds to a material extent upon the inclusion in the preamble to, or the long title of, the 2005 Act of the words which we have already set out as part of the quotation of paragraph [25] of the sheriff's note. However, in our view, it is to the particular scheme and provisions of the legislative text to which regard must properly be had in judging the true meaning and effect of the legislation. In our opinion, the terms of the 2005 Act were not demonstrated by counsel for the Board to yield a construction of the function, and proper ambit of that function, other than that for which, in broad terms, the Dean of Faculty contended. Counsel for the Board placed some emphasis on the fact that, under the former régime, the Board had put in place its code of practice for adult entertainment establishments in Glasgow and suggested that the 2005 Act envisaged and provided for the continuity of such regulations. But, as she accepted, there was no statutory basis for the promulgation of such a code of practice; so it is difficult to see any legislative intent to continue in existence a code of practice for which there was no foundation in the pre-existing legislation.

[26] With those observations, we turn to the notion of "licensing objectives" as catalogued in section 4(1) of the 2005 Act, in the particular context of refusal of a licence on the ground of refusal set out in section 23(5)(c) of the statute. While the objectives so catalogued are couched in very general terms such as "preventing crime and disorder", it is important to note that those objectives are not, so to speak, "freestanding". They are qualified by the introductory reference to their being "licensing" objectives. Since the licensing with which the statute is concerned is the licensing of the sale of alcohol, it follows in our view that, in the context of section 23(5)(c) of the statute, inconsistency with a licensing objective is inconsistency flowing from the permitting of the sale of alcohol on the premises in question. The fact that the objectives listed in section 4 of the 2005 Act are all desirable in a general sense does not empower a licensing board to insist on matters which, while perhaps unquestionably desirable in that sense, are nevertheless not linked to the sale of alcohol. For a licensing board so to insist would be to divert a power from its proper purpose - to use the terminology of French administrative law - a "détournement de pouvoir".

[27] In light of the foregoing, it appears to us that the contention for the appellants that, in refusing the application for a premises licence in respect of their Drury Street premises, the Board has not appreciated or applied the proper statutory test is well founded. In essence, the approach of the Board is that of starting with their previous code of practice, drawn up without statutory warrant; then recording breach of certain provisions of that edict, none of which arose from or were related to the sale of alcohol; and from the existence of those past breaches concluding that the licence application should be refused. We consider that in approaching matters in that way the Board thus did not properly address the statutory test.

[28] In an endeavour to illustrate what we mean by what we have just said, we take the first of the breaches - an employee being unaware of the location in the nightclub of the risk assessment -scilicet of the work activity of a lap dancer. It may possibly be advantageous that, as the Board purports to insist, all employees have access to all risk assessment reports prepared by or on behalf of the employer (albeit that counsel for the Board was unable to point us to any equivalent stipulation in any of the many provisions of the health and safety legislation). But that plainly does not mean that, on that account, the sale of alcohol in Spearmint Rhino is inconsistent with a licensing objective. Turning to the second breach - the flyers - while it may be that on a close examination of the offending flyer an observer might conclude that the artist had not plainly demonstrated the presence of a garment covering the breasts of the two ladies whom he depicted with the consequence that there was thus, in the view of the Board, a breach of their code of practice, it is not evident, and is not explained by the Board why that incident can properly be said to be make the sale of alcohol at the premises inconsistent with a licensing objective. Further illustration of the erroneous approach is, we think, otiose, since the erroneous approach to either or both those aspects vitiates the decision.

[29] For these reasons we consider that this appeal must succeed.

Disposal

[30] Counsel addressed us on the appropriate disposal should we reach that view. Put shortly, counsel for the Board moved that the matter be remitted to the Board for reconsideration in light of the judgment of this court - and also the trading which has continued pending resolution of the appeal process. For the appellants, the Dean of Faculty contended that the matter be remitted to the sheriff with a direction that he grant the licence. It was evident, he said, that the Board had developed an entrenched view on matters of adult entertainment and the sanctity of their code of practice, both of which made any remit to the Board inappropriate.

[31] On this matter, we observe that there are cases in which, as counsel for the Board recognised, the issue for the appellate court may be entirely a matter of law, upon the resolution of which it is incontrovertible that the application for the licence in issue must be granted. In those cases remit for reconsideration is pointless. The Dean of Faculty did not submit that the present case came within that category. A further category in which the judiciary may direct the grant of a licence is that in which the licensing authority has behaved in such a manner that - put shortly - it plainly cannot be seen as able to approach reconsideration fairly and without bias. Those cases apart, it seems to us that licences should, in principle, be granted by the licensing authority, after full and proper consideration and with regard to such guidance as may have been given by the Court.

[32] The intemperate language deployed by the chairman of the Board, deprecated by the sheriff in paragraph [36] of his note, has caused us to have some hesitation whether the application with which this appeal is concerned should properly be remitted to the Board for reconsideration. But in the event we have come to the view that, given that the error of the Board in refusing the application is essentially a failure to appreciate the proper statutory test to be applied and the limitations on the use of its licensing powers under the 2005 Act, we should nonetheless not direct the granting of a licence but allow the Board an opportunity for such re -consideration as may be open in the light of the terms of this Opinion.

[33] Accordingly, we recall the interlocutor of the sheriff of 12 May 2010 against which this appeal is directed. In its place we answer the first question in the stated case in the positive, for the grounds which we have already set out. It is unnecessary for us to answer the second question in the stated case (upon which, in any event, no argument was advanced). And we remit to the Board for re-consideration of the application.