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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Adams, Re Application For Judicial Review [2001] ScotCS 264 (20 November 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/264.html Cite as: 2002 SCLR 603, [2001] ScotCS 264, [2002] LLR 271

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[1] In this case the petitioner holds a public house licence in Hamilton. The respondents are the licensing authority for the area. In the summer of 2001 the petitioners applied to the respondents for a regular extension of permitted hours for the sale and supply of alcohol at her premises. In terms of section 53 of the Licensing (Scotland) Act 1976 the normal permitted hours of opening for premises in respect of which a public house licence is held are between 11.00am and 11.00pm from Mondays to Saturdays, and between 12.30pm and 2.30pm, and 6.30pm and 11.00pm on Sundays. The regular extension applied for by the petitioner was from the hours of 11.00pm to 11.45pm on Sundays to Thursdays, from 11.00pm till 1.00am on Fridays and Saturdays, and from 2.30pm to 6.30pm on Sundays. At their quarterly meeting on 4 June 2001 the respondents partially refused the application in respect of the regular extension sought between the hours of 11.45pm to 1.00am on Fridays and Saturdays. The petitioner requested written reasons for this partial refusal from the respondents and these were given on 28 June 2001. It is in respect of the decision which is supported by these written reasons that the petitioner has taken this judicial review.

[2] The statutory background to applications of this kind is of significance. Section 1 of the Licensing (Scotland) Act 1976 provides for the setting up of licensing boards. Section 4 provides for the licensing boards to hold quarterly meetings, and also at other times as appear to them to be appropriate. This would enable this court in the present case to require the board to reconsider any decision on a date other than the quarterly meetings. Section 9 and Schedule 1 of the Act provide for the grant of different kinds of licence, such as the public house licence owned by the petitioner and the entertainment licence held by a company called Lynnette Holdings Ltd., who were the sole objector to the petitioner's application. Section 10 of the Act describes the requirements of making an application for a licence. However section 10(6)(d) makes it clear that these formalities apply only to applications for the grant or renewal of a licence, for the provisional grant of a new licence, for the transfer of a licence, or for an application for a regular extension of permitted hours as in the present case. These requirements are therefore not referable to applications for occasional extensions of a licence. Section 16 provides for objections to applications, and it is accepted that the firm Lynnette Holdings Ltd. referred to above are competent objectors to the present application in terms of this section. Section 17 gives the grounds for refusal of an application and section 18 requires the licensing board to give reasons for its decision if required to do so. Section 53 provides the permitted hours of opening in licensed premises as described above. If the licence holder wishes to open beyond these hours there must be a separate application for an extension in terms of section 64. Section 64(1) provides among other things that a licence holder can apply for either an occasional or a regular extension. In terms of section 64(3) a licensing board may grant an application for an occasional extension of permitted hours "in connection with an occasion which the board considers appropriate" within certain time restraints. In terms of section 64(3) it is provided that after considering an application and any objections, a licensing board may grant a regular extension of permitted hours having regard "to the social circumstances of the locality in which the premises ... are situated, or to activities taking place in that locality". Section 64(7) provides for objections and section 64(8) provides that the licensing board shall not grant an extension of permitted hours if it considers that the extension is likely to cause undue public nuisance or to be a threat to public order or safety.

[3] Further provisions in respect of the grant of such licences are provided in the Law Reform (Miscellaneous) (Scotland) Act 1990. Section 47 of that Act provides:

Accordingly this section introduces two further factors to be considered by a licensing board in any application for a regular extension of hours, namely that the board has to be satisfied that there is a need in the locality for such an extension, and that the extension will provide a benefit to the community which outweighs any detriment caused by the extension. There is no statutory right of appeal against the refusal of an application for a regular extension of permitted hours and accordingly the petitioner is required to take this judicial review.

[4] It is also relevant to narrate the general circumstances surrounding the history of such applications in recent years so far as the petitioner and respondents are concerned. It appears to be accepted that prior to 1April 2001, the respondents' practice was to grant occasional extensions to holders of public house licences as opposed to entertaining applications for regular extensions to such licences. This policy appears to have been in practice from about the beginning of 1998 until April 2001. The policy was formulated as such and intimated to licensees including the petitioner under cover of a letter dated 23 June 2000. Prior to the intimation of this policy in June 2000 the respondents had indicated in January 2000 that they wished to reconsider their policy of granting occasional licences to public houses. In that month the respondents held a meeting attended by representatives of the Scottish Licensed Trading Association and local licence holders including the petitioner. The respondents also issued questionnaires to public house licensees in respect of this policy. As indicated in the letter of 23 June 2000 the respondents then made it clear that they would entertain applications from public house licensees in respect of bona fide events, and on Fridays and Saturdays until 1.00am on condition that the entertainment specified on the application form was adhered to. Thereafter, in pursuit of this policy, the petitioner's premises were allowed regularly to trade on Fridays and Saturdays until 1.00am on the basis of their applications for occasional extensions.

