Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 146

P284/11

OPINION OF MORAG WISE QC Sitting as a Temporary Judge in the petition of BUZZWORKS LEISURE LIMITED Petitioners; For judicial review of a decision of the South Ayrshire Licensing Board of 11 November 2010 to grant a Provisional Premises Licence for premises at 87 Main Street, Prestwick to the Second Respondents and for production and reduction of the said Provisional Premises Licence ­­­­­­­­­­­­­­­­­________________

Petitioners: Agnew of Lochnaw, Q.C., Blair; Gillespie Macandrew

First Respondents: S. Wolffe, Q.C.; Simpson & Marwick

Second Respondents: D. Armstrong, Q.C.; Drummond Miller

2 September 2011

Introduction

[1] The petitioners are a company operating licensed premises in Prestwick. The first respondents are the South Ayrshire Licensing Board and the second respondents are J D Wetherspoon plc, a company that made an application to the first respondents for a provisional premises license in relation to premises at 87 Main Street, Prestwick. The application was made in terms of section 45 of the Licensing (Scotland) Act 2005 ("the 2005 Act"). The petitioners lodged a written objection to the second respondents' application, which came before the first respondents for determination on 11 November 2010. On that date, after hearing submissions from the solicitor for the petitioners and the solicitor for the second respondents, the first respondents decided to grant the application. The petitioners seek declarator that the decision to grant the second respondents a provisional premises license was unlawful and/or unreasonable and for reduction of the decision. The basis for the challenge is twofold, namely (a) that the Board proceeded on a wrong legal basis, that they considered they were bound by the decision of Sheriff Principal Sir Stephen Young in the case of Tesco Stores Ltd v Aberdeen City Licensing Board (unreported, 24 June 2010), and (b) that in any event the statement of reasons given by the first respondents did not adequately explain the reasons for the decision. Both respondents oppose the merits of the petitioners' case. In addition the second respondents contend that the petitioners are barred by mora, taciturnity and acquiescence from insisting on the application. That plea was not argued as a preliminary matter but during the course of each party's submissions.

Submissions for the petitioners

[2] Senior counsel for the petitioners explained that the relevant application of the second respondents was for a provisional premises license with a capacity of 552 customers, a type of premises known colloquially as a "super pub". There were a number of objections to the application including objections from the petitioners which were narrated in a formal letter dated 12 October 2010 (no. 6/1 of process). The three main grounds for opposition were (1) overprovision, it being argued that the centre of Prestwick was more than adequately served with licensed premises, (2) a claim that granting the application would be inconsistent with the licensing objective of "securing public safety and prevention of public nuisance", and (3) that grant of the application would be inconsistent with the licensing objective of "protecting and improving public health". In making submissions to the Board it was argued that the proposed premises would be the equivalent of adding three more public houses to Prestwick town centre. The first respondents licensing policy (no. 6/4 of process) states at paragraph 8.1 that the town centre of Prestwick is "well served in relation to licensed premises". Reference was made to the first respondents' statement of reasons in granting the application. This is produced at no. 6/5 of process. Paragraph 9 of the statement of reasons summarises the submissions made. The reasons for the decision appear at paragraph 10a. That paragraph is in the following terms:-

"The Board is required to grant an application unless there are grounds for refusal in accordance with section 23 of the Act. The Board, having regard to all the submissions and evidence before them, were of the view that the grant of this application would not be inconsistent with any of the licensing objectives. The Board was conscious that the existing policy statement acknowledged that the locality was 'well served' in relation to licensed premises. The Board had regard to the capacity figures for the proposed premises and existing premises, however, in the absence of any concerns on the part of the Board in relation to inconsistency with any of the licensing objectives, the Board was constrained by the terms of the recent Tesco decision in Aberdeen and accordingly could not refuse the application on grounds of over-provision".

[3] As a backdrop to his submissions on challenging the statement of reasons, senior counsel for the petitioners set out in detail the scheme of the 2005 Act which had replaced the Licensing (Scotland) Act 1976. Section 4 of the 2005 Act sets out the "Licensing objectives" which are then applied in terms of section 5. Section 6 requires that a Licensing Board must have a policy and in setting the policy the Board must ensure that it seeks to promote the licensing objectives. Section 7 requires that a licensing policy must include a statement on overprovision of "licensed premises". As that statement is effectively made pursuant to section 6, the statement on overprovision must also seek to promote the licensing objectives. The grounds on which an application for a license can be refused appear in section 23(5) of the Act. There are five main grounds on which an application can be refused in terms of that subsection including inconsistency with licensing objectives, unsuitability of the premises and over-provision. It was submitted that inconsistency with the licensing objectives was a different ground from either unsuitability of premises or overprovision, both of which are separate grounds of refusal in terms of section 23(5).

[4] Returning to the licensing objectives listed in section 4(1) of the Act, these are also five in number as follows:-

(a)               preventing crime and disorder,

(b)              securing public safety,

(c)               preventing public nuisance,

(d)              protecting and improving public health,

(e)               protecting children from harm.

In R (Thornby Farms) Ltd v Daventry DC [2003] QB 503 at 507 it was said that:

"An objective which is obligatory must always be kept in mind when making a decision even while the decision-maker has regard to other material considerations".

So far as the obligation to publish a statement of licensing policy was concerned (section 6) a licensing board required to do that at the beginning of every three year period. The requirement in section 7 to assess overprovision included a consideration by the Board of the number and capacity of licensed premises in the locality. Section 142 of the 2005 Act permits the Scottish Ministers to issue guidance to licensing boards as to the exercise of their functions under the Act. That had been done and the relevant guidance is produced at no. 6/2 of process.

[5] In developing the argument that the first respondents erred by giving inadequate reasons, senior counsel relied on the well established rule that decisions of this sort must leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what material considerations were taken into account in reaching it - Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 348, Mirza v City of Glasgow Licensing Board 1996 SLT 1029 at 1034, Kelly v Shetland Health Board 2009 SC 248 at para.15 and R W Cairns Ltd v Busby East Church Kirk Session 1985 SLT 493. It was submitted that, regardless of whether or not the petitioners were correct the first respondents had erred in law in relation to the "Tesco decision", they had in any event erred by giving inadequate reasons for holding that the application was not inconsistent with the licensing objectives. There is no explanation of how they reached the conclusion that the application would not be so inconsistent. There was no explanation as to why each of the grounds of objection in relation to inconsistencies with licensing objectives had been rejected. Consistency or inconsistency with the licensing objectives was clearly a material issue and one of the possible grounds for refusal of the application. It was simply unclear how that issue had been dealt with or what material considerations had been taken into account by the Board in reaching the decision that they did. In Leisure Ins (UK) Ltd v Perth & Kinross District Licensing Board 1991 SC 224 it was said that "... behind every ground for refusal there must be adequate reasons, and that for these reasons there must be a proper basis in fact". The statement of reasons simply did not disclose what the basis for them was. There was nothing that allowed the petitioners or the court to understand how this aspect of the decision was reached.

