Calderwood v Renfrewshire Council
| Jurisdiction | Scotland |
| Judgment Date | 03 February 2004 |
| Docket Number | No 53 |
| Date | 03 February 2004 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Licensing - Application for renewal of street trader's licence - Application contrary to licensing board policy - Whether onus inverted - Whether policy to be equated to a guideline - Civic Government (Scotland) Act 1982 (cap 45), sched 1
A street trader had for many years held a trader's licence for a flower stall at Paisley Cross. The council adopted a policy that there would be no street trading in the area around Paisley Cross. The trader sought renewal of her licence. She submitted that she had a long history of trading from there, her stall was visually attractive, there was public concern at the loss of her stall and that none of the objectives of the council's policy would be undermined by granting the licence. The council's regulatory licensing board refused the application, stating that, having regard to the existing policy and the trader's submissions, there had been no special case made out as to why the existing policy should not apply to her application. The trader appealed to the sheriff, who granted the appeal on the grounds that: (a) the council's decision was inadequate because it had applied an onus which did not exist in law and had rigidly applied a policy; and (b) the defenders had exercised their discretion unreasonably. The council appealed to the Court of Session. The council argued (1)(a) a licensing board was entitled to have a policy, (b) it was obliged to give an applicant whose application appeared to conflict with the policy an opportunity to say why their case should be treated as an exception, and (c) it was entitled to reach a decision on the basis of its policy unless there was something exceptional in the applicant's case; and (2) the board's policy having been raised in relation to the application, there was an onus on the applicant to respond adequately in an appropriate way. The trader argued that the sheriff had reached a correct decision for substantially the right reasons.
Held that: (1) it was clear that the council had taken the trader's submissions into account (paras 15 to 17); (2) the raising of a policy objection to an application in effect imposed a practical onus on the applicant to deal adequately with that objection (paras 18, 19); (3) the sheriff erred in law in equating the policy of the council with a guideline (para20); and appeal allowed.
Elder v Ross and Cromarty District Licensing Board 1990 SLT 307 and Bass Inns and Taverns Ltd v Glasgow District Licensing BoardSC1995 SC 226applied.
CAROL CALDERWOOD appealed to the sheriff of North Strathclyde at Paisley against a decision of Renfrewshire Council to refuse to renew a street trader's licence. The sheriff granted the appeal. The council appealed to the Court of Session.
The cause called before an Extra Division comprising Lord MacLean, Lord Osborne and Lady Cosgrove for a hearing on the summar roll.
Cases referred to:
Ahmed v North Lanarkshire Council 1999 SLT 1064
Bass Inns and Taverns Ltd v Glasgow District Licensing BoardSC 1995 SC 226
Elder v Ross and Cromarty District Licensing Board 1990 SLT 307
Findlay (Re)ELR [1985] AC 318
McAllister v East Dunbartonshire Licensing BoardSC 1998 SC 748
Mirza v City of Glasgow Licensing BoardSC 1996 SC 450
Strathclyde Police, Chief Constable v North Lanarkshire Licensing Board 2003 SLT 1268
Wordie Property v Secretary of State for Scotland 1984 SLT 345
At advising, on 3 February 2004, the opinion of the Court was delivered by Lord Osborne -
OPINION OF THE COURT -
[1] For a considerable number of years, the respondent in this appeal has held a street trader's licence in terms of which she has operated a flower stall in the vicinity of Paisley Cross, namely in High Street, adjacent to Moss Street, Paisley. By application, dated 12 November 2001, the respondent sought renewal of her street trader's licence. The application for this licence came before the Regulatory Functions Board of the appellants, hereinafter referred to as 'the board' on 31 July 2002, when it was refused, this decision being intimated to the respondent by a letter dated 31 July 2002. Subsequently, by letter dated 2 August 2002, the respondent requested a statement of reasons relative to the board's decision to refuse her application. Such a statement of reasons, dated 16 August 2002, was furnished to the respondent. That statement of reasons is to be found reproduced in full at p 3 of the appendix in this appeal. For present purposes, it is sufficient for us to quote certain passages from that statement of reasons and to summarise other parts of it. At the outset of the statement of reasons, it is stated by the author, the assistant managing solicitor of the appellants' Department of Corporate Services, as follows:
'I confirm that at the meeting of the Regulatory Functions Board (hereinafter referred to as 'the Board') held on 31 July 2002 Mrs Calderwood's application for the above licence was refused and this decision was intimated to Mrs Calderwood by the Licensing Authority by letter dated 31 July 2002. In reaching this decision the Board had regard to:
(a) The terms of the application for renewal of a street trader's licence made by Mrs Calderwood whichinter alia detailed a trading location on the High Street adjacent to Moss Street, Paisley.