[5] In about February 2001, the respondents issued further guidelines which were in respect of applications for occasional extensions in their area in terms of section 64 of the principal Act. These guidelines were sent to the petitioner, among others, by the respondents on 16 February 2001. In terms of these guidelines the respondents indicated that a maximum number of 24 occasional licence extensions up to 1.00am would be granted in any one year. Further, the respondents indicated they would also entertain applications in respect of specific "bona fide" occasions, and that they would look favourably on applications during the festive period in each year. The reason for the provision of these specified number of occasional extensions was to phase out the opening of public houses after 11.45pm. The respondents also produced a booklet entitled "Guidelines for Licensed Premises" which indicated that their policy in the Hamilton area was to allow regular extension between 11.00pm to 11.45pm on Mondays to Sundays, and additionally on Sundays from 2.30pm to 6.30pm. The respondents' policy therefore was intended to be that there should be no opening of public houses in the area beyond 11.45pm. The respondents then applied these guidelines from 1 April 2001. They carried out no specific consultation exercise prior to the announcement of these changes. It was against the background of these guidelines that the petitioner appears to have abandoned her practice of applying weekly for occasional extensions of the permitted hours and applied instead for a regular extension. In these circumstances the respondents refused the petitioner's application for a regular extension at their meeting on 4 June 2001. They did however offer the petitioner the opportunity of applying again for occasional extensions in order to take up the allowance indicated in the occasional extension guidelines issued in February 2001. The petitioner did not take advantage of that offer. There was in the course of the hearing before the respondents on 4 June 2001 a reference to a petition or number of petitions submitted to the Scottish Parliament in favour of the reinstatement of the respondents' previous practice of regularly granting occasional extensions until 1.00am to holders of public house licensees on Friday and Saturday nights within the respondents' area. These petitions were apparently submitted to the Scottish Parliament on 23 May 2001. Further reference was made to the results of a telephone poll conducted by a local newspaper between 19 and 23 October 2000. The question in the poll was whether public houses and clubs should be allowed to open late, and it appears that a significant number of those who telephoned in to the newspaper were against the late opening of these establishments.

[6] In their statement of reasons for partially refusing the petitioner's application, the respondents first of all noted the submissions of the petitioner's agent, and also noted that the premises had operated on Friday and Saturday between the hours of 11.00pm to 1.00am for some time. Reference was made to the board's policy to allow regular extension to the opening hours on Mondays to Sundays from 11.00pm to 11.45pm. The statement of reasons then went on:

[7] It is in these circumstances that the petitioner now seeks a judicial review of the respondents' decision of 4 June 2001 partially to refuse her application for a regular extension to the permitted hours, on the grounds that the respondents' decision was unlawful, invalid and unreasonable, and in violation of the petitioner's human rights. The petitioner therefore seeks various declarators in respect of the respondents' decision. Further the petitioner seeks orders as appropriate to grant her application for a regular extension, or alternatively to require the respondents to reconsider her application. Counsel for the petitioner referred to the statement of reasons produced by the respondents in support of the decision and concluded that against that background noted by the respondents that they had operated a policy of occasional extensions which in effect allowed public houses to open on Friday and Saturday nights till 1.00am for some considerable time, their decision partially to refuse the application for regular extension was based on four main considerations. Firstly the respondents had decided that despite the number of occasional extensions enjoyed by the premises in the past there was no need for granting the regular extension now sought on a permanent basis. Secondly, the respondents felt that they were not barred from reaching this conclusion by their previous decisions. Thirdly, the respondents concluded from the information placed before them that public opinion did not favour the granting of regular extensions to the permitted opening hours as sought by the petitioner. Finally, the respondents noted that there were differing views within the locality as to whether or not a need for the regular extension had been demonstrated, and whether the grant of any extension would be of such benefit to the community as to outweigh any detriment to that locality. These reasons, counsel argued, were inadequate. The test as to whether the reasons given by a tribunal such as the respondents are sufficient is to ask if an informed reader would be left with any real or substantial doubt as to why the decision had been reached. Reference was made to Wordie Property Co Ltd v Secretary of State 1984 S.L.T. 345; and Brechin Golf and Squash Club v Angus District Licensing Court 1993 S.L.T. 547. In terms of s. 64(3) of the principal Act the licensing board has to have regard to the social circumstances of the locality in which the premises are situated; in terms of s. 64(8) they have to consider whether the extension is likely to cause undue public nuisance or to be a threat to public order or safety, and in terms of s. 47(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 it has to consider whether there is a need in the locality for a regular extension and that it is likely to be of such benefit to the community as a whole as to outweigh any detriment to that locality. There were no police concerns about the petitioner's application. The only objection came from a trade competitor on the basis of public disorder, and the statement of reasons given by the board made it clear that the application was not rejected on that ground. Most significantly, the respondents specifically accepted that the petitioners had traded for some time during the extended hours which were now contained in the present application. The respondents' concerns, as expressed in their statement of reasons did not appear to be so much about the regularity of the occasional extensions applications but rather the misrepresentations said to be behind these applications: They were aware of the regularity with which the occasional extensions were granted, but they had not dealt with this in their statement of reasons. Accordingly the petitioners were left in a real and substantial doubt about why the respondents had refused their application and why in particular the respondents had found

