Scottish Sheriff Court Decisions

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

 

B2740/11

JUDGMENT OF SHERIFF S. REID

Sheriff of Glasgow and Strathkelvin

 

in the cause

BAPU PROPERTIES LIMITED, a Company incorporated under the Companies Acts and having its Registered Office at 11 Park Circus, Glasgow G3 6AH

PURSUERS

against

CITY OF GLASGOW LICENSING BOARD, City Chambers, 235 George Street, Glasgow

DEFENDERS

______________________________

Act: Mr E Doull, Solicitor

Alt: Ms G Wardhaugh, Solicitor

 

 

GLASGOW, 22 February 2012 :

The sheriff, having resumed consideration of the cause, repels the first and second pleas-in-law for the defenders, sustains in part the first plea-in-law for the pursuers to the extent of finding that the defenders have erred in law in reaching their decision, and upholds the pursuers' appeal to the extent of quashing the decision of the defenders made on 27 June 2011 to refuse the pursuers' application for the variation of the Premises Licence in respect of the premises known as The Dhabba, 44 Candleriggs, Glasgow G1 1LE; thereafter, in terms of the Licensing (Scotland) Act 2005, Section 131(5)(a), remits the pursuers' application to the defenders for re-consideration; finds the defenders liable to the pursuers in the expenses of the Appeal as taxed; allows an account thereof to be given in and remits the same when lodged to the Auditor of Court to tax and to report; and decerns.

 

NOTE:

[1] This is an appeal by way of summary application under Section 131 of the Licensing (Scotland) Act 2005 ("the 2005 Act"). The pursuers appeal against a decision of the City of Glasgow Licensing Board ("the defenders") on 27 June 2011 whereby the Board refused the pursuers' application for the variation of a Premises Licence ("the Variation Application"), in terms of Section 30 of the 2005 Act. The Licence (and the Variation Application) relate to premises known as The Dhabba, 44 Candleriggs, Glasgow. It trades as a licensed Indian restaurant. In the Variation Application submitted under Section 29 of the 2005 Act, the pursuers sought to include in the Premises Licence an external seating area for 24 persons on the pavement along the main glass frontage of the restaurant premises, and to amend the Operating Plan (which forms part of the Premises Licence by virtue of Section 20(2)(b)(i) of the 2005 Act) to include the provision of outdoor drinking facilities at the premises.

[2] There were no objections to the Variation Application. A representation was received from a third party who did not appear at the meeting of the Board.

[3] The Board met on 27 June 2011 to consider the pursuers' Application. A transcript of the Board Meeting on 27 June 2011 is produced by both parties (items 5/1 & 6/1 of process). The terms of the transcript are agreed. The transcript records the following exchange at the meeting, so far as material:-

"Inspector Ross (for the Chief Constable): No police observation, your Honours...

Mr Sharp (for the Director of Land and Environmental Health Services): Your Honours, I would ask that in relation to the licensing objective of preventing public nuisance it is requested that the relevant outdoor drinking conditions as per the Board's policy be applied.

[Applicant's solicitor]: Yes, your Honours. This is an application to put an external area in front of Dhabba which as you know is an Indian Restaurant. We have no problems with the conditions for external area. Those are quite acceptable. The capacity asked for as per the application is 24...... I think some of your Honours were out during the last week to view the site and maybe expressed a comment that they would prefer it round the corner in Bell Street.

The Chairman: No, it was not a preference at all. It was just that we made a comment and nobody was there to answer the questions.

[Applicant's solicitor]: Well, could I take instructions on that because that information was not fed back to me, your Honours..... The external area would be in the frontage of Candleriggs. It has the appropriate Section 59 planning consent and so on. It would be for 24 persons which I understand is 12 x 2 in terms of table arrangements. The reason we have selected the Candleriggs frontage is twofold. First all it is far easier to supervise because that is their main frontage where the main glass windows are. Secondly, if you were to go round the corner into Bell Street there are bicycle stands and so it is the lack of supervision plus the pavement is already narrowed there by the bicycle stands. I have photographs here which I am happy to pass up to you to show these. The fact of the matter is that in this area there are a number of other premises who enjoy this facility and it adds to the ambience of the area....

The Chairman: Mc Maciver, you said that you have planning permission.

[Applicant's solicitor]: That is what I am told, relevant planning permission and Section 59 consent. I accept that it is not a matter for your Honours but that is the information that I have been told. In fact, yes, I have a copy of it.

The Chairman: The area that we had pointed to, we did suggest that round the corner would be a good area. We did suggest that he puts it in and that would be good because there is tons of pavement area there. I just see tables and chairs and there weren't tables and chairs when we visited. Where the gentleman that was there on the day pointed to us it basically left us clear pavement for other people to walk by.

[Applicant's solicitor]: If that is what was suggested to you I can understand why you are concerned about there but that is not the case. The application runs in essence along the frontage of the property. You can see there in one of the pictures there is a long glass frontage in front of the Dhabba and it would run right along the front of that. There is two metres of pavement space left. Three metres is the width of the area.

The Chairman: What is the area that you must have for pedestrians to negotiate?

[Applicant's solicitor]: I think the standard, if it helps your Honours, is two metres as far as Land Services are concerned.

The Chairman: Right. Questions from members?

Councillor Wardrop: The objector's views highlight cleansing issues and I know that it is quite nice area but just to check that that will be in order?

[Applicant's solicitor]: It will be. The reality is that this is a restaurant and the last thing anybody in a restaurant wants is a dirty-looking set of premises...it is in the applicant's own interest to ensure that it is the case in any event, your Honour, and that will be fastidiously adhered to.

The Chairman: Just in relation to the covers outside, what is it that you will be purchasing there - food or just drink?

[Applicant's solicitor]: No, it will be food as well, your Honour. It is really an adjunct to the operation. This is not a premises where you go in for just a drink. You go for something to eat. You might have a glass of wine as well.

The Chairman: So, if someone sits at that table and orders food and no drink, the drink is ancillary to the food?

[Applicant's solicitor]: Yes, that is the position. It is not the kind of place you are going to just for a drink..."

[4] Following the Board Meeting, the Board refused the pursuers' Variation Application.

[5] The Application was refused on two grounds, namely, (i) that the granting of the Application would be inconsistent with the licensing objective of preventing public nuisance (in terms of Section 30(5)(c) of the 2005 Act) and, separately, (ii) that the proposed external area was unsuitable for use for the sale of alcohol in accordance with the proposed variation (in terms of Section 30(5)(c) of the 2005 Act). A Statement of Reasons dated 26 July 2011 was issued by the defenders (item 5/2 of process). So far as material, the Statement of Reasons disclosed the following reasoning for the refusal of the Application (at Sections 10 and 10a of the Statement):-

"The Board was familiar with the location of the proposed external area, having visited the site on 23 June 2011, during which visit the proposed external area was identified to them by members of the staff at the premises. From its site visit, the Board was concerned that the operation of the external area could cause inconvenience and nuisance to pedestrians using the popular footpath on Candleriggs and felt that a more suitable location would be around the corner on the less busy Bell Street.