[6] In developing the argument that the first respondents had erred in law in relation to the Tesco decision, emphasis was placed on the part of the statement of reasons where it was said "the Board was constrained by the terms of the Tesco decision in Aberdeen, and accordingly could not refuse the application on grounds of overprovision". It was first noted that the Board had clearly made no decision on whether or not there was overprovision as the statement seemed to indicate that the constraints they thought were upon them by the Tesco case meant that they had no power to refuse on grounds of over-provision. There was no explanation of what aspect of the Tesco decision constrained the Board which was an argument itself that inadequate reasons had been given. Without an explanation of which part of the decision constrained the Board, the petitioners and the court could not know what influenced it and whether that influence was right or wrong. Assuming that what the first respondents had taken from the Tesco decision was that in the absence of inconsistency with the licensing objectives they could not consider overprovision and were bound to grant the application then there were two possibilities. Either the Board had misunderstood the law as stated in the Tesco decision or the Tesco case was wrongly decided. The central argument was that as section 23(5) contained five discrete grounds for refusal, one of which was inconsistency with the licensing objectives and another of which was overprovision of licensed premises, then refusal of an application could clearly be for reasons other than inconsistency with licensing objectives. While licensing objectives could play a part in a decision on unsuitably or overprovision, premises could be unsuitable for reasons other than the licensing objectives or there could be overprovision for reasons other than those licensing objectives. In Caledonian Night Club v Glasgow District Licensing Board 1996 SC (HL) 29 the court recognised that overprovision could be for a number of different reasons. Lord Jauncey, in discussing section 17(1)(d) of the 1976 Act which conferred on a licensing board a wide discretion in its determination as to overprovision, opined that:-

"... the relevance of the number of licensed premises is not necessarily confined to economic considerations such as whether demand exists for further premises but could well extend to such matters as the impact on the amenity of an area of additional licensed premises".

It was submitted that section 17(1)(d) of the 1976 Act and section 23(5)(e) were drafted in very similar terms, thus one would expect a change of wording if recognised reasons for over-provision were to be excluded in the application of the 2005 Act. It had also been recognised in the Caledonian Night Clubs Ltd case that the sheer scale of a proposed development could be a relevant factor in consideration of overprovision. Thus a licensing board could consider that new premises would lead to overprovision in a particular locality for reasons which were not connected with the licensing objectives at all, such as the desirability or otherwise of having large premises in a particular locality having regard to the number and capacity of premises in that area already. The reform introduced by section 23(5)(e) of the 2005 Act was plainly intended to allow a board to consider both questions of capacity and type of operation in coming to a view on overprovision. The exclusion of need or demand as a relevant consideration in the Guidance related only to the formulation of a policy that was designed to promote the licensing objectives. Need or demand was clearly a relevant consideration for dealing with individual applications. In William Hill (Caledonian) Ltd v City of Glasgow Licensing Board 2003 SC 289 it was recognised that "unsuitability" of premises could be for many reasons including access for the public, for the disabled and so on and might not relate solely to licensing objectives. Thus a board's functions were wider than just consideration of the licensing objectives. A board's policy could have regard to matters other than the licensing objectives. That was supported by the Guidance at paragraph 23 which asked boards to give clear indications of how they would take into account various matters including, inter alia, planning, transport, tourism, race equality schemes, cultural strategies etc when developing policy statements. The Guidance specifically states that some of those issues may not directly relate to the promotion of the five licensing objectives but may indirectly impact upon them. Accordingly, counsel submitted that the Board had erred in law in holding that because they had held that ground (c) of section 23(5), namely inconsistency with licensing objectives was not made out that they could not refuse on grounds of overprovision. Whether or not the decision in Tesco supported that conclusion, it was wrong in law. The specific objections of the petitioners related to the size of the premises involved in the application being equivalent to adding another three licensed premises to Prestwick Main Street. This would increase capacity by 33%. Concern was expressed about the effect of that grant on the operation of other premises, public safety and nuisance by reason of the capacity in question and the availability of cheap drink, the last of which is specifically referred to in the Guidance at paragraph 47. As the Board had a duty to have regard to all of the grounds of refusal listed in section 23 of the Act, it ought to have been concerned about the size of the premises and its potential effect on competition, particularly where the issue of "cheap prices" was raised.

[7] Turning to the decision in Tesco Stores Ltd v Aberdeen City Licensing Board itself, it was submitted that the passage from that decision that the first respondents probably had in mind was at paragraph 16 where Sheriff Principal Sir Stephen Young states the following:-

"It is clear from the Board's statement of reasons that it duly identified these existing premises and it evidently had regard to the number and capacity of them. On the assumption stated, so far so good. What the Board then had to do was to consider whether, if the application were to be granted, there would as a result be overprovision of licensed premises of that description in the locality. In doing so it had to have regard to the licensing objectives set out in section 4 of the Act. So far as I can judge, it did not do this".

That case involved an application for premises to be operated as a "Tesco Express" supermarket where it was proposed that alcohol should be sold for consumption off the premises only. The letter of objection concerned in the case centred on the issue of overprovision. Senior counsel submitted that if one read the passage quoted above from the case in the context of the Board requiring, in terms of section 23(4) each of the grounds of refusal in subsection (5) and whether they applied, then the view being expressed could be correct, namely that both overprovision and consistency or inconsistency with the licensing objectives had to be considered and any failure to do so would make a decision vulnerable to challenge. On the other hand, if the learned Sheriff Principal was expressing a view that as part of the consideration of overprovision under section 23(5)(e) the Board had to have regard to the licensing objectives, then that was an incorrect interpretation of the requirements of section 23. To the extent that the dicta suggested that the Board, in considering over-provision were bound to have regard to the licensing objectives, it was wrongly decided. While ground (c) of section 23(5), that the application was inconsistent with one or more of the licensing objectives, required to be considered, but a licensing board also has to consider the other grounds and the issue of over-provision separately from that. Thus there is no requirement to consider "licensing objectives" under the "overprovision" ground because if there was any inconsistency with the licensing objectives, the application would have to be refused under (c). If there had to be an inconsistency in the licensing objectives before one could consider over-provision, then over-provision could never be considered as a separate issue. It was reiterated that the only time that the licensing objectives required to be considered in relation to over-provision was when policy was being drawn up under sections 6 and 7 of the Act. Alternatively, it was submitted that, in the event that such a construction was not accepted and that regard had to be had to the licensing objectives in considering over-provision then it still did not preclude a licensing board having regards to the other factors and reaching a conclusion on over-provision for reasons separate from the licensing objectives such as capacity, number and similarity of premises. Under reference to Ishak v Thowfeek [1968] 1 WLR 1718 at 1725 it was submitted that where a statute requires a body to "have regard to" certain matters, discretion is retained as to how those matters are to be applied in decision making.

[8] Senior counsel also addressed an issue raised by the first respondents in their answers in relation to any error as to the meaning and effect of the Tesco decision being something either advanced by the petitioners or in any event something from which they did not dissent at the hearing. It was submitted that if there was a common error at the time of the hearing in relation to the import of the Tesco decision, that did not preclude the petitioners from now taking the point. An error in law could still be founded upon. Further, it was submitted that there is a public interest in licensing matters and it would be wrong to allow a decision based on an error in law to stand, simply on the basis that the pursuers' representative at the hearing did not take the point. There was said to be a distinction between not taking a factual point or a particular ground of objection as opposed to an error of law or a legal submission which could be taken at any time in the challenge process.

[9] The error said to have been made by the board was that they thought that they were bound by the Tesco case, they did not then go on to consider over-provision as a separate issue at all. They were bound to do so under section 23(4) which requires a licensing board to "consider whether any of the grounds for refusal applies". There was no indication in the decision about the effect that a "super pub" with capacity for large numbers might have in the locality. Paragraph 49 of the Guidance specifically provides that a licensing board should not take into account the manner in which individual premises were managed because it was possible that well managed premises may act as a magnet for anti-social behaviour or may eject a substantial number of customers who collectively produce disorder and nuisance to a degree which is unacceptable. On that basis, size and capacity were clearly relevant.

