Karen Mccluskey, Stephen Kerr, Patricia Hardie, Ann Marie Pratt And Caroline Kane Against North Lanarkshire Council
| Jurisdiction | Scotland |
| Judge | Sheriff V Smith |
| Neutral Citation | [2016] SC HAM 3 |
| Court | Sheriff Court |
| Date | 27 November 2015 |
| Docket Number | B898/14 |
| Published date | 13 January 2016 |
SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY AT HAMILTON
[2016] SC HAM 3
B898/14
JUDGMENT OF SHERIFF V SMITH
In the Summary Applications of
KAREN McCLUSKEY, STEPHEN KERR, PATRICIA HARDIE, ANN MARIE PRATT AND CAROLINE KANE
Pursuers;
Against
NORTH LANARKSHIRE COUNCIL
Defender:
Hamilton, 27 November 2015
The Sheriff, having resumed consideration of the cause, SUSTAINS the first, second, third and fourth pleas-in-law for the pursuers; quoad ultra repels the parties’ pleas; REVERSES the decision of the defender made on 20 August 2014 to vary the terms of the street trader licences issued to the pursuers; FINDS the defender liable to the pursuers in the expenses of the action; ALLOWS an account thereof to be given in and REMITS same, when lodged, to the Auditor of Court to tax and to report; CERTIFIES the cause as being suitable for the employment of junior counsel.
Introduction
[1] The pursuers hold street trader licences granted by the defender which allow them, within set hours, to sell hot and cold food from snack vans placed on designated static sites at various locations within the local authority area of the defender.
[2] On 20 August 2014 the defender varied these licences to include the following condition (“the condition”):
“The street trader will be prohibited from operating within a distance of 250 metres from the defined perimeter, as constituted by the physical boundaries in place, of all secondary schools in the North Lanarkshire Area from 8.00 am to 5.00 pm on any school day during term time. The prohibition will apply to snack vans selling or offering for sale hot or cold food, fish and chip vans and ice cream vans.”
[3] All of the static sites where the pursuers trade are within 250 metres of a secondary school and the pursuers operate during these hours.
[4] By way of summary applications the pursuers seek to reverse the defender’s decision to impose this condition in terms of schedule 1, paragraph 18(1) of the Civic Government (Scotland) Act 1982 (“the 1982 Act”).
[5] The matter called before me over 3 days. The pursuers were represented by Mr Blair, advocate and the defender by Mr Skinner, advocate. It was agreed by the parties that no evidence was required to be led and that the matter could be dealt with by way of submissions. The factual averments were not in dispute.
Background to the imposition of the condition
[6] The genesis of the condition can be found in two publications ,“The Hunger for Success Initiative” of the Scottish Executive, 2004 and the defender’s “diet and nutrition policy 2013-14 revision”(sic) (item 6/15 of process). Inter alia the aims of both are to promote the benefits of healthy eating and healthy lifestyles for all children, to improve and promote the nutritional content and balance of food offered in schools and to influence the eating habits of children.
[7] At a council meeting on 27 March 2014 a motion was carried in the following terms:
“In accordance with the council’s Health and Wellbeing strategy, the council resolves to establish a policy excluding snack vans from parking and vending within 250 metres of North Lanarkshire schools”(6/10 page 209)(“the policy”).
[8] The matter was referred to the acting head of legal services who prepared a report, dated 22 April 2014 (6/8), the purpose of which was to advise the defender’s corporate services committee of the issues associated with snack vans which trade within the vicinity of schools and to recommend a licensing policy to regulate them.
Report of 22 April 2014
[9] The report referred to the defender’s commitment to the above aims and explained that a decision had been made to adopt an exclusion zone for snack vans trading in the vicinity of schools because the defender considered it had to deal with factors which “have been shown to contribute to child obesity. This is particularly so when considered against the duty imposed on the Council, as local education authority, under sec 53A of the Education (Scotland) Act 1980 to promote the availability of school lunches and to encourage pupils to use this facility” (para 2.2). Snack vans are seen as a significant challenge to the promotion of healthy eating in schools, offering less healthy alternatives to school meals (2.3). Other councils have imposed similar conditions (3.1).
[10] The report recognised that the defender is limited in its ability to prevent fixed retail or food outlets near to schools from selling less healthy food but it had the power to regulate street traders by imposing the condition on their licences (4.1). Some street traders would be adversely affected by this condition and there would be financial implications (5.1 and 5.3).
