Glasgow sheriff orders licensing board to grant temporary licence to new Cambuslang petrol station operator

About this case:

• Citation:
  [2023] SC GLA 29
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff S Reid Esq

Certas Energy UK Ltd, which applied for a provisional premises licence from South Lanarkshire Licensing Board, argued that a consultation carried out by the defender, sent out to 3,000 employees of South Lanarkshire Council and later to the public, was defective in that it failed to take sufficient steps to link the consultees and the locality.

The case was heard by Sheriff Stuart Reid. S Blair, advocate, appeared for the pursuer and G Dunlop, advocate, for the defender.

No robust evidence

The application related to a petrol station known as Gulf Cambuslang Service Station, located within an area the defender designated as “Cambuslang East”. The application was refused on the ground that, if it were to be granted, there would as a result be overprovision of licensed premises in that locality. In reaching that decision, the defender founded upon its licensing policy statement, which identified Cambuslang East as a locality in which there was such overprovision, and stated there were no exceptional circumstances justifying a departure from that policy.

Previously, another sheriff had ordered the defender to reconsider the pursuer’s application. On 1 September 2022 the defender did so, but again applied the Policy and refused the application. It was submitted by the pursuer that the defender’s Policy was unlawful as it failed to follow the correct statutory procedure when consulting upon and formulating the Policy.

It was the pursuer’s position that the consultation process prior to the enactment of the Policy was defective. It had failed to disclose to consultees the locality or localities in respect of which evidence was sought and failed to select a locality for the purpose of carrying out that statutory consultation. The defender’s counsel sought to argue that the localities selected for the purposes of this Policy were the same localities that featured in the defender’s preceding policy. In other words, nothing had changed, and consultees would have been aware of the existing localities.

Another ground of challenge was that the defender failed to have regard to the statutory guidance issued by the Scottish Ministers, paragraph 47 of which stated that consultation responses should be evaluated to identify robust evidence that a saturation point had been reached. The failure to pin down consultee responses to any specify locality could not support a conclusion of overprovision in any identifiable area.

Fruit of a poisoned tree

In his decision, Sheriff Reid said of the consultation process: “The survey was flawed because it did not seek to elicit evidence about any of the specific ‘localities’ selected by the defender for the purpose of formulating its overprovision policy. None of these localities is defined by reference to a single postcode. None of these localities appears, or is mentioned, in the survey. Indeed, the survey neither refers to, nor defines, any ‘locality’ on which the views of consultees are sought.”

He continued: “The defender’s consultation failed to comply with the statutory procedure. That failure constitutes an error of law; that error is material in nature; that material error vitiates the defender’s published Policy (so far as relating to alleged overprovision inter alia in Cambuslang East); and, insofar as the defender’s refusal of the pursuer’s application was founded upon that flawed element of the Policy, that decision is likewise vitiated by error of law. The defender’s decision to refuse the application is the fruit of a poisoned tree.”

On the second ground of appeal, the sheriff said: “The consultees were, at best, associated with postcodes; those postcodes are not co-extensive with any of the defender’s selected localities; therefore, the consultees cannot reliably be assumed to be resident in any single locality. In any event, each consultee’s response was expressly referable, not to a postcode area, but to their ‘local area’ or ‘neighbourhood’ of indeterminate extent, definable only by the subjective understanding of the consultee. Despite these flaws, Appendix 2 to the Policy discloses that the defender was indeed materially influenced by the responses to the survey.”

He concluded: “The defender’s decision was founded entirely upon its Policy, which has been found to be fundamentally flawed. There is no other statutory basis to support the refusal of the application. There is nothing else of substance that points persuasively to the refusal of the application. The objections add little, being vague in content and not locality-specific. Standing my conclusion on the unlawfulness of the Policy, it follows that there is no longer any presumption against the grant of the pursuer’s application.”

Sheriff Reid therefore reversed the decision of the defender and remitted the case to it with an ancillary direction to issue the pursuer with a provisional premises licence.