SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

B 526/08

 

JUDGEMENT   of   SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC   in the cause   CO-OPERATIVE GROUP LTD     Appellants   against   ABERDEEN CITY LICENSING BOARD   Respondents

 

 

 

Act: Mr Robert Skinner, advocate, instructed by BMK Wilson, Glasgow

Alt: Mr Charles Smith, solicitor, Aberdeen City Council

 

 

Aberdeen, 21^st January 2009

 

The sheriff principal, having resumed consideration of the cause, answers both questions of law in the stated case in the negative, allows the appeal and remits the case back to the Licensing Board for reconsideration of their decision dated 8th July 2008 to refuse the appellants' application under section 20 of the Licensing (Scotland) Act 2005 for a premises licence in respect of premises at Springfield Road, Aberdeen; finds the respondents liable to the appellants in the expenses of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; refuses to certify the appeal as suitable for the employment by the appellants of counsel.

 

 

Note

 

[1] In this case the appellants have appealed against the decision of the respondents at the conclusion of a hearing on 8th July 2008 to refuse their application under section 20 of the Licensing (Scotland) Act 2005 for a premises licence in respect of premises at Springfield Road, Aberdeen. Section 20(1) provides: "Any person, other than an individual under the age of 18, may apply to the appropriate Licensing Board for a premises licence in respect of any premises". Section 23(2) provides: "The Licensing Board must hold a hearing for the purpose of considering and determining the application". Section 23(4) provides: "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". The grounds for refusal are specified in section 23(5), and the first of these is that the subject premises are excluded premises. Section 123(2)(b) provides that for the purposes of the Act "excluded premises" means "subject to subsection (5), premises used as a garage or which form part of premises which are so used". It is not in dispute in this case that the premises in question are used as a garage. Section 123(5) provides:

 

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

(a) petrol or derv, or

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

 

[2] Section 51(2) of the Act provides in short that the applicant for a licence may require the Licensing Board to give a statement of reasons for the grant or refusal of the application. In this case the appellants evidently made such a requirement of the respondents (to whom I shall refer hereafter as "the Board") who then issued a statement of reasons on 29th July 2008 which recorded that the application had been refused after the convener of the Board had used his casting vote against it (the members of the Board having been equally divided) and which expressed the reasons for this decision in the following terms:

 

The Board refused a licence because it considered the premises to be excluded premises in terms of section 123 of the Licensing (Scotland) Act 2005.

 

The Board recognised that the applicant premises was a garage forecourt shop. The Board was aware of Guidance for Licensing Boards and Local Authorities in respect of the 2005 Act issued by the Scottish Executive in April 2007. Item 8 deals with excluded premises. The Guidance states that "If a premises is used as a garage or form part of premises which are so used the 2005 Act prohibits the holding of an alcohol licence. [Premises are used as a garage if they are used for certain services including the retailing of petrol]. However if a premises (or part of premises) are used as a garage, they will be able to apply for an alcohol licence if the local community is (or is likely to become) reliant on the premises as a principal source of either fuel or groceries. The effect of this exemption is not limited to rural areas, as there may be instances in urban or other areas where the community is reliant on the premises as their local shop.

 

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

 

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

 

In the opinion of the Board, the statutory exception contained in section 123(5) did not apply in this case. The Board was not convinced that the community was reliant on the premises as a principal source of either fuel or groceries. This was because there were other premises not too distant from the application premises within the City which provided these services. There were six licensed premises within 1km of the applicant premises of which one is a supermarket and two are convenience stores. There are also two hotels and an off sale liquor store.

 

The Board was happy to consider the community as per the plan that had been provided by the Clerk and made its decision accordingly. However, it was also aware that the community was part of Aberdeen which is the third biggest city in Scotland and provides these resources in abundance. For example, within 2km there are two large supermarkets and ample filling station premises.

 

Therefore, whilst refusing the application may result in an inconvenience to some, the Board was not persuaded sufficiently to consider the application as an exemption.

 

[3] Section 131 of the Act provides in short that a decision of a Licensing Board to refuse a premises licence application may be appealed by the applicant and that such an appeal is to be made by way of stated case to the sheriff principal. Section 131(5) provides inter alia: "Where the sheriff principal ....... upholds an appeal against a Licensing Board's decision under this section, the sheriff principal ....... may - (a) remit the case back to the Licensing Board for reconsideration of the decision, (b) reverse the decision, or (c) make, in substitution for the decision, such other decision as the sheriff principal ....... considers appropriate, being a decision of such nature as the Licensing Board could have made". Section 131(3) provides inter alia:

(3) The grounds on which a Licensing Board's decision may be appealed under this section are -

(a) that, in reaching the decision, the Licensing Board -

(i) erred in law,

(ii) based their decision on an incorrect material fact,

(iii) acted contrary to natural justice, or

(iv) exercised their discretion in an unreasonable manner.