[8] The second argument presented by counsel for the petitioner was that the respondents had relied on irrelevant and incorrect facts in reaching their decision. The first source of incorrect material, it was said, was the telephone poll conducted by the Hamilton Advertiser. In terms of the productions it is clear that the poll was carried out in October 2000, and was in respect of extensions to 2.00am. The question put to the public was simply in general terms whether public houses should be allowed to open later. While 97% of the public were against the later opening of public houses, it was submitted that the poll did not relate to the present application but to other applications, which were for later hours on every evening of the week. Further the poll had been conducted some nine months prior to the present application. However the respondents had concluded in their statement of reasons that the poll supported the view that public houses should not open beyond 11.45pm. It was clearly wrong for the respondents to draw from this poll the conclusion that a number of people were not in favour of the licensed premises in this particular case receiving a regular extension to 1.00am every Friday and Saturday. Counsel also criticised the respondents' dismissal of the petition presented by those who supported the regular extension of permitted hours. Counsel further argued that the respondents had fettered their own discretion by the way in which they applied their guidelines. It was accepted that any licensing board can devise a policy, reconsider it and then change their mind. But any policy must have a reasonable basis, must not frustrate the exercise of the statutory power conferred upon the board, and must be applied so that it does not fetter the discretion conferred by statute. In the present case there had been a fettering of the board's decision by the way in which they applied their policy not to grant extensions to permitted hours after 11.45pm. This was clear from their statements of policy and the guidelines which they issued. Reference was made in this respect to Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 K.B. 233; Council of Civil Service Unions v The Minister for the Civil Service [1985] AC 374.

[9] The third submission put forward by the petitioner's counsel concerned the rights which she claimed could flow from the petitioner's legitimate expectations from her previous dealings with the respondents. These expectations, she said, were of two kinds; firstly there is a substantive legitimate expectation in the sense of an entitlement to some benefit, and secondly there is a procedural legitimate expectation, in the sense that while the outcome of a particular process may not be expected, there is an expectation that certain procedures will be adopted. Any breach of these expectations by the respondents would amount to an abuse of power. In the present case, in the first instance the petitioner had in the circumstances a legitimate expectation that the grant of occasional licences over an extended period would continue until there was a material change in circumstances; what in effect had been happening until the present decision was reached had been the grant of a regular extension. In the second instance the petitioner had a legitimate expectation that she would have a right to be consulted prior to any change in policy. Reference was made to R. v Inland Revenue Commissioners, ex parte Unilever plc [1996] STC 681; R. v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213).

[10] In respect of this submission, and in anticipation that the respondents would maintain that the regular granting of occasional extensions had been ultra vires and therefore could not lead to any legitimate expectations, counsel submitted that the question of whether the respondents had acted ultra vires or intra vires was irrelevant (see R. v North and East Devon Health Authority, per Lord Woolf (M.R.) para. 67 et seq.); in any event the respondents' action in granting occasional extensions in the way they did was within the proper exercise of their discretion, in terms of s. 64(2) of the principal Act, and was therefore was not ultra vires. Even if the respondents had acted in a fashion which was ultra vires in the way in which they regularly granted occasional licences, it would be unfair of the respondents to depart from that practice. It was now recognised that the Wednesbury test of reasonableness is not the only measure of the rights of parties before a tribunal; there may also be expectations created by the tribunal which those who appear before it are entitled to rely on. Support for this submission was sought in the confirmation by the respondents in their letter of 23 June 2000 that occasional extensions would continue to be granted and which therefore constituted a representation by the respondents capable of conferring a legitimate expectation on the petitioner that she should continue to have the benefit of that policy so long as she adhered to the terms of it. The regular grant of occasional licences amounted in effect to the grant of a regular extension in all but name, and that should give rise to an expectation that the respondents will continue to make that available to the petitioner. Further the pattern of prior consultation as part of the process of formulating policy cannot be departed from without further consultation. The petitioner should have been allowed the opportunity of commenting on any change of policy. Counsel concluded this part of her submissions by arguing that for all these reasons, the respondent's actions amounted to an abuse of power and that therefore their decision partially to refuse the petitioner's application should be reduced.

