Statutory Appeals

In the current era of regulation, more and more activities fall under the review of the UK and Scottish Governments and our Local Authorities.  Most recently, for example, we have had the licensing of Short-Term Lets and, of course, the Judicial Review that has followed that legislation.

Under the Civic Government (Scotland) Act 1982 (“the 1982 Act”), there is a plethora of activities that are licensed and more unlikely to fall into the provisions of this legislation.  To name but a few licensed activities we have Taxi Licensing, Second-hand Dealers, Boat Hire, Street Traders, Public Entertainment, Late Hours Catering, Window Cleaners, and the like.  Another notable activity that falls under the review at Local Government level is the sale of alcohol through the Licensing (Scotland) Act 2005 (“the 2005 Act”).

For the purpose of this article, let’s look at these two pieces of legislation.

Decisions under the 1982 Act will be taken by a local Licensing Committee made up of local Councilors.  Decisions under the 2005 Act will be taken by the Local Licensing Board who, again, will be made up of local Councilors who will have undergone a level of training.  A Hearing before such bodies requires thought and preparation and should not be gone into light-heartedly.  Committees and Boards will have policies and these will vary from one geographical area to another.  There may also be Objections to an Application before a Board if the Application is for the grant or renewal of a Licence.

What to do if your application is refused?

There is a chance that the Applicant will not get the decision that they are looking for.  If that is the case, they may wish to consider an Appeal.  It is critical to remember that an Appeal will not necessarily be a re-hearing of the Application but an attack on the decision that has been made and perhaps the procedure in arriving at that decision.  A common mistake that is often made by those seeking to appeal is to rely on information which was not before the original Board or Committee Hearing.  Unless an Applicant can show a good and compelling reason why information was not before the original Hearing, then it is likely that such information will be excluded from an Appeal.  The Sheriff at Appeal will likely take the view that a Board or Committee cannot be crtiticised for failing to take into account information that was never presented to them.  Therefore it is important not to keep that “ace up the sleeve” for a later occasion.

An Applicant who has been refused either in whole or in part has an opportunity to request the Board or Committee to give a Statement of Reasons.  This is something beyond mere notice of the decision and is an important document to request before considering whether an Appeal should be submitted. The Statement of Reasons requires to be a cogent statement indicating why the decision was reached and what material consideration and facts were taken into account in arriving at the decision.  Once that Statement of Reasons is issued by the Board or Committee then it is taken to be the only reasons for the decision and they cannot amplify upon these or produce further reasons at a later date.  If the Statement of Reasons is inadequate or illogical then that in itself may be sufficient to allow an Appeal to be granted.

Time Limit to submit an Appeal

Before considering if there is a Ground of Appeal (detailed below), it is important to note that an Appeal must be submitted within specific time limits.  An Appeal under the 2005 Act must be lodged within 21 days of the decision or from the date of issue of the Statement of Reasons, if one has been sought (but only in terms of Section 51 (2) of the Act).  Please note that other decisions do not entitle a Statement of Reasons under Section 51 but under different Provisions and the 21-day period there will run only from the date of the decision.  In the 1982 Act, an Appeal must be lodged within 28 days of the decision notwithstanding the fact that a Statement of Reasons has been sought.

Grounds of Appeal

An Appeal Hearing is not a free-standing re-run of the Application.  The Ground of Appeal is limited and an Appeal will only be upheld if the Sheriff finds that the Licensing Authority has either erred in Law, based its decision on an incorrect material fact, acted contrary to natural justice, or exercised their discretion in an unreasonable manner.

An error in Law could, for example, be the Board or Committee misinterpreting the Law and the application of Statue.  This could be a failure to follow a particular procedure required by the Legislation or it could be the rigid application of a policy rather than the consideration of each case on its merits.

A decision on an incorrect material fact perhaps needs little by way of explanation.  The important point, however, is that the incorrect fact must be material, that is to say, significant to the decision reached.  A minor inconsequential error in fact will not be sufficient to form the basis of Appeal.

A failure in respect of natural justice could be a Board or Committee acting capriciously by refusing to hear an Applicant or unduly curtailing an Applicant’s submission.  It could, for example, be a failure to be told relevant information available to the Board and upon which the Board or Committee were to form their decision.  It might also include a Board or Committee Member voting on the Application when they had not been present for the whole hearing of the Application.

It is the final Ground that probably attracts the most interest.  This is the exercise of discretion in an unreasonable manner.  This Ground of Appeal often attracts Applicants to view the Appeal as an opportunity to have a re-hearing of the Application.  That is not the case.  Generally, to establish that a Board or Committee has acted and exercised their discretion in an unreasonable manner, the Applicant will have to show that the decision was so unreasonable that no reasonable Authority properly advised as to the facts and Law could have arrived at that decision.  Examples of successful Appeals in this category include where a Board or Committee has taken into account a number of irrelevant considerations that ought to have been excluded from the liberation of the decision-making body.  Another example would be taking into account convictions that had absolutely no effect on an Applicant’s fitness to hold the type of Licence being applied for.

The Court may hear evidence at Appeal, however, that tends to be the exception rather than the norm.  Usually, an Appeal is determined by way of legal Submissions based on the case presented by the Applicant and by the decision-making body.

Licensing Appeals tend to be very technical issues and require careful preparation by a Solicitor experienced in that area of Law.

Applicants who have Licence Applications before Boards or Committees need to consider the likelihood of refusal.  In the event for example through intimation of Objections or knowledge of local Policies, an Applicant is aware that refusal is a possibility then real consideration should be given to instructing a Solicitor who is experienced in Licensing matters to appear before the Board or Committee to ensure that all relevant arguments are put forward perhaps in the knowledge that refusal is likely but that greater likelihood of success will be at Appeal.   Gilson Gray has experienced Licensing Lawyers who will be able to assist you.

For further information, get in touch with Ling Deng via email at ldeng@gilsongray.co.uk or by telephone on +44(0)1382 202 444.