[10] Submissions were also made in relation to the averments of the second respondents that even if there had been a failure to give proper reasons, the court should exercise discretion not to reduce the decision on the basis that had further reasons been provided the same conclusion would have been reached. On this matter it was submitted that the proper disposal if there were inadequate reasons given was a remit to the Board to reconsider. In Risky Business Ltd v City of Glasgow Licensing Board 2000 SLT 923 it was confirmed that where a board has committed some error of law or reasoning and if refusal would be open to them on the correct view of the law and any reasonable assessment and balancing of available material, then the matter should properly go back to the board for such balancing and assessment and reasoning to be carried out.

[11] In the final part of his submissions senior counsel for the petitioners addressed the mora, taciturnity and acquiescence argument put forward by the second respondents in their answers. The chronology of events ran from 11 November when the decision was taken to grant the license through to 10 March when there was an inquiry about whether it was intended to raise proceedings, albeit that first orders had been granted the day before on 9 March. Statement 7 of the petition set out the various relevant factors during the whole period, in particular reliance was placed on a letter of 23 December 2010 when the petitioners' solicitor wrote to both respondents advising them that the petitioners were taking the advice of counsel as to a possible basis for judicial review of the decision. It was submitted that it is now established that for a plea of a mora, taciturnity and acquiescence to succeed all three elements have to be established - Somerville v The Scottish Ministers 2007 SC 140 at paras. 92-94. It was submitted that in the present case a delay from 11 November to 9 March was not sufficient to amount to excessive delay. On taciturnity the petitioners had spoken out when they told the second respondents that they were considering judicial review on 23 December 2010. Also in relation to acquiescence the intimation of 23 December was relied upon for breaking any silence. Senior counsel also commented on the second respondents' averments that they had completed an agreement to lease the premises for a thirty year period on 19 November 2010 and that they were issued with a license on 10 January 2011. So far as the signing of the lease was concerned, this could not be relevant to the argument on delay. The second respondents had committed themselves in terms of the lease when it was well within the time in which a party might consider judicial review. In Swan v Secretary of State for Scotland 1998 SC 479 a respondent was not able to found on payments made within days of a decision letter where the petitioner could not have reasonably raised proceedings before the making of those payments, if a party could not rely on a contract they had entered into during a period when it was reasonable for the petitioner not yet to have initiated judicial review. In summary, on the issue of mora, taciturnity and acquiescence it was submitted that in light of the notice given on 23 December 2010 the delay in raising proceedings had really only been two and a half months between that date and 9 March 2011.

Submissions for the first respondent

[12] Senior counsel for the first respondent invited me to reject the motion made on behalf of the petitioners and refuse the prayer for the petition. As a preliminary point, Mrs Wolffe noted that there was no substance in the point made in the petition itself but not pursued in submissions that the statement of reasons does not distinguish between all licensed premises or licensed premises of the same or similar description as the subject premises in the locality - see section 25(5)(e)(i) or (ii) of the 2005 Act. It was submitted that it was clear that the Board was looking at all premises in the locality which is a more favourable position to the objectors.

[13] Mrs Wolffe submitted that the 2005 Act was radically different from the previous legislation and focussed on the primacy of the policy objectives. These were found in the Act, in the Guidance from the Scottish Ministers and in the policy of each licensing board. The system was described as a tripartite interlocking scheme to facilitate operation of the Act in one of its most important features, how the licensing objectives are to be promoted. It was submitted that the importance of the licensing objectives could not be over stated. There were many distinctions between the previous legislation and the 2005 Act in relation to licensing board permits. The 1976 Act licensed the sale in question. The new legislation was different and the license was not just the act of a sale but also the activities on various premises. Thus the controls to be put in place and the fulfilment of the objectives were all important. In providing a license to premises, one must look to the conduct and activity of the premises that were the subject of the application. When a licensing board came to consider an application under the new legislation it would already have had to consider the relevant issues involved when articulating their policy. Various provisions of the legislation were said to be important in this context. First, section 17 of the Act defines "premises license" as a license issued by a licensing board authorising the sale of alcohol on the premises. Section 20 of the Act dealt with the application for a premises license itself. Such an application, in addition to containing a description of the subject premises require to be accompanied by an operating plan for the subject premises and a "layout plan" together with certain certificates required in relation to building control matters. Accordingly, much more information was available to a licensing board and to objectors under the new scheme. There was said to be a significant flow of information available to all those interested in the application. It was clear from section 20(4) that the required operating plan must include a description of the activities to be carried on in the premises and other details. This information would be available to show whether the activities sought to be carried out fitted in with the licensing objectives. So far as the licensing objectives listed in section 4 were concerned it was said that some of these, including preventing public nuisance and protecting and improving public health were objectives not only of licensing authorities but also of others. However, it was the licensing board that would look at the objectives in a licensing context. Senior counsel submitted that over provision in practice would also always tend to engage the licensing objectives. Thus there was an overlap in practice between the objectives and some of the other grounds listed in section 23. Accordingly, when a licensing board was looking at overprovision under section 23(5)(e) many of the factors relevant to section 23(5)(c) will apply. The same factors will tend to inform both decisions. It was said to be important that once a license was granted it has indeterminate application although it can be reviewed. However, there were other ways in which a board could exercise control such as by attaching conditions. Some conditions were mandatory. There is also power to make regulations for further conditions. Overall, it was said that there was better regulation of licensing activities under the 2005 Act than there had been previously. While no issue of the unsuitability of the premises themselves was raised in this case, it was noteworthy that in section 137 there is a requirement for an inspection of the premises of an application.

[14] Mrs Wolffe focussed on the Guidance made pursuant to section 142 of the 2005 Act. The sections of 1-4 of that Guidance (no. 6/15 of process) were said to be important. For example, the prevention of crime would have been an ultra vires policy under the old Act but was very much at the forefront of the licensing objectives. Paragraph 26 of the Guidance provides that duplication must be avoided. Thus refusing an application as "unsightly" would be within the jurisdiction of the planning authority and would have no place in a decision about licensed premises. Unlike the previous legislation which always judged in terms of consequences such as noise or amenity, the 2005 Act looked at how an application would fit into the licensing objectives.

