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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> North Rotunda Casino Ltd & Ors for Judicial Review ScotCS 1 [2002] ScotCS 100 (9th April, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/100.html Cite as: 2003 SCLR 1, [2002] LLR 317, [2002] ScotCS 100

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North Rotunda Casino Ltd & Ors for Judicial Review ScotCS 1 [2002] ScotCS 100 (9th April, 2002)

OUTER HOUSE, COURT OF SESSION

OPINION OF LORD EMSLIE in Petitions of (1) NORTH ROTUNDA CASINO LIMITED (Gala Rotunda Casino, Glasgow); (2) STANLEY CASINOS LIMITED (Stanley Berkeley Casino, Glasgow); (3) PATMOR LIMITED (Gala Riverboat Casino, Glasgow); (4) PATMOR LIMITED (Gala Casino, 528 Sauchiehall Street, Glasgow); and (5) STAKIS CASINOS LIMITED (Gala Club, 95 Hope Street, Glasgow) Petitioners; for Judicial Review ________________

 

 

Petitioners: Brodie, Q.C.; McGrigor Donald

Respondents: Peoples, Q.C.; E. Bain

9 April 2002

Introduction

1. In these proceedings for judicial review, the petitioners are all members of the Gala Group of companies, and carry on business from inter alia the casino addresses specified in their respective petitions. In the first three of the cases listed above, the petitioners seek judicial review of (1) the failure by the City of Glasgow Licensing Board to issue a licence in the prescribed form in terms of paragraph 51 of Schedule 2 to the Gaming Act 1968 in respect of (the specified casino) which accurately states the terms of the restrictions imposed on renewal of said licence on 22 June 2001; and (2) the decision of the City of Glasgow Licensing Board in relation to the licence in respect of the said premises under the Gaming Act 1968 made on 8 October 2001 and intimated to (the relevant petitioners) on 9 October 2001. In the other two cases, no issue arises in relation to the first matter, and judicial review is sought in relation to the second matter only. The respondents, the City of Glasgow Licensing Board and their Clerk, have lodged Answers in all five cases.
2. The First Hearing on these petitions took place on 1 and 27 March 2002. For the petitioners, counsel intimated that his clients wished to obtain a judicial decision on the substantive merits of their disputes with the respondents, and therefore invited me at this stage to do no more than pronounce declarators in the form set out in Article 3 of the various petitions. For the respondents, counsel submitted that in each case their plea to relevancy should be sustained, leading to dismissal of the petitions. Failing that, he submitted that I should simply refuse to grant the declarators sought by the petitioners.
3. For some time now, the petitioners have wished to introduce a new electronic form of roulette, known as Touchbet Roulette, into their various casinos. With effect from the last renewal date in June 2000, the relevant licences had covered "American Roulette, Craps, Blackjack, Super Pan 9, Casino Stud Poker, Baccarat and all other bankers games as permitted by regulation and after having obtained the Board's approval in writing, and card room games of equal chance only". What the petitioners wanted to ensure was that when these licences were further renewed in June 2001, Touchbet Roulette was brought within their scope. The disputes focused in these proceedings concern the manner in which the respondents dealt with the petitioners' applications in this connection from June 2001 onwards.

The Statutory Framework

4. The licensing of commercial gaming is regulated under the Gaming Act 1968, as amended. "Gaming" is defined in section 52(1) of that Act as meaning inter alia "... the playing of a game of chance for winnings in money or money's worth ...". Part II of the Act regulates gaming in licensed premises, and section 11(1) provides that Schedule 2 is to have effect with respect to the licensing of premises under the Act.
5. For present purposes, the relevant paragraphs of Schedule 2 provide inter alia as follows:-

"3(1) An application for the grant of a licence under this Act in respect of any premises shall be of no effect unless -

(a) the (Gaming Board for Great Britain) have issued to the applicant a certificate consenting to his applying for such a licence ...";

"5(2) Any such application shall be made to the ... licensing authority in such form and manner as may be prescribed ... and shall contain such ... particulars as may be prescribed ...";

"12(1) Any application for the renewal of a licence under this Act ... shall be made to the ... licensing authority in such form and manner, and shall contain such particulars, as may be prescribed.";

"14(1) On any application for the grant or renewal of a licence under this Act, the licensing authority may grant or renew the licence without hearing the applicant if no objection to the grant or renewal has been made by any person ...";

"18(1) The licensing authority may refuse to grant a licence under this Act if it is not shown to their satisfaction that, in the area of the authority, a substantial demand already exists on the part of prospective players for gaming facilities of the kind proposed to be provided on the relevant premises.";

