Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT STORNOWAY

Case No. B347/10 JUDGEMENT

by

CHARLES NORMAN STODDART

Temporary Sheriff Principal

in

APPEAL BY STATED CASE

in the cause

KENNETH WATSON GALLOWAY, Honorary Secretary, Stornoway Golf Club, 21 Springfield Road, Stornoway, Isle of Lewis, HS1 2PS

APPELLANT

against

WESTERN ISLES LICENSING BOARD, Comhairle nan Eilean Siar, Sandwick Road, Stornoway, Isle of Lewis, HS1 2BQ

RESPONDENTS

For the Appellant: Mr C Murray, Advocate, instructed by Peacock Johnston, Solicitors,

Glasgow

No appearance for Respondents

INVERNESS , 18 January 2011.

The Sheriff Principal, having resumed consideration of the appeal and the Motion by the Appellant for sanction for the employment of junior counsel, ANSWERS in the affirmative the first and third questions of law in the Stated Case; FINDS it unnecessary to answer the second question; ALLOWS the appeal; and in terms of s.131(5)(c) of the Licensing (Scotland) Act 2005 GRANTS a variation of the premises licence issued by the Respondents in respect of Stornoway Golf Club, Lady Lever Park, Stornoway dated 1 September 2009 so that the periods of their Licensed Hours thereunder shall henceforth include Sundays between 12 noon and 11.00pm for On-Sales only; DIRECTS the Clerk to the Respondents to issue forthwith to the Appellant a premises licence as so varied; FINDS the Respondents liable to the Appellant in the expenses of the appeal; ALLOWS an account thereof to be given in and REMITS same to the Auditor of Court to tax and to report; REFUSES to certify the appeal as suitable for the employment of junior counsel.

NOTE:

Introduction

[1] This appeal by way of stated case is taken against a decision by Western Isles Licensing Board ("the Board") to refuse an application by the Secretary of Stornoway Golf Club ("the Appellant") for the variation of a premises licence which they had issued to the Club on 1 September 2009. The Club is a not-for-profit organisation with a written constitution and rules. No person in the Club may be supplied with alcohol unless that person is a member, or is on the premises at the invitation of a member and is accompanied by that member. Details of guests are recorded in a visitors book. The variation application was presented to the Board as part of the Club's business plan to increase services to members on a Sunday, in particular by providing meals, snacks and opportunities to watch televised sport.

[2] At the hearing before the Board on 28 July 2010 which resulted in the refusal now under appeal, the Appellant restricted the variation application to one which (if granted) would allow the Club to conduct "On-Sales" of alcohol on Sundays between 12 noon and 11.00pm; he no longer sought an "Off-Sales" variation. Accordingly, if the application had been granted, alcohol would not be on sale on a Sunday to members of the general public.

[3] Section 4 of the Licensing (Scotland) Act 2005 ("the 2005 Act") sets out a number of licensing objectives, inconsistency with any one or more of which is a ground for refusal of a variation application: see section 30(5)(b). In the present case the determinative issue for the Board centred on the licensing objective set out in section 4(d) of the 2005 Act: that of protecting and improving public health. None of the other objectives were founded on by the Board as a ground for refusal.

[4] Following the refusal of the application, the Board issued a Statement of Reasons under reference to the said licensing objective. The key passage of this Statement is as follows:

"The Board considered that granting the application would result in the increased availability of alcohol and that such increased availability would not be consistent with protecting and improving public health. The Board noted that the level of alcohol dependency and abuse in the Western Isles was a well-known fact in the public domain.

The Board considered that the applicant has not demonstrated that such increased availability of alcohol would be consistent with the foresaid licensing objective."

Following receipt of this Statement, the Appellant lodged a Note of Appeal, resulting in the issue of the present Stated Case. A diet of hearing was assigned for 15 December 2010; that diet was intimated to both parties and to those individuals who had previously lodged objections to the variation application. In the event, only the Appellant appeared before me, represented by junior counsel.

Arguments for Appellant

[5] Although the Note of Appeal listed nine grounds of challenge to the Board's decision, these were not argued individually. Instead, Counsel for the Appellant was able to compress into the following four propositions his submission that the appeal should be allowed:

(a) the Board had erred in law by applying an incorrect test (Ground 1);

(b) the Board had erred in law by applying general considerations of public health in an arbitrary manner (without considering the specific circumstances of the application) (Grounds 2, 5, 8);

(c) the Board's reasons were insufficient (Ground 9); and

(d) the decision reached by the Board was one that no reasonable Licensing Board could have reached on the submissions before it (Grounds 3, 4, 7).