[15] In seeking to answer the central argument that the decision under scrutiny failed to consider overprovision as a separate ground, it was submitted that it could not be said there was no overlap between overprovision and licensing objectives. Overprovision was more likely than not to feed into the licensing objectives themselves. The Tesco case was not an illustration of an extreme position where there was complete separation of the issues of overprovision and the licensing objectives. Normally the same factors are in consideration in both grounds. Accordingly, it was argued that if an application was not inconsistent with the licensing policy it would be hard to say that there could be overprovision. In short, it was all part of the same argument. Returning to the guidance reference was made to section 3 thereof relating to "the overprovision assessment". It could not be said that overprovision was a relevant "trade objective" in terms of paragraph 34. If the petitioners' argument was only that the application would adversely affect their business then that was an irrelevant consideration. In attempting to address the question of why overprovision was always dealt with separately in the legislation and in the Guidance, Mrs Wolffe accepted that overprovision would not be regarded as a subset of the licensing objectives but there was clearly a link between the two. In paragraph 49 of the Guidance dealing with the duty to consult, it was made clear that commercial considerations were irrelevant to a policy which is designed to protect the wider public interests. Accordingly a trade objection was not enough. It was clear from the Guidance that relation to a licensing policy and overprovision the locality had to be identified. There was no issue about that in this case. All of the factors in the list relating to overprovision in paragraph 47 of the Guidance related to the section 4 licensing objectives. Accordingly the clear link was there between overprovision and the licensing objectives. It was accepted that that was in the context of forming a policy on overprovision. It was clear from paragraph 52 of the Guidance that the Board must categorise premises by description and that the function of each establishment was often more important than its capacity. This was said to be "not a numbers game". Paragraphs 54 to 57 of the Guidance dealt with the effect of the overprovision assessment. These confirmed that where a licensing board's policy statement has concluded that in a particular locality there is an overprovision of licensed premises, or licensed premises of a particular description, then an application for a new premises license should normally be refused on the basis that it would simply add to the number of licensed premises or increase the number of those premises of the relevant description, depending on the approach with the Board had taken in its policy statement. Paragraph 56 made clear that the effect of the Board's policy was to create a rebuttable presumption against the grant of an application where there was overprovision, albeit that each application still required to be dealt with on its own merits and there could be exceptional cases in which an applicant was able to demonstrate that the grant of an application would not undermine the licensing objectives, or that those objectives would not be undermined if the plan were to be modified or appropriate conditions attached. It was submitted that at the stage of the determination of an application, the licensing board must have regard to its own policy. Even where there was overprovision the presumption against the grant of an application could be overcome by demonstrating that it was not inconsistent with the licensing objectives. In the case of La Belle Angele v City of Edinburgh Licensing Board 2001 SC 126 it was said that there has to be a dependable causal link between the licensed premises and an identifiable problem. Against that background Mrs Wolffe turned to examine the provisions of section 23(5) of the 2005 Act. She submitted that the manner in which the licensing objectives informed determination under the section is that their relevance does not cease at the stage of articulating the policy. The objectives continue to be central for the purpose of considering overprovision. She submitted that it was not a question of how the grounds for refusal inter-relate. It was specifically submitted that the grounds for refusal cannot be wholly discrete or completely overlapping. Those were two extremes and were unlikely to reflect reality. The kinds of factors which would be relevant to the licensing objectives may also be relevant to overprovision. Under the previous legislation overprovision was essentially tested by its effect in terms of noise, pollution and so on. Now overprovision was at the forefront in the licensing objectives. If there was a high degree of overlap in terms of the various grounds in section 23 then little need be said about the approach of the Board. There is no hierarchy between the grounds of refusal. It was accepted that each must be considered although there could not be any requirement to mention the clearly irrelevant grounds or those not relied on in the objections.

[16] Mrs Wolffe went on to submit that when a board is making an assessment of individual applications it is looking primarily at the impact of granting it, anticipating the effects that will flow from the licensed activities. While the Board will look at each discrete ground of refusal, how it determines one may dictate the decision on another where they are essentially the same factors. The decision-making flowed from the Act to the Guidance to the licensing board's policy statement. The nature of the ultimate decision-taking on the part of the Board was essentially administrative. Its character was rather different to the decision-making in planning matters. There is a high degree of informality and reliance on ex-party statements and material. The Board did not look for "evidence" as such. In contrast in planning matters there continues to be a more elaborate structure for decision-making. It was important that the context of the case of Wordie Property Co Ltd v Secretary of State for Scotland was that the nature of the decision under discussion was a planning one. In licensing matters the weight and assessment of the material was for the Board and the court should be loath to trespass on that. Licensing boards bring to the decision-making process their own expertise and contest an objection against its own experiences. Reference was made to a number of decisions to support the contention that the latitude that should be afforded to the decision-maker in such circumstances was clear. These included Cashley v City of Dundee District Council 1993 SC 543 at 548-549, Puhlhofer v Hillingdon London Borough Council 1986 1 AC 484, Pagliooca v City of Glasgow Licensing Board 1994 SC 561, Caledonian Night Clubs Ltd v Glasgow District Licensing Board 1996 SC (HL) 29 at 33-34, and Texaco v North Lanarkshire Licensing Board 1998 SLT 726. Senior counsel submitted that given the latitude in decision-making reasons that may be regarded as inadequate in a planning case may well be adequate in a case such as the present.

[17] In relation to the argument that the first respondents had erred in law in their approach to Tesco Stores Ltd v Aberdeen City Licensing Board, counsel submitted that the question of whether that case was wrongly decided was a "red herring". However, it was submitted that for what it was worth the case was correctly decided. The statement of reasons appealed against in the Tesco case was referred to (no. 6/7 of process). Those made clear that there had been a complete failure on the part of the Board to address the licensing objectives. In the present case, it was a question of how the Sheriff Principal's decision to grant the appeal in Tesco was interpreted by the Board. It was not a question of the Board considering whether or not Tesco was wrongly decided. The case was referred to in shorthand fashion. That was because the Board had been fixed to deal with a number of hearings and by the time the Wetherspoon application was being dealt with, they were referring to Tesco in an abbreviated way. The Board had been addressed in more detail on the decision in the Tesco case in admissions made in respect of another application "Liberty News". It seemed that the issue arising from the Tesco case had been introduced in that other application in a way that perhaps misleads about what the decision actually was. No. 7/13 of process was a note of what had been submitted to the Board in relation to the Tesco case. MrsWolffe argued that if one looks at the grounds for refusal in terms of the factors under consideration in this case they were all relevant to the ground of inconsistency with the licensing objectives and the decision had been made on that basis. Accordingly the Board had not erred in their approach to the material as presented to it. If the factors relative to consistency or inconsistency with the licensing objectives and overprovision overlap and no additional ones are put forward then there is no error in the sense of taking into account factors that are not relevant. The manner of the decision-taking of the Board depended on how matters were presented to it. Accordingly, looking at the factors prayed in aid by the objectors, they were all relevant to the licensing objectives. Accordingly it is not surprising that the same answer is reached in relation to both licensing objectives and overprovision. In light of the very particular way in which the Tesco argument was framed, the Board had decided correctly.

[18] On the petitioners challenge to the adequacy of reasons given by the Board, senior counsel had little quarrel with the authorities cited by senior counsel for the petitioners. However, reference was also made to Noble v City of Glasgow District Council 1995 SLT 1315. That was a licensing case in which the court held that it would not look behind a statement by licensing decision makers stating that it had had regard to the evidence and productions unless something else made it clear that they had not so had regard. Further, reasons require to be adequate only insofar as they relate to the pursuance of a right. Prejudice has to have a content - South Bucks District Council and Another v Porter (No. 2) [2004] 1 WLR 1953 at paras. 24, 35 and 36. It was submitted that the reasons for the Board's decision in this case must be looked at as a whole and not dissected as if it was a conveyancing document. Mrs Wolffe submitted that the reasons of the board were not inadequate because the detailed recorded submissions that preceded the reasons paragraph were in a sense part of the reasoning itself. The Board had made reference to all the submissions made to it. It had made clear that the reasons for its decision was that the application would not be inconsistent with any of the licensing objectives. Reference was also made to overprovision. There was no error or difficulty in the issue of linking these concepts. It was submitted that it was a feature of the 2005 Act that a great deal of the information was elicited about the premises and the conduct of the proposed activities in the course of the application being made. These included, inter alia, the operating plan and the inspection of the premises. Much more information was available to the Board than there had been under the old regime. The mechanics of the process included the power to impose a number of conditions. Some premises would require a great deal of control, others would not. There was a mandatory condition that the activities were conducted in accordance with the operating plan. Accordingly, the Board would have a considerable knowledge base by the time of the hearing. The power to review in the legislation also gave the Board continuing control. At the time of the determination, unlike planning cases, where there was a need to identify material considerations, the determination was very easy because the legislation itself identified what was relevant. When the present case came before the Board, two possible grounds for refusal were argued, namely inconsistency with the licensing objectives and overprovision. The Board's decision on overprovision was that there was no overprovision. They could have restricted numbers. The fact that there is not a concern stated about the extent of the provision of the premises suggests that the Board was not concerned about the numbers that would be provided. It is only where the policy has already indicated that there is overprovision that it becomes a pure question of numbers. In all the circumstances, the reasons were said not to be inadequate because the scheme of the Act resulted in the Board having all of the relevant information and were required simply to make a short sharp decision. Effectively only a yes or no answer was required. Mere inadequacy does not import its own prejudice. It was submitted that there was no prejudice in this case because the objectors were not hampered in any way in the conduct of their own affairs and their objections have been dealt with. It was noteworthy also that there was already a planning application granted in favour of the petitioners. While their motive might be a "trade" motive, they should take comfort from the outcome of another application being granted. If the test was overprovision on the basis of effect not numbers, then they too might succeed with an application. There was nothing behind their mere assertion of prejudice.

