Martin Mccoll Limited Against West Dunbartonshire Licensing Board
| Jurisdiction | Scotland |
| Judge | Sheriff Principal D L Murray |
| Neutral Citation | [2017] SC DUMB 27 |
| Court | Sheriff Court |
| Date | 19 April 2017 |
| Docket Number | B420/16 |
| Published date | 25 April 2017 |
SHERIFFDOM OF NORTH STRATHCLYDE AT DUMBARTON
[2017] SC DUMB 27
B420/16
JUDGMENT OF SHERIFF PRINCIPAL DUNCAN L MURRAY
In Appeal by
MARTIN MCCOLL LIMITED
Pursuer
Against
WEST DUNBARTONSHIRE LICENSING BOARD
Defender
Pursuer: Skinner
Defenders: Blair
DUMBARTON, 19 April 2017
Background
[1] This is an appeal under Section 131 of the Licensing (Scotland) Act 2005 (“the Act”) against the defender’s decision to refuse an application made by the pursuer for a provisional licence at 19 Sylvania Way South, Clyde Shopping Centre, Clydebank (“the premises”). The premises are operated by the pursuer as a small convenience store. The application was to allow the sale of alcohol within a capacity of 7.9 square metres at the premises.
[2] There was an objection to the application from John Russell, Head of Mental Health Learning Disabilities and Addiction Services, Alcohol and Drug Partnership. There was also a representation from Police Scotland, which detailed convictions relating to the pursuer. The application was considered by the defender at a meeting held on 14 June 2016. As lodged, the application was for a licence from 10am to 10pm each day; however at the meeting the hours sought were restricted to 10am to 8pm each day. Following submissions by the agent for the pursuer, the defender refused the application. A statement of reasons was issued by the defender dated 1 July 2016. This narrated that the application was refused on two grounds, namely those laid down in section 23(5)(c) of the Licensing (Scotland) Act 2005 (the 2005Act) i.e. inconsistency with licensing objective in protecting and improving public health and in terms of section 23(5)(e) i.e. overprovision.
- [3]The 2005 Act introduced a new approach to licensing.In particular, Section 7 required each Licensing Board to include in its policy statement a statement as to the extent to which the Board considers there to be an overprovision of licensed premises or overprovision of licensed premises of a particular description in any locality within the Board’s area.
[4] In terms of Section 6 of the Act the defender has adopted a policy on overprovision. This was arrived at after an extensive consultation process undertaken between 2012 and 2013 by the defender. The 2013–2016 policy is to a substantial extent a development of the previous 2010–2013 policy. The 2013-2016 policy added some further localities where overprovision was identified. In addition, the 2013-2016 policy included a provision in relation to an exception being considered where the grant of a new licence might create additional jobs. The policy on overprovision is to be found at part 4 of the policy. The intermediate data zone, (IDZ 2), of Dalmuir was again treated as being overprovided with convenience stores as it had been in the 2010–2013 policy. The policy identified that “off-sales and local convenience stores” fell into the overprovision category.
[5] The statutory framework is set out in the 2005 Act. The relevant sections provide as follows:
“4 The licensing objectives
(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
(e) protecting children from harm…
6 Statements of licensing policy
(1) Every Licensing Board must, before the beginning of each 3 year period, publish a statement of their policy with respect to the exercise of their functions under this Act during that period (referred to in this Act as a “licensing policy statement”)….
(3) In preparing a licensing policy statement or a supplementary licensing policy statement, a Licensing Board must—
(a) ensure that the policy stated in the statement seeks to promote the licensing objectives…
(4) In exercising their functions under this Act during each 3 year period, a Licensing Board must have regard to the licensing policy statement, and any supplementary licensing policy statement, published by the Board in relation to that period.
7 Duty to assess overprovision
(1) Each licensing policy statement published by a Licensing Board must, in particular, include a statement as to the extent to which the Board considers there to be overprovision of—
(a) licensed premises, or
(b) licensed premises of a particular description,
in any locality within the Board's area.
(2) It is for the Licensing Board to determine the “localities” within the Board's area for the purposes of this Act.