I now summarise the principal arguments advanced in respect of each of these propositions. Full written submissions were lodged, to which further reference may be made.

(i) Error of law: incorrect legal test

[6] Here, Counsel's argument centred on that part of the Statement of Reasons which states:

"The Board considered that the applicant had not demonstrated that such increased availability of alcohol would be consistent with the foresaid licensing objective."

Counsel submitted that it was not for the applicant to demonstrate (my emphasis) anything. The correct legal test was whether the granting of an application would be inconsistent with protecting and improving public health. The Board appeared to have misinterpreted section 30(5) (b) of the 2005 Act by (in effect) placing an onus on the applicant when none was imposed by statute. Accordingly they had misdirected themselves, resulting in an error of law: see Walker, Civil Remedies, p. 166; D&A Haddow v. City of Glasgow District Licensing Board 1983 SLT (Sh Ct) 5.

(ii) Error of law: arbitrary application of general policy

[7] Counsel suggested under this heading that the Board's decision appeared to rest on the view that the increased availability of alcohol through licensed premises would not be consistent with protecting and improving public health. Further, he submitted that the Board's decision suggested that there was a link between alcohol availability and alcohol dependency or abuse.

[8] But it was significant, said Counsel, that no representations had been made at the hearing before the Board by Northern Constabulary of any concerns or material difficulties. No representations had been made by any statutory or charitable body with responsibility for health, or public health. The Board's Statement of Licensing Policy at para.28.1 provided that it would have particular regard to the views of such bodies and would take advice from them, but no such views or advice was in fact before the Board at the hearing.

[9] However, the Board had considered objections from a number of sources, of which three required mention. None of them, taken at their highest, were sufficient to support the decision reached. The Free Church of Scotland (Continuing) had presented submissions in relation to public health, but these were of a very general nature and dealt with the extent of alcohol consumption in Scotland and its medical consequences. Crucially however, the Church had not produced evidence that a single member or guest of the Club was suffering from any alcohol-related medical condition. No submission was made that provision of alcohol at the club would have an impact on public health. There was no evidence showing that an increased availability would result in a greater incidence of health problems amongst club members or anyone else. No causal link had been demonstrated or even mentioned: see Deejays Nightclub v. Aberdeenshire Licensing Board [2007] CSOH 188 at [13] and [14]. As Counsel put the matter, the substance of the submission (taken at its highest) was that in Scotland generally or in the Northern Isles in particular, there is a proportion of the population who suffer from some alcohol-related health condition. The general thrust of the objection had been directed to the question of Off-Sales, the application for which had not been pursued; and there had been very limited reference in the objection to the activities of the club. Finally, the objection on the grounds of public health was not related to the provision of alcohol but rather was presented in terms of the need for religious observance on Sundays.

[10] As for the objection by the Lord's Day Observance Society, there was again no comment by them on the specific application before the Board, nor any suggestion that availability of alcohol to members of the Club would result in any particular public health problems. The written objection by Mr Murdo Murray was presented on the basis that the granting of the application would result in 'temptation' to passers-by, which failed to recognise that the premises were a private members' Club and that the Appellant no longer sought a variation to allow Off-Sales. In any event, members of the Club who wished to watch televised sport and consume alcohol in a public place on a Sunday were presently using other licensed premises in the Stornoway area.

[11] But (said Counsel) even if it was accepted that availability of alcohol leads to alcohol-related public health issues, the application of that proposition to this specific case was arbitrary. The Respondents' decision did not make it clear why this particular application should be refused. It was eloquent of a general policy to refuse applications for premises licences in all circumstances. It was accepted by the Board, following advice from its Clerk, that overprovision was not a relevant consideration because the applicant was a Club. But overprovision appeared to be the mischief at which the decision was directed: the Board appeared to think that any further provision of licences in the Stornoway area would lead to public health issues. The application of a general policy to this application amounted to an error of law: Aitken v. Glasgow City Council 1988 SCLR 287, per Sheriff Mowat at p. 293.

(iii) Insufficiency of reasons

[12] Counsel submitted that since the decision relied on generalised comments about public health rather than the specific issue of risk to Club members and their guests, it was incumbent upon the Board to give a clear articulation of why it attached weight to those comments and why it did not accept the submissions on behalf of the Appellant. No reason was given by the Board as to why an extension of licensed hours should be refused for Sundays when the Club operated under a licence from Monday to Saturday. The Board was bound to explain why one additional day per week was inconsistent with the licensing objective, when six days were apparently not. The test was whether the Appellant was able to discern the matters which might give rise to an appeal. The Board's decision must therefore stand or fall by the reasons given: Loosefoot Entertainment Ltd v. Glasgow District Council 1990 SCLR 584, at 588D; see also Mirza v. City of Glasgow Licensing Board 1996 SLT 1029, applying Wordie v. Secretary of State for Scotland 1984 SLT 345 at 348. Behind every ground for refusal, there must be adequate reasons, and behind those reasons there must be a proper basis in fact: Leisure Inns (UK) v. Perth & Kinross District Licensing Board 1991 SC 224 at 232 and 233. In the present case, the reasons given were insufficient to satisfy the necessary test.

(iv) Exercise of discretion in unreasonable manner

[13] Finally and under reference to Risky Business v. City of Glasgow Licensing Board 2000 SLT 923, Counsel submitted that the Board had exercised its discretion in an unreasonable manner. The Board had not weighed up the effect which granting the variation would have. It had not considered whether the opening of the Club on a Sunday would lead to individuals drinking more than they would otherwise do. Esto it had considered what effect Sunday opening would have, the Board did not explain why it had rejected the submission that the Club members who would otherwise be expected to use the premises on a Sunday were presently patronising other licensed premises. In short, the Board had not dealt with this application on its merits; rather it had applied wider policy considerations. The effect was that the Board had closed its minds to the application before it: see Elder v. Ross and Cromarty District Licensing Board 1990 SLT 307, per Lord Weir at 311J to 312B.

Decision

[14] I am satisfied that this appeal should be allowed. It is clear to me that the Board has erred in law, both by applying the incorrect legal test and by the arbitrary application of a general policy. The first thing to be said is that, as a matter of law, in considering the application the Board was required to consider whether there existed any of the grounds of refusal set out in section 30(5) of the 2005 Act. Under s. 30(4), if none of the grounds applied, then the Board must grant the application. Conversely, if any of the grounds applied, the Board must refuse the application. Counsel submitted that these provisions meant that ultimately the Board was not empowered to make a discretionary decision, although of course it might attach different weights to the submissions and other material available to them in applying the legal test. It has of course to be noted that under section 131(3)(a)(iv) of the 2005 Act, one of the grounds of appeal is that the Board has exercised its discretion in an unreasonable manner; indeed that is one of the grounds advanced in the present case.

[15] On what I might describe as the onus point, it is perfectly clear from the statutory language that it is not for an applicant to persuade a licensing Board that what the applicant wants to do will conform to the licensing objectives or any one or more of them. The Board will of course require to consider all relevant material before it, but it is for the Board (and not for the applicant) to sift and assess all that material. Having done so, it must ask itself whether any of the grounds of refusal exist. Here, the Board has not done that; it is clear from the passage from the Statement of Reasons which I have quoted above at para. [4] that having apparently decided that granting the application would result in the increased availability of alcohol, (which the Board says would not be consistent with protecting and improving public health) the Board has qualified that by saying that the applicant had not demonstrated that such increased availability would be consistent with that licensing objective. That qualification leads me to the view that the Board has introduced into its exclusive decision-making process a requirement on the applicant which has no basis in the statutory formula. It discloses a clear error of law.

[16] As for the proposition that there has been an arbitrary application of a general policy, it is essential that when applying its licensing policy a Licensing Board must find and demonstrate a causal link between the particular mischief apprehended and the general terms of the policy itself. In Deejays Nightclub v Aberdeenshire Licensing Board (op. cit.) the need for such a link was made clear; and if a general policy is applied without a causal link, an error of law occurs: Aitken v Glasgow City Council (op.cit.)