In response, Mr Maciver advised that the location on Candleriggs would allow for the best possible control and supervision of the external area due to the large glass frontage at the premises and that the suggested area on Bell Street would afford less supervision and would be difficult to utilise due to the presence of bicycle stands which would considerably narrow the footpath. Mr Maciver also made submissions regarding other licensed external areas which were operating in the vicinity of the applicant's premises in the Merchant City area. The Board was aware of the existence of other licensed external areas in the vicinity referred to by Mr Maciver but did not consider itself to be bound by decisions taken by differently constituted Boards and was aware that each such application requires to be considered on its own individual merits.

While the Board acknowledged that a number of external licensed areas were already operating in that area, it was of the opinion that this additional external area due to its specific characteristics and proposed dimensions could lead to congestion for members of the public on a busy public footpath, notwithstanding the acceptance of the conditions suggested by the Licensing Standards Officer. While the Board noted the submissions made by Mr Maciver and the fact that various other relevant permissions had been obtained, having seen the extent of the proposed external area during the site visit, the Board remained concerned regarding the impact that the operation of the external area would have on members of the public using the footpath on Candleriggs.

In determining to refuse the application in terms of Section 30(5)(b) of the Act, the Board considered that the granting of the application would be inconsistent with the Licensing Objective of Preventing Public Nuisance. The Board was concerned as to the extent of the proposed licensed external area, as indicated by staff at the premises during the site visit, and was of the opinion that this area would limit the space on the footpath so as to cause congestion and inconvenience to pedestrians in a busy area of the city centre to the extent that it would be impossible to prevent public nuisance from arising, as per the terms of the Licensing Objective. The Board did not consider that the attachment of the conditions suggested by the Licensing Standards Officer would be sufficient to prevent this congestion and inconvenience, and consequent concern for public nuisance, from arising. The Licensing Board therefore considered that the granting of the application would be inconsistent with the Licensing Objective of Preventing Public Nuisance and therefore the application required to be refused in terms of Section 30(5)(b) of the Act.

In determining separately to refuse the application in terms of Section 30(5)(c) of the Act, the Board was of the view that given the specific location, character and condition of the proposed external area, and in particular its size and extent in relation to the width of the footpath and the impact that it would have on pedestrians using the footpath, the Board considered that the premises are unsuitable for use of the sale of alcohol in accordance with the proposed variation, namely, the use of the external area for outdoor drinking facilities, and therefore required to be refused".

[6] The pursuers have now appealed against the Board's decision, in terms of Section 131 of the 2005 Act.

 

Submissions for the pursuers

[7] The pursuers' agent argued that the defenders had erred in law et separatim exercised their discretion in an unreasonable manner, in refusing the Application in terms of Sections 30(5)(b) and (c) of the 2005 Act (Articles 3, 4 and 5 of Condescendence).

[8] Further, the pursuers' agent argued that the defenders had erred in law et separatim exercised their discretion in an unreasonable manner by issuing an inadequate Statement of Reasons for their decision. He submitted that the Statement did not adequately explain the basis upon which the defenders had reached their conclusions, in terms of Section 30(5)(b) or (c) (Article 6 of Condescendence).

[9] To the extent that the Variation Application was refused by reference to Section 30(5)(b) of the 2005 Act (inconsistency with a Licensing Objective, namely, the prevention of public nuisance), the pursuers challenged the decision on five specific bases (more fully narrated in Articles 3 and 4 of Condescendence), namely:-

1 There was no material before the Board to support the conclusion that there would be congestion or inconvenience to pedestrians, or a public nuisance;

2 The refusal of the Application, on the basis of an alleged perceived public nuisance, was not properly related to a Licensing Objective under Section 4 of the 2005 Act;

3 The refusal of the Application was irrational because the alleged perceived "public nuisance" was logically referable to the physical presence of dining tables and chairs (for which planning permission had already been duly granted), and not to the sale of alcohol;

4 That the decision was irrational standing the grant by the Board of similar licences for external drinking areas to "several other outlets near to the pursuers' premises" (specifically, licensed premises known as Metropolitan, Urban Pind, Guys, City Merchant, Bar 91 and Koolba);

5 The decision proceeded upon an incorrect material fact, namely, the Board's erroneous understanding that the space on the footpath would be limited to such an extent as to cause congestion and inconvenience giving rise to a public nuisance.

[10] To the extent that the defenders' decision proceeded under Section 30(5)(c) (the alleged unsuitability of the premises), the pursuers challenged the decision on the following three bases, namely:-

1 There was no material before the Board to support the conclusion that the premises were not suitable;

2 The decision was irrational, in the sense that no reasonable Licensing Board, properly informed, could have reached the conclusion that the grant of the Application for a variation to the Premises Licence would lead to such congestion as to cause a public nuisance; and

3 The decision was irrational, in light of the grant by the Board of similar licences (for external drinking areas) to other named licensed premises in the vicinity (Article 5 of condescendence).

[11] In large part, the pursuers' grounds of challenge under Sections 30(5)(b) & (c) overlap. In essence, they were predicated on the same argument, namely that both grounds of refusal were founded, in simple terms, upon a misapprehension regarding congestion.

[12] By way of preface to his grounds of challenge, the pursuers' agent submitted that that Section 30(4) imposed no onus on the applicant (Din v City of Glasgow District Licensing Board 1996 SLT 363 at 366D per Lord McCluskey). Instead, he said, the 2005 Act, consistent with its predecessor, contained a "presumption of grant". Mr Doull then took me through the terms of the transcript of the Board Meeting. He noted that the transcript recorded that the Board members had suggested that the outdoor drinking area be relocated to another area in Bell Street, rather than in Candleriggs. Mr Doull emphasised that the pursuers' agent had pointed out to the Board, at the meeting, that the location proposed in the Variation Application was more suitable because it was immediately in front of the Premises, abutting a substantial glass frontage, thereby allowing far easier management supervision. Accordingly, in this respect, the area proposed by the pursuers was said by Mr Doull to be directly consistent with the Board's own Statement of Licensing Policy (paragraph 13.2), which emphasised the importance of supervision of outdoor drinking areas. In contrast, the alternative area (in Bell Street) suggested by the Board was less easily supervised and the adjoining pavement area was obstructed by bicycle stands.

