Licensing

John Coutie v Dundee City Council - Dundee Sheriff Court, 21 April 2008

Wed, 28 May 2008 19:44:00 GMT

By summary application, the Pursuer applied to the court to vary the decision of the Defenders purporting to grant him a taxi licence subject to the condition that he would use his licence for the operation of “a vehicle with European Whole Volume Tyre Approval” (EWVTA) so that, instead, he could use a vehicle without EWVTA. The Defenders had been operating a policy to the effect that all applicants for a new taxi licence would only be granted a licence if they agreed that the taxi to be operated would be one with EWVTA. This policy was designed to have regard to the provisions of the Disability Discrimination Act 1995, as this type of vehicle could accommodate wheelchair bound passengers. The Pursuer sought exemption on the basis of his own disability, which would prevent him assisting wheelchair bound passengers. The Defenders refused to vary their policy. The Sheriff considered the terms of the Civic Government (Scotland) Act 1982, particularly Sections 10, 13 and 20 and Schedule 1, paragraphs 5, 17 and 18. The 1982 Act permits a licensing authority to grant or renew a licence subject to conditions, which must be reasonable. The question, therefore, was whether in the particular circumstances of this case, it was reasonable to impose a condition on the Pursuer requiring him to operate a wheelchair accessible taxi when the Defenders had been aware of the effect of his disability. Having considered submissions and authorities, the Sheriff concluded that this was not a reasonable condition and, therefore, not a reasonable exercise of the statutory discretion conferred on the Defenders. No reasonable licensing authority, properly considering the special circumstances of an application such as the Pursuer’s, could have come to the conclusion that he was not a special case in which a departure from their policy would be appropriate. The Defenders had failed to exercise their discretion properly in relation to the Pursuer’s application. The appeal was sustained.

Ruairaidh Campbell v The Chief Constable, Northern Constabulary – Dingwall Sheriff Court, 6 May 2008

Wed, 28 May 2008 18:51:00 GMT

The Defender had issued a firearms certificate to the Pursuer, subject to a condition that the rifles to which the certificate related had to be stored with a registered firearms dealer when not in use. The Pursuer had taken issue with this condition but the Defender had refused to remove it. By summary application, the Pursuer had appealed against that decision in terms of Section 44 of the Firearms Act 1968, as amended. The Sheriff had heard evidence and submissions. He refused the appeal and confirmed the Defender’s refusal to vary the Pursuer’s firearms certificate. That decision was appealed to the Sheriff Principal. The Defender had imposed the condition on the Pursuer’s firearms certificate because the Pursuer was a young man who lived with his father. His father had previously held shotgun and firearms certificates, but these had been revoked. The Pursuer’s father had behaved in an overbearing, bullying and harassing manner towards Police officers and civilian staff of Northern Constabulary for a period of several years. The Defender was apprehensive that the Pursuer would allow his father access to the firearms and ammunition if these were stored at their home. This would create a risk to public safety. It was agreed that the Sheriff’s decision could be appealed only on a point of law. For the appeal to succeed, it had to be demonstrated on the basis of the Sheriff’s findings in fact that the decision he had reached had been plainly wrong. The Sheriff Principal was unable to hold that the Sheriff’s decision had been plainly wrong. On the contrary, it appeared to have been perfectly reasonable. There had been no error of law on the Sheriff’s part and the appeal was refused.

Abdi Habib v Central Fife Area Regulation Sub-Committee, Kirkcaldy Sheriff Court, 30 January 2008

Wed, 05 Mar 2008 11:18:00 GMT

Late hours catering licence – Restriction of closing hours – Appeal under Civic Government (Scotland) Act 1982, Schedule 1, paragraph 18 – Sheriff’s entitlement to hear evidence

The Pursuer held a late hours catering licence in relation to a premises in Kirkcaldy. In December 2006 Fife Constabulary applied to restrict the closing hours on a number of evenings on the basis that the Pursuer has been serving food outwith the relevant hours. A Committee of Fife Council considered the application and decided to vary the hours of the licence. The Pursuer appealed against that decision. The Defenders objected to the Sheriff’s hearing evidence from a number of witnesses on behalf of the Pursuer. The Sheriff heard the evidence subject to competency and relevancy. The witnesses supported the Pursuer’s position that he had not been serving food after permitted hours. The Committee had not heard evidence from any of the witnesses who gave evidence at the appeal, but had considered written statements by some of them. Paragraph 18(7)(b) of the 1982 Act permits the sheriff to uphold an appeal if he considers that, in arriving at their decision, the licensing authority based their decision on any incorrect material fact. Paragraph 18(8) of the Act states that the Sheriff “may” hear evidence by or on behalf of any party to the appeal. The Defenders submitted that, when hearing the appeal, the Court could only look at the decision of the Committee and have regard to the information which had been put before them. The Court could only overturn the Committee’s decision if the Committee were not entitled to reach the decision which they arrived at, based on the information put before them. The Sheriff expressed the view that any evidence led at the appeal must relate to one of the grounds of appeal – there was not a general right to lead evidence. Paragraph 18(7)(b) did not permit the Pursuer, in effect, to re-litigate the whole matter before the Sheriff. The Committee had had material before them on which they were entitled to form a view. It was not suggested that the Committee were not entitled to reach the view they did, nor that the proceedings were in any way unfair. The Committee were entitled to reach a conclusion on the basis of the information before them and it was for the Committee to assess that material. The Sheriff sustained the Defender’s objection to the leading of evidence and the appeal failed.