"20(1) Without prejudice to paragraph 18 of this Schedule, the licensing authority may refuse to grant or renew a licence under this Act on any or more of the following grounds, that is to say -

(Here follow grounds relating broadly to unsuitable premises, to the unfitness of individuals within the applicant's organisation, and to the non-payment of duties.)";

"21(1) The licensing authority may refuse to renew a licence under this Act on any or more of the following grounds ... , that is to say -

(a) that it is not shown to their satisfaction that, in the area of the authority, a substantial demand exists on the part of players or prospective players for gaming facilities of the kind proposed to be provided on the relevant premises; ...";

"24 On granting or renewing a licence under this Act, the licensing authority may impose such restrictions (if any) on the hours during which gaming will be permitted to take place on the relevant premises as appear to the authority to be necessary for the purpose of preventing disturbance or annoyance to the occupiers of other premises in the vicinity.";

"25(1) Without prejudice to the last preceding paragraph, on granting or renewing a licence under this Act the licensing authority may impose restrictions of either or both of the following descriptions, that is to say -

(a) restrictions limiting the gaming to a particular part or parts of the relevant premises, and

(b) restrictions limiting the gaming to a particular kind of game or particular kinds of games.

(2) Subject to the following provisions of this paragraph, on granting or renewing a licence under this Act the licensing authority ... may impose restrictions limiting the purposes, other than gaming, for which ... the relevant premises may be used ...";

"26 Any restrictions imposed under paragraph 24 or paragraph 25 of this Schedule shall be imposed so as to have effect until the licence ceases to have effect or is next renewed ...";

"33(1) Where on an application under this Schedule to a licensing authority in Scotland the authority refuse to grant or renew a licence, or impose restrictions under paragraph 24 or paragraph 25 of this Schedule, the ... licensing authority shall forthwith give notice of the decision of the authority to the applicant; and the applicant may ... appeal against the decision to the sheriff having jurisdiction in the authority's area.";

"51(1) A licence under this Act shall be in the prescribed form ...

(2) If any such licence as granted or renewed is subject to any restrictions imposed under paragraph 24 or paragraph 25 of this Schedule, the licence as granted or renewed shall include a statement of those restrictions";

"52(1) Subject to the following provisions of this Schedule, ... a licence under this Act -

(a) if not renewed, shall cease to be in force at the end of the period of one year beginning with the date on which it was granted, or

(b) if renewed, shall, unless further renewed, cease to be in force at the end of the period of one year from the date on which it would otherwise have expired."

6. The bankers games which may be licensed under the foregoing provisions are defined in the Gaming Clubs (Bankers Games) Regulations 1994. In particular, paragraphs 4 to 9 respectively define the games of Roulette, Dice, Baccarat, Blackjack, Casino Stud Poker, and Super Pan 9.
7. The form of applications for the grant or renewal of licences under the Act, and the form in which licences must be granted or renewed, are respectively prescribed in Schedules 2 and 3 to the Gaming Clubs (Licensing) Regulations 1969. Schedule 2 sets out different pro forma application terms for the grant and renewal of licences. For the purposes of a renewal application, the pro forma wording states inter alia as follows:-

"(a) There has been no change in the premises or their lay-out or in the means of access to the premises since the licence was granted or, as the case may be, last renewed.

...

The licence was granted or, as the case may be, last renewed subject to the following restrictions:- ...

(b) and it is proposed that they should be reimposed."

Sidenote (a) is in the following terms:-

"Where there has been any change, delete and give particulars and a plan".

Sidenote (b) similarly provides:-

"Delete if inappropriate and state what is proposed on a sheet to be attached".

Schedule 3 prescribes a form of licence in which inter alia restrictions imposed under paragraphs 24 and 25 of Schedule 2 to the Act must be specified as to hours of gaming; the parts of the premises to be used for gaming; the kinds of games which may be played; and the purposes, other than gaming, for which the premises may be used.

The First Issue: Terms of the June 2001 Licence

8. In the three cases in which this issue arises, the petitioners applied for renewal of the relevant licences on forms which inter alia left unaltered the pro forma wording:

"The licence was granted or, as the case may be, last renewed subject to the following restrictions:- ...

and it is proposed that they should be reimposed".

In the space left for the identification of restrictions, they inserted "See Addendum" or words to that effect, and attached a paper apart itemising certain restrictions as to hours of gaming, as to the parts of the premises to be used for gaming, and as to the kinds of games to be played there. Under the latter head the following restriction was set out:-

"all bankers games as permitted by regulations and card room games of equal chance only".