[13] The pursuers' agent also stressed the importance of the Section 59 Agreement and the planning consent (items 5/4 and 5/5 of process, respectively). He argued that these demonstrated that the relevant Departments of Glasgow City Council had already considered the issue of potential pedestrian congestion, and were satisfied that no public nuisance arose. Moreover, the effect of the Section 59 Agreement and planning consent was that the pursuers could already trade from the external area referred to in the Variation Application. The pursuers could supply food and soft drinks, and operate as a restaurant, from that external area. All that they could not do was supply alcohol in that area. The pursuer's agent submitted that this was of the greatest importance because it highlighted the absurdity of the defenders' position. The Council, it was said, had already sanctioned the use of the area for restaurant trade. It was illogical, absurd and irrational, said the pursuers' agent, for the defenders now to maintain that the premises were not suitable for the sale of alcohol as well, by reason of the perceived congestion that would arise from the (already sanctioned) use of the outside area.

[14] Moving on to his substantive submissions, firstly, to the extent that the decision proceeded under Section 30(5)(b), the pursuers' agent submitted that the Board had erred in law by failing to consider whether the apprehended congestion and "public nuisance" related to the sale of alcohol at the Premises. The pursuers' agent noted that the Board's Statement of Reasons made no reference to, or link between, the perceived public nuisance and the sale of alcohol at the Premises. Reference was made to Brightcrew Ltd v The City of Glasgow Licensing Board 2011 CSIH 46.

[15] Secondly, the pursuer's agent submitted that there was no sufficient material before the Board to justify its conclusion that the grant of the Variation Application would cause congestion, still less public nuisance (to the extent that the decision proceeded under Section 30(5)(c)) or that the grant of the licence would cause such congestion as to make the premises "unsuitable" (to the extent that the decision proceeded under Section 30(5)(c)). On the contrary, he argued, the material before the defenders demonstrated the opposite. Specifically, the defenders' Land and Environmental Services Department had already satisfied itself that no congestion or public nuisance would arise by virtue of having entered into a Section 59 Agreement with the pursuers and by virtue of the grant of planning consent, authorising the pursuers to operate a restaurant from the external area, and to supply food and soft drinks there. Reference was made to Leisure Inns (UK) Ltd v Perth & Kinross District Licensing Board 1993 SLT 796 at 798I-J per the Lord Justice-Clerk (Ross) and to Risky Business Ltd v City of Glasgow Licensing Board 2000 SLT 923 at page 927, paragraphs 17 and 20.

[16] Thirdly, the defenders' solicitor submitted that the defenders' decision (so far as proceeding under both Sections 30(5)(c) & (b)) was irrational. There were two aspects to this ground of challenge. The first aspect was that the irrationality emerged from the fact that the defenders had granted similar Applications for similar premises in the locality, notably to the multiple premises referred to in Article 3 of Condescendence. The pursuers' agent submitted that the composition of the Licensing Board that had determined the pursuers' Variation Application was the same, notwithstanding the presence of an additional two members, as the Board that had determined the comparable application for the licensed premises known as "Metropolitan", located across the road from the pursuers' premises. Reference was made to the transcript of the Board Meeting at which the Metropolitan application was considered (item 5/8 of process) and the photograph of the external area adjoining Metropolitan (item 5/10 of process). The defenders' agent submitted that there required to be a "consistency of approach". The inconsistency between the treatment of the pursuers' Variation Application, and the treatment of the Metropolitan application, was said, by the pursuers' agent, to be irrational. Reference was made to Cashley v City of Dundee District Council 1994 SLT 1111 at 1115F. The second aspect of this particular ground of challenge (founded upon the alleged irrationality of the Board's decision) was that there was said to be no logical link between the perceived mischief (namely, the congestion, resulting supposed public nuisance, and non-suitability) and the sale of alcohol. It was argued that any congestion that might be caused would exist whether or not the Application was granted. Specifically, any congestion would be referable to the presence of the chairs, tables and barriers, being an adjunct to the restaurant business, for which planning permission had already been granted.

[17] Fourthly, the defenders' agent argued that the decision had proceeded upon an incorrect material fact. The Board had erroneously concluded that the narrowing or limiting of space on the footpath (attributable to the external area depicted in the Variation Application) would cause congestion and inconvenience, to the extent that it would be impossible to prevent public nuisance whereas, in fact, no such congestion, and no such resulting nuisance, would arise.

[18] As regards the Board's conclusion that the Premises were not suitable in terms of Section 30(5)(c) of the 2005 Act, having regard to "its size and extent in relation to the width of the footpath and the impact it would have on pedestrians using the footpath" (per the Statement of Reasons) the pursuers' agent reiterated that (i) there was no adequate factual basis to support that conclusion, and (ii) it was irrational to so conclude (for the reasons discussed above).

[19] Lastly, the pursuers' agent argued that no adequate reasons had been given for the refusal of the Variation Application so far as proceeding under either subsections (b) or (c) of Section 30(5) of the 2005 Act. He submitted that an informed reader of the Statement of Reasons would have no clear understanding of the basis of either ground of refusal.

 

Submissions for the defenders

[20] For the defenders, Ms Wardhaugh submitted, firstly, that the Board had sufficient material before it to reach the conclusion that the grant of the licence would be inconsistent with the Licensing Objective referred to in Section 4 of the 2005 Act and that the premises would not be suitable. The defenders' agent emphasised that the Board members had themselves conducted a site visit and had relied upon their own "knowledge and experience of the locale". I was referred to Mirza v Glasgow District Licensing Board 1996 SLT 1029. The defenders' agent also reminded me that the Statement of Reasons recorded that the Board had taken account of the Report from the Licensing Standards Officer, a Report from Building Control, the representation by the third party (Mr Geary) and the submissions made on the pursuers' behalf at the Board Meeting. Taken together, these factors constituted ample factual justification for the support for the conclusion reached.

[21] Secondly, the defenders' agent also maintained that the refusal of the Variation Application (by virtue of the perceived congestion and resulting "public nuisance") was related to the licensing objective under Section 4(1)(c) of the 2005 Act . While she acknowledged that the pursuers' premises had the benefit of planning consent and a Section 59 Agreement, allowing the pursuers to utilise the external area on an unlicensed basis, she submitted that it was an important and relevant consideration that the pursuers had elected not to so use the premises. She referred to page 84 of the Transcript of the Meeting where the Chairman noted "...there weren't tables and chairs when we visited...". From this excerpt from the Transcript, the defenders' agent submitted that the sale of alcohol was "inextricably linked" to the use of the external area referred to in the Variation Application. She characterised the sale of alcohol as the "key factor" in the use of the external area. From this, it was submitted, the Board was entitled to conclude that the apprehended congestion, and public nuisance, were indeed related to the sale of alcohol, because the area was not being (or going to be) used unless licensed, notwithstanding the existence of a separate planning permission to use the area on an unlicensed basis.

