McALLISTER v EAST DUNBARTONSHIRE LICENSING BOARD
| Jurisdiction | Scotland |
| Judgment Date | 17 October 1997 |
| Date | 17 October 1997 |
| Docket Number | No 69 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION
EvidenceLicensingLicenseBetting office licenceOnus of proofWhether onus lay on applicant or objectors
PracticeLicensingLicenceAppealRefusal of grant of betting office licenceLicensing boardWhether board entitled to make finding that premises not suitable on Licensing boardWhether board entitled to make finding that premises not suitable on the basis of doubts about sizeProper procedureObjector to licence application sisted as party to appeal to sheriffWhether competent for objector to appeal to Court of SessionLicensing (Scotland) Act 1976 (cap 66), sec 39(8)1
The respondent applied to a licensing board for the grant of a betting office licence. The decision followed a meeting of the board at which representations were made from, inter alios, objectors. The board refused the application, expressing doubts in respect of the size of the premises to which the licence was to apply and on the basis that it was inexpedient to grant the licence in respect of an absence of demand due, inter alia, to the national lottery, being evidence led by the objectors. On appeal to the sheriff against the board's decision the objectors were sisted as parties. The sheriff granted the appeal and the objectors appealed to the Court of Session. The respondentargued, inter alia that the appeal was incompetent.
Held (1) that the expression any party to an appeal in sec 39(8) of the Licensing (Scotland) Act 1976 included any person who, having previously appeared as an objector at the hearing before the licensing board, had entered the process of appeal before the sheriff and remained in that process maintaining opposition to the appeal and to the final decision by the sheriff so that the appeal was competent; (2) that the onus on the application did not rest on the respondent to satisfy the board at least in respect of those points which had not been taken by the objectors, because applicants had no responsibility to anticipate all possible matters that might be raised as to the suitability of premises, and as the respondent had received no notice of any factual basis for the doubts referred to by the board in their statement of reasons, the sheriff had been right to allow the appeal on that ground; but (3) that the unchallenged submission to the effect that the number of betting slips had fallen in two successive years coupled with the submission that this reduction had been related to the arrival on the scene of the national lottery and scratch cards, provided the board with material which was relevant to the demand for betting office facilities and it had been for the board to assess the sufficiency and quality of that material; so that (4), although there was no onus upon the respondent to take positive steps to establish demand, where as here, a specific objection had been taken on the ground of absence of demand for the creation of further betting office facilities and it had been placed before the licensing board by objectors who had put in written objections in terms of the legislation, it was appropriate for the licensing board to approach the matter on the basis that the respondent had to respond adequately to the submission, supported by appropriate material, that the grant of a further licence would be inexpedient having regard to the demand for the time being in the locality for such facilities; and (5) that as that part of the board's reasons for refusing the application had
been upheld, and as their decision was a discretionary one, the proper course was to remit to the board for reconsideration; and appealallowedDavid McAllister applied to the East Dunbartonshire Licensing Board for the grant of a betting office licence in terms of the Licensing (Scotland) Act 1976. The board heard submissions from the applicant and from, inter alios, Camec(Scotland) Limited, objectors to the application. The board thereafter refused the application and the applicant appealed to the sheriff. The objectors were sisted as additional defenders in the appeal.
At advising, the sheriff allowed the appeal.
The objectors thereafter appealed to the Court of Session.
Cases referred to:
AB and CD, Petitioners 1992 SLT 1064
Boulter v Kent JusticesELR [1897] AC 556
Coral (Joe) (Racing) Ltd v Hamilton District CouncilSC1981 SC 285
Din v City of Glasgow District Licensing Board 1996 SLT 363
Freeland v City of Glasgow District Licensing BoardSC1979 SC 226
Hill (William) (Scotland) Ltd v Kyle and Carrick District Licensing Board 1991 SLT 559
Hill (William) (Strathclyde) Ltd v City of Glasgow District Licensing Board, 23 July 1992, unreported (1992 GWD 291721)
Latif v Motherwell District Licensing Board 1994 SLT 414
Loosefoot Entertainment Ltd v City of Glasgow District Licensing Board 1991 SLT 843
Mecca Bookmakers (Scotland) Ltd v East Lothian District Licensing Board 1988 SLT 520
Pagliocca v City of Glasgow District Licensing Board1995 SLT 180
The cause called before an Extra Division, comprising the Lord Justice-Clerk (Cullen), Lord McCluskey and Lord Dawson for a hearing on 30 September 1997 and 1 October 1997.
On 1 October 1997 their Lordships made avizandum.
At advising, on 17 October 1997 the opinion of the court was delivered by Lord McCluskey.
Opinion of the CourtOn 29 January 1997 the East Dunbartonshire Licensing Board (hereinafter referred to as the board) refused an application by the pursuer and respondent (the applicant) for the grant to him of a betting office licence for premises at 15 Mugdock Road, Milngavie. That refusal followed a meeting of the board at which representations were heard from the applicant and from several objectors, including Camec (Scotland) Ltd, better known by their trading name, William Hill and referred to herein as Camec. The grounds of refusal were grounds specified in para 19 of Sched 1 to the Betting, Gaming and Lotteries Act 1963. That Act empowers a licensing board to refuse an application for a betting office licence on various grounds, including the unsuitability of the premises having regard to the layout, character, condition or location of the premises (para 19(b)(i)) and the inexpediency of a grant having regard to the demand for such facilities and the availability of other premises to meet that demand. Paragraph 24 of Sched 1 to the 1963 Act provides that where the licensing board refuse any application for the grant of a betting office licence the authority is to notify the applicant forthwith, "and he may appeal, within such time, and in accordance with such rules, as may be prescribed by the Court of Session by act of sederunt, to the sheriff having jurisdiction in the authority's area.
At the date when the 1963 Act came into force there was an Act of Sederunt in force which prescribed such rules (the Act of Sederunt (Sheriff Court Betting and Gaming Act Appeals) 1961 (SI 1961/124). It was replaced by provisions in an Act of Sederunt in 1969 (SI 1969/1452), which in turn was repealed by the Act of Sederunt (Betting and Gaming Appeals and Fees of Clerks to Licensing Authorities) 1970 (SI 1970/1086). The provisions in the 1970 Act of Sederunt were those in force at the time when the Licensing (Scotland) Act 1976 (the 1976 Act) was enacted. Section 133(4) of the 1976 Act provided that subsecs (4) and (6) to (8) of sec 39 of the 1976 Act were to apply in relation to appeals under para 24 of Sched 1 to the 1963 Act as they were to apply in relation to appeals under any provision of the 1976 Act; and the sheriff was expressly empowered to include in his decision on such appeal such order as to the expenses of the appeal as he thinks proper. Section 39(4) sets forth the basis upon which the sheriff is empowered to uphold an appeal. Subsection (6) provides what the sheriff may do with the case or the decision in the event of his upholding the appeal. Subsection (8) provides:If any party to an appeal to the sheriff under any provision of this Actis dissatisfied in point of law with a decision of the sheriff, he may appeal therefrom to the Court of Session within 28 days from the date of that decision (emphasis added).
The applicant appealed to the sheriff against the board's decision of 29 January 1997 to refuse his application for the licence. In accordance with the regulations which by then were in force (the Act of Sederunt (Betting and Gaming Appeals) 1978 (SI 1978/229), which had revoked the 1970 regulations referred to) the appeal was to be made by initial writ under the Sheriff Courts (Scotland) Acts 1907 and 1913 and to be disposed of as a summary application as defined in those Acts (para 3). Paragraph 4(2) provided that at the same time as the initial writ was lodged the applicant was to serve a copy thereof on (a) the clerk to the licensing board; (b) all the other...
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