Act: Blair; Drummond Miller LLP (for Banks Devlin & Co, Solicitors, Paisley)

Alt: Sir Crispin Agnew QC; Lindsays

2 November 2011

[1] This is an appeal under paragraph 18(12) of Schedule 1 to the Civic Government (Scotland) Act 1982 against a decision of the sheriff sitting at Paisley in an appeal to him in terms of paragraph 18(1) of that Schedule. The respondents - Renfrewshire Council - are the relevant licensing authority in terms of section 2 of that Act and the appeal to the sheriff was concerned with the respondents' decision taken on 14 May 2009 respecting an application made by the appellant for renewal, for three years, of his street trader's licence, which is required under section 39 of the Act.

[2] The appellant has held for many years a street trader's licence authorising him to trade as a caterer at a number of locations in Paisley. His business is that of selling hot and cold snacks and drinks from a vehicle. The licences which he held prior to the application for renewal permitted him to trade at locations within Hillington Industrial Estate, where he traded between 0600 hours and 1400 hours and, in the centre of Paisley, at Maxwell Street and New Sneddon Street, where he traded each evening between 2100 and 0400 hours. The appellant applied for renewal of the licence on those terms.

[3] The respondents' decision of 14 May 2009 did not refuse the appellant's application for renewal outright. The application was granted without material alteration respecting the Hillington Industrial Estate activity. The New Sneddon Street location was excluded in light of an objection by the respondents' roads department on traffic grounds (but with that objection, and the exclusion of New Sneddon Street, the appellant does not now take any issue). But the respondents altered the hours of trading at the remaining, nocturnal, trading location in Maxwell Street by requiring the appellant to close his mobile shop at midnight on Sundays to Thursdays and at 0100 hours on the morning following Friday and Saturday evenings (scilicet, 0100 hours on Saturday and Sunday respectively). They also confined the duration of the renewed, but thus restricted, licence to a period of two years, whereas previous licences had been granted for a period of three years.

[4] Accordingly, the issues in the appeal to the sheriff were concerned with (i) the respondents' decision to curtail the appellant's night-time trading hours from a closing hour of 0400 hours to 0100 hours, or midnight on Sunday to Thursday evenings; and (ii) their decision not to grant the renewal for three years but to confine it to a period of two years.

[5] On the latter matter, the sheriff found in favour of the appellant and he directed that the licence be granted for three as opposed to two years. While there is a cross appeal respecting expenses, the respondents in this appeal do not challenge the sheriff's decision on that issue of the duration of the licence.

[6] As respects the first matter, namely the alteration to the closing hours for night-time trading, the sheriff rejected the appellant's contentions which were essentially to the effect that the respondents had given no proper reasons for thus restricting the hours of trading previously accorded to the appellant and that their decision to do so was unreasonable.

[7] The appeal to this Court is thus concerned with that aspect of the respondents' decision. Although there was some discussion before us as to whether that decision should be categorized as a "refusal", or a "refusal in part", or a "grant subject to conditions", counsel for both parties were ultimately in agreement that for the purposes of this appeal nothing turned on such distinctions.

[8] As is evident from the copy minutes of meetings of the local authority reproduced within the appendix to the appeal, over two decades ago, namely at a meeting of the "Miscellaneous Licensing Sub-Committee" of the then Renfrew District Council held on 8 May 1987, it was agreed that following representation from the police regarding difficulties in policing snack bars the sub-committee should recommend to the General Purposes Committee of the District Council that on renewal of a (snack bar) street trader's licence after 21 February 1988 a condition would be inserted requiring closure at midnight on every night except Fridays and Saturdays when trading would be permitted for a further hour to 1 am on the Saturday and Sunday. That recommendation came before the General Purposes Committee of the District Council on 16 June 1987 and was approved. That policy on trading hours thus formulated and adopted by Renfrew District Council in 1987 (with effect from February 1988) has continued, essentially unchanged, to be the policy of the successor council, namely the present respondents.

[9] As already mentioned, the appellant has held a street trader's licence for very many years and, as the sheriff found in fact, prior to the introduction of the policy restrictions in 1988 he traded at night (at the city centre locations) from 2100 hours to 0400 hours. It appears that following the adoption of the policy on trading hours it was either not applied to him, or he successfully resisted its application as respects his particular night-time trading locations.

[10] While the earlier history of matters in the immediate aftermath of the adoption of the trading hours policy in 1987 is not wholly clear from the papers before us, it is not in dispute that in a successful appeal to the sheriff by the appellant in 2002 the sheriff directed the respondents to grant a licence permitting him to trade at the relevant locations from 0600 hours until 0400 hours on the following day on every day of the week. Although not enjoined by the sheriff to do so, the respondents' granted that licence for a period of three years. When that licence came up for renewal, the respondents on 21 January 2006 granted that application for renewal by issuing a licence permitting trading on the existing terms - i.e. until 0400 hours - for a further period of three years.