[22] Linked to this, the defenders' agent pointed out that the roles of the local authority's Land & Environmental Services Department (when considering a planning permission application, and potential issues of public nuisance arising therefrom) and the role of the Licensing Board (when considering that a Premises Licence Application or Variation thereof, and consistency with licensing objectives) were different. They were separate roles. The fact that planning permission had been granted was not determinative of the existence or otherwise of a resulting congestion or public nuisance. The defenders' agent submitted that this was acknowledged by the pursuers' solicitor at the Board Meeting.

[23] Thirdly, as regards the alleged irrationality of the decision (arising from the alleged inconsistency of the refusal of the pursuers' Application with neighbouring grants), the defenders' solicitor emphasised that each case required to be viewed on its merits. She argued that it was not appropriate to refer to other grants unless it was clear or established that there were no material factual differences between them, and provided the case involved the application of a policy. She rejected the applicability of the so-called "comparative principle". She maintained that it was not appropriate to assess the rationality of a Board's decision by reference to the outcome in other allegedly comparable cases. She referred to Crozier v City of Glasgow District Licensing Board, unreported, 3 March 1983, Glasgow Sheriff Court (Sheriff Brian Kearney); Khullar & Son v City of Glasgow Licensing Board, unreported, 21 August 1991, Glasgow Sheriff Court (Sheriff B A Lockhart), Allied Domecq Retailing Ltd v City of Glasgow Licensing Board, unreported, 14 December 1998, Glasgow Sheriff Court (Sheriff Brian Kearney) and Cameron McIntosh v Renfrewshire Council, unreported, 13 September 2001, Paisley Sheriff Court. Besides, she maintained that the third party grants referred to in the pursuers' averments were not factually comparable. Urban Pind and Bar 91 had previously held a licence for the use of an external area by way of an occasional licence only. The named premises on the opposite side of the street (City Merchant, Bar 91 and Koolba) did not, in fact, hold such licences, contrary to the pursuers' averments in Article 3 of condescendence. As for the premises known as "Metropolitan", while she acknowledged that those premises had been granted a licence for external drinking, she argued that it was not appropriate to compare the treatment of the two premises absent much fuller factual information as to the background, to allow the court to conclude that the two cases were truly comparable. She also maintained that any comparison was to be carried out only in the context of the application of a policy by a Licensing Board. The present case did not involve the application of a policy. The defenders' agent also argued that the Board that granted the Metropolitan licence was a different Board (comprising different members) from that which refused the pursuers' licence in the instant case.

[24] Fourthly, the defender's agent disputed that the Board's decision proceeded upon any error of fact. However, the defenders' agent argued that, if there was such an error, it was not material. Reference was made to Pancham Ltd v City of Glasgow District Licensing Board 1997 SLT (Sh Ct) 32.

[25] Fifthly, the defenders' agent maintained that adequate reasons had been provided. Reference was made to Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, Mirza, supra, Buzzworks Leisure Ltd 2011 CSOH 146 and Ranachan v Renfrew District Council 1991 SLT 625. Lastly, even if the reasons were found to be inadequate, the defenders' solicitor submitted that the onus lay on the pursuers to show how they had been prejudiced by the failure to provide adequate reasons. I was referred again to Mirza, supra.

[26] I was invited by the defenders' agent to refuse the appeal. In the alternative, if I was minded to grant the appeal, the defenders' agent invited me to remit the matter back to the Board for reconsideration.

 

Discussion

[27] I am satisfied that the appeal should be upheld to the extent of quashing the Board's decision. The pursuers' Variation Application should then be remitted to the defenders for reconsideration. I explain my reasoning below.

[28] Firstly, behind every ground for refusal of a licence, there must be adequate reasons, and for those reasons there must be a proper basis in fact (Leisure Inns (UK) Ltd v Perth & Kinross District Licensing Board, per the Lord Justice Clerk (Ross) at page 798I-J). Put another way, the defenders must have adequate material before them to justify their conclusions.

[29] The decision in Leisure Inns is particularly instructive on the point. In that case, the Licensing Board had refused an Application for the provisional grant of a public house licence on the ground inter alia of "there being the strong possibility that the use of the premises as a public house would have a detrimental effect on the amenity of the four dwellinghouses". The Board's decision was reversed by the sheriff. The Licensing Board appealed to the Inner House, which refused the Board's appeal. Although not explicitly stated in the Board's Statement of Reasons, it was submitted before the Second Division (in defence of the Board's decision) that the supposed "detrimental effect on amenity" referred to was, in fact, noise. However, in refusing the Board's appeal, the Second Division noted that the Board had given no indication as the circumstances in which it was apprehended that the supposed noise would occur. The Lord Justice Clerk (Ross) asked (at page 798J-K):-

"How long was the noise to continue? With what frequency was such noise to be experienced? At what time of the day or night was it apprehended that this noise would occur? What degree of noise was anticipated?"

Although the Lord Justice-Clerk was dealing there with the adequacy of the Statement of Reasons given by the Board (to which I will return, below), his rhetorical questions illustrate the nature of the factual material that ought to have been available to the Board in Leisure Inns if its conclusion, as to the extent of the supposed noise (and of its supposed detrimental effect upon the neighbouring amenity) was to be justified.

[30] In the present case, the Board was not concerned about noise. It was concerned about pedestrian congestion.

[31] More specifically, the Board's refusal of the application under Section 30(5)(b) was founded upon its conclusion that the proposed licensed external area "...would limit the space on the footpath so as to cause congestion and inconvenience to pedestrians in a busy area of the city centre to the extent that it would impossible to prevent public nuisance from arising...". Similarly, though rather less explicitly, the Board's refusal of the application under Section 30(5)(b) was founded upon its conclusion that the premises would be unsuitable for use for the sale of alcohol "given the specific location, character and condition of the proposed external area, and in particular its size and extent in relation to the width of the footpath and the impact that it would have on pedestrians using the footpath".

[32] Adopting the approach and adapting the words of the Lord Justice Clerk in Leisure Inns, a number of pertinent questions are begged. How long was this supposed congestion to continue? With what frequency was the congestion to be experienced? At what time of the day or night was it apprehended that the congestion would occur? What degree of congestion was anticipated? In short, there is no indication that the Board had before it any adequate information as to how, when, and for how long, the supposed congestion was thought likely to occur. There was no information before the Board of the anticipated volume of pedestrian traffic on this section of the footpath from time to time; or of the frequency of such volume(s) of pedestrian traffic; or of the times of the day, night or week when particular volumes of pedestrian traffic were anticipated; or, critically, of the likely impact upon such anticipated volumes of pedestrian traffic of the narrowing of this particular section of footpath, at this particular location, from three metres to two metres along a 24 metre frontage.

