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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Deejay's Nightclub & Anor, Re Judicial Review [2007] ScotCS CSOH_188 (23 November 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_188.html
Cite as: [2007] ScotCS CSOH_188, [2007] CSOH 188

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OUTER HOUSE, COURT OF SESSION

 

[2007] CSOH 188

 

P1907/07

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD GLENNIE

 

in the petition of

 

DEEJAYS NIGHTCLUB and

DENNIS F FORSYTH JNR

 

Petitioners:

 

For

 

Judicial Review of a Decision of Aberdeen Licensing Board

 

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

Petitioners: McKenzie; A & W M Urquhart

Respondents: Brown; Biggart Baillie LLP

23 November 2007

 

Introduction

[1] On 14 November last I heard parties on the first hearing in a petition for judicial review of a decision made by Aberdeenshire Licensing Board, Northern Licensing Division ("the board") made on 27 June 2007 in respect of an application for regular extension of permitted hours made under section 64 of the Licensing (Scotland) Act 1976 as amended. By that application, the petitioners had sought inter alia a regular extension of permitted hours from 11pm on Fridays until 3am on Saturday mornings, and from 11pm on Saturdays until 3pm on Sunday mornings. The application was objected to by the Chief Constable. Following submissions, the board granted extensions only until 2am on Saturdays and Sundays, rather 3am as the petitioners had sought. In the Petition the petitioners seek reduction of that decision and its reconsideration.

[2] I was told by Mr McKenzie, who appeared for the petitioners, that the board were due to meet at the end of November and that it was hoped, if my decision was in the petitioners' favour, that the board could reconsider the application at that meeting. For that reason, I gave my decision at the end of the hearing and pronounced an interlocutor reducing the decision of the board and remitting the matter to them for their consideration. I explained briefly my reasons for so doing. At the request of the parties I now set out those reasons more fully.

The statutory framework
[3
] The statutory framework within which the application fell to be considered is contained in section 64 of the Licensing (Scotland) Act 1976 and section 47 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Section 64 of the 1976 Act provides, so far as material, as follows:

"(3) After considering the application and any objections made thereto, a licensing board may grant an application for the regular extension of permitted hours if, having regard to the social circumstances of the locality in which the premises in respect of which the application is made are situated or to activities taking place in that locality, the board considers it is desirable to do so, ....

....

(8) A licensing board shall not grant an extension of permitted hours under this section if it considers that the extension is likely to cause undue public nuisance or to be a threat to public order or safety."

Section 47 of the 1990 Act puts a further constraint upon the power of the board to grant an application under section 64. It provides as follows:

"(1) A licensing board shall not grant an application under section 64 of the principal Act for an extension of permitted hours unless it is satisfied by the applicant, taking account of the factors mentioned in sub-section (3) of that section -

(a) that there is a need in the locality in which the premises in respect of which the application is made are situated for a regular extension of the permitted hours; and

(b) that such an extension is likely to be of such benefit to the community as a whole as to outweigh any detriment to that locality."

Mr Brown, who appeared for the board, emphasised that a burden is upon the applicant to establish that the conditions set out in paragraphs (a) and (b) are satisfied; though he accepted, correctly in my view, that, so far as concerns paragraph (b), it must be for the objector to show that there is a detriment to the locality requiring to be outweighed by the benefit to the community, and what that detriment is. The balancing exercise contemplated by paragraph (b) cannot properly be carried out unless the detriment is identified.

Objections
[4] The application was opposed by the Chief Constable, Grampian Police, North Aberdeenshire Division. His letter of objection dated 15 June 2007 was before the board when it considered the application. It had attached to it two documents. One, described as a "vandalism offences report" carried out by the Intelligence Analyst of Grampian Police, reviewed incidents of vandalism which had occurred in Fraserburgh between 1 June 2006 and 31 May 2007. The other was a copy of a letter from the Grampian Police sent sometime previously to the petitioners complaining about certain incidents. These documents were before the board when it considered the application. In the Petition, a point is taken that Mr Walker, who appeared for the petitioners before the board, was unaware that the vandalism offences report was before the board and was therefore deprived of the opportunity of making detailed submissions in respect of its findings. This point was not pressed by Mr McKenzie, who appeared for the petitioners at the hearing before me. He accepted, for the reasons shown clearly in the Answers to the Petition, that, if Mr Walker did not see that document, it was through no fault of the board. He ought to have been aware of it. He in fact made submissions to the board based upon what he understood it to say; and, although it was unfortunate that he did not have a copy before him, I do not think that anything ultimately turns on this point. Mr Brown did not contend that the petitioners were debarred from making detailed reference to the vandalism offences report when criticising the reasoning of the Licensing Board.

