Buzzworks win landmark legal case

Kenny Blair 2

Buzzworks have won a landmark case against South Ayrshire Licensing Board’s decision to grant a licence to JD Wetherspoon for its Prestwick pub. A judicial review has ruled the decision “was unlawful”, and as such the Edinburgh Court of Session has over-ruled the board’s decision to grant the licence suggesting that the board did not give “proper and adequate reasons” for granting the licence as well as failing to consider “overprovision.”
That’s good news for Buzzworks the company behind the expensive legal action who petitioned the Court of Session for the judicial review of the Board’s November decision.
Says Buzzworks Director Kenny Blair, “Of course we are pleased. We didn’t want to lose, but more importantly we wanted to safe guard the local licensed trade in Prestwick and we felt strongly that JD Wetherspoon’s plans constituted overprovision.”
Council licensing chiefs had argued that the law stopped them from using ‘overprovision’, as a valid reason for refusal. In its defense it said, “The Board is required to grant an application unless there are grounds for refusal in accordance with section 23 of the Act. The Board…were of the view that the grant of this application would not be inconsistent with any of the licensing objectives. The Board was conscious that the existing policy statement acknowledged that the locality was ‘well served’ in relation to licensed premises. The Board had regard to the capacity figures for the proposed premises and existing premises, however, in the absence of any concerns on the part of the Board in relation to inconsistency with any of the licensing objectives, the Board was constrained by the terms of the recent Tesco decision in Aberdeen and accordingly could not refuse the application on grounds of over-provision.”
However, Morag Wise QC suggested that the Tesco decision was flawed. She said, “If there was a common error at the time of the hearing in relation to the import of the Tesco decision… An error in law could still be founded upon. Further, it was submitted that there is a public interest in licensing matters and it would be wrong to allow a decision based on an error in law to stand.”
The QC pointed out, “The use of the words “constrained” and “could not refuse” indicate that the Board felt compelled to ignore the factors relevant to overprovision rather than take a substantive decision on that ground. In essence, the Board considered that it had no power to refuse the application on grounds of overprovision because it had found that the application was not inconsistent with any of the licensing objectives. In my view, this constituted a clear error in approach in that overprovision ought to have been considered as a distinct ground regardless of the decision on consistency with the licensing objectives.”
She also said in her written submission that the board, “ought to have been concerned about the size of the premises and its potential effect on competition, particularly where the issue of “cheap prices” was raised.” With reference to the board stating, “the grant of this application would not be inconsistent with any of the licensing objectives”, Wise QC said, “In my view there can be few clearer examples of a decision failing to set out proper and adequate reasons.”
She continued, “In this case there is no clue whatsoever as to what the Board considers to be the material considerations in dealing with the various objections narrated. The objections are not evaluated. There is no comment upon the important issues such as the effect of cheap food and alcohol, the narrow pavement outside the premises, parking problems, lack of police presence and burden on police, access issues for disabled and elderly persons, strain on emergency services, ‘good neighbour’ issues and attracting more people in the area. These were all among the matters raised in the context of inconsistency with the licensing objectives. No reasons are given as to how each of these issues were dealt with in reaching the decision. There is no mention of what influenced or impressed the Board, whether it was the report from the Chief Constable or a particular submission made on one or more of the topics listed above. Nothing in the relevant authorities supports the contention that it is sufficient for a decision-maker in this context simply to say it has had regard to all the submissions and evidence before it without, even in summary form, commenting upon those submissions and their relative merits.”
Licensing lawyer Janet Hood comments, “Sanity finally prevails. Let’s hope we have more decisions like this to negate the harm being visited on the trade by this overly bureaucratic and complex legislation.”
However Kenny Blair says the matter is probably still far from being resolved, with the chance that there will be an appeal by JD Wetherspoons.
Whatever the outcome it now looks unlikely that there will be a JD Wetherspoons in Prestwick before 2014, and going forward Boards across the country will have to take account of this decision by the QC, which effectively negates the Tesco case being used as a defence for not considering ‘overprovision.’

Category: News
Tags: Ayrshire, Buzzworks, case, dram, Landmark, SCOTLAND