[33] Having regard to my conclusions in paragraphs [36] to [43] below, the only factual information before the Board concerning the extent of the proposed external licensed area, and its potential impact upon pedestrians using the footpath, was (a) the Plan accompanying the Variation Application, which depicted, with accompanying measurements, the location of the proposed external area and (b) the uncontradicted submission by the pursuers' solicitor at the Board Meeting that the footpath was three metres in width at the relevant area, the proposed external licensed section was one metre in width from the frontage, leaving two metres of pavement space clear and available for passing pedestrians. From this material, the Board reached its dual conclusions that the proposed external licensed area (1) "would limit the space on the footpath so as to cause congestion and inconvenience to pedestrians in a busy area of the city centre" (2) "to the extent that it would be impossible to prevent public nuisance". The pursuers' agent described these propositions as "quantum leaps in logic". That is not an unreasonable description. In my view, absent some other material consideration or information, it does not logically follow that the mere narrowing of a three metre footpath by one metre, leaving two metres clear and available for pedestrians, would cause any congestion to occur, still less congestion of such an intolerable volume, intensity, frequency and duration as to cause a public nuisance. Something more would be required to justify those conclusions. That might be based, for example, upon factual information regarding the current and anticipated density and frequency of pedestrian and vehicular traffic at that location, viewed against an informed assessment of the likely impact upon such traffic of a narrowing of the footpath in the manner proposed in the application. No such information was before the Board. The two pillars upon which the refusal of the application under Section 30(5)(b) rests have no adequate foundation in fact. Accordingly, the Board's refusal of the Variation Application under Section 30(5)(b) cannot stand.

[34] The Board's refusal of the Variation Application under Section 30(5)(c) is based upon the same precarious factual foundation. Although worded rather more nebulously (to which I will return at paragraph [55], below) I assume that the refusal is founded upon a conclusion that the "impact" to which the Board refers is an apprehended partial obstruction of the footpath which was anticipated to cause congestion to pedestrian traffic. However, again, having regard to the two key items of factual material before it (as described in paragraph [33], above), it seems to me that, absent some other relevant information, that available factual material is not sufficient, by itself, properly to justify the conclusions that pedestrian congestion (which, I assume, is the "impact" referred to by the Board) would occur, nor congestion of such an extent, intensity, frequency and duration as to render the premises "unsuitable". Accordingly, likewise, the Board's refusal of the Variation Application under Section 30(5)(c) cannot stand.

[35] In defence of the Board's decision, the defenders' agent submitted that the sound factual basis upon which the decision was founded comprised the following material: (1) the Report of the Licensing Standards Officer (item 6/3 of process), a Report from Building Control, and the representation by the third party (Mr Geary); (2) the Board's "knowledge of the locality", and (3) the information gleaned by the Board members at the site visit.

[36] In my view, these considerations do not constitute, or materially contribute to, a sound factual basis for the Board's dual conclusions as to the near impossibility of preventing public nuisance (under Section 30(5)(b)) or the unsuitability of the premises (under Section 30(5)(c)).

[37] In the first place, there is nothing whatsoever in the Licensing Standards Officer's Report (item 6/3 of process) suggesting that the proposed external licensed area would cause any substantial congestion, still less congestion of such a degree, intensity, frequency and duration as to threaten "public nuisance" or to so "impact" on the pedestrian traffic as to make the premises unsuitable. The Report is silent on the matter. It does nothing more than propose certain conditions to secure compliance with the Board's Policy on Outdoor Drinking Facilities (no 6/7 of process) (to which conditions the pursuer's solicitor explicitly confirmed the pursuer's agreement at the Board Meeting). Likewise, the Report from Building Control and the third party representation add nothing of substance or relevance to the issue of pedestrian congestion

[38] In the second place, it is, of course, correct, that a Licensing Board is entitled to found a decision, in whole or in part, upon its own "knowledge of the locality" including "the Board's knowledge of the geography of the area" (Mirza v Glasgow District Licensing Board). However, the limits within which a Licensing Board can seek to justify a decision by reference to its "knowledge of the locality" are clearly prescribed. If a Board has some local knowledge, or some licensing experience, which it regards as relevant, and wishes to rely upon it in reaching a decision, the position in relation to that material is precisely the same as the position in relation to any other material evidence relied upon: in explaining its reasoning, the knowledge or experience which is relied upon by the Board must be identified, just as any other material evidence founded upon would have to be identified. Indeed, it may be more important to identify any such alleged knowledge or experience because, unlike other evidence, the Board's alleged knowledge or experience may not otherwise easily be identifiable by others. Basic fairness demands that if a Board is seeking to rely upon its own supposed knowledge or experience (whether general in nature, or derived from, say, a specific site visit) that knowledge and experience should be clearly identified at the Hearing, in order to give the applicant an adequate opportunity to respond. In any event, any such knowledge or experience which forms a significant link or plank in a Board's reasoning would also have to be identified when the reasons are stated. (Risky Business Ltd v City of Glasgow Licensing Board 2000 SLT 923 at 927C-E).

[39] Obviously, each case will depend on what the Board says about its knowledge and experience, and the materiality of this information to the Board's reasoning and ultimate conclusions (Risky Business, supra, at page 927E). In the present case, I note that the Board's supposed knowledge and experience of the locality is a significant element in the Board's reasoning, if not the essential material upon which the conclusions are founded.

[40] What then is the alleged "knowledge of the locality" that is founded upon by the Board in this case? Looking at the Statement of Reasons, it can be nothing more than the asserted knowledge that the footpath is located within "a busy area of the city centre", that the proposed external area is on "the popular footpath on Candleriggs", that it is a "busy public footpath", and that it is "less busy" on Bell Street around the corner. The defenders' agent did not seek to argue that any other knowledge was relied upon.

[41] If that is all that is being founded upon as comprising the Board "knowledge and experience", then in my view, that knowledge is plainly far too generic, far too high-level, far too lacking in any relevant detail or specification to support the decision in the present case. The knowledge does not bear to extend to such pertinent issues as the volume, density, frequency and duration of pedestrian traffic and adjoining vehicular traffic at this particular location at relevant times of the day, night and week, or to the likely impact upon such pedestrian traffic of the loss on the thoroughfare of a section of one metre in width (over a 24 metre facade), leaving two further metres free and clear.