Notwithstanding the pro forma terms of each application to which the Addendum was attached, this wording differed materially from that of the licence previously renewed in June 2000, in respect that the particular kinds of games were no longer specified except by reference to the applicable regulations. In particular, there was now no restriction as to the form(s) of roulette playable, whereas the previous licence bore to cover American Roulette only. On the wording set out in the Addendum, Touchbet Roulette would be covered whereas hitherto that had not been the case.

9. In the other two cases, the Addendum accurately reflected the existing terms of the relevant licences as renewed in June 2000.
10. At the meeting of the respondents' Board held on 22 June 2001, no objection to the petitioners' renewal applications was intimated by any party, and under paragraph 14(1) of Schedule 2 to the 1968 Act the respondents proceeded, without further ado, to renew the licences. All five licences, as renewed, were issued in exactly the same terms as before, namely restricting the kinds of games to be played at the various casinos to "American Roulette, Craps, Blackjack, Punto Banco, Super Pan 9, Casino Stud Poker, Baccarat and all other bankers games as permitted by regulation and after having obtained the Board's approval in writing ...".
11. In the three cases in which the Addendum referred to a restriction in different terms, the petitioners now maintain that the licence as renewed was not in proper form under the 1969 Regulations, in respect that it did not match the terms of their unopposed application. In broad terms, counsel submitted, the Addendum represented his clients' proposal in each case; the words "to be played" were obviously referable to the future; and it was therefore not open to the respondents to issue renewed licences containing the same restrictions as had previously applied. Counsel accepted that his clients might have completed the application form with greater precision and clarity, but nevertheless contended that it was the proposal in the Addendum that the respondents were obliged to consider and, if appropriate, challenge. At one point in his submission, he suggested that the licences had in fact been renewed subject to different hours in terms of the Addendum, thus indicating that the respondents had recognised its true purpose in that context. However, on further examination, this point turned out to lack substance because the Addendum had (as in previous years) sought the maximum hours from time to time permitted by statute, and the alteration to the permitted hours had merely reflected a change in the statutory prescription. In other words, the licence as renewed was still for the maximum hours permitted by statute.
12. In reply, counsel for the respondents drew attention to the terms of the application form submitted in each of the three cases, and in particular to the express proposal that the existing licence restrictions should be reimposed. There was nothing on the form to indicate otherwise, and at best for the petitioners the Addendum (which was there stated to reflect the existing restrictions) fell to be regarded as an inaccurate summary of what these previous restrictions had been. In these circumstances, counsel submitted, there could be no question of the respondents having been bound to renew the relevant licences upon the terms of the Addendum, nor of their having been bound to renew the licences without reimposing the existing restrictions as expressly applied for. Renewal in terms of the Addendum would have opened up all forms of the various games listed in the 1994 Regulations, and would have disapplied the previous requirement for the respondents' written approval before games other than those expressly identified in the licence could be played.
13. I have reached the conclusion, without much hesitation, that the respondents' submissions are to be preferred here. In Schedule 2 to the 1969 Regulations, specific provision is made for applicants to delete the pro forma wording if it is inappropriate. The petitioners here did not do so, and their signed and dated applications thus invited the respondents, on renewal, to reimpose the restrictions subject to which the licence had previously operated. The fact that in three out of five cases the Addendum, which was described on the form as identifying these pre-existing restrictions, did not accurately do so (although in terms which might arguably have been intended to summarise the previous position) could not in my view oblige the respondents to do something different from what the application form actually proposed. In this context, I am inclined to think that the absence of discussion at the relevant meeting, where all five applications were considered together, may be taken as supporting the respondents' position. In two out of the five cases, the Addendum accurately recited the pre-existing restrictions; in all five cases, the application forms were in substantially identical terms; and there appears to have been no reason why different restrictions should have been sought for different casinos by different petitioners within the same group of companies.
14. Furthermore, if permission for the introduction of Touchbet Roulette was truly the petitioners' objective when applying for renewal of their licences in June 2001, their omission to mention that fact in my view amounted to a failure to supply prescribed particulars under the 1969 Regulations, and at the same time contravened the requirements of paragraph 12 of Schedule 2 to the 1968 Act. The petitioners are therefore not in a strong position to complain that their applications did not produce the desired result.
15. For these reasons, I am not persuaded that the petitioners in the three cases in which this issue arises are entitled to the declarator sought in paragraph 1 of Article 3 of their petitions. On the contrary, I hold their claim in this respect to be irrelevant, and accordingly sustain the first plea-in-law for the respondents to that extent.