[11] The petitioner's fourth general submission was concerned with what are currently described as human rights; in particular it was submitted that the respondents' decision of 4 June 2001 partially to refuse the application for a regular extension was an act incompatible with the petitioner's rights under Article 1 of Protocol 1 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, and unlawful under s. 6(1) of the Human Rights Act 1998. The respondents were acting as a public authority under s. 6(1). The provision of Article 1 of Protocol 1 relied on were are as follows.

Article 6(1) of the Convention s in the following terms.

The effect of the respondents' refusal has been, it was said, to produce a significant drop in turnover and a material decline in the petitioner's business. The operation of the business by means of a licence is a possession (Tre Traktor Aktiebolag v Sweden (1989) 13 E.H.R.R. 319). The application of the respondents' decision partially to refuse her application for a regular extension therefore operates as a control on the use of the petitioner's possession of what in effect is a property right. To be lawful, it was argued, such an interference must be both proportionate and subject to adequate safeguards. The safeguards were inadequate. The petitioner had been given no opportunity to make representations before the respondents adopted their arbitrary new policy as described in the guidelines. Even if the earlier practice of the respondents of granting occasional extensions was ultra vires, the possession granted in terms of the respondents' decisions was still covered by Article 1 of Protocol 1 (Pine Valley Developments Ltd v Ireland (1992) 14 EHRR 319; Catscratch Ltd & Anor, Petitioners, unreported, 4 June 2001). In addition, as had been submitted earlier, there was a failure by the respondents to give adequate reasons; (Hentrich v France (1994) 80 E.H.R.R. 440). Further, the respondents' interference of control of the petitioner's possession had not been proportionate; the means of interference or control were not reasonably related to the aims pursued. The relevant test was described in the case of Regina v Secretary of State for the Home Department (ex parte Daly) [2001] 3 All ER 433) where it was suggested that the means of interference and control must be no more than necessary to achieve the desired aims. This, it was submitted, leads to a lower test than the test of reasonableness described in the case of Wednesbury. If the respondents' policy is the reason why they will never grant a licence after 11.45pm, this constitutes a fetter on their discretion, and they are then acting unlawfully. As a result no decision can be proportionate, as there is no legitimate exercise of discretion. Again, if the respondents' conduct is irrational or inadequate, as was earlier submitted, that cannot justify the interference in the petitioner's enjoyment of her possession, and the consequent economic loss. In these circumstances, counsel for the petitioner concluded that the effect of the respondents' actions is disproportionate and therefore incompatible with the petitioner's rights under the European Convention.

[12] In response to these arguments counsel for the respondents argued that the petitioner's whole approach was flawed. Firstly he submitted that the change of policy in respect of the granting of occasional licences was a decision which should be regarded quite separately from everything else. The policy on occasional licences was a wholly separate issue from the policy on applications for regular extensions, to which separate statutory provisions applies, and for which there are separate remedies. The petitioner could have asked for a judicial review following the change of policy on 16 February 2001, but instead she appears to have accepted that change of policy and applied for a regular extension. The petitioner now complains following the refusal of her application for a regular extension that the respondents have behaved illegally in respect of their policy on occasional licences.

[13] Counsel for the respondents then pointed out that the terms of s. 47 of the 1990 Act made it clear that in respect of applications for regular extensions to the permitted hours the licensing board should not grant the applications unless it was satisfied on the question of need and benefit. The onus was therefore on the applicant to satisfy the board on these matters; if she failed to do so the board was not entitled to grant the application, and had no discretion to act otherwise. In the present case the petitioner had not satisfied the respondents that there was a need or a benefit in terms of s. 47(1). There was a clear distinction between occasional extensions as defined in s. 64(2) of the Act and regular extensions as described in s. 64(3); an occasional extension was an extension in respect of a particular occasion and should not be confused with a regular extension. In terms of s. 64(7) there was a right of objection in respect of regular extensions which was not available under applications for occasional extensions. A further point of distinction was that in terms of s. 64 the grant of a regular extension was for a year and a new grant had to be sought each year if the regular extension was to continue. This was different from a normal application for a licence under s. 17 which, if granted, lasted for three years, and then was open to renewal; at that stage, the onus was on objectors to say why the application should not be renewed. In the present case the petitioner did not have a de facto regular extension; even if she did she would have to come back each year and ask the respondents to exercise their discretion in her favour. The letter of 23 June 2000 makes it clear that the occasional extensions were granted for Friday and Saturday on conditions that the occasions were bona fide; each application had to be considered on its merits, and therefore on each occasion the licensing board can take into account any change in circumstances. The test to be applied in the grant of occasional licences is one which does not require to pass the tests contained in s. 47 of the 1990 Act. During the years before their change in policy therefore the licensing board would never have had to consider any of the regular extension tests, but rather only the limited considerations contained in occasional licence applications. The licensing board is entitled to change its policy from time to time, and therefore there can be no legitimate expectation that their decision will always be the same. A policy simply means that the licensing board in the general run of cases will consider the criteria concerned in s. 47 and grant the application if they are satisfied that these criteria are met. In respect of the present application, the view of the licensing board is that in Hamilton up to 11.45pm the conditions are satisfied, but thereafter they are not. Reference was made to Elder v Ross & Cromarty 1990 S.L.T. 307 and Bass Taverns Limited v Clydebank District Licensing Board 1995 S.L.T. 1275, which confirmed that policy can change from time to time and that the onus is on the applicant to satisfy the board that the tests have been met. The petitioner's suggestion is that the respondents' policy is so rigid that they cannot depart from it. Reference was made to in re Findlay & ors. [1985] 1 A.C. 318 at 335H and Ahmed v North Lanarkshire Council 1999 S.L.T. 1064 (at 1067D-F). There are no averments by the petitioner as to why she should be treated as an exception to the regular extension policy adopted by the respondents.