[42] In the third place, likewise, the information supposedly gleaned by the Board at its site visit is neither identified in any detail in the Statement of Reasons (and therefore cannot properly be prayed in aid) nor, more importantly, does it bear to be of sufficient pertinent detail to justify the conclusions reached. For example, it is nowhere suggested that the Board members saw, at their site visit, a representative sample of pedestrian traffic using the footpath, at relevant representative times, or that they saw the effect (if any) upon such pedestrian flow of the narrowing of the thoroughfare to a 2 metre passage, or that such effect on pedestrian congestion as was seen by the Board members was of sufficient density, frequency, and duration as to justify the conclusion that "public nuisance" was liable to result, or that the "impact" was of sufficient materiality that it rendered the premises unsuitable. Instead, all that is recorded as having been observed by Board members at their site visit is that another section of footpath around the corner on Bell Street (with, it was said, "tons of pavement") might be available and suitable. The Transcript of the Board Meeting makes plain that the Board members had not expressed any "preference" for this alternative location. The mere existence of a potential alternative does not, of itself, render the pursuers' selected location unsuitable. There is no recorded objection from the Board, at either the site visit or the Board Meeting, to the suitability of the location selected by the pursuers (as opposed to the identification by Board members of might be another suitable location on Bell Street).

[43] It is, I suppose, conceivable that the narrowing of the footpath by one metre, at this location, at the relevant times, may be likely to cause the density of pedestrian traffic to become wholly intolerable. Conversely, it is, I suppose, conceivable that the narrowing of the footpath to this extent, at this location, at the relevant times, may have little or no effect on pedestrian traffic, beyond a minor, fleeting, occasional inconvenience to a few pedestrians, at isolated times of the day, night or week. I do not know what the true factual position is. That is not the point. Instead, what is clear is that the Board did not have adequate factual material before it to support and justify the conclusions that it reached. The mere narrowing of a footpath from 3 metres to 2 metres in width (even on a "popular footpath" in a "busy area of the city centre") does not per se justify the conclusions that "congestion" will be caused, still less to such an extent as to make it "impossible to prevent public nuisance", or that such narrowing will otherwise so "impact" upon pedestrians as to make the premises "unsuitable" for use for the sale of alcohol. Those are leaps in logic that are not supported by the factual information that was before the Board.

[44] Moving on, secondly, I conclude that, to the extent that the Board's decision proceeds under Section 30(5)(b) of the 2005 Act, the apprehended "public nuisance", upon which the Board's decision was predicated, was not related to the sale of alcohol.

[45] The single function of a Licensing Board under the 2005 Act is that of the licensing of the sale of alcohol. The powers to licence the sale of alcohol cannot be deployed to effect objectives not related to the sale of alcohol, but which the Licensing Board might yet find desirable. The objectives listed in Section 4 of the 2005 Act, though striking in their apparent generality, are not "free-standing" objectives. They are "licensing" objectives. The objectives, if they are to be relied upon to refuse a licence, must be "linked to the sale of alcohol" (Brightcrew Ltd v The City of Glasgow Licensing Board [2011] CSIH 46 at paragraph 26).

[46] In Brightcrew, the Inner House concluded that inconsistency with a licensing objective is inconsistency "flowing from" the permitting of the sale of alcohol on the premises in question (paragraph. 26). Although the issue was not explicitly addressed in Brightcrew, I infer that when the Division speaks of an inconsistency "flowing from" the permitting of the sale of alcohol, that inconsistency must have, at least, a material and direct link, or connection, or relationship to the licensing of the sale of alcohol. Put another way, the link or connection between, firstly, the mischief identified by Parliament ("crime and disorder": s.4(1)(a), risk to "public safety": s.4(1)(b), "public nuisance": s.4(1)(c)), risk to "public health": s.4(1)(d), or "harm to children": s.4(1)(e)), secondly, the "objective" (of preventing or protecting against that mischief), and, thirdly, the licensing of the sale of alcohol, must be sufficiently direct and material. It cannot be enough for a Board to identify a tenuous, incidental, ancillary, indirect, or immaterial connection with a perceived mischief, or licensing objective, to justify the refusal of a variation application by reference to Section 30(5)(b) (or, as in Brightcrew, by reference to Section 23(5)(c)). The supposed "link" must be subject to a qualitative assessment.

[47] In the present case, the Board founds upon the licensing objective of "preventing public nuisance" {section 4(1)(c)). The supposed "public nuisance" arises from the apprehended pedestrian congestion on the footpath. However, in my view, the apprehended pedestrian congestion is not directly or materially linked or related to the permitting of the sale of alcohol on the premises. Put another way, the perceived inconsistency with the licensing objective does not flow (directly or materially) from the licensing of the sale of alcohol. The pedestrian congestion (and resulting apprehended public nuisance), if it exists at all, would be attributable to the physical presence of tables and chairs forming part of, and the barriers delineating, the pursuers' external restaurant operation, as already sanctioned by the Section 59 Agreement (item 5/4 of process) and the planning consent (item 5/5 of process), by which the pursuers were granted permission by Glasgow City Council to occupy and use this same section of footpath as an extension to its Indian restaurant business, at defined times and on stated conditions. In other words, the supposed congestion (and resulting apprehended public nuisance) would occur whether or not alcohol was permitted to be sold on the external footpath area. The supposed congestion (and resulting apprehended public nuisance) would be precisely the same whether the external area was being used for the sale of curry and water, or for the sale of curry and lager. The perceived congestion (upon which the public nuisance is predicated) has no direct, material or necessary link with the permitting of the sale of alcohol on the premises.

[48] The Board is not concerned with preventing public nuisance generally. The Board is only concerned with the prevention of public nuisance so far as referable to the sale of alcohol. The impact of the external licensed area upon pedestrian traffic on the footpath is exactly the same, whether or not alcohol is permitted to be sold in that area. Therefore, the congestion (and perceived resulting apprehended nuisance) has no direct or material connection with the sale of alcohol.

[49] The defenders' solicitor submitted that there was such a link or connection between the statutory objective and the licensing of the sale of alcohol. She argued that although the pursuers had been granted planning permission to operate their restaurant (and to serve food and soft drinks) on the external footpath area, they had chosen not to do so. It could be inferred, she submitted, that the external area would only be so used if licensed for the sale of alcohol. Therefore, it was argued, the use of the external area was "inextricably linked" with the proposed application for variation of the licence.

[50] Undoubtedly, this argument has a certain logical attraction. In simple terms, say the defenders, but for the granting of the Variation Application, the footpath would not be obstructed at all.