[19] Mrs Wolffe's primary submission was that the petition should be refused on the merits, her fallback position was that even if her arguments on error of law and adequacy of reasons were wrong, I should still refuse the petition in the exercise of my discretion. Reference was made to the argument presented at page 18 of the adjusted answers for the first respondent. In essence it was submitted that if the Board's decision was vitiated on the basis of a line of argument that had been advanced, inter alia, by the petitioners in relation to the Tesco case then that was a circumstance to which the petitioners conduct contributed and they should not be allowed to benefit from that conduct. The case of King v East Ayrshire Council 1998 SC 183 confirmed that judicial review was a flexible procedure and that the court was not bound to reduce a decision even where an administrative body had erred in law. However, counsel accepted that the argument against her on this point would be that if it was found the Board had made a fundamental error of law then it was for the court to remedy that. Overall, there was an inherent discretion to refuse the prayer of the petition and that is what should happen.

Submissions for the second respondents

[20] Mr Armstrong for the second respondents effectively adopted the submissions of senior counsel for the first respondent. The focus of his own submission was on his first plea-in-law, that of mora, taciturnity and acquiescence. Dealing first with the statutory framework for appeals under the 2005 Act, the rules were contained in an Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) Amendment (Licensing (Scotland) Act 2005) 2008 (SSSI 2008/9). Rule 3.34.2 thereof provides that an appeal under section 131 of the 2005 Act must be lodged not later than 14 days after the relevant date which is the date of the decision of the licensing board or where a statement of reasons is required, the date of issue of the statement of reasons. Accordingly, if the second respondents had been unsuccessful in their application, they would have required to lodge an appeal including grounds of appeal by 13 December 2010, 14 days after the statement of reasons was issued. Mr Armstrong submitted that the time period was deliberately short because of the nature of these applications and the competing interests rendering it suitable for matters to be dealt with within a short period. It was also noteworthy that this was an application for a provisional premises license in terms of section 45 of the 2005 Act. The scheme was that planning required to be obtained first, then a provisional premises license would give an applicant certainty that they can go ahead with the work in question. In the present case the second respondents plan to spend over £1m on the premises in question. The provisional premises license runs for two years and an extension can be sought if delays occur that are not the fault of the applicant.

[21] Turning to the chronology of events, Mr Armstrong submitted the time started to run on 29 November 2010. It would appear that the petitioners requested an opinion of junior counsel which they had obtained by 19 December 2010. At no stage were the second respondents told what the opinion said, all that they were told was that the petitioners were in the process of taking counsel's opinion on potential grounds for judicial review. That letter, no. 7/12 of process, was dated 23 December 2010. In fact on that date they already had an opinion according to the adjusted petition. During the whole of the relevant period that is the only intimation received in relation to the petitioners' intentions. The second respondents' solicitors duly sent a letter of 6 January 2011 putting the petitioners on notice that Wetherspoons were pressing ahead with provisional license documentation. The Board duly sent out that documentation in January 2001. Mr Armstrong sought to distinguish the case of Swan v Secretary of State for Scotland 1998 SC 479 on the basis that the respondents in that case had been told during the period of delay that a petition was being drafted. The facts in this case indicate that a consultation with junior counsel was held on 11 January 2011. There was clearly inaction between that date and 18 February 2011 when junior counsel was instructed to draft the petition. Then there were three weeks before the petition "saw the light of day". It was only by coincidence that the second respondents' agents contacted the petitioners' agents in the letter no. 6/12 of process. It was understandable that the agents would want to be absolutely sure that nothing was going to be done before considerable expense was incurred. Reference to Somerville v Scottish Ministers 2007 SC 140. There, there was a discussion, of Swan v Secretary of State for Scotland and other relevant authorities. The First Division then set out the requirements of a plea of mora, taciturnity and acquiescence. While it was clear that all three elements required to be present for the plea to be sustained, the court emphasised that prejudice or reliance are not necessary elements of the plea. Prejudice may be a circumstance from which acquiescence can be inferred but there was no requirement on the part of the second respondents to aver prejudice or reliance themselves. Senior counsel also referred to a decision of Lord Glennie in the case of United Co-operative Ltd v National Appeal Panel for Entry into the Pharmaceutical Lists 2007 SLT 831. In that case a plea of mora was sustained where a period of over four months had elapsed between intimation of the Panel's decision to the petitioners and the commencement of proceedings for judicial review. In the circumstances of that particular case Lord Glennie concluded that anyone looking objectively at the petitioners' actions at a point three to four months after the decision would have concluded that the petitioners had decided not to challenge it. In the present case, the petitioners had counsel's opinion by 19 December. There was silence in response to the second respondents' letter of 6 January. There was no indication that they were going to raise a petition or even that they had a good case. The silence involved gave rise to the same objective conclusion of acquiescence that was present in United Co-operative Ltd v National Appeal Panel. Accordingly all the elements of a plea of mora, taciturnity and acquiescence were present and the plea should be sustained. It was re-iterated that the case of Swan v Secretary of State for Scotland could not assist the petitioners as there had been uncertainty about the transposition of a Directive into UK law which complicated matters. Further, the letters gave a clear indication of a potential challenge. While it might be said in this case that there was uncertainty about the legal effect of the decision in the Tesco case it would appear that the petitioners had counsel's opinion by 19 December.

[22] Mr Armstrong made short additional submissions in relation to the substance of the petition. First, in relation to the court's discretion in judicial review cases reference was made to a case that had been relied upon by the petitioners, Risky Business Ltd v City of Glasgow Licensing Board 2000 SLT 923. Mr Armstrong's submission was that the case had been dealing with the discretion of a board, not the court's discretion in judicial review matters. Secondly, the reason why the capacity of the premises that were the subject of the application had been reduced was that there were health and safety grounds to do so imposed by Building Standards Regulations - documents 7/9 and 7/11 of process confirmed the position. Accordingly those concerns had already been dealt with. Finally, in relation to a suggestion that the second respondents had not been prejudiced, it was confirmed that it had been the intention of the second respondents to start work in March 2011 and have new premises opened by sometime in the summer. It was these proceeding that had precluded that. The second respondents had entered into a long lease shortly after the Board's decision. There was a commercial value in concluding a lease. It was consistent with the intention of the legislation that things should be moved on with relative speed.

[23] In making his motion that the petition should be refused, Mr Armstrong suggested that expenses be reserved meantime.

