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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Catscratch Ltd, Re Application For Judicial Review [2000] ScotCS 240 (29 August 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/240.html Cite as: [2000] ScotCS 240, 2001 SCLR 223

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[1] The petitioners operate "The Shed" in Langside Avenue, Glasgow, as a nightclub and discotheque. Unusually, they hold a public house licence for the premises. They applied to Glasgow Licensing Board for a regular extension of permitted hours in terms of section 67 (1) of the Licensing (Scotland) Act 1976. The application sought two different extensions, namely from Monday to Sunday from 11.00pm. to 2.00am. and on Sundays from 2.30pm. to 6.00pm. The application was heard by the board on 12 June 2000. There were objections. Having heard one objector who was present, representatives of the police and the Director of Protective Services, and the petitioners, and having asked questions and discussed the application, the board refused the late night extension and granted the Sunday afternoon extension.

[2] Section 67 (9) of the Act provides:

The petitioners' representative applied for a direction under section 64 (9). That application was refused.

[3] One week later, on 19 June, the petitioners' agents wrote to the clerk to the board asking his agreement to the proposition that the application for a direction had been unnecessary, and that the petitioners were entitled to apply for a regular extension at the board's next meeting. The clerk replied that he did not agree. There had been a refusal of an extension of permitted hours, and a further application would be incompetent.

[4] Following the exchange of views with the clerk, the petitioners raised the present proceedings. They had not, by the date of the hearing, lodged a further application. I was asked by both parties to deal with the matter notwithstanding that it might be considered premature. If the petitioners did not make a further application within the course of a few days following the hearing on 28 August the opportunity to bring the matter before the October sitting of the board would be lost. I was predisposed to follow the course taken by Lord Marnoch in Mario's Leisure Ltd. v West Lothian District Licensing Board 1994 S.L.T. 129. But I was satisfied that an appropriate application could and would be made immediately, and that it was appropriate to proceed. That course was followed by Lord Rodger in First Leisure Trading Ltd v City of Glasgow District Licensing Board 1996 S.L.T. 1018.

[5] The substantial issue between the parties is whether a disposal of a composite application which involves the grant of one form of extension and the refusal of another is or involves a refusal in terms of section 64 (9). The petitioners contend that if an application is granted to any extent at all the disposal is a grant and not a refusal of an extension, and section 64 (9) does not apply. However, before me the petitioners sought to restrict their contentions. They were apprehensive that if they did make a renewed application the clerk would deal with the matter himself, on the view that competency was a matter for him, or alternatively that if he placed the matter before the board he would advise the board that the application was incompetent. They sought an order "that the clerk place the application on the agenda and that the board consider the competency of the application". Their submissions were that competency was a matter for the board, not the clerk, that the question required to be disposed of in the light of representations they were entitled to make, and that there was a real issue for the board. The respondents contended that on a sound construction of the Act any extension sought would be bound to relate to hours which had been refused in the June disposal, that the application would be incompetent, and would be bound to be refused, and that in the circumstances the matter was one which the clerk might dispose of at his own hand.

[6] In my opinion the scope of the clerk's function in determining issues of competency is dealt with authoritatively in Kelvinside Community Council v City of Glasgow District Licensing Board 1990 S.L.T. 725 which dealt with the clerk's role in relation to section 14 of the Act. Section 64 (9) was introduced to make provision in the case of applications for extension of permitted hours similar to that already in force in section 14 in respect of applications for new licences. It was held in Kelvinside that while the clerk had a role in dealing with certain cases of competency, exemplified in Main v City of Glasgow District Licensing Board 1987 S.L.T. 305, he had no such power in the case of section 14, where there was no mention of the clerk. I was referred also to Tait v City of Glasgow District Licensing Board 1987 S.L.T. 340. There is no material difference between the two provisions. In my view the question whether an application is rendered incompetent by section 64 (9) is a matter for the board. No question arises in this case whether the decision on matters of competency can be delegated in terms of section 5.

[7] It is for the clerk to arrange for the disposal of such a question by the board. The petitioners in this case contended that that was done, and properly done, by bringing the application before the board at a regular sitting at which the application might be granted or refused if held to be competent. That would require the publication of the application in terms of section 12 and the completion of the whole other procedures necessary in advance of the hearing in the case of an application which might thereafter be held to be incompetent. Whether that course is adopted as a general practice may be a matter for individual boards. But I was not persuaded that it was either necessary or generally justified. In terms of section 10 (1) an application requires to be lodged with the clerk not later than five weeks before the first day of the meeting of the board at which it is to be considered. Publication in terms of section 12 must take place not later than three weeks before the first day of the meeting. There is therefore, as Sir Crispin Agnew submitted, a two week window within which questions of competency can be disposed of. Since the obligation of the clerk is to cause publication of "all competent applications", and only of competent applications, the structure of the Act would encourage the view that questions of disputed competency ought to be resolved before publication. That approach would also minimise expense generally in the case of incompetent applications, and in particular avoid the inconvenience to members of the public interested in the merits of the application.

[7] It was not disputed that the respondents intended to dispose of the matter in the way the petitioners anticipated, by the clerk making the decision on competency. It follows that the petitioners are entitled to the order sought unless there is substance in the respondents' submission that the exercise would be of no practical value because the Board would be bound to reject the application as incompetent. That depends in the first place on the proper interpretation of section 64 (9) in the context of the scheme of the provisions for extensions of permitted hours. In Moriarty v City of Edinburgh District Licensing Board 1995 S.L.T. 40, it was stated that there was nothing in section 64 to suggest that an applicant could not make at one and the same time an application which altered the permitted hours in different ways. The observations were obiter but neither party sought to challenge Lord Cameron of Lochbroom's views on the matter in the present case. It follows that in a single application one may expect to find, as in this case, extensions which relate to different days in different ways, and there would appear to be no reason why one should not find a combination of occasional and regular extensions. In the case of regular extensions section 64 (3) provides that the grant is the measure of the extension permitted. The board may modify the term of the grant from the term sought by the applicant. The days may be amended, and the hours may be amended.

[8] The interpretation of subsection (9) has presented considerable difficulties: J C. Cummins Licensing Law in Scotland pages 192-194. Many of the difficulties relate to problems of application of the provision in readily foreseeable cases. In the case of an occasional extension there is a maximum permitted period of one month. It is not immediately obvious that a refusal of an extension to accommodate a pop concert in June should prevent a board from granting an application to accommodate a wedding in August. Since in terms of section 64 (2) the exercise of the discretion depends in part on the board's view as to the appropriateness of the occasion, the solution to that problem may lie in the specification of the occasion. Subsection (9) might prevent re-application for an occasional extension of the same kind as that which had been refused. There would be an issue for the board whether the occasion was of such a kind. The rationale for the restriction of the board's discretion must be that to permit repeat applications would expose the board and the public to the inconvenience of having to fight the same battles repeatedly. Whether or not that is correct, the provision imposes a considerable discipline on licence holders contemplating an extension. An inappropriate application could lead to the loss of a class of occasional business for a year.

[9] If this approach to occasional extensions is correct, it is clear that section 64 (9) can seriously affect licensed business and must have been intended so to operate. It would be odd if Parliament's will in this matter could be frustrated as easily as it would be if the petitioner's contentions were sound. An application which contained a combination of one or more occasional extensions which met the general policy criteria of the board and one or more regular extensions which were likely to be refused could be repeated every meeting of the board without adverse consequence. The board would be perverse to refuse the occasional grant, but would be held to have made a grant which excluded the operation of subsection (9) if they granted the application in part.

[10] Sir Crispin argued that the proper view was to compare the application and the grant. What was not granted was refused, and subsection (9) applied to prevent a re-application for any period which the board had excluded. He did not contend that once an application for a regular extension of any kind had been refused the holder was precluded from applying for a different regular extension. The emphasis was on the words "such an extension" as a reference back to the extension which the board had considered and disposed of. On his approach refusal of a regular Sunday extension would not preclude an application for a weekday extension and vice versa. Mr Skinner's argument was that the provision came into play only where there was an outright refusal of the whole extensions sought.

[11] In my opinion the respondent's contentions are to be preferred as making sense of the structure of the section as a whole. I was referred to Baillie v Wilson 1917 S.C. 55 and Wolfson v Glasgow District Licensing Board 1980 S.C. 136 in this connection, but in the end I found no real assistance in the cases. They were concerned with the identity between an existing licence and a subsequent grant subject to restrictions. The context was different. In this case, the section clearly permits the grant of an application in part and the refusal of an application in part, though that power is not expressed. It is implied in the power of the board to define the extent of any extension granted within the boundaries set by the application. The refusal may take the form of a restriction on hours, days, or period within any head of the application, or, as here, the rejection totally of some element of a composite application. The practical administration of licensing law appears to demand that subsection (9) provides a solution to the kinds of problems which must arise in such a situation. Quite apart from deliberate manipulation, which, as already noted, might be unfortunately easy, the policy of the provision would be frustrated by the petitioners' approach. The board and the public would be exposed to repeated applications within the period specified.

[12] Mr Skinner argued that the proper approach to construction was to read subsection (1) as conferring a right on a licence holder. Subsection (6) would then amount to a derogation from that right and should be strictly construed against the respondents. I do not agree. Even if it is correct to look at the two subsections in isolation, the prohibition affecting the exercise of the board's power does not restrict in any way the licence holder's right to apply. But I consider that the proper approach is to construe the provisions together.

[13] Whether a fresh application in the present case would be for "such an extension" as was the subject of refusal in June is a matter for the board in the first instance. It would be wholly speculative to comment on the relationship between the application which the petitioners intend to make and the previous application.

[14] In the circumstances I cannot reach a concluded view on the application of subsection (9). I shall make an order in the terms sought, leaving it to the board and its advisers to consider the competency of the application when it is made.