[51] Having given this attractive argument some considerable thought, I have concluded that it is erroneous. Firstly, in my view the argument proceeds upon a speculation with a precarious factual foundation. There is no adequate basis in fact to support the defenders' inference or assertion that the external area has not been used, and will not be used, by the pursuers unless and until licensed for the sale of alcohol. The only conceivably pertinent information available to the Board to justify that assertion was the fact that at the time of the site visit the external area was not being so used. Of itself the mere fact that on one occasion (on an unspecified date, and at an unspecified time) the external area was not being used as part of the restaurant operation does not support the inference that the pursuers had not so used it, and never would so use it unless and until it was licensed for the sale of alcohol. There may have been all number of reasons why the external area was not in use at the time of the Board members' visit, including inclement weather, lack of custom, or staffing constraints. The timing of the visit (which is not disclosed in any of the material before me) might itself have been a relevant factor, since the planning consent permits the use of the external area only after 11am. Accordingly, I do not agree that it is appropriate to draw the inference suggested by the defenders. Secondly, even if it is correct that the pursuers do not intend to use the external area until they are licensed for the sale of alcohol (which, as I say, cannot properly be inferred), it still does not follow, in my view, that the permitting of the sale of alcohol on the premises has a sufficiently direct or material connection with the apprehended pedestrian congestion (and resulting apprehended inconsistency with a licensing objective). That is because the sale of alcohol remains, at best, only incidentally, or indirectly, linked to the feared pedestrian congestion. In the present case, the sale of alcohol is ancillary to the sale of food on the external premises. (This was the uncontradicted information provided by the pursuers' agent at the Board Meeting.) The principal, direct and material cause of the pedestrian congestion would still be the (previously-sanctioned) presence on the footpath of tables, chairs and barriers; the predominant purpose for the presence of those tables, chairs and barriers would be the sale and supply of food to customers as an extension to the pursuers' Indian restaurant business; and the sale of alcohol on the external area is merely an adjunct to the pursuer's principal restaurant business, ancillary to the predominant purpose for the presence of the furniture and barriers on the footpath. So the permitting of the sale of alcohol is not inextricably linked to the supposed pedestrian congestion or to the statutory mischief. It is, at best, incidentally linked to the pedestrian congestion. In those circumstances, the apprehended congestion (and feared inconsistency with a licensing objective) is not materially and directly linked to the licensing of the sale of the alcohol : the licensing of the sale of the alcohol is one step removed from, and ancillary to, the direct, effective and principal cause of the supposed nuisance, namely the presence of the furniture at which customers will eat their food. The position might, perhaps, have been different if the premises in question had simply been a pub.

[52] Thirdly, and for broadly similar reasons, the Board's decision so far as proceeding under Section 30(5)(b) is irrational in that the apprehended congestion (and resulting supposed public nuisance) would, logically exist whether or not the Variation Application was granted. That is because the congestion is attributable, as explained above, not to the licensing of the sale of alcohol but to the (already sanctioned) presence of the furniture and barriers on the footpath, the predominant purpose of which is to allow the pursuers to serve food to customers as part of their existing restaurant operation. The partial obstruction of the footpath (and supposed congestion arising from it) would occur whether or not alcohol is also licensed to be sold there. The permitting of the sale of alcohol in the cordoned area does not increase or materially contribute to the supposed congestion, one way or the other.

[53] Fourthly, I am satisfied that no adequate reasons were given by the Board for its decision, so far as founded upon either Section 30(5)(b) and Section 30(5)(c). The duty upon an administrative decision-maker of this nature is well known. The classic formulation of the test appears in Wordie Property Ltd v Secretary of State for Scotland 1984 SLT 345 at 348 per the Lord President (Emslie) (followed in Robertson v City of Edinburgh District Licensing Board 1995 SLT 107 at 108I-J). In short, the decision must leave the informed reader and the Court 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 (my emphasis). Put another way, the Board must give proper and adequate reasons for the decision which deal with the substantial questions in issue in an intelligible way. That said, it is not necessary for a Statement of Reasons to condescend in detail upon the precise thinking which lies behind the reasons actually given (Ranachan v Renfrew District Council 1991 SLT 625).

[54] In my view, in the present case, so far as the refusal proceeds under Section 30(5)(b), it is impossible for the informed reader (being a person who knows what the proceedings are about) to identify and understand "the material considerations which were taken into account [by the Board] in reaching" its escalating conclusions that, firstly, the external licensed area would cause congestion and, secondly, that the apprehended congestion was likely to be of such an intensity as to be nearly impossible to prevent public nuisance. All that was before the Board (and therefore available to an informed reader) was the uncontradicted submission by the pursuers' agent at the Board Meeting that the proposed external licensed area would be one metre in width, leaving two metres of footpath clear for pedestrian traffic; and the incontrovertible facts that the footpath is "popular", and located in a "busy area of the city centre". There is nothing in the Statement of Reasons from which the pursuers (or the Court) can readily discover or understand the chain of logic or reasoning connecting that factual material and the Board's subsequent dual conclusions. Obviously, the Board has concluded that severe congestion will occur - but why? What are the material considerations upon which that conclusion is reached? Absent other material facts or information to explain the reasoning, it is not self-evident that the narrowing of a three metre wide footpath, leaving two metres free and clear in the manner proposed by the pursuers, would, by itself, cause congestion (as opposed to a mere altered traffic flow), still less congestion of such a nature, intensity, frequency and duration as to make it nearly impossible to prevent public nuisance. There may be such reasons peculiarly related to the location, but they are not disclosed in the Board's Statement, read in the context of the papers and proceedings pertaining to the Variation Application.

[55] For the same reasons, I reach the same conclusion in relation to the Board's Statement of Reasons so far as the refusal proceeds under Section 30(5)(c). The position is, to an extent, even stronger in relation to the refusal under Section 30(5)(c) because the Board's Statement is inherently vague and formulaic in its wording. The Board purports to refuse the Application by reference inter alia to the "impact" upon pedestrians using the footpath having regard to the "specific location, character and condition" of the proposed licensed area, but there is no clear explanation of what that supposed "impact" will be or what it is about the "location, character and condition" that creates the impact. Even if it is assumed that the "impact" referred to is "pedestrian congestion" (which, it should be noted, is not explicitly stated in the Statement), no indication is given as to the nature, extent, frequency or duration of that supposed "impact", or, indeed, why it is thought that "congestion" (as opposed to, say, mere occasional, intermittent inconvenience) will arise. The Statement of Reasons leaves the informed reader grasping to work out what "material considerations" were taken into account by the Board in reaching its conclusions - beyond the facts that a section of a "popular" footpath, in "busy area of the city centre", would be narrowed at certain times by one metre, leaving two metres clear and free.

