Sheriff upholds challenge to refusal of pop-up bar application by operators of Glasgow city centre bar

Keasim Ltd, the operators of Malones bar in Sauchiehall Lane, brought the challenge in Glasgow Sheriff Court after the defender refused the licences on the grounds that they would be inconsistent with securing public safety and preventing public nuisance in terms of the Licensing (Scotland) Act 2005 and constituted an abuse of the licensing process.

The case was heard by Sheriff Stuart Reid. Robert Skinner, advocate, appeared for the pursuer and James Findlay QC and Jon Kiddie, advocate, appeared for the defender.

Previous approval

The site of the pop-up bar, to be run under the brand name “Festival Village” was at the corner of Candleriggs and Wilson Street, a large space originally intended to be occupied by Selfridges and earmarked for later residential development. The pursuer’s applications would have run for a consecutive period of 101 days from 26 April to 4 August of 2021.

In the summer of 2020, the pursuer had made similar applications to run a pop-up bar under the same brand name for an aggregate period of 68 days from the same site, which had been approved. The pursuer had traded from the site without incident during that time, which ran in tandem with licensed market stalls at the same site.

Neither the Chief Constable nor the LSO objected to the applications, which were to run for a period of 14 days each, with the pursuer accepting a number of conditions sought by the LSO, although eleven objections were received from the public.

Following a hearing to consider the applications, the defender rejected all seven applications, stating that in general it required the applicant to demonstrate that an occasional licence was required for a special event and that such applications were treated separately from applications relating to expanding existing premises with outdoor seating.

Counsel for the pursuer submitted that the defender had failed to provide adequate reasoning for the refusal of the applications and that no statutory grounds for refusal of the licences existed in this case. No evidence had been provided that there was the potential for alcohol-related public nuisance or threat to public safety, as specified by the 2005 Act.

Skewed by error

In his decision, Sheriff Reid said of the defender’s finding that there would be nuisance: “There was no factual basis for any such finding in the present case. There were no police objections and adverse comments from the LSO. On uncontradicted submissions for the pursuer, the venue had operated on the exact same basis the previous year ‘with no police incidents, no issues of trouble, no drunkenness, [and] no noise complaints related to anti-social behaviour’.”

He continued: “The defender’s approach inverts the onus. It seeks to compel the pursuer to satisfy the board that no such threat to the public peace would arise. In so doing, it purports to found its refusal on the absence of supporting factual information, rather than upon the existence of any actual material. Further, the defender’s approach ignores the terms of the statute which deem the intimation provisions laid down for occasional licence applications to be sufficient.”

On whether the applications went against the defender’s licensing policy, the sheriff said: “There is no warrant under the 2005 Act for this proposed restriction in the Board’s policy. The Board’s policy cannot impose additional criteria to those set out in the statute. Once there is a competent application before the board under section 59, it can only be refused if one or more of the statutory grounds for refusal applies to it.”

Turning to whether applying for consecutive occasional licences was an abuse of procedure, Sheriff Reid noted: “I confess to having had some initial sympathy with the licensing board on this issue. However, the difficulty for the defender is that ‘circumvention of procedure’, or perceived abuse of process, is not one of the grounds for refusal permitted by statute. The defender’s whole decision-making process has been skewed by this error of law.”

Noting that the 2005 Act’s predecessor did refer to “events” in relation to occasional licences, he explained further: “This now-repealed wording may point to the source of the defender’s assertion and belief that an occasional licence should be limited to some sort of one-off ‘event’ or occasion. It might reasonably be inferred, from the removal of the concept of ‘an event’ in the present incarnation of the occasional licence provision, that Parliament’s intention was to broaden the circumstances in which such applications might be made and granted.”

Sheriff Reid concluded: “What the defender now seeks to do is unilaterally to impose an ‘occasional licence limit’. It has no legislative authority to do so. Its authority is limited to the refusal of an occasional licence application on one of the limited grounds stated in section 59. None of those grounds applies in the present case.”

For these reasons, the sheriff remitted the applications to the defender and ordered them grant each licence in accordance with the statutory terms of the 2005 Act and the conditions proposed by the LSO.