(3) In considering whether there is overprovision for the purposes of subsection (1) in any locality, the Board must—
(a) have regard to the number and capacity of licensed premises in the locality, and
(b) consult the persons specified in subsection
(4) Those persons are: (a) the chief constable; (b) the relevant health board; (c) such persons as appear to the board to be representative of the interests of – 1. holders of the premises licences in respect of premises in the locality, persons resident in the locality; and … (d) such other persons as the board thinks fit …”
Section 23 of the 2005 Act provides:-
“…(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—
…
(c) that the Licensing Board considers that the granting of the application would be inconsistent with one or more of the licensing objectives,…
(e) that, having regard to the number and capacity of—
(i) licensed premises, or
(ii) licensed premises of the same or similar description as the subject premises,
in the locality in which the subject premises are situated, the Board considers that, if the application were to be granted, there would, as a result, be overprovision of licensed premises, or licensed premises of that description, in the locality.”
In relation to appeals Section 131 provides:-
“(3) The grounds on which a Licensing Board's decision may be appealed under this section are—
(a) that, in reaching the decision, the Licensing Board—
(i) erred in law,
(ii) based their decision on an incorrect material fact,
(iii) acted contrary to natural justice, or
(iv) exercised their discretion in an unreasonable manner,…
(5) Where the sheriff principal or, as the case may be, sheriff upholds an appeal against a Licensing Board's decision under this section, the sheriff principal or sheriff may—
(a) remit the case back to the Licensing Board for reconsideration of the decision,
(b) reverse the decision, or
(c) make, in substitution for the decision, such other decision as the sheriff principal or sheriff considers appropriate, being a decision of such nature as the Licensing Board could have made.”
Section 142 Guidance provides:
“(1) The Scottish Ministers may issue guidance to Licensing Boards as to the exercise of their functions under this Act.
(2) The Scottish Ministers may modify any guidance issued by them under subsection (1).
(3) Each Licensing Board must, in the exercise of their functions under this Act, have regard to any guidance issued to them under subsection (1).
(4) Where a Licensing Board decides not to follow any guidance issued under subsection 1(1), the Board must give Scottish Ministers notice of the decision together with a statement of the reasons for it.”
Submissions for the pursuer
[6] Counsel for the pursuer criticised the decision of the defender on four grounds: - firstly, the defender erred in law by exercising its discretion unreasonably in refusing the application on grounds of overprovision; secondly, the defender erred in considering that the application should be refused on the grounds of protecting and improving public health; thirdly, the decision of the defender was irrational because at the same meeting the defender had granted a broadly similar application by the Co-op; and fourthly the defender had failed to provide adequate reasons for their decision.
[7] The first ground on which the pursuer’s counsel relied was that the defender erred in law et separatim exercised their discretion in an unreasonable manner. It was submitted that they failed to apply the statutory test, laid out in section 23(5)(e), to the application; they failed to identify and to have regard to the description, numbers and capacity of the licensed premises in the locality which they took into account. They based their decision to refuse the application on the ground of overprovision entirely on the application of their statement of licensing policy. It was submitted that being contrary to a policy is not a ground for refusal, but merely a factor to which the defender must have regard when considering the application, in terms of section 6(4) of the 2005 Act,
[8] It was accepted the defender correctly selected a locality, but submitted to be unclear under which leg of section 23(5)(e) the defender was proceeding and what test they were applying. Stating they had regard to:
“the number and capacity of licensed premises in the locality in which the subject premises are situated.”
appeared to indicate that they are selecting section 23(5)(e)(i) i.e. all premises. However in the statement of reasons the defender states in the following line that they:
“were satisfied that if the application were to be granted there would, as a result, be overprovision of licensed premises of the same or similar description as the subject premises in the locality in which the subject premises are situated.”
This suggested that overprovision was being determined in the context of specific premises types - section 23(5)(e)(ii). The defender further confused identification of the basis on which overprovision was being cited as a result of the reference in the statement of reasons to there being three restaurants which were no longer operating in this...
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