Sheriff court case considering the decision of the City of Glasgow Licensing Board to refuse an application to vary a premises licence for an Indian Restaurant known as The Dhabba at Candleriggs in Glasgow.  The owners sought the varying order so as to include within the premises licence external seating for 24 people on the pavement outside the restaurant and to amend the operating plan to include the provision of outdoor drinking.

The Licensing Board refused the application as: (1) granting the licence would be inconsistent with the licensing objective of preventing a public nuisance in terms of the s30(5)(b) of the Licensing (Scotland) Act 2005; and (2) the area was unsuitable for use for the sale of alcohol (in terms of the s30(5)(c)). The Board’s refusal was founded upon its conclusion that the location of the tables on a busy street would cause congestion.

The sheriff allowed an appeal of the decision. In the first place, there was inadequate evidence of the congestion, the only factual evidence before the Board being a plan of the subjects and an assertion by Bapu’s solicitor to the effect that the pavement was three metres wide and the tables took up one metre of that:

“In my view, absent some other material consideration or information, it does not logically follow that the mere narrowing of a three metre footpath by one metre, leaving two metres clear and available for pedestrians, would cause any congestion to occur, still less congestion of such an intolerable volume, intensity, frequency and duration as to cause a public nuisance. Something more would be required to justify those conclusions. That might be based, for example, upon factual information regarding the current and anticipated density and frequency of pedestrian and vehicular traffic at that location, viewed against an informed assessment of the likely impact upon such traffic of a narrowing of the footpath in the manner proposed in the application. No such information was before the Board.”

In the second place, the public nuisance anticipated by the Board was not linked to the sale of alcohol. It arose from the expected congestion which, if it had existed at all, would have been attributable to the physical presence of the tables and chairs (which had already been sanctioned by a section 59 agreement and planning consent). Thirdly, this also rendered the Board’s decision irrational as the congestion and public nuisance would exist whether or not the variation application was granted.

The full decision is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Appeal case concerning Brightcrew’s application for a premises licence in respect of an adult entertainment venue known as “Spearmint Rhino” on Drury Street in Glasgow.

The City of Glasgow Licensing Board (the Board) refused Brightcrew’s application on the basis that the Board considered the granting of the licence would be contrary to two of the licensing objectives contained in the Licensing (Scotland) Act 2005[1]. Specifically, it was considered contrary to ‘preventing crime and disorder’ and ‘protecting and improving public health’[2].

In coming to this conclusion the Board referred to several alleged breaches of its “Code of Practice relative to the provision of dance entertainment in licensed premises”.  The Code of Practice had no statutory basis but the Board would generally expect compliance with it and would take breaches of it into account when considering the suitability of premises for the sale of alcohol.

Conduct by Brightcrew which was identified by a licensing officer as being in breach of the code included:

1. a member of staff being unaware of the location of the risk assessment for the premises;
2. the issuing of advertising flyers which failed to depict the dancers suitably clothed;
3. a drinks promotion which had conflicted with the  Board’s policy on “happy hours” (which was withdrawn after the licensing officer’s views were expressed to the local manager)
4. two dancers removing their bikini bottoms and exposing their genital area[3]; and
5. several dancers making “considerable contact” with patrons.

Brightcrew argued[4] that, in taking the view that any breach of its Code of Practice could lead to deprivation of the licence to sell alcohol, despite the lack of any objective effect of the breach on the licensing objectives relating to the sale of alcohol, the Board had made a material error of law.

An Extra Division of the Inner House allowed the appeal. The essential function of the 2005 Act is that of the licensing of the sale of alcohol.  Since the licensing with which the Act is concerned is the licensing of the sale of alcohol, inconsistency with a licencing objective means inconsistency flowing from the permitting of the sale of alcohol on the premises. Whilst the objectives contained in the Act were desirable in a general sense, that did not empower a licensing board to insist on matters which, while perhaps unquestionably desirable in that sense, are nevertheless not linked to the sale of alcohol.

In other words, the Board was not entitled to refuse to grant a licence on the basis of breaches of its Code of Practice where the provisions breached did not relate to the sale of alcohol.

A full report of the decision is available from Scottish Courts here.