 

Section 132(1) provides that the Licensing Board whose decision is appealed under section 131 may be a party to the appeal, and section 132(2) provides inter alia that, in considering the appeal, the sheriff principal may hear evidence.

 

[4] On 11th August 2008 the appellants lodged with the sheriff clerk a note of appeal against the Board's decision to refuse their application. Three grounds of appeal were stated, and at the hearing of the appeal itself I allowed a fourth ground to be added. In the event the second ground was not argued so it is unnecessary to repeat it here. The first, third and fourth grounds were as follows:

 

1. The Licensing Board erred in law in that it applied the wrong test to the consideration of the application. The test which it ought to have applied in considering whether the application premises were "excluded premises" for the purpose of section 123 of the Licensing (Scotland) Act 2005 was whether "persons resident in the locality in which the premises were situated are or are likely to become, reliant to a significant extent on the premises as the principal source of petrol or derv or groceries". The test which the Board did apply was whether "the community as per the plan provided by the Clerk was reliant on the premises as a principal source of either fuel or groceries".

3. Separatim, the Board erred in having regard to the fact that "the community was part of Aberdeen which is the third biggest city in Scotland and provides these resources ...... (i.e. for fuel or groceries) ...... in abundance. For example, within 2km there are two large supermarkets and ample filling station premises". The test was not whether there were other premises in Aberdeen available for the provision of petrol, derv or groceries. It was whether persons resident in the locality were in fact reliant to a significant extent on the application premises as a principal source of these commodities.

4. Further the Board erred in applying the statutory test in that they took into account the number of licensed premises within the "locality" rather than those providing fuel or groceries.

 

[5] In response to the note of appeal the Board duly prepared and issued a stated case. After a brief opening narrative to the effect that the application had been made by the appellants and heard and refused by the Board on 8th July 2008, the stated case continues with a summary of the submissions which were made by the appellants' solicitor in support of the application and a reference to the use by the convener of the Board of his casting vote in favour of refusing the application. The reasons for this decision are then set out in full exactly as I have reproduced them in paragraph [2] above. Then there are three sections numbered 1, 2 and 3 in which the grounds of appeal are discussed. Section 2 deals with the second ground of appeal and I need therefore say no more about this. Section 1 begins with a reference to the relevant statutory provisions and continues:

 

The Licensing Board had first to define "locality". The Board had before it a plan showing a 1 kilometre radius of the appeal premises as being a reasonable locality. The appellant did not dispute this. The appellant had also produced a plan which was before the Board. Both plans are attached hereto. "Locality" is also referred to as "the community" in the Statement of Reasons, following the terminology in the Guidance issued by the Scottish Executive in April 2007. The Board considered that a 1 kilometre radius was a reasonable assessment of the locality in this instance, being a distance most people can walk easily. Within that radius there are five other licensed premises.

 

The Board then had to define "conveniently situated" to ascertain if the residents of the locality were reliant to a significant extent on the application premises as the principal source of petrol or derv or groceries. Aberdeen is Scotland's third city. It is also a compact city in terms of its size. The Board was aware from its local knowledge that there were other premises selling groceries and/or petrol or derv, in particular at the Garthdee area of the city where two large supermarkets are situated within convenient reach both by car and public transport. The Board did not therefore consider that the persons resident in the locality needed to be reliant to a significant extent on the appeal premises as a principal source of petrol or derv or groceries. The test used by the Board was therefore not whether "the community as per the plan provided by the Clerk was reliant on the premises as a principal source of groceries but "were persons resident in the defined locality reliant to a significant degree on the appellant premises as a principal source of groceries and petrol or derv" (sic). The Board concluded that they were not.

 

Section 3 again refers to the Guidance produced by the Scottish Executive and continues:

 

In the opinion of the Board the appeal premises do not fall within this category. The plan provided by the Clerk identifies what may reasonably be considered as the catchment area for customers in the locality. As there are other premises providing groceries or petrol or derv conveniently situated in the area, the Board was of the view that persons resident in the locality would not be reliant to a significant extent on the application premises as the principal source of groceries or petrol or derv. The appellant did not challenge the locality at the Licensing Board Hearing to determine the application. Regardless of the test applied are still valid grounds for refusal as there is no significant reliance by the community on these premises for petrol or derv or groceries (sic).

