Blusins Limited V. City Of Dundee Licensing Board
| Jurisdiction | Scotland |
| Judge | Sheriff R.A. Davidson |
| Court | Sheriff Court |
| Date | 27 November 2000 |
| Docket Number | B384/99 |
| Published date | 08 December 2000 |
B384/99 BLUSINS LIMITED v DUNDEE CITY LICENSING BOARD
Hearing 8th. August, 2000.
Dundee, 27th. November, 2000. The sheriff, having resumed consideration of the cause,
Sustains the first crave of the summary application and in terms thereof, reverses the respondents' decision of 21st. October, 1999; ordains the respondents to grant forthwith the application for the renewal of the public house licence for McDaniels, 34/36 Whitehall Crescent, Dundee; assigns as a date for hearing parties on the expenses occasioned by this application.
Statutory Provisions:
Local Government (Scotland) Act, 1973, as amended.
Section 56:-
"(1) Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of its functions by a committee of the authority, a sub-committee, an officer of the authority or by any other local authority in Scotland.
(2) Where by virtue of this section any functions of a local authority may be discharged by a committee of theirs, then, unless the local authority otherwise direct, the committee may arrange for the discharge of any of those functions by a sub-committee or an officer of the authority.................
(14) References in this section.............. to the discharge of any of the functions of a local authority include references to the doing of anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any of those functions."
Licensing (Scotland) Act, 1976, as amended.
Section 1.
" (1) For the administration of licensing with respect to alcoholic liquor on and after 1st.
July, 1977, Scotland shall have licensing boards constituted in accordance with the
provisions of this section.
(2) There shall be a separate licensing board for-
- the area of each council which is not divided into licensing divisions under section
- each licensing division.
46(1) of the Local Government (Scotland) Act, 1994, and
- Subject to subsections (5)(5A)(9) and (13) below, a licensing board shall consist of
not less than one-quarter of the total number of members of the of the council.....................
(5A) In no case shall a licensing board consist of less five members of the council.
Section 16(1)
" It shall be competent for any of the following persons to object in relation to any application to a licensing board for the grant (including the provisional grant) renewal or permanent transfer of a licence, namely:-
(f) a local authority for the area in which the premises are situated.
Section 17(1)
A licensing board shall refuse an application of the type described in subsection (2) below if it finds that one or more of the following grounds for refusal, being competent grounds, applies to it-
- that the applicant, or the person on whose behalf or for whose benefit the applicant will manage the premises, or, in the case of an application to which section 11 (applications by persons other than natural persons) applies, the applicant or the employee or agent named in the application is not a fit and proper person to be the holder of a licence............
Section 18.
- A licensing board shall within 21 days of being required to do so under subsection (2) below give reasons for arriving at any decision mentioned in section 5(2) of this Act.
- Reasons for decisions referred to in sub-section (1) above may be required to be given by the board in writing on a request being made to the clerk of the board, not more than 48 hours after the decision is made, by the applicant or, as the case may be, by the holder of a licence, or by any objector, or by any complainer who appeared at the hearing.
Section 39
(4) The sheriff may uphold an appeal under this section only if he considers that the licensing board in arriving at its decision-
- erred in law;
- based its decision on any incorrect material fact;
- acted contrary to natural justice; or
- exercised its discretion in an unreasonable manner.
- On upholding an appeal under this section the sheriff may -
- remit the case with the reason for his decision to the licensing board for reconsideration of its decision; or
- reverse or modify the decision of the licensing board."
Local Government (Scotland) Act, 1994.
Section 153 (1).
" For any financial year, the Secretary of State may by regulations prescribe that the amount payable as non-domestic rate in respect of any lands and heritage shall be such amount as may be determined in accordance with prescribed rules."
Human Rights Act 1998, Schedule 1 Art. 6
"1. In the determination of his civil rights and obligations........... everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law."
Statutory Instrument:
The Non-Domestic Rates (Levying)(Scotland) Regulations 1999
Paragraph 7.
" Where the notional liability in respect of any lands and heritages to which this Part applies and a day in the relevant year is-
- more than their upper transitional limit for that day (ascertained in accordance with regulation 9 below), the amount payable as rates in respect of those lands and heritages and that day shall, subject to Part V below, be that upper transitional limit;
- less than their lower transitional limit for that day (ascertained in accordance with regulation 10 below), the amount so payable shall, subject to that Part, be that lower transitional limit.
Paragraph 8.