[11] At the end of 2008 the appellant applied for a further renewal of his licence, given its imminent expiry in January 2009. It is apparent from the sheriff's findings-in-fact that on this occasion the appellant's application for renewal attracted objection from the respondents' roads division but as respects only the New Sneddon Street location. That objection was concerned with what was perceived as a traffic problem. The application for renewal came before the respondents' Regulatory Functions Board on 14 May 2009. Prior to that, on 1 May 2009, the respondents sent to the appellant a letter inviting him to make representations to the board at its meeting on 14 May 2009. The letter is set out in the appendix to the appeal. It has, no doubt understandably, the hallmarks of being an essentially standard letter, to which an additional paragraph referring to the memorandum of objection from the roads division has been inserted. The letter refers shortly to the Renfrew District Council's policy on trading hours; it also refers at somewhat greater length to policies on the selling by street traders of food and drink in the vicinity of schools. As respects that and the trading hours policy, the letter says that the board "may have regard" to the policy in question. It is not in dispute, and it is evident from the terms of the renewal application, that the policy on selling the vicinity of schools could have no application to the licence sought by the appellant.

[12] What occurred at the meeting of the respondents' board is set out by the sheriff in his findings-in-fact number 15 to 19 inclusive:

"15. The Pursuer attended the meeting of the Board held on 14 May, 2009.

16. At the meeting Mr Robert McArthur of the Defenders' Planning and Transport Services Department, Roads Division spoke to the said memorandum dated 12 December, 2008. Having done so he conceded that the Department were not objecting to the renewal of the Pursuer's street trader's licence but merely asking that the location at New Sneddon Street, Paisley be excluded therefrom.

17. The Pursuer made submissions at the meeting on 14 May 2009. In particular the Pursuer submitted that he was at a loss as to why his current application for renewal of the existing street trader's licence was subject to a meeting before the Board. In response to a question from Councillor Perrie the Pursuer made reference to the history of his street trading and in particular to his street trading in the preceding six years. In doing so the Pursuer made mention of the Defenders' grant of his application for the renewal of his street trader's licence in January 2006 for a period of three years.

18. Other than the aforementioned observation by Mr McArthur there was no notice of incident, complaint, observation or change of circumstances concerning the Pursuer placed before the meeting on 14 May 2009.

19. At the said meeting the Board made no reference to the terms of any policy other than that relating to the hours during which the Pursuer may street trade. In particular, notwithstanding the Pursuer's reference in his submissions to the duration of his existing street trader's licence, the Board made no reference to a policy relative to the duration of street traders' licences."

[13] In response to the appellant's request for a statement of the respondents' reasons for their decision, the respondents sent to him a letter dated 28 May 2009 which is also contained within the appendix. Much of the text of that letter consists of a narration of what was said at the meeting on 14 May 2009. Passing over the relatively more extensive passages respecting discussions anent the traffic objection to the New Sneddon Street location, we note that the letter records:

"Councillor Perrie then asked Mr Donaldson how he had obtained trading hours outwith the Council's policy hours. Mr Donaldson explained that each time he had applied for trading hours outwith the Council's policy he had appealed to the Courts and the decisions of the Council had been overturned."

The ensuing paragraph details some of the history, to which reference has already been made. The statement of reasons, in giving its narration of what occurred continues:

"Mr Donaldson stated that he did not understand why his application was before the Board now. He stated that he had never had any complaints from the police or any other parties and he asked the Board to renew his street trader's licence on the same terms and conditions.

Councillor Perrie asked Mr Donaldson if he had anything further to add to which he replied no."

As respects the Board's reasons for altering the hours of trading accorded to the appellant hitherto, the letter states simply:

"In relation to Mr Donaldson's trading hours which were outwith the Council's policy on trading hours Street Traders' Licences, the Board were not persuaded on this occasion by Mr Donaldson's submissions that his application for renewal with the same trading hours should be granted. The Board noted that Mr Donaldson had traded for six 6 years from the New Sneddon Street and the other locations, nonetheless, they were of the view that he had not made out a case to be an exception to the said Council's policy. The Board were of the view that Mr Donaldson's application for renewal of his Street Trader's licence should require him to conform to the said policy trading hours."