[5] In its Statement of Reasons, the board summarised the application and the objections. They then set out very fully the submissions made on behalf of the applicant by Mr Walker and on behalf of the Chief Constable by Chief Inspector Walker. The submissions made by the Chief Inspector referred to a number of incidents reported at or outside the premises in the year up to May 2007, as detailed in the letter of objection, and also to the instances of vandalism analysed in the vandalism offences report. On the basis of the latter, the letter of objection made the following point: that during the stated period (ie. the year up to 31 May 2007) there had been 161 reported vandalism offences; that the most common time of discovery of those offences was between 6am and 8.59am on Saturday morning, indicating that those offences had been committed overnight; and that the majority of offences were committed at a distance of between 100 and 400 metres from the premises. On this issue, the letter of objection concluded with the following statement:

"Whilst it is not possible to directly attribute all of these offences to patrons leaving the premises the above details would tend to indicate that this is at least a possibility if not a probability."

The Chief Inspector's submission on this point is recorded by the board at paragraph 7.2.13 of their Statement of Reasons. They record the Chief Inspector as submitting that the number, timing and location of the incidents

"was indicative of the probability that the incidents had been committed by patrons leaving the premises."

This interpretation was disputed by Mr Walker for the applicants, who made a number of points about the lack of information as to where the incidents had been committed or when or by whom, and concluded that there was no evidence which could link the 161 offences to the applicants.

The board's decision
[6
] The board's consideration of the whole matter is set out at paragraph 11 of the Statement of Reasons. Having summarised the relevant statutory provisions, they first considered the question of "need" referred to in section 47(1)(a) of the 1990 Act. In respect of the period under consideration in this Petition, the board accepted that "need" was established, ie. that there was a need in the locality for a regular extension of the permitted hours.

[7] The board then turned to the question of benefit to the community and detriment to the locality as referred to in section 47(1)(b) of the 1990 Act. In paragraph 11.10 they explained that they did not carry out a detailed incident-by-incident analysis but followed the dictum of Lord Dunpark in McKay v Banff & Buchan Western Division Licensing Board 1991 SLT 20. In that case Lord Dunpark noted that counsel for the appellants had sought to go through the incidents seriatim, in effect explaining that the licensing staff had co-operated fully to prevent them occurring. He then made this comment:

"It is not appropriate in a case such as this to examine each incident in detail. It is the cumulative effect that counts, and the overall effect of the number and type of incidents, which were not disputed, entitled the board to find those grounds of complaint proved."

They then turned to consider the evidence and set out their conclusions. They dealt with the vandalism offences report at paragraph 11.13 in this way:

"The Analysis attached to the letter of objection gave rise to a substantial inference that the incidents of vandalism were linked to the operation of the premises, resulting in detriment to the community."

As regards to the itemised incidents set out in the letter of objection itself, their conclusion (at paragraph 11.14) was as follows:

"Further, the nature and cumulative effect of the numbered incident reports detailed in the letter of objection, gave rise to the clear inference that there was detriment to the locality."

They added in the next paragraph that the applicants had not sought to deny that the incidents had occurred at or in the vicinity of the premises, but had offered explanations as to why they had occurred. I take this to be a comment intended to pick up upon the remarks of Lord Dunpark to which I have referred. Finally, at paragraph 11.16, they made comments critical of the licensee and his failure to take action until the point had been pressed home to him by the police after previous incidents. They commented that he did not fully seem to comprehend his responsibilities as a licence holder in the running of the premises and that he expected the police to police the vicinity of the premises. They said that this was not acceptable. They considered that his reaction to the incidents listed over the last 12 months was a token gesture only, "too little, too late". They then concluded in paragraph 11.17 that there was sufficient material produced to establish detriment to the community as a whole. In the next paragraph they sought to weigh the evidence of benefit to the community, which they appeared to have thought was relatively minor, against the detriment to the locality; and concluded that the detriment to the locality outweighed any benefit to the community as a whole that would result from granting the hours as applied for. As a result, they were precluded by the terms of section 47(1)(b) from granting the application in the form in which it was made. They did not need, therefore, to consider the question of public order and safety in terms of section 64(8) of the 1976 Act.