 

It will be seen that what is said in these sections is in part consistent, and in part inconsistent, with what is said in the statement of reasons. In particular (in the penultimate sentence of section 1) there is an assertion about the test applied by the Board which appears to contradict directly what is said in the statement of reasons itself. Since it would have been to the statement of reasons that the appellants would have had regard in deciding whether or not they should appeal against the Board's decision to refuse their application and since moreover their grounds of appeal were evidently framed upon the basis of what was said in the statement of reasons, I think that for the purposes of this appeal the correct course is to regard as the reasons why the application was refused the reasons given by the Board in the statement of reasons and to ignore anything in sections 1 and 3 which is inconsistent with what is said in the statement of reasons.

 

[6] Finally in the stated case there are two questions of law in the following terms:

1. Was the Board entitled to refuse to grant the premises licence on the basis that the premises are excluded premises in terms of section 123, Licensing (Scotland) Act 2005?

2. Did the Board use the correct test when determining whether persons resident in the locality are, or are likely to become, reliant to a significant extent, on the premises as the principal source of, a) petrol or derv, or b) groceries?

 

[7] Opening the appeal, counsel for the appellants submitted that I should uphold the appeal and grant the application, failing which I should remit the case back to the Board for reconsideration of their decision. He submitted that in reaching their decision the Board had erred in law in that they had applied the wrong test to their consideration whether the premises were excluded premises within the meaning of section 123 of the Act. Under reference to Loosefoot Entertainment Ltd -v- City of Glasgow District Licensing Board 1991 SLT 843, Di Caccia -v- Mid Argyll, Kintyre and Islay Divisional Licensing Board 1994 SLT 1150 and Chief Constable, Lothian and Borders Police -v- Lothian and Borders Police Board 2005 SLT 315 counsel submitted that the Board's decision must stand or fall by their statement of reasons and that they were not entitled to contradict, or elaborate upon, these reasons in the stated case. Counsel drew attention to the fact that in their statement of reasons the Board, after narrating the Guidance which had been issued by the Scottish Executive, had stated that in their opinion the statutory exception contained in section 123(5) did not apply in this case and that they were not "convinced that the community was reliant on the premises as a principal source of either fuel or groceries. This was because there were other premises not too distant from the application premises within the City which provided these services. There were six licensed premises within 1km of the applicant premises of which one is a supermarket and two are convenience stores. There are also two hotels and an off sale liquor store". Counsel submitted that it appeared here that the Board had applied a test of considering the other premises in the locality which held liquor licences and supplied liquor rather than those which were available for persons in the locality for the provision of petrol or groceries. This, said counsel, was confirmed by the map of the locality which the Board had produced and which detailed the six licensed premises to which they had referred. What had been highlighted by the Board were the licensed premises in the locality and, given that they had illustrated the test under section 123(5) by saying that this had not been satisfied by reference to the proximity of other licensed premises, it was clear that they had failed to apply the test properly. Moreover, the expression "community" which had been used by the Board did not necessarily mean the same thing as "persons resident in the locality". The Guidance issued by the Scottish Executive (which referred to the local community) was not there to supplant or contradict the clear terms of the Act. The expression "community" could include a normal parlance not only those people who resided in the locality but also those who worked there. Under reference to Art Wells Ltd -v- Glasgow District Licensing Board 1988 SCLR 48 counsel submitted that, as the logical first step in their reasoning, the Board had to define what was meant by "locality". It was, said counsel, not clear in the present case what the Board meant by the locality and further what they meant by the expression "community". Did they, for example, consider that it had to include all the residents in the locality? In point of fact the test might well be satisfied if some persons or a section of persons resident in the locality, for example old people in sheltered housing who did not have access to transport, had to use the premises to a significant extent as the principal source of their groceries. Here the test applied by the Board was whether the community was reliant on the premises as a principal source of either fuel or groceries. Moreover the proposition that the Board had not applied the correct statutory test was given added force by the statement in the final paragraph of the statement of reasons that "whilst refusing the application may result in an inconvenience for some, the Board was not persuaded sufficiently to consider the application as an exemption". It was, said counsel, difficult to know what this might mean. If it was being said here that some persons in the locality were indeed reliant to a significant extent on the premises for their retailing needs, then the application should have been granted by the Board.