[11] The report recommended that the condition be incorporated into all street trader licences. All licence holders would be invited to address a licensing sub-committee to state a case for an exemption from the condition (6.1).
[12] The recommendation was approved by the defender’s corporate services committee on 1 May 2014.
Freedom of Information request and response
[13] The pursuers became aware of the proposed condition and took legal advice. On 13 June 2014 their solicitor wrote to the defender seeking information in terms of the Freedom of Information (Scotland) Act 2002 (6/6). This asked numerous questions including what scientific or nutritional material had been obtained that demonstrated that snack vans challenged the promotion of healthy eating or that the food sold was less healthy than school meals, what consultation had taken place, the basis for a radius of 250 metres, what alternative means of control had been considered, the number of pupils who can be accommodated for school meals and what assessment had been made of the financial impact upon street traders affected by the condition.
[14] The defender’s response, dated 11 July 2014, explained there had been no analysis of the nutritional value of food sold by the pursuers but they would be invited to a hearing before a licensing sub-committee when this matter could be addressed (6/7). There had been no consultation or consideration of the financial impact upon traders but these could be discussed at the same hearing. A radius of 250 metres was adopted as being the apposite distance to be imposed taking into account the defender’s wishes that the benefits of healthy eating and healthy lifestyles for all children within schools ought to be promoted. No other radius was considered. No alternative means of control of licensing of street trading in food near secondary schools was considered. In general schools can accommodate 30-40% of the school roll at a lunch sitting.
Hearing of 20 August 2014
[15] On 4 August 2014 a letter was sent to each pursuer setting out the condition to be imposed on their licences (6/14). They were invited to attend a meeting on 20 August 2014 when they would be given the opportunity to argue for an exemption from the condition. The pursuers attended the meeting and were represented by Mr McGowan, solicitor. In short he argued inter alia that the condition was ultra vires of a licensing authority, breached natural justice, was incompatible with human rights law and the underlying policy was unfair and disproportionate. These arguments were rejected and the condition was imposed.
Statement of Reasons
[16] After the hearing a statement of reasons was requested and received for each pursuer (6/1-6/5).
[17] In response to the pursuers’ submissions the defender stated that, as a responsible licensing authority, it was acting intra vires by imposing the condition in order to further the aims of reducing obesity among young persons and to encourage healthier eating. The 1982 Act provides that a licensing authority can at any time vary a licence “on any grounds they think fit”. This allowed the committee a degree of latitude when considering whether a licence could be varied. It was also thought that the committee could consider, in terms of the 1982 Act, “any other good reason” when dealing with the grant or refusal of a licence and this could be extended to varying a licence. The committee was receptive to considering exemption applications. With regard to convention rights the committee considered that any interference with property rights or possessions was of a limited nature. The licences were not being removed but varied to achieve a legitimate aim namely promoting healthy eating among school pupils. There is a general awareness of a problem with childhood obesity partly caused by the lack of healthy, nutritional, balanced diets. This general awareness and the fact that other local authorities had adopted similar conditions provided a sufficient evidential basis for the defender to impose the condition.
[18] I was referred to the following authorities and statutes in the course of the hearing:
Rossi v Edinburgh Corp. [1905] AC 21
Macbeth v Ashley (1874) 1 R (HL) 14
Stewart v Perth and Kinross Council 2004 SC (HL) 71
Mitchells and Butlers Retail Ltd. v Aberdeen City Licensing Board 2005 SLT 503
Brightcrew Ltd v City of Glasgow Licensing Board [2011] CSIH 46
L v Board of State Hospital 2011 SLT 233
Calderwood v Renfrewshire Council 2004 SC 691
Ahmed v North Lanarkshire Council 1999 SLT 1064
Elder v Ross and Cromarty Licensing Board 1990 SLT 307
Mixnam’s Properties Ltd v Chertsey Urban DC [1965] AC 735
R v Warwickshire County Council [1995] ELR 217
R v London Borough of Bexley [1995] ELR 42
R v The Secretary of State for the Environment [2011] EWHC 1975 (Admin)
Civic Government (Scotland) Act 1982
7 Offences, etc.S
(1) Any person who without reasonable excuse does anything for which a licence is required under Part II of this Act without having such a licence shall be guilty of an offence and liable, on summary conviction
(a) in a case where the licence so required is a public entertainment licence, to a fine not exceeding £20,000 or to...
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