[14] The leading submission advanced by counsel for the appellant was to the effect that no adequate reasons had been put forward by the respondents for their decision to restrict the appellant's existing trading hours to those set out in the policy adopted in 1987. In the course of making that submission counsel for the appellant referred to a number of reported decisions concerned with the adoption of a policy by a regulatory authority; the making of exceptions to that policy; the liberty of an authority to adopt a new policy; and the relevance of history to the making of an exception. Those decisions were R v Chester Crown Court ex parte Pascoe and Jones (1987) 151 JP 752; Calderwood v Renfrewshire Council 2004 SC 691; Ritchie v Aberdeen City Council [2011] CSIH 22 (unreported); R v Birmingham City Council ex parte Sheptonhurst Limited [1990] 1 All ER 1026; R v Chester JJ ex parte Cecchini and others (1997) 29 Licensing Review 19.

[15] In his response, counsel for the respondents traversed some of that tract of authority, adding Ahmed v North Lanarkshire Council 1999 SLT 1064 and Noble v City of Glasgow District Council 1995 SLT 1315. In essence, his contention was that a regulatory authority was entitled to introduce a new policy and to require observance of it; the statement of reasons indicated that the respondents' Board had listened to Mr Donaldson's submissions but had decided to reject them. It could not be said therefore that the statement of reasons was inadequate.

[16] We acknowledge the professional diligence of counsel in assembling the authorities above mentioned, and the other authorities to which reference is made in the written notes of argument. However, as we see matters the issue in the present appeal is essentially peculiar to the particular circumstances of this case. One is not here concerned with a decision by a regulatory authority to introduce a new policy; nor is one concerned with an application for a new licence in which the applicant seeks to make an exception to that policy. The appellant had, years earlier, established himself as an exception to the policy originally elaborated by the Renfrew District Council but continued by the present respondents. The respondents themselves accepted that he was such an exception, at the very least in January 2006, when they renewed his licence for trading outwith their policy hours. There was no material presented to the board to suggest any sound reason for discontinuing the appellant's accepted status as an exception to the policy. The policy had originally been prompted by police concerns; but the police offered no objection to the renewal of the appellant's licence on the terms which he sought. There was no objection or representation from rival traders that the appellant enjoyed some unfair competitive advantage. The issue is, in our view, clearly illustrated by the rhetorical questions posed to the sheriff by the appellant's solicitor:

"In what way was the defenders' policy being threatened? Why did the pursuer cease to be an exception to the policy? What happened? What changed?"

[17] In the circumstances of this case we therefore consider that counsel for the appellant was well founded in his contention that the respondents erred in thinking that, as is put in their letter of 28 May 2009, it was for the appellant to make "out a case to be an exception to the said Council's policy". As counsel put it, a licensing authority is always required at least to consider making exceptions to a general policy. While in general it might be said that it was for an applicant for a licence on terms not in conformity with the regulatory authority's policy to make out a case for his being treated as an exception, that was not a universal rule. In the present case, where the appellant had previously, and for a long time, been treated as an exception to the policy it was, rather, for the licensing authority to advance reasons for ceasing to treat the licence holder as the exception which they had previously acknowledged.

[18] In our view counsel for the appellant is well founded in submitting that no adequate reasons are advanced by the respondents for their decision. Nothing of a specific nature was said in the letter of 8 May 2009 by way of reason for withdrawing the appellant's recognised exceptional status. Nor was anything of that nature advanced by the members of the Board had the meeting on 14 May 2009. And nothing is contained within the respondents letter of 28 May 2009 - their statement of reasons - which suggests any reason for withdrawing the recognised exceptional status of the appellant's trading hours.

[19] We accordingly consider that the appeal succeeds and that the decision of the respondents' Board cannot stand in so far as it restricted the appellant's hours of trading. Given that decision, the respondents' cross appeal on the matter of expenses falls away and need not be addressed.

[20] Notwithstanding the submission of counsel for the appellant that we should direct the respondents to grant a licence on the trading hours sought by the appellant for a period of three years, we are of the view that the appropriate course is for the matter to go back before the regulatory authority. In doing so we record the acceptance by counsel for respondents that the terms of any licence granted by the respondents should be for a period of three years. In reaching the view that the matter should be remitted to the respondents' board for re-consideration we take into account the passage of time in these appeal proceedings, during which the appellant's licence to trade has continued. It is, in our view, desirable that a fresh decision be taken in light of current circumstances, which may or may not have altered in a relevant respect.

[21] We shall accordingly recall the interlocutor of the sheriff and in its place substitute a direction to him that he remit the case in terms of paragraph 18(9) of Schedule 1 to the 1982 Act for re-consideration by the respondents, subject to the condition that the duration of any licence granted on such re-consideration should be for a period of three years.