[17] That is the situation here. Not only were there no objections to the application from the police or from any statutory or other body concerned with public health, those objections which raised that issue were indeed of a generalised nature. The Board did not focus (as it should have done) on the Club itself, its members and guests and its activities; and it failed to explain how granting the application would be detrimental to public health. Now I accept that a part of the Board's Licensing Policy is to protect and improve the health and welfare of patrons of licensed premises; and of course such a policy is laudable. But to apply that general policy to a particular application without examining its specific merits (or demerits) amounts to an arbitrary application.

[18] That is sufficient for the disposal of the appeal, but since I heard argument as to the sufficiency or otherwise of the Board's reasons and the alleged unreasonableness of the decision itself, I propose to state briefly my view on these points, particularly as that has a bearing on how the appeal should be disposed of. For the reasons advanced by Counsel for the Appellant, I agree that the Board's Statement of Reasons was insufficient to satisfy the necessary test set out in the authorities cited. As for the way in which the Board exercised its discretion, I also agree that this must be characterised as unreasonable. To some extent at least, this shades into the separate question of the arbitrary application of the general policy; but applying the ratio of Risky Business v City of Glasgow Licensing Board (op.cit.) it is the Board's failure to weigh up the relevant considerations (which were correctly set out by Counsel) which I find significant and indeed fatal to its decision.

Remedy

[19] In the event that an appeal is granted in a case such as this, the remedy is a matter for the discretion of the Court. One course open to me would be to remit the matter to the Board for reconsideration, a course which is often followed where the only ground of criticism of a Board is where the reasons for its decision are inadequate. But here I have gone much further and held that not only has the Board erred in law in two important respects, but also that it has exercised its discretion in an unreasonable manner. In Botterills of Blanytre v. Hamilton District Licensing Board 1986 SLT 14 the Sheriff thought (in the circumstances of that case) that if the matter was remitted for reconsideration, it might well be difficult for the Board to re-examine the application with the open mind necessary and with the appropriate focus. On appeal, that was held to be an appropriate exercise of his discretion. Here, I have the same concerns, because of the nature of the Board's errors in law and the failures in the exercise of its discretion. In these circumstances I do not think a remit is appropriate and in any event I have before me all the material needed to make a new decision under section 131(5) of the 2005 Act. I propose to take that course.

Disposal

[20] I shall answer in the affirmative the first and third questions in the stated case. The second question refers to matters of natural justice in relation to public health objections, but since a failure to apply natural justice was not argued, I find it unnecessary to answer the second question. I shall allow the appeal, grant the variation sought and direct the Clerk to the Board to issue to the Club a license as so varied.

Expenses and sanction for junior counsel

[21] At the hearing before me on 15 December 2010 Counsel for the Appellant moved for expenses against the Board in the event that the appeal was allowed. Subsequently the Appellant lodged a motion for a sanction for the employment of junior counsel on the basis that if expenses were awarded, such sanction was appropriate. This latter motion was opposed by the Board and I heard argument on it by means of a telephone conference call on 10 January 2011.

[22] On the question of liability for expenses I shall follow the normal rule that expenses follow success and grant the Appellant's motion in this regard. I express the hope that the Account of Expenses can be agreed without taxation. But I have decided to refuse the motion for sanction for the employment of junior counsel. I do not agree that the appeal raised novel or complex points, as the Appellant suggested. While the 2005 Act is indeed new legislation, novelty is a matter with which all sectors of the legal profession have to grapple on a regular basis and in so many fields. It is no doubt true that the volume of new legislation makes it difficult for lawyers and others to stay abreast of developments, but the 2005 Act did not come fully into force until 1 September 2009 and not until the expiry of the transitional period during which the Licensing (Scotland) Act 1976 ("the 1976 Act") remained in force.. In these circumstances one might reasonably expect that those who regularly practise in the licensing field would have had sufficient time to prepare for the changes to come. In any event, the competent grounds of appeal against the decision of a Licensing Board set out in section 131(3)(a) of the 2005 Act mirror those set out in section 39(4) of the 1976 Act.

[23] As to complexity, I do not think the points raised in the appeal were particularly complex. Although the statutory framework has changed, concepts such as "error of law" and "unreasonable use of discretion" are well known and, in the licensing field, well-travelled in the case-law; and they remain (as I have said and as this appeal shows) of direct relevance under the appeal provisions of the 2005 Act. I am of the view that to advance the arguments put forward in support of this appeal was well within the capability of an experienced licensing solicitor, although of course I gladly acknowledge that assistance I received from Mr Murray.