Bp Oil (uk) Limited+bp Oil (uk) Limited V. The City Of Edinburgh Licensing Board+the City Of Glasgow Licensing Board
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Eassie,Lord Brodie |
| Neutral Citation | [2011] CSIH 29 |
| Court | Court of Session |
| Published date | 05 April 2011 |
| Docket Number | XA6/10, |
| Date | 05 April 2011 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lord Brodie Lord Wheatley | [2011] CSIH 29 XA6/10, XA143/09 and XA142/09 OPINION OF THE COURT delivered by LORD EASSIE in the Appeals by (1) BP OIL (UK) LIMITED Appellants; against THE CITY OF EDINBURGH LICENSING BOARD Respondents: and (2) BP OIL (UK) LIMITED Respondents and Cross Appellants; against THE CITY OF GLASGOW LICENSING BOARD Appellants and Cross Respondents: _______ |
BP Oil (UK) Limited: Sir Menzies Campbell Q.C.; Findlay; Harper Macleod LLP
City of Edinburgh Licensing Board: Douglas Armstrong, Q.C.; Morton Fraser;
City of Glasgow Licensing Board: Mrs Wolffe, Q.C., M Ross; Drummond Miller LLP
5 April 2011
Introduction
[1] These appeals arise out of four applications made by BP Oil (UK) Limited - "BP" - for a premises licence under section 20 of the Licensing (Scotland) Act 2005 - "the 2005 Act". Two of the applications were made to the City of Edinburgh Licensing Board which considered and determined those applications at a meeting of the board on 28 July 2008. The applications were refused. The other two applications were made to the City of Glasgow Licensing Board. One was considered and refused on 1 September 2008; the other was considered and likewise refused on 24 October 2008. Put very shortly, the ground upon which all of the applications were refused was that the premises in question for which a licence was sought were regarded as being "excluded premises" in terms of the 2005 Act.
[2] BP thereafter appealed by way of stated case in terms of section 131 of the 2005 Act to the relevant sheriff principal. In the case of the Glasgow applications the Sheriff Principal of Glasgow and Strathkelvin delegated, in terms of section 132(4) of the 2005 Act, consideration and determination of the appeals to Sheriff C. A. L. Scott. Sheriff Scott granted both of the appeals and remitted each case back to the Glasgow licensing board for reconsideration. The City of Glasgow Licensing Board has appealed, in terms of Section 132(6) of the 2005 Act, to this Court against the sheriff's decision in each of the two Glasgow cases. The appeals in the Edinburgh applications were heard by the Sheriff Principal of Lothian and Borders (Bowen, Q.C.) who refused each of them. BP has appealed to this court against each of his decisions. BP has also cross appealed against certain aspects of the decisions in the Glasgow cases.
[3] The premises in question in each of the applications are similar in their general nature and are described by the applicants as being a general convenience store with an off-sale facility situated adjacent to a petrol and derv filling station forecourt. They trade under the style of "BP M&S Simply Food" and offer a "substantial general convenience outfit with off-sales facilities separate from and supplementary to the offer of petrol/derv". The premises which are the subject of the applications to the Edinburgh licensing board are situated at 10 Builyeon Road, Queensferry and at 187 Slateford Road, Edinburgh, respectively. Those which are the subject of the applications to the Glasgow licensing board are respectively situated at 631/675 Paisley Road West, Glasgow and at 1057 Great Western Road, Glasgow. At the time of the applications BP held in respect of each of the four premises an off-sales licence under the Licensing (Scotland) Act 1976 - "the 1976 Act" - for the sale of alcoholic beverages.
The legislation
[4] The 2005 Act introduced a new regime for the licensing of the sale of alcoholic drinks in Scotland. Section 1(1) prohibits the sale of alcohol on any premises except under and in accordance with a "premises licence" or an "occasional licence". (No issue as to an "occasional licence" arises in any of the appeals.) The prohibition is fenced with criminal sanctions.
[5] The provisions respecting a premises licence are grouped in Part 3 of the 2005 Act. A fasciculus comprising sections 20-26 deals with applications for, and the determination of, applications for a premises licence. The applications in issue in these appeals were duly made in terms of section 20 of the Act and it is not necessary to set out the terms of that section. Within that fasciculus the material provision for present purposes is section 23, relating to the determination of such applications, and, of that section, the pertinent provisions are those from the beginning of section 23 to the end of sub-section 5(a):
"23. Determination of premises licence application
(1) A premises licence application received by a Licensing Board is to be determined in accordance with this section.