Reply on behalf of the petitioners

[24] In his reply, senior counsel for the petitioners responded to the arguments made in relation to section 23(5) of the 2005 Act. The effect of there being five discrete grounds is that, even if the application is not inconsistent with one of the licensing objectives and the Board moves on to grounds (d) and (e) then regardless of whether the licensing objectives remain relevant, the Board can still refuse an application for reasons that are unconnected with them. Otherwise there would be no point in progressing beyond the third ground for refusal in section 23(5)(c). It was clear from the cases of Caledonian Night Clubs Ltd v Glasgow District Licensing Board and William Hill (Caledonian) Ltd v City of Glasgow Licensing Board that there can be reasons other than the pursuance of licensing objectives for refusing an application including need, scale and amenity. It was also submitted that there was not a great deal of difference in the wording of the new legislation in relation to overprovision. The innovations of the 2005 Act related more to the introduction of the licensing objectives and the requirement to formulate a policy rather than anything to do with overprovision. The issue in relation to overprovision was whether or not the Board had considered the overprovision ground at all. Either they had considered it but not made a decision about it or had failed to consider it completely. In either case they erred in failing to consider the factors referred to in section 25(5)(e). It was noteworthy that the submissions made to the Board separated the objections on inconsistency with the licensing policy from those relating to overprovision. Objections from other parties had also separated out issues of the "sheer size" of the premises in question. There were pure overprovision objections distinct from objections relating to the licensing objectives. It was impossible to know what exactly the Board had taken from the decision in the Tesco case. Regardless of whether the submissions made to them on the point were right or wrong, the Board erred both in failing to give adequate reasons and in failing to consider overprovision.

[25] It was submitted that if the Board had erred the matter should be sent back to them perhaps with guidance as to how to approach the Tesco case. I was urged not to exercise my discretion by refusing the petition.

[26] In relation to the case of King v East Ayrshire Council it was important to note that the school involved in that case had already closed. The argument discussed had been raised 10 months after the point was first raised and in the second speech in the First Division. If the point was reached where prejudice was being balanced in the exercise of discretion then it should be taken into account that the grant of the license would have an effect just as the refusal of it would. There would be prejudice to other license holders in the area and trade objections would be relevant at that stage.

[27] In relation to the suggestion that may have been made by senior counsel for the first respondent that the dicta in Wordie Property Co Ltd v Secretary of State for Scotland did not apply to licensing cases, reference was made to a recent decision of the Second Division of the Inner House in the case of Ritchie v Aberdeen City Council [2011] SIH 22. That case involved a refusal by a licensing committee to renew the appellant's taxi driver's license. The "now - classic formulation" of Lord President Emslie in the Wordie case was cited with approval as setting out the decision of a decision-maker in such cases. In relation to the legal issue arising from the Tesco decision, even if it could be said that submissions made for the petitioners somehow misled the Board on that case, it would still have been for the Board, who are advised by legally qualified clerk, to apply the law. Overall the petitioners' case could be characterised as a reasons case. Inadequate reasons had been given in relation to the licensing objectives and there was an inadequate explanation as to how the Board had applied the decision in Tesco in relation to overprovision. The interplay contained within the legislation did not effect the while established requirements to give adequate reasons for a decision. Variability of the information did not permit the Board to fail to explain which arguments they had accepted and which they had rejected. In Noble v City of Glasgow District Council 1995 SLT 1315 it was clear that the Board had given some reasons albeit not very good ones.

[28] The 2005 Act could be contrasted with the English legislation where the only ground for refusal of an application is non-compliance with the licensing objectives. The Guidance on which so much reliance was placed in the submissions for the first respondent said nothing about how overprovision should be dealt with in the determination of an application when the Board's policy statement did not say that there was overprovision.

[29] In relation to the second respondents' submissions on mora, it was noted that the appeal period referred to by Mr Armstrong was the same as that under the 1976 Act. What the 2005 legislation had done was remove the objector's right to appeal. It was accepted that there had been delays from 6 January onwards. There had been funding issues on the petitioners' side. It should be taken into account as a material factor that the second respondents had not in fact carried out any works nor done anything during the period prior to the raising of the petition. They clearly considered that the petitioners may still wish to take action. So far as Lord Glennie's decision in United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists, that decision went somewhat further than is warranted by the decision in Somerville v Scottish Ministers. It was not accepted that there had been complete silence. The second respondents were put on notice. Objectively it couldn't be said that a delay from 29 November to 9 March was inordinate. It was clear from Somerville v Scottish Ministers that earlier decision indicating that mora was enough for the plea to be sustained were wrong. There was no reason why I could not have regard to the fact that the second respondents' agents had telephoned the petitioners' agents in concluding that a reasonable person would infer that the petitioners had not given up.

[30] Finally on the issue of duplication of decision-making, it was accepted that the Board should not stray into other territory, but that was not in issue in this case. In any event, the Board was not precluded from looking at some issues where other authorities were involved unless there is a specific regulatory regime such as Building Control.

Further response on behalf of the first respondent

[31] Mrs Wolffe asked to make a further brief submission in relation to the case of Ritchie v Aberdeen City Council raised in the reply. In that case the Lord Justice Clerk had indicated that a consideration was material if the decision-maker decided that it is one that ought to be taken into account. Mrs Wolffe submitted that "material consideration" was a term of art and planning matters and it was in that context that she had submitted that there was a difference in licensing cases under the 2005 Act. Her submission was that what was adequate depended on the context and adequacy under the 2005 Act was very much less than in a planning case.

Discussion
[32] It seems appropriate to deal first with the arguments in support of the plea of mora¸ taciturnity and acquiescence. The most recent authoritative dicta on the requirements for such a plea to be sustained is that in Somerville v Scottish Ministers 2007 SC 140. The First Division there set out the meaning of the words of the plea as follows (at para 94) :-

"Mora, or delay, is a general term applicable to all undue delay (see Bell, Dictionary, sv 'Mora'). Taciturnity connotes a failure to speak out an assertion of one's right or claim. Acquiescence is silence or passive assent to what has taken place. For the plea to be sustained, all three elements must be present. In civil proceedings delay alone is not enough ...

...we would emphasise that prejudice or reliance are not necessary elements of the plea. At most, they feature as circumstances from which acquiescence may be inferred. By its nature, acquiescence is almost always to be inferred from the whole circumstances, which must therefore be the subject of averment to support the plea."

[33] It was accepted in the arguments before me that in cases of judicial review the plea was likely to be invoked where the delay was much shorter than in other types of cases. It was also accepted that the correct approach was to consider whether someone looking objectively at the petitioners' actions during the period of delay would have concluded that they had decided not to challenge the Board's decision. If a reasonable person would so conclude, then it could be inferred that the petitioners had acquiesced in the Board's decision. In Swan v Secretary of State for Scotland 1998 SC 479, a petition for judicial review had been raised more than seven months after the relevant decision letter. The main reason for the delay had been doubt about the legal position in relation to a European Directive. During the first two months of the seven month period, the petitioners had made clear that they were unhappy with the decision in question. In those circumstances it was thought that the delay of some months thereafter before proceedings were raised would not in itself justify the inference that they departed from their strongly stated position. In United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831 a plea of mora, taciturnity and acquiescence was sustained where there had been a delay of over four months between the intimation of the Panel's decision to the petitioners and the commencement of proceedings for judicial review. In that case an initial letter had been sent indicating that there was an intention to challenge the decision. In the particular circumstances of that case the delay raising proceedings thereafter was held to be sufficient to infer acquiescence.