Jennifer Cooper v Dundee City Council – Dundee Sheriff Court, 31 October 2007

Sun, 25 Nov 2007 12:24:00 GMT

Summary Application - Civic Government (Scotland) Act 1982, as amended, Schedule 1, paragraph 18 - Appeal against Licencing Authority Decision - Licence for House of Multiple Occupancy

In a Summary Application under paragraph 18 of Schedule 1 of the Civic Government (Scotland) Act 1982, as amended, the Applicant/Appellant appealed against the refusal of the Respondent’s Licensing Committee to grant a licence for use of premises in Dundee as a house of multiply occupancy (HMO). The Committee had refused the application unanimously on the basis that the premises were not suitable or convenient for use as an HMO. It had considered objections from a number of neighbours, which related largely to the behaviour of previous occupants of the flat in question. There had been no complaints for 12 months before the application, however, and there had been no complaints about the Appellant or her tenants. It was clear, however, that other residents in the block of flats, especially 2 of the objectors, had had their quality of life seriously affected by the presence of a previous HMO. The Committee did not consider it appropriate to sanction the use of the premises as an HMO and to risk the same things happening again. The Committee had been concerned to prevent problems arising in the first place. The Appellant contended that the Committee had exercised its discretion in an unreasonable manner and had erred in law in reaching the decision to refuse the application. The Sheriff allowed the appeal. It was clear to him that the Committee had taken the view that, because there had been difficult tenants in the past, it was likely that there would be difficult tenants in the future and, in doing so, it had applied the wrong tests and had erred in law in its approach to the application. That error had then led the Committee to exercise its discretion wrongly. The Committee’s concern to prevent problems arising in the first place was not an appropriate consideration. It appeared that the Committee had applied a test of possibility rather than probability and had ignored the substantial period during which there had been no complaints. The Committee’s decision was one which no reasonable committee, properly applying the law, would have reached. In the circumstances of this case, the Sheriff did not consider it appropriate to remit the matter to the Committee for reconsideration, given what the Committee had already considered and stated as its reasons. The Respondents were ordered to grant the application and licence.

Alldays Stores Limited & Pamela Greig v Central Fife Divisional Licensing Board - Kirkcaldy Sheriff Court, 30 September 2007

Thu, 08 Nov 2007 17:12:00 GMT

Summary Application - Appeal -Suspension of off-sales Licence - Licensing (Scotland) Act 1976, Section 39

By Summary Application, the Pursuers/Appellants appealed against the Defenders/Respondents’ decision to suspend the Appellants’ off-sales licence for a premises in Glenrothes for a period of 3 months under section 31 of the Licensing (Scotland) act 1976. The suspension followed a complaint that sales of alcohol had been made to persons under the age of 16 from the premises. The Respondents accepted that the appeal should be allowed on the basis that the Board had erred in law in that it had failed to give adequate reasons for its decision and had erred in applying a test of strict liability when considering whether the licence holder was a fit and proper person to hold a licence. The issue between the parties was whether, having allowed the appeal, the Sheriff should remit to the Board for reconsideration, together with a note of his reasons, or whether he ought to reverse the Board’s decision. The terms of Section 39 of the 1976 Act and a number of authorities were considered. The Sheriff decided that in this case the correct course of action was to remit the matter to the Board for reconsideration of its decision.

Dr and Mrs Killen v Dundee City Council – Dundee Sheriff Court, 17 October 2007

Thu, 08 Nov 2007 16:28:00 GMT

Summary Application - Appeal against Decision of Licencing Authority - Licence for House of Multiple Occupancy

By Summary Application under paragraph 18 of Schedule 1 of the Civic Government (Scotland) Act 1982 as amended, the Pursuers/Appellants appealed against the refusal of the Defenders/Respondents’ licensing committee to grant a licence for use of a property as a house of multiple occupancy (HMO). The committee had refused the application on the basis that the property was not suitable for use as an HMO, having regard to its location, which was in a development designated as a “home zone”. The committee considered that this was not a suitable area for HMOs. The Appellants contended that the committee had based its decision on incorrect material facts and had also exercised its discretion in an unreasonable manner. In particular, the committee's interpretation and application of the definition of “home zone” had been incorrect. There were already three HMOs in the street in question, which was very close to Abertay University. The Appeal was refused.
The Sheriff held that the committee had been entitled to consider the issue of the home zone as important in reaching a view on the location of the property. He did not consider that the committee had been under any false view or had misinterpreted what a home zone was, or was intended to be. The Sheriff considered it reasonable and responsible for the committee to have taken the view that home zones are primarily for families and older people and that HMOs do not fall within the desired ethos or make up of a home zone. The Sheriff was also of the view that the committee was not bound by its previous decisions, which had led to three HMO licences being granted in the same street as the Appellants’ property. The Sheriff was not satisfied that the committee had exercised its discretion unreasonably. It had given full consideration to all material facts.

The City of Edinburgh Council v. Dawn Salteri & Jack Leithhead Stewart & Nicholas Forsyth [2007] CSIH 22

Fri, 23 Mar 2007 00:00:00 GMT

Appeal from Sheriff Court

Adriana Valente v. Fife Council

Tue, 21 Nov 2006 00:00:00 GMT

Appeal

Appeal Under the Civic Government (Scotland) Act 1982 in the cause James Ferguson v. Dundee City Council [2006] CSIH 51

Fri, 03 Nov 2006 00:00:00 GMT

Appeal Under the Civic Government (Scotland) Act 1

Grosvenor Casinos Limited v. The City of Edinburgh Licensing Board

Wed, 30 Aug 2006 22:00:00 GMT

Appeal against refusal of gaming licence applicati

David Gerald McLean v. Steel Carnegie Procurator Fiscal Greenock

Thu, 16 Jun 2005 23:00:00 GMT

Licensing:

Thomas Smith v. North Lanarkshire Licensin Board + The Chief Constable Strathclyde Police

Thu, 03 Mar 2005 00:00:00 GMT

Licensing Appeal: