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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Partnership of Myriam Pierette Maresq & Hafid Mahboubi (t/a La Belle Angele) & Anor, Re Application For Judicial Review [2000] ScotCS 199 (14 July 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/199.html Cite as: [2000] ScotCS 199, 2001 SCLR 199

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The petitioners are the holders of an entertainment licence issued under the Licensing (Scotland) Act 1976, as amended, relating to premises known as La Belle Angele, situated at 11 Hastie's Close, Edinburgh. These premises are operated as an entertainment venue by the petitioners by means of their letting the premises to promoters for entertainment events organised by the promoters, who receive the money generated from the sales of tickets for such events. The petitioners receive rent from the promoters for the use of their premises in this way and also receive revenue from the sale of alcoholic beverages to persons attending these events. The petitioners aver that they take no part in promoting these events, nor in any advertising of them. It is also averred by the petitioners that they are wholly dependent upon the obtaining of a regular extension of permitted hours for the successful operation of their business.

By an application, dated 11 April 2000, the petitioners applied to the respondents for the grant of a regular extension of permitted hours, in terms of section 64(3) of the Act of 1976, as amended. The hours sought were from 11pm to 3am each evening and from 2.30pm to 6.30pm on a Sunday. The hours sought by the petitioners were exactly those granted by the respondents in previous years. They were within the policy guidelines used by the respondents in determining such applications for entertainment venues within the City of Edinburgh. It is the invariable practice of the respondents to grant regular extensions for these hours to entertainment venues within the city, in the absence of objection, observation or adverse comment by their officials. This application was in fact objected to by the City of Edinburgh Council Environmental Health and Consumer Services Department; a copy of their objection has been produced and incorporated into the petitioners' pleadings. The substance of that objection is in the following terms:

The petitioners' application was considered by the respondents at their quarterly meeting on 26 June 2000. It is averred by the petitioners that, immediately prior to this meeting, as was the respondents' practice, they held a "'pre-meeting' meeting" at which various items on the agenda of the quarterly meeting were discussed. It is averred that that meeting was held in private and was attended by the Board members and various officials including an official from the Environmental Health and Consumer Services Department, who subsequently spoke to the objection mentioned. The petitioners' agents asked if they could attend this pre-meeting meeting but were told that they could not do so. At the hearing of the application, Mr John Loudon, who represented the petitioners, objected to the relevance of the objection, under reference to Bantop Limited v City of Glasgow Licensing Board 1990 S.L.T.368. Mr Loudon advised that, in any case, fly posting was a citywide problem. He advised that in December 1998 there had been a meeting of venue operators in the City who had all agreed to make attempts to try to stop promoters, who were independent third parties, fly posting. He had advised that there were no problems with promoters fly posting in respect of their events at the petitioners' premises until early 2000, when certain promoters using the premises had returned to this practice. He had advised that the petitioners had attempted to exert pressure upon them to stop and had written to each promoter who had used their premises by letter dated 19 February 2000. A copy of that letter has been produced and incorporated into the petitioners' pleadings. Mr Loudon had stated that, on receipt of any complaints, the petitioners had taken immediate steps to have the offending posters removed or covered up, in so far as they were aware of them. He stated that the club was well managed, had run without difficulty, that the hours sought were within the policy guidelines of the respondents and he had moved the grant. The terms of the objection were spoken to by officials of the Environmental Health and Consumer Services Department, who the petitioners aver had attended at the pre-meeting meeting. The respondents deny that that official, who had spoken to the Department's objection, had attended at any pre-meeting meeting.

The petitioners aver that, following these submissions, the respondents voted by 9 votes to 2 to grant the application, but with restricted hours in the evening to 2am instead of 3am as sought. In moving the motion to this effect the Chairman stated that, but for the fact that the premises were well run, he would have moved for a further restriction in the hours sought. It was clear from the comments made by various members of the Board that the real reason for the partial refusal of the application was the issue of fly posting by independent promoters.

Against this background, the petitioners have brought the present petition for judicial review of the decision of the respondents to which I have just referred. In this petition, they seek principally (a) an order reducing the decision of 26 June 2000; and (b) an order ordaining the respondents to reconsider the application at their meeting on 24 July 2000, or at such other date as to the Court seems proper. The grounds of challenge of the decision upon which the petition proceeds are set forth in detail in paragraphs 9 to 13 inclusive of the petition. The essence of these is the allegation that the respondents acted ultra vires in that (a) they acted contrary to natural justice, (b) they exercised their discretion in an unreasonable manner in that they took into account irrelevant matters, and (c) that they reached a decision which was illogical, irrational and for improper reasons. The criticism of the respondents' decision founded upon the allegation that they acted contrary to natural justice, which is set out in detail in paragraph 10 of the petition, is based upon the circumstances and conduct of the pre-meeting meeting, to which I have already referred. The ground alleging an unreasonable exercise of discretion is explained in detail in paragraph 11 of the petition. It is there averred that the respondents based their decision to refuse the application for the hours sought on the basis of taking into account irrelevant matters. It is said that the sole reason for the refusal was the issue raised in the objector's letter, which the respondents held was likely to cause undue public nuisance for the purposes of section 64(8) of the Act of 1976. It is averred that the matters raised in that letter, which, in any event, were not the actions of the petitioners, but those of independent third parties, did not constitute a proper basis for holding that the extension of permitted hours was likely to cause undue public nuisance or a threat to public order or safety, under reference to Bantop Limited v City of Glasgow Licensing Board. In paragraph 12 of the petition the petitioners set forth in detail the basis of their ground that the respondents' decision was illogical and irrational. It is there averred that there were, in any event, no matters before the respondents from which they were entitled to conclude that fly posting was likely to cause undue public nuisance during the hours of 2am to 3am each morning, but not during the other hours sought. It is claimed that the refusal was for an improper purpose, namely to try to ensure that third parties, namely various promoters, ceased the practice of fly posting. In paragraph 13 of the petition, the petitioners set out the practical consequences upon their business of the respondents' decision, which they claim are so serious that their business is likely to cease. Answers to the petition have been lodged on behalf of the respondents, to which I refer.

When this petition came before me at a first hearing, counsel for the petitioners indicated that she did not intend to argue all of the grounds of the petition on that occasion, although she did not abandon any of them. She explained that, as appeared from the petition and answers, there was a dispute of fact concerning the pre-meeting meeting, which made it impossible, prior to its resolution, to reach a conclusion upon the allegation that the respondents had acted contrary to natural justice. Accordingly, she proposed to confine her argument to the matters to which paragraphs 11 and 12 of the petition related. If the Court were to favour the submissions based upon the material in those paragraphs, the petition could be determined. If it were not to do so, the pleadings would require to be adjusted and an inquiry into facts conducted. Furthermore, she made clear that, if the respondents' decision were to be reduced, it should be so treated only from the date 24 July 2000, when a further meeting of the respondents was to occur. The petitioners wished to avail themselves of the benefit of the limited extension of hours which was granted in the period between the hearing and 24 July 2000. Having stated her position, counsel for the petitioners then drew attention to a letter from the respondents to the petitioners' solicitors, dated 30 June 2000, in which the respondents set forth their reasons for taking the decision complained of, 6/6 of process.

Counsel for the petitioners then proceeded to draw my attention to the relevant provisions of the Act of 1976, in particular sections 1, 9, 10, 11, 15, 16, 17, 18 and 64. The provisions of section 17(1) were of particular importance in the context. They set forth the basis upon which a licensing board might refuse an application for a licence. Sub-paragraph (c) was of relevance here. It provided that a ground for refusal might be that the use of the premises for the sale of alcoholic liquor was likely to cause undue public nuisance, or a threat to public order and safety. She argued that it was important to note three features relating to that provision. Firstly, it was the "use of premises" which was struck at. Secondly, it was the use of those premises for the licensed activity, "the sale of alcoholic liquor", which was referred to. Thirdly, the use of the premises for those purposes had to be "likely to cause undue public nuisance ....". Section 64 of the Act of 1976, as amended by section 47 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1998 was of significance in relation to applications for an extension of permitted hours, whether occasional or regular. Section 64(8) made it clear that the only ground for refusal available was that the extension sought was "likely to cause undue public nuisance". It was thus apparent from an examination of the legislation that an issue of causation had to be addressed. In particular, it was submitted that it was the licensed activity, in the premises, that must be shown to be the cause of the nuisance, during the extension of the permitted hours, if there was to be a valid refusal. In particular, section 64(8) of the Act of 1976 did not extend the grounds of objection provided for by the Act; it involved a limitation of those in relation to an application for an extension of permitted hours. In this connection reference was made to Bantop v City of Glasgow District Licensing Board, at page 368. There had to be a causal connection between the mischief perceived and the use of the premises for the licensed activity during the proposed extension to the permitted hours, if the application was to be refused. In the circumstances of the present case, it was submitted that there was no basis upon which such a causal link could be shown. In particular, the respondents' letter of 30 June 2000 setting forth their reasons for the partial grant of the application for extension to permitted hours contained no material from which the respondents would have been entitled to infer such a connection. Furthermore, it was relevant to observe that there already existed certain statutory provisions, which were quite separate from licensing legislation, designed to deal with the problem of fly posting. In that connection reference was made to section 187 of the Town and Country Planning (Scotland) Act 1997; to the extent that the respondents had sought to make use of the licensing legislation for the purposes of diminishing or eliminating fly posting, that was a misuse of their statutory powers. Putting the matter in another way, it was submitted that fly posting was not a "public nuisance" within the meaning of section 64 of the Act of 1976.

In support of her submissions relating to the requirement of a causal connection, counsel for the petitioners made reference to Aquilla Clark v North Ayrshire Licensing Board (unreported); 28 January 1998; Lord Johnston. In particular, reference was made to pages 6 and 7 of the judgment. In this connection, reference was also made to Risky Business Limited v City of Glasgow Licensing Board (unreported); 14 June 2000. In paragraph [15] of the Opinion of the Court, delivered by Lord Prosser, it was made clear that the mere possibility of some undesirable sequel to the grant of an application was not a ground for refusal; the test was one of likelihood or probability. What was in issue was not the likelihood or probability of some individual but undesirable event occurring on some occasion in the future, but the likelihood or probability of such events constituting a feature or characteristic of the operation of the premises, so as to have a bearing upon their suitability or convenience for the sale of alcoholic liquor.

Counsel for the petitioners next proceeded to undertake a detailed examination of the reasons of the respondents for their decision, as set forth in their letter of 30 June 2000. As appeared from the second paragraph on page 2 of the letter, part of the background was a letter of 2 December 1998 from the City of Edinburgh Council Environmental and Consumer Services Department to the petitioners. In that letter, 6/3 of process, the problem of fly posting had been identified. It was there claimed that "your establishment was identified as using fly posting to attract custom". It was pointed out that this method of advertising was illegal and in contravention of the Act of 1997. The writer continued:

In consequence of the recognition of these problems, the petitioners had taken action by writing to promoters concerning these matters. A specimen of such a letter to Ultra Groove had been produced, 6/4 of process. That letter recorded:

Counsel for the petitioners said that the petitioners had strengthened their position by forbidding promoters to use fly posting and would cancel any event, if fly posting was used as a means of its advertisement. The decision of the Board was a response to the objection of the Environmental and Consumer Services Department's letter, already referred to. That latter document was obscure and hard to follow. It appeared to suggest that "the premises" had consistently advertised illegally, whatever that might mean; furthermore, it contained the allegation that the petitioners themselves had undertaken illegal fly posting activity, for which there was no evidence whatsoever. Reverting to the terms of the respondents' letter of 30 June 2000, it was apparent that the necessary test of likelihood, as explained in Risky Business Limited v City of Glasgow Licensing Board, had not been satisfied. No reasonable Board could have come to the conclusion reached by the respondents in this case. It appeared from page 3 of the letter concerned that the respondents were adopting the "but for" test portrayed as insufficient in Aquilla Clark v North Ayrshire Licensing Board. It was submitted that the fly posting might be said to be a result of the holding of the entertainment concerned, but not of the ancillary activity of the sale or supply of alcoholic liquor in the premises. Furthermore, the respondents had in fact, in their decision, granted the application for extension of permitted hours to the extent of 11pm to 2am. Thus, their position appeared to be that an extension to that time was acceptable, but one from 11pm to 3am was not. There was no material before them to entitle them to conclude that the former shorter extension was not causative of "undue public nuisance" while the latter was. In that respect, their decision was irrational and unreasonable. In this connection reference was made to Bonnes v West Lothian District Council 1977 S.L.T.398, at page 402. The irrationality consisted in the taking of a decision in a situation where there was no material to justify that decision.

Turning to that part of her submissions which was concerned with an improper purpose for the respondents' decision, counsel for the petitioners drew attention to the letter of 2 December 1998 in which the Environmental and Consumer Services Department had recognised that the activity of fly posting involved a contravention of section 187 of the Act of 1997. The fact of the matter was that the problem should have been dealt with under the provisions of that legislation. It was submitted that the words "undue public nuisance" in section 64 of the Act of 1976, did not embrace fly posting. Accordingly it was not open to the respondents to seek to use their powers under the Act of 1976 for the improper purpose of curing the mischief of fly posting, which was controllable under different statutory provisions. In all of these circumstances the respondents' decision ought to be reduced.

Counsel for the respondents considered first of all the issue of "public nuisance". He submitted that a "public nuisance" for the purposes of the licensing legislation was any activity which would offend the sensibilities of the public "as opposed to a private individual". Fly posting defaced premises and structures without authority and could be properly regarded as a "public nuisance". The fact that there existed powers under section 187 of the Act of 1997 to deal with fly posting was not relevant here. The Court was only concerned about the interpretation of the provisions of the licensing legislation. On the matter of the issue of causation, on 26 June 2000 the respondents had been considering an application for a regular extension of the permitted hours authorised by an entertainment licence, which authorised the sale of alcoholic liquor in a place of entertainment. It was accepted that the sale of alcoholic liquor was a matter which was an ancillary to the entertainment. In the context of a nightclub, which La Belle Angele was, there was a practice adopted by the respondents whereby regular extensions of permitted hours were normally granted to 3am. However, in this case, the respondents had received objections from the Environmental and Consumer Services Department of the City of Edinburgh Council, which related to fly posting. The fly posting concerned consisted in advertisements for events which were to take place in the premises concerned. Those premises were mentioned on the Internet and could thus be readily identified. The problem had continued for some time. The position was that the efforts of the Environmental and Consumer Services Department in 1998 to stamp out the practice of fly posting had been substantially successful for a period of time. Unfortunately the problem had re-emerged. It was at that stage that the letter, dated 19 February 2000, 6/4 of process, had been written. There was plainly a strong connection between the licensees and the promoters of entertainments in the premises concerned, as appeared from that letter. It was plain from numbered paragraph 1 on page 2 of the letter of reasons of the respondents, dated 30 June 2000, 6/6 of process, that members of the respondents had considered that the petitioners' letter of 19 February 2000, 6/4 of process, had been weak in its terms. The connection between the licensees and the promoters of events was a crucial one. It was plain that the licensees had a considerable influence over the actions of promoters. The licensees and owners of the premises concerned plainly derived considerable benefit from the promotions, in the form of the rental paid for the use of the premises and in the profits derived from the sale of alcoholic liquor during the promotions. It was plain that the value to the licensees of the hour of extension between 2am and 3am was considerable, as appeared from paragraph 13 of the petition. Counsel for the respondents, when pressed by me, accepted that there was nothing in the respondents' statement of reasons, dated 30 June 2000 to show why an extension of permitted hours only to 2am, as opposed to 3am, would be likely to cure the mischief of fly posting, where an extension to 3am would not. Counsel for the respondents accepted that he had no information which would demonstrate such a proposition. He speculated that the respondents' experience of licensing matters might have led them to that conclusion. On page 3 of the respondents' letter of reasons of 30 June 2000, it had been stated:

Counsel for the respondents was unable to explain what that sentence meant. It was submitted that the activity of fly posting was not one which was normally associated with the operation of licensed premises. However, in the context of what might be described as nightclubs, it was clear that there was substantial reliance upon it. That particular form of advertising could properly be seen as a part of the licensed activity. Given those particular circumstances and the manner of operation of the premises, it was submitted that the respondents were entitled to make the connection which they did between the problem of fly posting and the extension of permitted hours.

In reply, counsel for the petitioners observed that there had been much speculation in counsel for the respondents' attempt to explain the Board's decision. The fact of the matter was that there was no material to justify a grant of an extension to 2am, as opposed to 3am.

In the light of the undisputed material before me and of the foregoing arguments, I have reached the conclusion that the respondents' decision of 26 June 2000 to grant the petitioners' application for a regular extension of permitted hours in respect of the premises concerned from 11pm to 2am must be reduced. In the case of Bantop Limited v City of Glasgow District Licensing Board, Lord Dervaird at page 368F-I, considered the statutory background to an application for an extension of permitted hours, such as was involved in this case. In particular, he considered the relationship between sections 17 and 64 of the Act of 1976. There he said this:

It appears to me to follow from that approach, with which I respectfully agree, that in considering the application of section 64(8) of the Act of 1976, in relation to an application for an extension of permitted hours, it is appropriate to focus attention upon the question of whether the use of the premises concerned for the sale of alcoholic liquor is likely to cause undue public nuisance or be a threat to public order and safety, if the application for the extension of permitted hours is granted. Putting it in another way, the relevant matter for consideration is whether the licensed activity in the premises concerned, during the extension of permitted hours, is likely to cause the results defined.

Having carefully considered the reasons advanced by the respondents for the decision which they took in this case, I have reached the conclusion that there was no material before them entitling them to reach the decision which they did. While the writer of the letter from the Environmental and Consumer Services Department of Edinburgh City Council, dated 14 June 2000, attempts to suggest that it was the petitioners who had advertised illegally by means of fly posting, as I understand it, the undisputed state of facts is that the petitioners were themselves not responsible for fly posting. Those who have been responsible for that method of advertisement have plainly been the promoters of entertainments in the premises of the petitioners, to whom the premises have been let. Against that background, in my opinion, it was quite disingenuous for the Department mentioned to write:

Given that it is a matter of agreement that the petitioners themselves were not responsible for fly posting, and that that method of advertisement is, in no sense, a necessary consequence of the use of the premises for the licensed activity during any extension of permitted hours, it appears to me that the respondents had no factual basis for concluding that the grant of an extension of permitted hours to 3am under section 64(8) of the Act of 1976 would be "likely to cause undue public nuisance", even upon the assumption, with which I deal later, that fly posting can be seen as a public nuisance for the purposes of subsection (8). The objectionable activity, in my opinion, was plainly a consequence of decisions made by promoters of entertainments to whom the premises had been let, to use that particular method of advertisement. It was not a consequence of the use of the premises for the sale of alcoholic liquor during any extension of permitted hours.

In any event, I tend to be of the opinion that illegal fly posting cannot properly be regarded as a "public nuisance" of the kind contemplated by section 64(8) of the Act of 1976. It appears to me that what is contemplated by that expression is some objectionable activity directly related to the licensed activity in the premises concerned during the extension of permitted hours. An obvious example of that kind of activity would be disorderly behaviour by intoxicated patrons of the premises concerned around the conclusion of the extension of permitted hours. I am confirmed in this view by the existence and terms of section 187 of the Town and Country Planning (Scotland) Act 1997. Those provisions empower a planning authority to remove or obliterate any placard or poster displayed in their area and which, in their opinion, is so displayed in contravention of regulations made under section 182 of that Act for the purpose of controlling display of advertisements. The provisions concerned were incorporated into the planning legislation to address the problems posed by fly posting. In my opinion, those provisions provide the mechanism whereby the problems associated with fly posting may be addressed. They suggest, to my mind, that it was never contemplated by Parliament that fly posting was to be embraced under the description of "public nuisance", within the meaning of section 64(8) of the Act of 1976.

In all of these circumstances, my conclusion is that no reasonable Licensing Board could have regarded the agreed factual background to which I have referred as constituting a proper basis for holding that the extension of permitted hours sought was likely to cause "undue public nuisance".

In my opinion the petitioners' attack on the respondents' decision to the effect that it was irrational must also succeed. What the respondents did, in the circumstances of the present case, was to grant the petitioners' application for an extension of permitted hours, but only until 2am. Having regard to the terms of section 64(8) of the Act of 1976, which provides that:

it is to be supposed that the respondents considered that the extension of the permitted hours for the premises in question to 2am would not be productive of those results. However, plainly, it is also to be supposed that they did consider that the extension of permitted hours to 3am would have been productive of those results. In my opinion, there is no basis whatsoever to justify such a conclusion in any material which was before the respondents. Accordingly, I am forced to conclude that their decision was irrational. I am confirmed in this conclusion by the contents of the last paragraph on page 3 of the respondents' statement of reasons, 6/6 of process. It is there stated:

It appears to me from this passage that what the respondents sought to do in making the decision which they did was to punish the petitioners for what they perceived to be an insufficiently vigorous condemnation of the practice of fly posting by promoters in the letter which they wrote to them. While it is perhaps understandable that the respondents might have wished to follow that course, in my judgement, it is not one which the legislative framework under which the respondents must operate authorises. It is quite plain that there is nothing in any of the material before the respondents or before the Court which could suggest that a difference between extended hours running to 2am and extended hours running to 3am could have any impact at all upon the problems which the respondents sought to resolve. For these reasons also therefore, in my opinion, the decision concerned must be reduced.

Having regard to the desire of the petitioners to avail themselves of the limited extended hours which they had been granted until the matter came before the respondents again, I pronounced the order in the terms which I did, making the reduction take effect from a period immediately before the new meeting of the respondents. In these circumstances, I shall sustain the plea-in-law for the petitioners and repel pleas-in-law 1 and 3 for the respondents. Having regard to the conclusions which I have reached, it is unnecessary for there to be any further procedure by way of factual investigation into the matters which are the subject of averments in paragraph 10 of the petition. Accordingly, it is unnecessary for me to deal with the respondents' plea-in-law 2.