 

[8] In response, the solicitor for the Board submitted that counsel had made too much of the statement of reasons and that, once the stated case had been lodged, it was to that alone that the court should look. If there was a contradiction between what had been said in the statement of reasons and what was said in the remainder of the stated case, then it was necessary to consider the terms of section 123(5). The Guidance issued by the Scottish Executive had the force of law and there was no contradiction between the expressions "community" and "residents" since it was the residents who made up the community. The issue here was whether the Board had properly applied the statutory test. The locality had been defined by the Board by a recognised method and was that which had been identified on the plan which had been produced at the hearing by the Clerk. It was not correct to say that the Board had failed to take into proper account what the locality might be. It was obvious from the stated case that the Board had applied the correct test and there had been no error of law on their part. Their decision should stand accordingly and the appeal should be dismissed.

 

[9] In my opinion the submissions for the appellants are to be preferred. The question which the Board had to consider under reference to section 123(5) was whether it had been established that persons resident in the locality in which the premises were situated were, or were likely to become, reliant to a significant extent on the premises as the principal source of petrol, derv or groceries. The Board decided that this question should be answered in the negative, and their reasons for doing so can be seen in the second and third last paragraphs of the statement of reasons. In my opinion these paragraphs disclose two clear errors of law. In the first place the Board were plainly influenced by the fact that that there were six other licensed premises in the vicinity. That may be so, but it is entirely beside the point of the question which is posed by section 123(5) which has nothing to say about licensed premises but which, on the contrary, directs attention to the question whether the premises in question are the principal source of petrol or derv or groceries (not, be it noted, liquor). Moreover, it is equally nothing to the point that the community (whatever precisely that may have been considered by the Board to mean) may not be reliant on the premises as a principal source of either fuel or groceries. As indicated, the question the Board had to consider was whether as a matter of fact persons resident in the locality in which the premises were situated were, or were likely to become reliant to a significant extent on the premises as the principal source of petrol or derv or groceries. I have emphasised the words "persons resident in the locality" since these are the persons who matter here, and not the local community as a whole. It is not even necessary that all the residents in the locality should be, or be likely to become, reliant to a significant extent on the premises as a principal source of petrol or derv or groceries. All that is required here to satisfy the test is that there are some persons (for example elderly persons who are unable to drive or, as counsel suggested, the residents of a sheltered housing scheme) who as a matter of fact are, or are likely to become, so reliant on the premises.

 

[10] Counsel for the appellants indicated that, if the appeal were to be allowed, he would prefer that I should grant the application without further ado. I do not think that it would be appropriate that I should do this. In my opinion the proper course would be to remit the case back to the Board for reconsideration of their decision in light of what I have said above about section 123(5).

 

[11] It will be seen that I have answered both questions of law in the negative. With reference to the first of these questions, I should perhaps emphasise that I do not consider that the Board were entitled to refuse the application having erred in law in their approach to the question posed by section 123(5). But this does not mean that, when they come to reconsider their decision, they would not be entitled to refuse to grant the application if they approach this question correctly and find that it has not been established that persons resident in the locality in which the premises are situated are, or are likely to become, reliant to a significant extent on the premises as the principal source of (a) petrol or derv, or (b) groceries.

 

[12] It was agreed that the expenses of the appeal should follow success and I have therefore found the Board liable to the appellants in these expenses.

 

[13] Counsel moved me to certify the appeal as suitable for the employment by the appellants of counsel. He pointed out that section 123 was a very important section of the 2005 Act and he submitted that it was helpful that such a new Act should be properly argued. The solicitor for the Board agreed that it was important to argue matters in a case such as this before the sheriff principal to build up a body of expertise. But he contended that, while it was novel, the matter at issue in this appeal was not so complex as to justify the employment of counsel. For my own part, I think that the errors made by the Board in this case were plain to see and I am not persuaded that it required the expertise of counsel to point them out. In my view it would have been well within the capacity of a competent solicitor to have done so. I have therefore refused the appellants' motion.

 

[14] In conclusion I should perhaps add that I am not altogether convinced that the stated case is in proper form given that, notwithstanding that they apparently did not hear evidence but proceeded upon the basis of the submissions of the appellants' solicitor supplemented by various photographs and other printed materials and their own knowledge of the area, the Board plainly reached certain conclusions both in fact and in law in deciding to refuse the appellants' application. Having done so, it might have been thought that they would incorporate findings in fact and law in the stated case as required by rule 3.34.3(1) of the Summary Applications and Appeals etc Rules 1999. But, since it was not argued that the stated case was not in proper form and since it has had no bearing on the outcome of this appeal, I shall say no more about the matter.