[8] However, the board did not stop there. I have emphasised their conclusion that the detriment to the locality outweighed any benefit to the community as a whole that would result from granting the hours as applied for. The board went on in paragraph 11.20 to consider the question of "full or partial refusal?". I shall set out the terms of that paragraph in full:

"The Board was not, in all the circumstances, persuaded, that the detriment to the community justified a complete refusal of the hours sought by the applicant. The incident reports in the letter of objection revealed a significant grouping of disturbances involving crowds outside the premises round about, or after, 3:00am. None of these seemed to occur at or before 2:00am. The Board considered that restricting the hours sought on Friday/Saturday into Saturday/Sunday from 3:00am to 2:00am was appropriate in the circumstances."

In other words, having found that detriment outweighed the benefit in terms of the application to extend the hours until 3am, they found that benefit outweighed detriment in respect of extending the hours to 2am. They must have gone on, although they do not say so, to have considered it "desirable" in terms of section 64(3) of the 1976 Act to grant an extension until 2am on those mornings. The decision to grant the extension until 2am is not challenged in these proceedings - the only challenge is in respect of their failure to grant an extension for the extra hour to 3am - and I must proceed upon the assumption that in respect of the extension which they did grant the board acted lawfully, ie. correctly found that there was a need in the locality for such an extension, correctly found that the benefit of such an extension to the community as a whole outweighed any detriment to that locality and correctly considered that it was desirable that the extension be granted.

Submissions
[9
] On behalf of the petitioners, Mr McKenzie took me in some detail both to the vandalism offences report and to the specific incidents detailed in the letter of objection. On the basis of his analysis of those documents, which were the only evidence before the board on the relevant matters, he submitted that the board's conclusions in paragraphs 11.13 and 11.14 were flawed in that no reasonable licensing board, properly applying itself to the law, could properly have reached those conclusions on the evidence before it. He went on to criticise the conclusion in paragraph 11.20 in which the board differentiated, for the purpose of weighing up the relative benefit and detriment, between the period up until 2am on the relevant mornings and the period between 2am and 3am. This differentiation, he submitted, could not be justified on the evidence. He referred me, as illustrative of the approach that the Court should take where a licensing board went further than the statistical evidence warranted, to the decision of Lord Johnston in Clark v North Ayrshire Licensing Board (unreported 1995) at page 7. So far as concerned paragraph 11.16, under reference to CRS Leisure Ltd v Dumbarton District Licensing Board 1990 SLT 200 at 203G-I Mr McKenzie submitted that in considering the question of an extension of permitted hours under section 64, the board was not entitled to have regard to the fitness of the licence holder. That was a matter which arose only in the context of revocation or renewal of a licence. Insofar as the board had taken these matters into account, it had erred in law.

[10] For the board, Mr Brown referred me to the relevant legislation. In terms of section 64(3) of the 1976 Act, he emphasised that the Board had to consider whether an extension was "desirable". He said that this was a broad discretionary judgement. However, in the course of discussion, he accepted that the board had not in fact reached this point. Their conclusion that detriment outweighed benefit in respect of the extra hour meant that they did not have to consider the question of whether an extension during that period was desirable. The assessment that detriment outweighed benefit was an assessment of fact, albeit it involved the board exercising its judgement. Mr Brown accepted that the question in that respect was whether a reasonable board, applying itself to the law, could properly have come to the conclusion to which it came on the evidence before it.

[11] Mr Brown referred me to certain case law under three headings. The first concerned the nature of the grant of a regular extension of licensing hours, and in this context he referred me to Elder v Ross & Cromarty District Licensing Board 1990 SLT 307 at 312-313, and to Bass Taverns Limited v Clydebank District Licensing Board 1995 SLT 1275. These cases, to my mind, emphasised the board's discretion when it came to an assessment of the question of "desirability" but did not touch upon the issue before me. The second group of cases concerned the correct approach for the board to take in the exercise of its licensing judgement. Under reference to Sangha v Bute & Cowal Divisional Licensing Board 1990 SCLR 409 and McKay v Banff & Buchan Western Division Licensing Board (to which I have already referred), he emphasised that the matter was one of discretion pre-eminently for the board and involved a broad value judgement. In this same context he referred to Lidster v Owen [1983] 1 WLR 516 at 524. Under his third heading he referred me to Noble v City of Glasgow District Council 1995 SLT 1315 in which an Extra Division had emphasised that in giving reasons it was not necessary for the licensing authority to write something resembling judicial judgment or to canvass each piece of evidence and each argument. In other words, their reasons should be read sensibly and without undue semantic or technical analysis. I do not dissent from any of these propositions.