The Second Issue: Decision Intimated in October 2001

16. After the licence renewals were intimated in June 2001, and certain of the petitioners expressed dissatisfaction with their terms, the matter of Touchbet Roulette was the subject of further correspondence between the parties. Founding on an alleged similarity to American Roulette, the petitioners suggested that the respondents should now signify their approval of the introduction of Touchbet Roulette into the various casinos. The respondents, however, made it clear that they regarded Touchbet Roulette as being different from American Roulette, and that there was no question of their simply adding it on to the list of permitted games for the purposes of the petitioners' licences. The respondents' position in this respect was communicated to the petitioners in their letter of 5 September 2001, and again in their letters of 9 October 2001 and 4 January 2002. The letter of 9 October 2001 was in the following terms:-

"I refer to previous discussions and correspondence regarding Touchbet Roulette. Following the demonstration of the new game which the Chair and Vice-Chair of the Board attended, the views of these members was reported back to the Board when it met on 8 October. Following discussion, the members agreed:-

1. that Touchbet Roulette should be added to the list of approved games detailed in any casino licence on application being made for that purpose, and

2. provided equivalent gaming facilities are given up within any premises, the new facilities can be introduced on the basis that there is no material change to the overall facilities originally approved by the Board which the present licence covers. If however the proposed introduction of Touchbet Roulette to any premises is additional to the existing gaming facilities then the Board will require to consider this by way of an application for a new gaming licence. Clearly in this case, the question of demand for the additional facilities will feature among the issues which the Board will consider."