[34] In the present case the written statement of reasons from the first respondent was received on 29 November 2010. Within four weeks the petitioners' agents had written to the Board and to the second respondents indicating that they were taking counsel's opinion on the potential grounds for a judicial review. In my view that is a relevant factor in considering whether there has been a complete failure on the petitioners part to speak out against the decision that was later made the subject of these proceedings. There was a response to that letter. While it is true that the second respondents were not told that a petition was being drafted or proceedings raised, the second respondents' agent contacted the petitioners' agents simultaneously with the petition being raised to enquire what was happening about the possible judicial review proceedings. While there can be no criticism whatsoever of the second respondents' agents in making such an enquiry, in my view it militates against an inference of acquiescence. It is clear that the second respondents had not taken the petitioners silence in the first two months of 2011 to mean that they had changed their minds and decided not to pursue any challenge to the Board's decision. I do not consider the signing of the lease by the second respondents to be material as the agreement was completed on 19 November 2010 prior to the first respondent issuing the statement of reasons now being challenged. There has clearly been confusion about the impact, if any, of the decision in Tesco Stores Ltd v Aberdeen City Licensing Board. The decision to challenge the Board's decision was not a straightforward one. In addition there were funding issues. In all the circumstances, I do not consider that the three elements of mora¸ taciturnity and acquiescence have been established. The petitioners delayed in raising the petition. I respectfully agree with Lord Glennie's general view in United Co-operative Ltd v National Appeal Panel for Entry into the Pharmaceutical Lists when he states that in assessing what is a reasonable time, account must be taken of the complexity of the matter, the need to take advice, gather information and draft proceedings. It seems to me that there may be subtle considerations in assessing what is a reasonable time and the circumstances of each case must be closely scrutinised. The same period of delay in different cases may result in opposite conclusions being reached on the plea as a result of the particular circumstances involved in each. In this case I consider that the delay was not beyond a reasonable time in the particular circumstances. The notification given in the letter of 23 December 2010 constitutes a partial breaking of the petitioners' silence. The effect it had on the second respondents, namely that they wished to be clear about whether or not proceedings would be raised before doing anything, militates firmly against any inference of acquiescence being drawn. I do not consider it could be said that anyone looking objectively at the petitioners actions would have concluded that they had decided not to challenge the Board's decision during the period prior to 9 March 2011.

[35] Turning to the challenge based on inadequacy of reasons, I am satisfied that the test to be applied in determining the adequacy of reasons is that in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 347-348. The duty of the decision-maker is:-

"To give proper an adequate reasons for [the] decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it".

In my opinion there is no basis for suggesting that the test does not apply, or applies less stringently, to decisions such as that made by the first respondent on 11 November 2010 and confirmed by the statement of 29 November 2010. In Mirza v City of Glasgow Licensing Board 1996 SLT 1029 it was said in terms that there was no justification for applying any test other than that laid down in Wordie Co Ltd in examining the adequacy of reasons given by a licensing board. The report of the decision in Noble v City of Glasgow District council 1995 1315 is a short Note in which an Extra Division made clear that the requirement to give reasons did not extend to canvassing each piece of evidence or each assertion made before the decision-maker. The case of Noble was decided in 1992 some years before the decision in Mirza v City of Glasgow Licensing Board. In any event, even the short Note of the decision makes clear that some reasons must have been given by the licensing board in that case as it is stated that they were dismissive of some of the material grounds that the court did not find impressive. It does not seem to me to be a case that supports the contention that a licensing board can effectively give a "yes" or "no" answer on an application for a license.

[36] The statement of reasons no. 6/5 of process, summarises in some detail at paragraph 9 the submissions made on behalf of the objectors and by the applicants agents in response to those. Those objections related to the two separate issues of inconsistency with the licensing objectives and the issue of overprovision of licensed premises in the locality. On the first of those matters the full reasons given by the first respondent are as follows:-

"The Board, having regard to all the submissions and evidence before them, were of the view that grant of this application would not be inconsistent with any of the licensing objectives".

In relation to the ground of refusal enunciated in section 23(5)(c) of the 2005 Act, that is the full extent of the reasons given. In my view there can be few clearer examples of a decision failing to set out proper and adequate reasons. In the recent decision of Ritchie v Aberdeen City Council [2011] CSIH 22, the Lord Justice Clerk summarised the duty of a decision-maker in such matters including the extent of the latitude in giving reasons that is permitted in the following way:-

"In fulfilling his duty to give proper and adequate reasons, the decision-maker need not engage in an elaborate and detailed evaluation of each and every point that has arisen at the hearing. But his statement of reasons must identify what he decided to be the material considerations; must clearly and concisely set out his evaluation of them; and must set out the essence of the reasoning that has led him to his decision."

It is clear that the validity of any decision of this sort will turn on the particular wording and expression of the statement of reasons. In this case there is no clue whatsoever as to what the Board considers to be the material considerations in dealing with the various objections narrated. The objections are not evaluated. There is no comment upon the important issues such as the effect of cheap food and alcohol, the narrow pavement outside the premises, parking problems, lack of police presence and burden on police, access issues for disabled and elderly persons, strain on emergency services, 'good neighbour' issues and attracting more people in the area. These were all among the matters raised in the context of inconsistency with the licensing objectives. No reasons are given as to how each of these issues were dealt with in reaching the decision. There is no mention of what influenced or impressed the Board, whether it was the report from the Chief Constable or a particular submission made on one or more of the topics listed above. Nothing in the relevant authorities supports the contention that it is sufficient for a decision-maker in this context simply to say it has had regard to all the submissions and evidence before it without, even in summary form, commenting upon those submissions and their relative merits.

[37] I recognise that the scheme of the Licensing (Scotland) Act 2005 is quite different from the previous legislation. The focus on the licensing objectives and the formulation of a Board's policy is integral to the system. Further, I accept entirely that a great deal of information about the premises in respect of which an application is made will be available to the Board at the time of the hearing. In my view, however, none of that is sufficient to alter the very well established rule that a decision-maker must give reasons for their decision sufficient to inform the reader as to the basis for it.

[38] Turning to the issue of whether the Board erred in law in their approach to overprovision, it is necessary first to consider the legislative requirements for determination of a premises license application. Section 23(1) of the 2005 Act requires a licensing board to determine any premises license application in accordance with section 23. A hearing must be held (section 23(2)) to consider and determine the application and the Board must take account of the documents accompanying the application (section 23(3)). Sub-sections (4) and (5) of section 23 are in the following terms:-

(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

(b) that the application must be refused under section 25(2), 64(2) or 65(3),

(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 the 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 the sale of alcohol,

(e) that, having regard to the number and capacity of -

(i) licensed premises, or

(ii) licensed premises of the same or similar description as the subject premises,

in the locality in which the subject premises are situated, the Board considers that, if the application were to be granted, there would, as a result, be overprovision of licensed premises or licensed premises of that description, in the locality".

Section 23(6) provides that when considering the third possible ground for refusal, that of inconsistency with the licensing objectives, the Board must take into account in connection with the crime prevention objective any conviction notice or recommendation of the Chief Constable and must in any event take into account any report made by the appropriate Chief Constable under sub-section (3)(b) of section 21 of the Act.