[12] Mr Brown strenuously argued that the board were entitled to have regard to the information contained in the vandalism offences report. In response, though not in answer, to a question from the bench as to what that report showed which was of any relevance to the petitioners' application, he submitted, as I understood it, that the board was entitled to look at it as part of the whole of the evidence, to treat the evidence "in the round", to look at it along with all the other evidence regardless of whether it of itself added anything of importance. Under reference again to Lord Dunpark's dictum in McKay he submitted that it was not appropriate for the board, and therefore not appropriate for the Court, to consider evidence of this sort in detail. The evidence in the vandalism offences report might have confirmed to the board that incidents of vandalism occur when licensed premises are open, and soon after they close, and that the longer such premises remain open the more vandalism is likely to occur. They might not have said this in their Statement of Reasons, but it was not incumbent upon them to set out every detail of their thinking. He did not make any detailed submissions about the individual incidents identified in the letter of objection but said that it was open to the board on that material to conclude that there was a difference between the detriment if the applicants' premises closed at 2am and the detriment if they closed at 3am.

Discussion
[13
] It is apparent from the above that the board was influenced in their approach by the remarks of Lord Dunpark in McKay, and Mr Brown placed great emphasis on these remarks. It seems to me that there is a danger in taking these remarks out of context with the result that they may be misunderstood. The issue with which Lord Dunpark was concerned was this. Though the incidents were admitted, and though there was clearly a causal link between the incidents and the times when the premises were open, it was argued by reference to the details of each individual incident that the staff and licensee were co-operative and that the staffing was adequate. This was to rebut that the licence holder continually failed to prohibit underage drinking and the many incidents of assaults and breaches of the peace and general disorder. The question at issue was whether the licensing board was entitled to suspend a hotel licence for three months on those grounds. What Lord Dunpark was concerned to point out was that there comes a time where it becomes futile to point out that any one particular incident occurred despite the best endeavours of the licensees. The accumulation of incidents may itself be enough. As Lord Dunpark put it: "It is the cumulative effect that counts, and the overall effect of the number and type of incidents.... entitled the board to find both grounds of complaint proved." That is quite a different situation from the present case. Here the issue, thrown into stark relief by the vandalism offences report, is whether the material put before the board does show any causative link between the premises being open and the incidents of vandalism reported. By causative link I do not mean necessarily that the applicants are to be considered at fault. It may be, as was the case in Lidster, that the vandalism occurs simply because at certain times a large number of people, possibly the worse for wear, are leaving the premises. The question at issue here is not whether, if such causative link is shown, the applicants can show in respect of individual cases that they were not at fault. Rather, it is whether the material put before the board demonstrates any causative link. In considering that aspect, which is central to the question of detriment, it must be open for the applicants to challenge the evidence in detail. I do not understand Lord Dunpark's remarks to suggest otherwise.

[14] It is plain from looking at the vandalism offences report that it provides no evidence of any causative link between vandalism and the applicants' premises. The report states that during a period of one year from 1 June 2006 to 31 May 2007 there had been 161 reported vandalism offences "in proximity to" the applicants' nightclub. This is shown graphically by the superimposition of a series of rings on a town plan of the area, with the applicants' premises at the centre. The locations of the incidents are marked and are mainly within the shaded area next out from the bulls eye. The top segment of the town plan covered by these circles is made up of sea and industrial and commercial estates. Unsurprisingly the vandalism incidents are marked mainly in the lower part. I am told, however, and it was not disputed before me, that almost all the licensed premises in Fraserburgh are within the same area. Accordingly, that geographical spread shows nothing of any relevance. Separately, the report contains a presentation on a day by day basis of the vandalism incidents that were reported between 6pm and 9am Monday to Sunday throughout that one year period. This covers 107 of the 161 reported vandalism offences. It shows, as one might expect, an increase in the number of offences on Friday/Saturday and Saturday/Sunday. But the times when the incidents are reported gives no indication of when the offences were committed and there is nothing in the figures which shows any linkage between vandalism offences and the times when the applicants' premises were open.

[15] It is important to have in mind that the board considered that an extension of the opening hours until 2am was desirable. They found that up until then the benefit outweighed the detriment. For the figures on the vandalism offences report to show anything of relevance, even if they could attribute vandalism to the fact of the premises being opened, which they do not, they would have to show some particular linkage between vandalism and the additional one hour's opening, ie, the period between 2am and 3am. Otherwise, how could the benefit/detriment scales tip during that extra hour. No case was made out or even suggested along these lines.