17. It was a matter of agreement before me that the respondents' letter of 9 October 2001 reflected a decision reached by the Board on the previous day, and that since this constituted neither the grant nor the renewal of a licence, the statutory appeal provisions in paragraph 33 of Schedule 2 to the 1968 Act did not apply. Nonetheless, it was agreed that the decision was not just an informal expression of intention, but on the contrary a ruling which materially affected the substantive rights of the petitioners. Accordingly, under reference to the observations of Lord Clyde in his work on Judicial Review at page 424, and of Lord Rodger in First Leisure Trading Limited v City of Glasgow District Licensing Board 1996 S.L.T. 1018 at pp. 1019-20, it was not disputed before me that the decision could competently be brought under review in the present proceedings. Perhaps the clearest indication of the practical significance of the decision complained of was that when the respondents - apparently in error, and under cover of a mere compliments slip - issued some of the petitioners with ex facie unqualified licences in November 2001 which included Touchbet Roulette among the permitted games, the petitioners took the view that, standing their earlier correspondence with the respondents, it was not open to them to accept these licences at face value and install Touchbet Roulette in their casinos.
18. For the petitioners, counsel argued strenuously that the respondents' decision of 8 October 2001 was unlawful and ultra vires. Having apparently accepted in principle that Touchbet Roulette could competently be licensed as a game falling within the scope of paragraph 4 of the 1994 Regulations, it was not open to the respondents to seek to introduce limitations on the extent to which other permitted games could be played. The petitioners shared the view expressed by the Gaming Board for Great Britain in their letters of 5 December 2000 and 6 December 2001 to the effect that once a licence was granted or renewed the licence-holder was free to decide which of the permitted games should be played, and at how many tables, provided only that this did not contravene the Gaming Board's space standards or breach any undertaking previously given to the licensing authority. Accordingly, the allowance of Touchbet Roulette could not validly be qualified in the manner complained of, and if the petitioners were entitled to introduce Touchbet Roulette into their casinos at all, they must be free to do so, within the Gaming Board's space standards, without detriment to the provision of other games. What was in issue here was a purported restriction on "games", and not on "facilities", and the respondents' reliance on the latter concept was misplaced. Reference was made in this context to the different treatment of these terms in the 1968 Act itself, and to the discussion of the word "facilities" in C. E. C. v British Field Sports Society 1998 S.T.C. 315. On the renewal of a licence, counsel submitted, the scope of the restrictions which a licensing authority could lawfully impose was limited by paragraph 25 of Schedule 2 to the 1968 Act to the extent of the gaming area and the kinds of games which could be played. It was thus not open to the respondents, either on renewal or during the currency of a licence, to seek to restrict or control the petitioners' choice from among the permitted games, or the number or location (within the gaming area) of the tables at which such games were played.
19. Counsel for the petitioners further reminded me that in terms of the licences originally issued in June 2001, the introduction of other games such as Touchbet Roulette within the licence period merely required the respondents' approval in writing. If the invalid qualifications were to fly off, then the letter of 9 October 2001, which failing the licences issued in November 2001, constituted the necessary approval. In any event, the purported qualifications were too vague and inspecific to receive effect. It was difficult for the petitioners to know what limitation on the provision of other games fell to be regarded as "equivalent", and the qualifications were accordingly ineffective.
20. For all of these reasons, it was submitted that the first three petitioners were entitled to the declarators sought in paragraphs 3 and 5 of Article 3 of their respective petitions, and the fourth and fifth-named petitioners to the (substantially identical) declarators sought in paragraphs 1 and 3 of Article 3 of their petitions.
21. In reply, counsel for the respondents indicated that there was a fundamental difference of view between his clients and the petitioners. The licensing of commercial gaming was a matter in which the police, environmental health authorities and other agencies had a material interest, including a locus to be consulted, and if appropriate to object, in the context of an application for the grant or renewal of a licence. In practice, the respondents always took account of demand for the particular facilities proposed, and it was significant that under paragraph 21(1)(a) of Schedule 2 the issue of demand could competently arise, not just on the original grant of a licence, but at any later stage when that licence was renewed. In the respondents' view, the grant or renewal of a licence was always subject to an implied restriction to the particular facilities in contemplation when the application was granted. Accordingly, even if the Gaming Board's space standards might allow it, a licence-holder was not at liberty to add a single table or playing position for a particular game, nor even to alter the layout or orientation of tables within the gaming area, without first obtaining the approval of the licensing authority.
22. Importantly, however, the present dispute concerned, not merely an alteration to the mode in which games permitted by the June 2001 licence could be provided, but the intended introduction of a completely new kind of game - Touchbet Roulette - which the original licence did not cover at all. It was significant that Annexes A and B of the Gaming Board's Memorandum of Advice for 2001 treated Touchbet Roulette as being different from American Roulette. In the respondents' view, moreover, Touchbet Roulette was not even a game capable of being played using existing facilities, but one which could not be played without the introduction of new and different facilities including computer terminals, video links and the like. Indeed, Touchbet Roulette might be seen as a first step towards doing away with tables and croupiers altogether, in which event the different statutory regime applicable to gaming machines might come into play. This approach was consistent with the decision of the Criminal Appeal Court in Irvine Greyhound Racing Company Limited v Macmillan 1936 J.C. 96, and in particular with the Lord Justice Clerk's acceptance, at pp. 98-9, that "facilities" must include equipment. Accordingly, the respondents were justified in offering their approval of Touchbet Roulette on a qualified, rather than an unqualified, basis. The possible necessity for a fresh application in analogous circumstances was, it was said, expressly acknowledged by the Gaming Board for Great Britain at paragraph 40 of their Memorandum of Advice to which reference has already been made.
23. In addition, the respondents maintained that this was not a decision on an application for the grant or renewal of a licence, and that accordingly the purported licences issued in November 2001 were of no statutory validity even if the petitioners had sought to rely on their terms. Reference was made in this context to the decision of the House of Lords in R. v East Sussex County Council, ex parte Reprotech (28 February 2002, unreported), and in particular to the speech of Lord Hoffmann at paragraphs 27-29.
24. In my opinion, it is important to recognise from the outset that the present issue does not arise upon an application by the petitioners for the grant or renewal of a licence, but in the context of requests for the respondents' written approval of a new development during the currency of the licences renewed in June 2001. Accordingly, the provisions of paragraphs 21 and 25 of Schedule 2 to the 1968 Act are not directly applicable, and I am unable to see any basis on which the limitations imposed by paragraph 25 on the respondents' freedom to stipulate for restrictions on the grant or renewal of a licence must necessarily be imported into the rather different situation which arose in this case subsequent to June 2001. On the information before me, I consider that the respondents were entitled to take the view that the introduction of Touchbet Roulette would represent a material innovation on what was permitted under the renewed licences, involving inter alia the introduction of new and different facilities into the petitioners' premises and, (judging by the terms of the letter from the Gaming Board for Great Britain dated 6 June 2000), opening up the spectre of up to 250 playing positions connected electronically to one or more roulette tables. On this basis, it was not in my judgment unreasonable for the respondents to conclude that a fresh proposal of some kind would be required, and that issues such as demand might then need to be revisited. In this context, it should be noted that counsel for the petitioners very fairly accepted during the hearing that his clients were prepared to proceed on the basis that Touchbet Roulette was novel by comparison with the games spelled out in the renewed licences.
25. I may say that I have serious doubts as to the correctness of the rather extreme position adopted by the respondents, to the effect that they have the right to be consulted if a single extra playing position is to be introduced, or the location or orientation of a single table is to be changed, within an authorised gaming area. In the absence of any agreement or undertaking, express or implied, on which reliance can legitimately be placed, it is not immediately obvious how the respondents can claim to enforce restrictions which do not appear on the face of the licence itself, and do not flow from some independent statutory entitlement. There is, I think, much to be said for the more liberal approach advocated by the Gaming Board for Great Britain in their letter of 6 December 2001, particularly where (as in the case of some, but not all, of the casinos to which these proceedings relate) the official licence plans contain representative indications only, and do not specifically identify the number, size or location of the tables for particular games. However, since resolution of this issue is not strictly necessary in the present context, where the respondents are faced with proposals to introduce a new game, and arguably new facilities, into existing licensed premises, I prefer to reserve my opinion upon it.
26. Against that background, I am not persuaded that there was anything to prevent the respondents from effectively stipulating for the level of facilities (i.e. tables and playing positions) to be maintained as a condition of granting their approval, ad interim, of the introduction of Touchbet Roulette. In my view such a stipulation was intelligibly made in the respondents' letter of 9 October 2001. Significantly, it appears from the official transcript of proceedings that when the licence renewal application for the North Rotunda Casino was before the respondents

in 1997, the first named petitioners undertook that no additional tables would be introduced without the respondents' prior approval. This undertaking was given in the context of an application to increase the number of tables that could be operated within the relevant gaming area, and in my view the fact that such an undertaking was given (i) makes it difficult for these petitioners to maintain their insistence on being entitled, at any stage, to introduce whatever table provision they think fit, and (ii) tends to demonstrate that, even on a formal licence application, a restriction on the number of tables may competently be secured by the licensing authority, not by reference to paragraph 25 of Schedule 2, but by means of an arrangement with the applicants. If such a restriction may be achieved in the context of formal proceedings for the renewal of a licence, then a fortiori it is hard to see why it should not equally be achieved in the context of the granting of informal approval for some new development at an intermediate stage.

27. On any view, I do not consider that the petitioners can properly insist on taking the respondents' approval, whether in the form of their letter of 9 October 2001, or of the purported licences sent out in November 2001, without at the same time submitting to the qualifications to which such approval was plainly subject. If, in the circumstances, the respondents were not bound to give their approval to the introduction of Touchbet Roulette at all, it is hard to see why they should not have been entitled to offer their approval subject to qualifications which bore at least some similarity to the undertaking given by the first-named petitioners when the extent of their licence was under discussion in 1997. If these qualifications are not acceptable to the petitioners, it is open to them to proceed by way of a new application instead, or to raise the matter of Touchbet Roulette expressly in the context of their next renewal application. No doubt a new application would be an expensive exercise, as the petitioners pointed out, but I am not greatly impressed with the assertion that it would be impracticable because of the need for a second certificate from the Gaming Board under paragraph 3 of Schedule 2. For example, at paragraph 40 of the Memorandum of Advice to which reference has already been made, the Gaming Board themselves acknowledged the possibility of a fresh certificate being required in the event of a material change of circumstances. In any event, since a fresh application is not the only option available to the petitioners in the present circumstances, these supposed difficulties will simply be factors to be taken into account when they come to decide on the best way forward in the circumstances.

Conclusion

28. For all of these reasons, I have reached the view that the petitioners' position is irrelevant on the second issue also, and that the respondents' first plea-in-law falls to be sustained in that context as well as in relation to the first issue. On the whole matter, therefore, I consider that all of these petitions now fall to be dismissed.
29. I should add that if I had been deciding the second issue in the petitioners' favour, I would not have been prepared to grant the declarators which they seek. This is because the matter of approving innovations on an existing gaming licence must in my view be a matter for the licensing authority and not for the court, and if the qualified approval offered by the respondents in October 2001 were to be deemed ultra vires and unlawful, it would not be right for this court, at its own hand, to substitute an unqualified approval instead. In other words, even if the respondents' decision as communicated in their letter of 9 October 2001 fell to be set aside - a step which I was not invited to take at this stage - I would have felt it appropriate to remit the matter back to them so that they could consider whether to approve the petitioners' proposal without qualification or, alternatively, to refuse approval altogether.

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