[39] It seems to me to be clear, having regard to the way in which the statutory provisions are expressed, that the correct approach for the Board to take in considering an application is to consider each of the grounds for refusal in turn and decide whether anyone of them applies. If it is satisfied that any one of them applies, the application must be refused. Of course it may be that one or more of the grounds for refusal is patently irrelevant to a particular application. I accept that in that event it is unnecessary for the Board to analyse those grounds. For example, in the present case, there was no suggestion at all that the subject premises were excluded premises. What the legislation appears to require is for the Board to deal in turn with each relevant possible ground for refusal and make a decision on it. Inconsistency with one or more of the licensing objectives is but one of the five grounds. Against the backdrop of the interplay between the legislation, the Guidance, and the formulation of policy by each licensing board, there is no doubt that the licensing objectives are at the heart of decision-making. However, as a simple matter of statutory construction , sub-sections (4) and (5) of section 23 enunciate five discrete statutory grounds for refusal, any one of which is sufficient to require the Board to refuse the application. Thus, for example, if the Board were satisfied in any given case that the subject premises in question were excluded premises then there could be no question of the application being granted even where it was wholly consistent with all of the licensing objectives. Of course there will be overlap between some of the factors pertinent to ground for refusal 23(5)(c) and those involved in some of the other grounds such as unsuitability and overprovision. The way in which the provision is framed, however, clearly lends itself to situations where, notwithstanding that an application would not be inconsistent with one or more of the licensing objectives, it may well still be refused.

[40] Against that background that part of the Board's statement of reasons in this case that relates to the overprovision ground for refusal must be scrutinised. That passage is in the following terms:-

"The Board was conscious that the existing policy statement acknowledged that the locality was 'well served' in relation to licensed premises. The Board had regard to the capacity figures for the proposed premises and existing premises, however, in the absence of any concerns on the part of the Board in relation to inconsistency with any of the licensing objectives, the Board was constrained by the terms of the recent Tesco decision in Aberdeen and accordingly could not refuse the application on grounds of overprovision."

The beginning of that passage suggests that after finding the ground for refusal (c) was not established, the Board did go on to consider some of the relevant material to the fifth ground of section 23(5), namely that relating to overprovision. The reasons do not make clear what the Board's decision would have been in relation to overprovision having regard to those capacity figures. It is clear that the Board considered itself unable to refuse the application on grounds of overprovision, regardless of the capacity figures, because of the terms of the decision in Tesco Stores Ltd v Aberdeen City Licensing Board. The use of the words "constrained" and "could not refuse" indicate that the Board felt compelled to ignore the factors relevant to overprovision rather than take a substantive decision on that ground. Thus there is considerable doubt about what the Board's decision on overprovision would have been had it made one. In essence, the Board considered that it had no power to refuse the application on grounds of overprovision because it had found that the application was not inconsistent with any of the licensing objectives. In my view, this constituted a clear error in approach in that overprovision ought to have been considered as a distinct ground regardless of the decision on consistency with the licensing objectives.

[41] Turning to the decision in Tesco Stores Ltd v Aberdeen City Licensing Board itself, it is easy to see why the Board was encouraged to fall into error. That case involved an application for a "Tesco Express" supermarket in Cults, Aberdeen, where it was proposed that alcohol should be sold for consumption off the premises only. The objection that was central to the appeal related primarily to overprovision. It is clear from the statement of reasons in that case (no. 6/7 of process) and discussion in the appeal that the Board in question looked at type and capacity of the premises in the context of there being other similar premises in the locality. These were all appropriate factors under the overprovision ground for refusal in section 23(5)(a). However, what the Board had failed to do was to give any consideration whatsoever to whether or not the application was consistent or inconsistent with the licensing objectives. Thus it had plainly erred in the approach to determination required by section 23(5). Notwithstanding that there had been a clear failure to consider section 23(5)(c) at all, the submission made to the Sheriff Principal on appeal and accepted by him was that in deciding the issue of overprovision the Board required to have regard to the licensing objectives set out in section 4 of the Act. As the Board had failed to do so the appeal was granted. To some extent it is clear from the decision of the Sheriff Principal at paragraph 16 that the error made by the Board was in reaching a conclusion "without reference to these objectives", namely the licensing objectives. In my view any decision that ignores consistency with the licensing objectives is likely to be open to challenge and to that extent I would agree with the Board's decision in Tesco was flawed. However, insofar as the decision of the Sheriff Principal suggests that consideration of overprovision and the licensing objectives are part of a single exercise when making a determination under section 23(5) I am of the view that such an approach is incorrect. As indicated, I am of the view that a Board requires to consider separately and decide upon each relevant ground for refusal. This will invariably require consideration of whether an application is consistent or inconsistent with the licensing objectives. To the extent that the decision in Tesco Stores Ltd related to a failure to consider the licensing objectives at all, it seems to me it had no real bearing on the decision to be taken by the Board in this case. Insofar as it was regarded as imposing a rule that, if the application was not inconsistent with any of the licensing objectives, overprovision was irrelevant, such an interpretation of the legislation is in my view wrong. In short, the Board in this case was wrong to consider that it had no power to refuse the application on the grounds of overprovision because it had not found any inconsistency with the licensing objectives. It is that clear error in interpretation of the provisions governing determination of an application that has convinced me that the decision cannot stand, quite apart from the conclusion I have reached on inadequacy of reasons given. There is no question of overprovision, unsuitability of premises or any of the other grounds being subsets of some over-arching ground for refusal of inconsistency with the licensing objectives. Were it so, the legislation would have been differently drafted and would have included overprovision and unsuitability within the factors to be taken into account in considering inconsistency with the licensing objectives. I have no difficulty with the submission made by senior counsel for the first respondent that, were the grounds for refusal to be imagined in the form of a Venn diagram, there would necessarily be an overlap between the circle representing the licensing objectives and that representing overprovision. However, by definition, an overlap in that context requires there to be an area within each of the circles representing each of the grounds that is quite separate from the overlapping factors. It is the factors peculiar to overprovision and separate from the issue of the licensing objectives that the Board have failed to make a substantive decision on in this case. There were examples under the previous legislation of the sheer scale of a proposal being a relevant factor in consideration of overprovision - Caledonian Night Clubs Ltd v Glasgow District Licensing Board 1996 SC (HL) 29. In a simple case where the policy of a licensing board has concluded that there is overprovision, a decision to refuse an application on that ground may be more straightforward, given the rebuttable presumption against granting an application in those circumstances. In this case, the Board's policy was that the area was "well served" by licensed premises. The issue, therefore, was whether this particular application would itself result in overprovision having regard to the number and capacity of licensed premises in the locality. That is an exercise that the Board in this case has either failed to carry out or has carried out but failed to reach a decision on due to the erroneous approach taken to the application of the provisions for determination in section 23(5).

[42] There seems little doubt that the submissions for both sides to the Board in this case obscured the central question of how to apply section 23(5) by suggesting that the decision in Tesco Stores Ltd provided a definitive view on the relationship between the various grounds of that sub-section. Notwithstanding the part played by the Petitioner's agent in that, it does seem to me that this is a case of the decision-maker erring in law in a way that makes the decision susceptible to challenge. It would be unsatisfactory for a decision to stand where it has been made on the basis of a clear error of law.

[43] I have considered whether I should exercise my discretion in favour of not reducing the decision notwithstanding the views that I have reached. I have decided that it would not be appropriate to do so. My main concern is that I cannot say what conclusion would have been reached had the Board understood and applied properly the statutory provisions for determination of an application. On the approach to section 23(5) that I have suggested is the correct one, refusal of the application would clearly be open to the Board, although much would depend on their assessment of the number and capacity of the various other premises. As the court indicated in Risky Business Ltd v City of Glasgow Licensing Board 2000 SLT 923, the Board in such cases is the body upon which the function of deciding these matters is conferred and it is to the Board that the matter should go back to balance and assess the available material.

Decision

[44] For all of the reasons stated above I have decided to repel the second respondents plea in relation to mora, taciturnity and acquiescence and thereafter to declare that the grant of a license to the second respondents by the first respondent was unlawful and to reduce the decision of 11 November 2010 to grant that license. Thereafter I shall remit the matter back to the Board for reconsideration. As requested, I shall meantime reserve all questions of expenses.