[16] It follows, in my opinion, that in accepting the submissions put forward on behalf of the Chief Constable and concluding in paragraph 11.13 that the analysis in the vandalism offences report gave rise to "a substantial inference that the incidents of vandalism were linked to the operation of the premises", the board reached a conclusion which went far beyond anything that the evidence before them could legitimately support. But even then they asked themselves the wrong question, since having found that the detriment during the period up until 2am did not outweigh the benefit, they should have been looking to see whether the detriment between 2 and 3am was to some degree greater. They did not even address this. Nor did that adminicle of evidence.

[17] Turning to the question of the specific incidents set out in the objection letter, the board find in paragraph 11.14 that the "nature and cumulative effect of the numbered incident reports detailed in the letter of objection gave rise to the clear inference that there was detriment to the locality". That was a conclusion which was open to them on the material before them. Indeed it is perhaps self evident, since the incidents, involving individual or group disorderly conduct fall inevitably to be regarded as a detriment to the locality. But this does not go very far, since at paragraph 11.20 the board impliedly concluded that the detriment occasioned by the premises being open until 2am was outweighed by the benefit to the community of the premises staying open. Accordingly, the bare finding in paragraph 11.14, albeit a finding to which the board was entitled to come, does not address the particular question of why, if that detriment was acceptable if the premises were open until 2am, it was not acceptable if they were to remain open until 3am. This is the matter which is addressed in paragraph 11.20. The board find that the incident reports in the letter of objection showed "a significant grouping of disturbances involving crowds outside the premises round about, or after, 3am", but that there were no such incidents at or before 2am. Having regard to the terms of the letter of objection, it seems that there were, in fact, only three reports of disturbances involving crowds outside the premises within the hour or so after 3am. Whether this can be called a "significant grouping of disturbances" is a matter for the judgment of the board. It is not right to say that there were no such incidents before 2am: incident 15 of the incidents set out in the letter of objection occurred at 1.55am. Quite apart from that, there were incidents which the board has not referred to occurring between 2am and 3am. By the process of reasoning which appears to be accepted, those could be regarded as referable to a closing time of 2am rather than one of 3am.

[18] It is not the function of the court to substitute its own view for that of the board. It is, so it seems to me, quite possible that the board could, on the evidence before, it have come to the view that there was some significance in terms of detriment to the neighbourhood of a closing time of 2am as opposed to 3am. I am not satisfied, however, that they have in fact approached the matter in that way. Of more importance, I am concerned that their consideration of the issue of detriment has been coloured or affected in a manner adverse to the applicants by their finding, which I have held to be unjustified, that some or all of the incidents of vandalism reported in the vandalism offences report were linked to the operation of the premises. For this reason, I am satisfied that the error of law shown by the finding in paragraph 11.13 requires me to reduce the decision and remit the matter to them for their reconsideration. If I had been satisfied that they would have come to the same decision even without the finding in paragraph 11.13, I would not have taken this course - but I am not so satisfied.

[19] Finally, I should deal with the complaint that the board's finding in paragraph 11.16 itself discloses an error of law for the reasons set out by Mr McKenzie under reference to CRS Leisure. Mr Brown argued that what the board were doing in that paragraph was setting out reasons why they were not persuaded that the licensee was sufficiently in control of the premises, and behaviour at and around the premises, as to give any confidence that incidents of the type set out in the letter of objection would not be repeated. I think Mr Brown is right in this. The board were entitled, when looking at the particular incidents, to have regard to the probability of such incidents being repeated in the future. It seems to me that their discussion at paragraph 11.16 goes no further than this.

[20] As I have said, I pronounced an interlocutor on the day of the hearing and indicated that I would give fuller reasons as soon as possible. On Monday 19 November, when this Opinion was ready to be issued, agents for the board properly brought to the attention of the court and of the petitioners a difficulty which, as they saw it, might lie in the way of the board reconsidering the matter at their meeting at the end of November. The next scheduled meeting not until January 2008. I agreed to allow the petitioners the opportunity of applying by motion for an order that the board reconsider the application at that November meeting, thereby providing a means of having this question resolved; and held off issuing this Opinion meanwhile. The petitioners duly intimated a motion on the Wednesday, which motion was to be heard on the Friday. On the Thursday afternoon, however, the petitioners informed the court that their motion was to be dropped. Accordingly there is no need in this Opinion to consider the question of whether the board could or should reconsider the application at their meeting at the end of November. Nor is there any need to alter or supplement the interlocutor which has already been pronounced.


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