The notional liability in respect of any lands and heritages to which this Part applies and any day shall be calculated in accordance with the formula -
RV x APF
366
where-
RV is the rateable value for those lands and heritages for that day; and
APF is the appropriate poundage figure, being
- 0.48, where those lands and heritages have a rateable value of less than £10,000 on 1st. April 1999; and
- 0.489, in any other case."
Cases Referred to:
Art Wells Limited t/a Corals v Glasgow District Licensing Board 1988 SCLR 531
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1KB 223
Attorney-General v Guardian Newspapers Limited [1987] 1WLR 1248
Brown v Executive Committee of Edinburgh District Labour Party 1995 SLT 985
Derbyshire County Council v Times Newspapers Limited [1992] QB 770
Din v City of Glasgow District Licensing Board 1996 SLT 363
Fereneze Leisure Limited v Renfre District Licensing Board 1992 SLT 604
GA Estate Agency Limited v City of Glasgow District Council 1991 SLT 16
Kieran v Adams 1979 SLT (Sh. Ct.) 13
Law v Chartered Institute of Patent Agents [1912] 2 Ch. 276
Leisure Inns (U.K.) Limited v Perth & Kinross District Licensing Board 1993 SLT 796
Loosefoot Entertainment Limited v City of Glasgow Licensing Board 1991 SLT 843
Lorimers Breweries Limited v City of Glasgow District Licensing Board Glasgow Sheriff Court, 20 October, 1980 (unreported)
Low v Kincardineshire Licensing Court 1974 SLT (Sh.Ct.) 54
Mahmood v West Dunbartonshire Licensing Board 1998 SCLR 843
R v Birmingham Licensing Planning Committee ex parte Kennedy [1972] 2QB 140
R v Bowman [1898] 1QB 663.
R v London Borough of Southwark ex parte Bannerman 22 H.L.R. 459
R v Secretary of State for the Home Department ex parte Brind [1991] AC 696
R v Sheffield Confirming Authority ex parte Truswell's Brewery Company Limited [1937] 4 All E.R. 114
T, Petitioner 1997 SLT 724
Tennant v Houston 1987 SLT 317
Text Books :-
Licensing Law in Scotland : J.C. Cummins esp. page 104 and 291
Stair Memorial Encyclopaedia Volume 14 para. 454.
Administrative Law; Wade & Forsyth esp. pages 415 & 416.
NOTE
This process was an appeal by way of summary application brought under Section 39 of the Licensing (Scotland) Act, 1976, as amended. In particular, it was an appeal against the respondents' refusal to renew a public house licence for premises known as McDaniels at 34/36 Whitehall Crescent, Dundee. The respondents are the relevant licensing authority for the City of Dundee. It is a matter of agreement that on 21st. October, 1999 the appellants' application for the renewal of the public house licence for the said premises was refused. A Statement of Reasons for the decision was requested and provided by the respondents, all in terms of section 18 of the foresaid Act, a copy of which was lodged in process and incorporated into the pursuers' pleadings brevitatis causa. The Statement of Reasons, in turn, referred to a letter of objection dated 12th. October, 1999, written by the Revenues Manager of Dundee City Council, alleging that Kathleen Robbie, who was the appellants' nominee to be responsible for the day to day running of the premises, was not a fit and proper person to be the holder of a licence, which the nominee is statutorily required to be in terms of Section 17(1)(a). The crux of the objection was that Mrs. Robbie was a director of both Blusins Limited, the appellants, and Hillerod Limited and her husband was the company secretary of both these companies. These companies owed Dundee City Council £26,141.52 in respect of what were described as "unpaid Non Domestic Rates." It was alleged that the companies, Graeme Robbie, the husband of Kathleen Robbie and said Mrs. Robbie were all connected and it was suggested that she, in effect in cahoots with her husband, was involved in a scheme to avoid paying rates. Accordingly, she was not a fit and proper person to be the holder of a licence. The respondents went further and, in a schedule, supplied details of various companies and the involvement of Mr. and Mrs. Robbie in these companies, which companies were said to have a history of non-payment of rates. In respect of the present appellants, the schedule demonstrated that between October, 1995 and March, 1999 they had accumulated a deficit so far as concerns their liability to pay business rates to Dundee City Council of £21,435.29. Further, there was a history of companies called Firmalt Limited, which had had its registered office at 34 Whitehall Crescent, Dundee (the address of the public house known as McDaniels) and whose...
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