(2) The Licensing Board must hold a hearing for the purpose of considering and determining the application.
(3) In considering and determining the application, the Board must take account of the documents accompanying the application under section 20(2)(b).
(4) The Board must, in considering and determining the application, consider whether any of the grounds for refusal applies and -
(a) if none of them applies, the Board must grant the application, or
(b) if any of them applies, the Board must refuse the application.
(5) The grounds for refusal are -
(a) that the subject premises are excluded premises,'
........"
[6] The duration of a premises licence is treated in section 28 of the 2005 Act. In summary, it continues in force unless it comes to an end on the occurrence of one of a number of possible events, which are listed in sub-section 5 of section 28. Those events include among others the death, insolvency or dissolution of the holder of the premises licence but also include the revocation of the licence under a provision of the 2005 Act. In terms of Section 39(2)(d) of the 2005 Act, revocation of a premises licence is a step which a licensing board may take on review of a premises licence under the provisions gathered in the sub-group within Part 3 of the 2005 Act headed "Review of Premises Licence". A review may be sought on the application of "any person" (section 36(1)) but may be commenced by the licensing board of its own initiative (section 37(1)). The grounds for review are stated in section 36(3) as follows:
"(3) The grounds for review ... are -
(a) that one or more of the conditions to which the premises licence is subject has been breached, or
(b) any other ground relevant to one or more of the licensing objectives."
The "licensing objectives" are set out in section 4(1) of the Act:
"(1) For the purposes of this Act, the licensing objectives are -
(a) preventing crime and disorder,
(b) securing public safety,
(c) preventing public nuisance,
(d) protecting and improving public health and
(e) protecting children from harm."
[7] We revert now to the provisions of section 23(5)(a) of the 2005 Act, which prohibit the grant of a premises licence in respect of "excluded premises", that being the ground upon which the licensing board refused the applications in these cases.
[8] The term "excluded premises" is given definition in the Act, as passed by the Scottish Parliament. That definition is in section 123, which is in these terms:
"123 Excluded premises
(1) No premises licence or occasional licence has effect to authorise the sale of alcohol on excluded premises.
(2) For the purposes of this Act, "excluded premises" means -
(a) premises on land -
(i) acquired or appropriated by a special roads authority, and
(ii) for the time being used,
for the provision of facilities to be used in connection with the use of a special road provided for the use of traffic of class 1 (with or without other classes), and
(b) subject to subsection (5), premises used as a garage or which form part of premises which are so used.
(3) For the purposes of subsection (2)(a) -
(a) 'special road' and 'special roads authority' have the same meanings as in the Roads (Scotland) Act 1984 (c.54), and
(b) 'class 1' means class 1 in Schedule 3 to that Act, as varied from time to time by an order under section 8 of that Act, but, if that Schedule is amended by such an order so as to add to it a further class of traffic, the order may adapt the reference in this section to traffic of class 1 so as to take account of the additional class.
(4) For the purposes of subsection (2)(b), premises are used as a garage if they are used for one or more of the following -
(a) the sale by retail of petrol or derv,
(b) the sale of motor vehicles, or
(c) the maintenance of motor vehicles.
(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).
(6) The Scottish Ministers may by order amend the definition of "excluded premises" in subsection (2) so as to include or exclude premises of such description as may be specified in the order."
[9] Section 148 of the 2005 Act has the head - note "Index of defined expressions" and then reads thus:
"The expressions in the left-hand column of the table are defined or otherwise explained by the provisions of this Act specified in the right-hand column".
A lengthy catalogue of expressions follows in tabular form of which the only relevant entry is (in the left-hand column) "excluded premises" and (in the right-hand column opposite it) "section 123(2)".
[10] It is also appropriate to note section 142 of the 2005 Act which provides, in sub-section (1), that Scottish Ministers may issue guidance to licensing boards as to the exercise of their functions under the Act and, in sub-section (3), that each licensing board must "in the exercise of their functions under this Act, have regard to any guidance issued to them under sub-section...
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