[14] It was accepted that in respect of the reasonableness of the decision the appropriate test was to be found in Wordie Property Limited v City of Edinburgh; Robertson v City of Edinburgh District Licensing Board 1955 S.L.T. 107, and Noble v City of Glasgow District Council 1995 S.L.T. 1315 and was to the effect that a reasonably informed reader would understand the reasons for the decision. However, in Caledonian Nightclub v Glasgow and District Licensing Board 1996 S.C. (H.L.) 29 the determination of facts in this kind of situation was held to be for the licensing board. What the test meant was that if it was just conceivable that there was no demand for the regular extension in the present case, then the court will not interfere with the licensing board's decision. Counsel for the respondents then commented on the statement of reasons. Firstly he submitted that an entertainment licence was not comparable to a grant of a regular extension, because in entertainment licences the permission to sell alcohol was ancillary to the entertainment and so could be controlled. The petitioner accepted before the licensing board that every case had to be considered on its merits. Many of the petitioner's submissions in this case had not been made to the licensing board. However the petitioner does not appear to have challenged the policy of the board on regular extensions or suggested why she should be excluded from it. The board had given the petitioner the opportunity of applying to the October meeting by giving a section 64(9) direction. Nowhere in the petitioner's submission to the board did she found on the fact that earlier occasional licences had been granted, nor was it suggested that the policy change in respect of occasional licences was improper. The board knew that there were previous extensions but found that there was no need for an extension on a permanent basis. The applicant had to establish that there was such a need in terms of s. 47(1)(a). The board had made a finding, based on the information they gleaned from a newspaper poll, on the fact that they had decided that the petitioner's claims of support were exaggerated and on the conclusion they had reached when they found public houses in the area empty at 12.15am. Before the board it had been accepted by the petitioner that a number of people had indicated that they did not want public houses in the area to stay open later. Accordingly, counsel submitted that the informed reader would well understand that the board found that need had not been established. Further, in their statement of reasons, the board had made it clear that they were not satisfied that any benefits would not outweigh any detriment. The board has therefore clearly set out its reasons why they refused the application. The board had not fettered its own discretion; they were entitled and indeed obliged to consider their policy in dealing with applications (in re Findlay & ors.; Ahmed v North Lanarkshire Council). Accordingly counsel submitted that against this background the applicant's grounds of challenge against the board's reasons was unfounded.

[15] In respect of the petitioner's submissions on legitimate expectation, counsel for the respondents maintained that it had never been suggested that the applicants for a regular extension would be treated in any way other than in accordance with the respondents' policy. It was not suggested to the licensing board that the occasional licences regularly granted to the petitioner should lead to the grant of a regular extension; indeed it had been accepted that each decision was dependent on its own facts and circumstances. Any legitimate expectations to which the petitioner might be entitled would be in respect of the grant of occasional extensions. It was not accepted that the petitioner was entitled to be consulted; even if there was a legitimate expectation relevant to regular extensions. The letter of 23 June 2000 could not lead to a legitimate expectation that occasional extension applications would be granted every time. There is no history of consultation with the petitioner; and no widely established prior practice nor any promise to an individual (R. v North and East Devon Health Authority, para. 55 et seq.). In the present case there was a series of one-off applications for occasional extensions, where each had to be considered on its merits, and where each occasion had to be special. In summary counsel submitted that the question of legitimate expectation was not relevant to the present application for a regular extension.

[16] In respect of the petitioner's argument under the European Convention of Human Rights, the respondents submitted that this was in effect a submission that the terms of s. 47 of the 1990 Act were not compatible with the Convention. This was apparently on the grounds that the licensing board had not exercised its discretion in considering the petitioner's application. Nor was it a case of proportionality, because on the findings in fact the petitioner has not overcome the hurdles described in s. 47. Even if s. 6(1) of the Human Rights Act and Article 1 of Protocol 1 does have some relevance, an expired occasional licence or an application for a regular extension which has not existed in the past cannot amount to a possession. As Lord Johnston pointed out in Catscratch Ltd & Anor (para. 27) the respondents' decision is a control on property, not an interference with a licence. Proportionality therefore does not come into the question of need, because need is a question of fact. If it did, there is a wide margin of appreciation available to the state and its institutions (Tre Traktor Aktiebolag v Sweden para. 60). The balancing act adherent in s. 47(1) of the 1990 Act as to whether benefit exceeds detriment is one to be carried out by the licensing board, and their area of discretion is significant. So if proportionality is an issue then the licensing board have acted reasonably within the wide area of their discretion, and have formed a judgment on facts in a reasonably exercised manner. It is true that there has to be proper procedural safeguards (Hentrich v France) but that involves the whole process of the application, and in the present case the safeguards are found in the access to the court by the process of review. Non-consultation does not amount to a flaw in the process. Accordingly counsel maintained that the respondents had complied with the European Convention of Human Rights and submitted that the petitioner's pleas should be repelled and the case dismissed.

[17] For the objectors Mr Skinner adopted substantially what had been said by the respondents. However he made additional brief submissions on the petitioner's legitimate expectations arguments and on the respondents' present policy of allowing twenty four occasional extensions to be granted when the holder had failed to apply for a regular extension.

[18] In respect of the first matter Mr Skinner said that petitioner's submission was that the grant of occasional extensions to the petitioner in the past had in the circumstances amounted to the grant of a regular extension, and so her trading hours should be extended regularly by these means. It is not disputed that there was no bona fides in the grant of occasional licences in the past; the granting of an occasional licence where there was no occasion was clearly illegal. So the submission was that the prior practice gave the petitioner a legal expectation that the situation would continue at least until she was consulted on whether regular extensions for the same hours would be granted. This submission, it was said, was incorrect. An illegal practice cannot be a foundation for a legal expectation that it will continue. In the 1976 Act there is a clear distinction between occasional and regular extensions. An occasional licence refers to a happening or to some specific occasion. An occasional extension therefore must arise out of an occasional function. The licensing board had to decide whether there is a function on the occasion before deciding whether the grant should be made. In such applications the question of need or detriment is not relevant. An occasional extension application was therefore less formal and could be delegated to a clerk or a single member of the board (s. 5(2) of the principal Act), but the application for a regular extension could not be delegated. Further, there was no provision for intimation or objection in an occasional application; the application for a regular extension requires intimation, provision for objection and must be granted by a full licensing board. A statement of reasons must be given if required. Also, the licensing board must consider s. 64(3) and s. 47 of the 1990 Act in coming to a decision on regular extension applications. It is not enough to say that the repeal of such awards of occasional extensions was unfair. The case of R. v North and East Devon Health Authority is not authority for the view that the right to a judicial review arises when the practice complained of is ultra vires. What is said in that case is that a judicial review may arise if something is done which is ultra vires in the traditional sense; where it amounts to an abuse of power (see para. 69). It is a pre-requisite of an abuse of power that the practice was lawful. Further, legal expectations cannot arise, when the effect is to deprive an objector of his right to object, and the board of its responsibility to consider the social circumstances of the application. Secondly, the objector opposed to what was described as a gradual decrease in the amount of occasional licences granted to twenty four a year. There was no right to an objector to object to this in terms of s. 16(1) of the Act and this was therefore unfair. I was however uncertain what purpose this latter submission was intended to serve.

[19] Having considered these respective submissions I have come to the view that the petitioner has not made out a relevant case in challenging the board's decision of 4 June 2001 and that the petition should therefore be dismissed. The petitioner's first submission was that the respondents' reasons for their decision were inadequate. These reasons were in essence that although there had been regular occasional extensions granted in the past they had found there was no need to grant a regular extension in similar terms for the future, that their previous decisions did not bind them in the present case, that public opinion did not favour the grant of regular extensions as sought by the petitioner, and that there were differing views within the locality as to whether there was a need for regular extensions or whether such a grant would be of such benefit to the community as to outweigh any detriment. I could find no support in the petitioner's submissions that these reasons were inadequate or that an informed reader would be left in any doubt as to the reasons for the respondents' decision. On the contrary the reasons given appear to be entirely clear. The submissions in support of this part of the appeal appeared to be related to the character of the objections (or in the case of the police the lack of such objections) and the respondents' apprehensions about how occasional licences had come to be regularly granted in the past. None of these matters seem to be of particular relevance. It is in my view evident that the respondents came to their decision on the principal basis that no need for the regular extensions sought by the petitioner had been established. Further the board have in effect explained their conclusions. They rejected the petitioner's claim that there was significant support for the grant of regular extensions. This support was in the form of petitions with a large number of signatures apparently in favour the petitioner's application. The board was clearly unimpressed by this, partly because a number of the signatures did not have a proper or traceable address, and partly because they felt that the value of the petitions was diluted having regard to the nature of the colourful comments accompanying the signatures. I found it difficult to understand the submission that the board should have given further reasons for their rejection of these petitions. They clearly examined them and found them unsatisfactory. Nor could I see why the respondents should have supplied further information about their contents; presumably these petitions had been gathered and presented by the petitioner. Accordingly the board evidently decided that the petitioner had failed to establish a case in terms of s. 47. The board then found further confirmation for their view in the telephone poll in the Hamilton Advertiser. Although this poll had been conducted the poll nine months earlier, and related to establishments seeking to open till 2.00am, the general sentiments expressed in the poll were very markedly against the opening of clubs and pubs. I note that it appears to have been accepted by the petitioner before the board that such a feeling existed. In these circumstances, and presented with such information, it was within the licensing board's discretion to apply what they understood to be a general expression of opinion about late opening of clubs and public houses to the particular circumstances of the present application, and to weigh such information in the balance in reaching a decision on whether or not the applicants had established there was a need for a regular extension to be granted, or whether the benefit of such an extension would outweigh the detriment. Finally the board applied the information which they themselves had obtained directly by visiting public houses in the area at 12.15am and finding them empty. This is a direct and unequivocal indication of what lay behind the board's

[20] Nor can it be suggested that the board acted in such a way as to fetter its own discretion. I think it is difficult to maintain that argument in any circumstances where the board has given sufficient reasons for their decisions in the context of the application of their policy. The board are fully entitled to consider their policy while treating each case on its own merits. The fettering of a discretion can only properly be described as having occurred when the board have allowed their policy to exclude any other legitimate and relevant considerations in coming to their decision in any particular case, or not considered any particular case on its merits. What the board has done here was to consider the relevant issues on the basis of the material placed before it and then exercise a reasoned judgment on that material in applying their policy. The same reasoning applies to the submission that the board relied on irrelevant or incorrect facts in reaching their decision. It is accepted that the telephone poll conducted by the Hamilton Advertiser was some months earlier and related to applications which allowed opening to 2.00am. However that information can not be described as irrelevant or factually incorrect. It was not challenged as such before the board. It would be in my view excessively narrow to conclude that the board was unable to consider such information in order to assist in deciding what was currently the proper approach to the question of need or social desirability. The board plainly felt that the information contained in the poll was capable of being regarded as sufficiently close in time to be of assistance, and the general feeling expressed in the poll that public houses were opening far too late is a matter which they were entitled to take into account and apply in any way they saw fit. I therefore can find no grounds for upholding the petitioner's submissions in respect of her first two grounds of appeal.

[21] I also concluded that the petitioner's submissions on legitimate expectation were unfounded. Essentially the petitioner maintains that the earlier regular grant of occasional licences gave her a legitimate expectation that she would get a regular extension on the same terms, and a further expectation that she would be consulted before any change of policy took place. I consider that on the basis of the facts alone the question of legitimate expectation is inappropriate in the present case. There is in the first place a very clear distinction in practice and in law between the application and grant of occasional extensions and the application and grant of regular extensions. As the respondents' counsel submitted, there are very different statutory requirements for these two kinds of applications, and very different considerations in their grant. The fundamental nature of these differences, I think, makes it, inarguable that anything done by the respondents in respect of applications for occasional extensions can lead to any expectations in respect of the grant of regular extensions. For example the right to object by third parties is excluded from applications for occasional licences but is available in applications for regular extensions. In the event of such applications for occasional licences being replaced by an application for a regular extension, it is difficult to see what legal expectation can arise in advance of possible objections which were not hitherto available. It is also particularly significant that grounds for occasional licences can be delegated to a clerk, and have to be connected on an individual basis to some particular occasional event, whereas the grant of a regular extension has to be considered by a full board and if granted then continues for a period of three years. The petitioner is essentially claiming that the respondents' previous conduct has created a legitimate expectation that she is entitled to a more significant and valuable licence than she had earlier enjoyed, and that in order to obtain this benefit she does not require to satisfy the normal statutory tests.