(b) The terms of the Licensing Authority's existing policy on Paisley Town Centre Regeneration: Managing the Public Realm which statesinter alia that " there shall be no street trading within the High Street area from the Cenotaph to New Street ". A copy of said policy is annexed hereto and is referred for its termsbrevitatis causa.
(c) A representation from the Council's Head of Roads, details of which are narrated in full in a citation letter to Mrs Calderwood dated 5 July 2002 and a copy of which said letter is annexed and referred to herein for its terms.
(d) A copy map detailing the exact location of the applicant's stall in relation to the exclusion zone referred to in the said policy intimated to the applicant by letter dated 16 July 2002 and a copy of said letter and map are annexed and referred to herein for their terms.
(e) The submissions made on behalf of Mrs Calderwood by her agent, Mr Banks, at the meeting of the Board on 31 July 2002.'
[2] After the passage just quoted from the statement of reasons, there follows a detailed summary of the submissions made by Mr Banks to the board at the meeting of 31 July 2002 and also other features of the proceedings, including observations made by Mrs Leck, solicitor to the board, and councillors who were members of the board. For present purposes, it is appropriate to mention certain of the topics which were the subject of submissions made by Mr Banks on the respondent's behalf. First, attention was drawn to the long history of successful trading carried on by the respondent at her stall in the vicinity of the Cenotaph. For some period of time the respondent's trading had been conducted from Dunn Square, but had then been moved back to the Cenotaph area, in view of certain disadvantages attaching to the Dunn Square location. Secondly, Mr Banks drew the attention of the board in detail to the widely accepted visual attractiveness of the respondent's stall. The stall had been perceived as a very attractive feature of the landscape in the Cenotaph area. Photographs of it had appeared in a number of tourist guides in a number of languages. Photographs of the stall were shown to the board. Reference was also made to newspaper articles commending the respondent's stall. Thirdly, Mr Banks referred to evidence of public concern at the possible loss of the respondent's stall at the location which it had occupied. In that connection, a petition containing the names of 6,400 members of the public had been compiled, demonstrating widespread public support for the respondent's trading activity at its existing location and concern at the possibility of its loss. Fourthly, Mr Banks made detailed submissions concerning the appellants' policy on Paisley town centre regeneration, already mentioned. He submitted that the objectives of the policy were positive. The board ought to consider whether any of the objectives would be defeated or undermined by renewal of the respondent's licence. If the board considered that question, it would conclude that none of those objectives would be defeated or undermined by renewal of the licence. Following upon the completion of Mr Banks' submissions, discussion of the respondent's application took place, involving members of the board and Mr Banks.
[3] After the narrative of those matters in the statement of reasons, there occurs the following passage:
'There being no further questions, Councillor Burns moved refusal of the application on the grounds that the applicant had not justified a reason why the Board should not apply the policy. Councillor McGerty seconded the motion and indicated he wished to speak in seconding the motion. He indicated that the policy represented a new chapter for Paisley Town Centre with the area at Gilmour Street being identified and becoming an actual market area. He stated the applicant had made a very good case but the Board was dealing with a policy and he therefore seconded the motion.
Councillor Martin indicated that he would suggest the policy did leave itself open to interpretation. The flower stall was part of the history of Paisley. The stall had done nothing to decry Paisley whilst functioning. Any application had to be treated individually and not in a blanket fashion and he would move the Board to accept the applications. There was no seconder for Councillor Martin's motion and Councillor Burns' motion was accordingly carried.'
Thereafter the board's statement of reasons concludes as follows:
'I therefore confirm that your client's application for renewal was refused in terms of Schedule 1 of paragraph 5(d) of the Civic Government (Scotland)...
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