[56] Incidentally, the defenders' agent argued that even if the Statement of Reasons was inadequate, the pursuers required to aver and satisfy the Court that they had suffered "prejudice" as a result of the provision of inadequate reasons. I was referred to Mirza as authority for that proposition. However, from my reading of Mirza, it appears that the Second Division explicitly rejected the proposition that prejudice required expressly to accompany any ground of challenge based upon the inadequacy of reasons given by a decision-maker. In Mirza, the Division followed the approach in Wordie Property Co Ltd (at page 348) to the effect that, in appeals of this nature, reasons which fail to pass the test of adequacy will, by that fact alone, be regarded as having been prejudicial to the appellant (Mirza, page 1034I-J).

[57] Finally, in deference to the careful submissions made by the parties' agents, I should comment on two further submissions that were made to me which I did not accept. The pursuers challenged the Board's decision as irrational, standing the grant of other licences for external drinking areas to several other outlets near the pursuers' premises. The pursuers' agent relied upon Cashley v City of Dundee District Council 1994 SLT 1111 to support his argument that the defenders' decision was irrational because it was inconsistent with the grant of comparable licences to nearby premises. In this respect, I preferred the submissions by the defenders' agent that, in the first place, there is in licensing no analogy with the so-called "comparative principle" which applies in valuation matters. Instead, each application must be considered on its individual merits (George Crozier v The Clerk to the City of Glasgow District Licensing Board, unreported, 3 March 1983, Glasgow Sheriff Court (Sheriff Kearney); H & G Khullar & Son and Another v City of Glasgow Licensing Board, unreported, 21 August 1991, Glasgow Sheriff Court (Sheriff Lockhart). The mere fact that a Board may in the past (perhaps erroneously) have granted a similar licence to nearby premises does not oblige a Board subsequently to grant such a licence to another applicant. A Board is not obliged slavishly to repeat its own error.

[58] I accept that Cashley is authority for the proposition that where an administrative decision-maker is applying a policy or is exercising a discretion "...justice require[s] that that policy be applied fairly and evenly in all cases..." (page 1115 D), the decision-maker must "act consistently" and not "in an arbitrary fashion" (page 1115 F), and must apply the policy, or exercise the discretion, "fairly and even-handedly" (page 1115 H). Otherwise, the discretion will not have been exercised in a reasonable manner. However, the ratio of Cashley does not apply in this case. In Cashley, as a starting point, the Division acknowledged that each individual case must be judged on its merits (at page 1115 B-C). Thus, in Cashley, it was not a proper basis for criticising the District Council in that case in relation to the refusal of one taxi licence, to say that the Council should also have refused the other applications. The decision in Cashley was susceptible to challenge because the same Board, on the same day, had, in the exercise of its discretion, applied a policy to comparable cases in an ex facie arbitrary and wholly inconsistent manner.

[59] However, in the present case, there is no exercise of discretion and no "policy" is being applied. In exercising its power under Section 30 of the 2005 Act, the Board is not exercising a discretion at all. If the Board is satisfied that none of the statutory grounds of refusal applies, it must grant the application. Conversely, if it is satisfied that any one of the statutory grounds of refusal applies, it must refuse the application. There is no exercise of discretion involved in that function. As it was described by Sheriff Principal Scott in Drink Café Ltd t/a Boho v The City of Glasgow Licensing Board 2011 SLT (Sh. Ct.) 50, Section 30(4) merely provides "a glimpse of the obvious". It creates no onus or (to use the words of the pursuers' agent) a "presumption of grant". In addition unlike Cashley, no policy was being applied in the present case.

[60] In any event, there is a further reason why this ground of challenge should fail. Even if the ratio of Cashley is applicable (which I do not accept), Cashley involved decisions by the same Board on the same day to broadly comparable applications. In the present case, the pursuers seek to compare decisions by differently-constituted Boards, on different dates, to premises that are not clearly comparable. I could not properly conclude that the other "outlets", to which the pursuers refer, are indeed comparable in nature, without at least hearing evidence. The defenders aver in answer (and repeated in submission) that two of the premises ("Urban Pind" and "Bar 91") were not comparable because they had been granted a different kind of licence entirely (namely, an occasional licence only). Further, three other premises ("City Merchants", "Guys" and "Koolba") were averred by the defenders (contrary to the pursuers' averments) to hold no licence whatsoever for the sale of alcohol on external areas. That left only the premises known as "Metropolitan" as a supposed comparator. The defenders' agent argued that there was insufficient information available to the Court in relation to the grant of the licence to "Metropolitan" to allow the Court to draw any comparison with the treatment of the pursuers' Variation Application. In other words, the Court was in no position to decide whether it was comparing like with like, without hearing evidence. I agree with the defenders' submission in this respect.

[61] Separately, the pursuers challenged the decision on the basis that the Board had proceeded upon an incorrect material fact, namely, that congestion and resulting public nuisance would be caused by the grant of the application. Since I have concluded that the decision-making process was itself defective, I do not require to decide whether or not, as a matter of fact, congestion of the nature apprehended by the Board would indeed occur.

[62] Lastly, having concluded that the decision is defective, and cannot stand, I consider that the correct course is to remit the Application to the Board to hear the pursuers' application de novo. That affords the Board its rightful place as the correct body to make a fresh judgment about the merits of the Variation Application in light of all the relevant considerations. This was the course followed in William Hill (Scotland) Ltd v Kyle & Carrick District Licensing Board 1991 SLT 559, Cashley and Brightcrew. As was observed in William Hill (Scotland) Ltd, the Board must, of course, when reconsidering the application "...close their minds to the fact that they previously decided to refuse the application... [and] hear the application de novo in the light of what is stated in this Opinion". If no sufficient new material information is available, it does seem to me to be difficult to envisage on what proper basis the Variation Application might be refused. Nevertheless, it seems proper to remit to allow the matter to be considered by the body to which such matters have been delegated by Parliament.

 

Decision

[63] In summary, I conclude, in terms of Section 131(3)(a)(i) of the 2005 Act, that the defenders have erred in law in reaching their decision to refuse the pursuers' Variation Application. Accordingly, I shall repel the first and second pleas-in-law for the defenders, sustain in part the first plea-in-law for the pursuers (to the extent of finding that the defenders have erred in law), and uphold the pursuers' Appeal to the extent of quashing the decision of the Board made on 27 June 2011. Thereafter, in exercise of the power available to me under the Licensing (Scotland) Act 2005, Section 131(5)(a), I shall remit the pursuers' Variation Application to the defenders for re-consideration.

[64] The parties' agents were agreed at the Hearing that expenses were to follow success. Specifically, it was agreed that if I were to uphold the Appeal and remit to the Board for re-consideration, that outcome would represent "success" for the pursuers, entitling them to an award of expenses. Accordingly, I shall award the expenses of the Appeal as taxed to the pursuers.

[65] May I end by thanking the parties' agents for the assistance provided by their clear and careful submissions.