[22] Further there is a particular distinction in the present case. The letter of 23 June 2000 sent by the respondents to the petitioner makes it particularly clear that the character of any occasional licence being granted is very different from a regular extension and imposes conditions on the nature of the entertainment to which the extension applies. These conditions could not under any circumstances be appropriate to the grant of a regular extension. In all the circumstances I do not think that there can be made out any case for a legitimate expectation that the regular extension could be granted. Neither do I think there can be any legitimate expectation of a procedural sort that would require the respondents to consult with the petitioner before changing their policy. The fact that the board consulted the petitioner in one sense of that word on one occasion before arriving at their earlier policy cannot amount to a practice or lead to an expectation that such consultation would be repeated. I can find nothing in the submissions put forward by counsel for the petitioner or the cases cited which would support such a view.

[23] I am not in any sense however convinced that legitimate expectations of whatever sort are necessarily appropriate in normal circumstances in licence applications of this kind. It is accepted that the licensing board have an inherent right to change any policy they have devised. There would clearly be an expectation that they would in general terms adhere to that policy in considering applications. I accept for the purposes of this submission that the test in assessing whether or not the board's responsibilities in approaching such decisions reasonably may well be wider than what have been called the Wednesbury tests of reasonableness. But where, as here, a licensing board have adhered to their policy after considering each case on its merits, it is difficult to see how they could then be bound to earlier policies by considerations of legitimate expectation arising from those policies. Such an argument would in effect restrict the ability of the board to revise and change its policy at any time and lead potentially to a confusion of expectations. The present case is far removed from authorities such as R. v North and East Devon Health Authority, which was concerned with a clear promise of a particular kind made by a health authority to a patient, on which the patient was entitled to rely. I therefore cannot see that it is helpful to adopt a submission which is in effect so restrictive of the respondents' statutory responsibilities. In considering all of these matters I have not thought it necessary to determine whether or not the board's policy of regularly granting occasional licences was ultra vires or intra vires. There may well be an argument that it was in fact ultra vires, but in my view even if such a conclusion was reached that would have little effect on my conclusions on these submissions.

[24] As far as the petitioner's final submission in respect of the European Convention of Human Rights is concerned, I again concluded that the reasoning advanced in support of these propositions was unsound. I am in no doubt that, as the petitioner's counsel submitted, the possession of a licence is in effect a property right, and that the refusal of the application for a regular extension in respect of that licence operates as a control on that property right. I agree also that the relevant test as to whether not the respondents interference of control of the petitioner's possession was whether was whether or not that interference had been proportionate; and that any means of interference or control must be reasonably related to the aims pursued (R. v Secretary of State for the Home Department (ex parte Daly)). Further, any interference in the petitioner's rights must be subject to adequate safeguards. I cannot see however that the petitioner has made out any case that the interference in her possession has been disproportionate. There is in my view no sustainable argument that the respondents fettered their own discretion or acted irrationally. Nor can it be argued that the reasons given for the decisions were inadequate, for the reasons I have already described. As I have said, the reasons are based on the failure of the petitioner to satisfy the board in terms of s. 47 of the 1990 Act that she had demonstrated that there was a need for the extension and that the benefit of such an extension outweighed the detriment to the locality. Accordingly in my view there is no question of proportionality in the present case. Even if the question of proportionality does arise, then I consider that the margin of proportionality is such that it easily encompasses the decision made by the respondent. There were no further submissions on whether the respondents' decision was disproportion other than the matters considered and rejected under the petitioner's first two heads of submission. Secondly, I was unclear as to what can be identified as the failure to find such safeguards in the present case. The formulation of policy is exclusively a matter for the respondents. The fact that the respondents had consulted the petitioner on a previous occasion does not qualify or remove their responsibilities in that area, nor, in my view, does a single exercise in consultation confer on the consultee a right to automatic consultation in the future. If it did, the petitioner's remedy would be to challenge the policy itself as opposed to a decision taken in pursuit of that policy. In any event, the petitioner had a right to be heard before the board on her application, and took full advantage of that right. Further, she has a right of appeal. In these circumstances I am satisfied that there were sufficient safeguards in place to avoid any abuse of power on the part of the respondents in respect of the application of their policy and that this submission therefore also fails.

[25] For all these reasons I have decided that the petitioner's submissions are insufficient to justify the declarators which she has sought and the pleas-in-law in support of them. I therefore dismiss the petition.

[26] Counsel for the petitioner mentioned two other petitions which were very similar to the present one but which were differentiated in respect that one was subject to a competent objection by a neighbour as opposed to the interested trade competitor who objected in the present case, and the second of which was not subject to any objection. Having regard to the way in which I have considered the various submissions, I do not believe that these differences have any effect on the outcome of my decision.