Buzzworks Leisure Ltd, Re Judicial Review [2011] ScotCS CSOH_146 (02 September 2011)

Buzzworks Leisure Ltd, Re Judicial Review [2011] ScotCS CSOH_146 (02 September 2011)

The Licensing Board erred in law by failing to consider overprovision as a separate ground for refusal under section 23(5) of the Licensing (Scotland) Act 2005 and by treating itself as bound by the Tesco decision. The Board also failed to provide adequate reasons for its decision, particularly in relation to the licensing objectives and overprovision. The plea of mora, taciturnity and acquiescence was not sustained as all three elements were not present and the delay was not excessive given the circumstances.

Citation
[2011] ScotCS CSOH_146
Parties
Petitioner: Buzzworks Leisure Limited; First Respondent: South Ayrshire Licensing Board; Second Respondent: J D Wetherspoon plc
Jurisdiction
Scotland
Judgment Date
02 September 2011
Procedural Posture
Judicial Review / Opinion of the Court (outer House, Court of Session)
Outcome
Petition sustained; decision of the Licensing Board reduced and remitted for reconsideration.
Legal Topics
Judicial Review, Licensing (scotland) Act 2005, Overprovision, Licensing Objectives, Adequacy of Reasons, Mora, Taciturnity and Acquiescence
Administrative Law Licensing Law Judicial Review Licensing (scotland) Act 2005 Overprovision Licensing Objectives Adequacy of Reasons Mora, Taciturnity and Acquiescence

Case Brief

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Parties

Buzzworks Leisure Limited

Petitioner

South Ayrshire Licensing Board

First Respondent

J D Wetherspoon plc

Second Respondent

Procedural Posture

Judicial Review / Opinion of the Court (outer House, Court of Session)

Legal Issues

  1. 1 Whether the Licensing Board erred in law by treating itself as bound by the Tesco decision and failing to consider overprovision as a separate ground for refusal under section 23(5) of the Licensing (Scotland) Act 2005.
  2. 2 Whether the Licensing Board gave adequate reasons for its decision to grant a provisional premises licence.
  3. 3 Whether the petitioners are barred by mora, taciturnity and acquiescence from insisting on the application.

Ratio Decidendi

The Licensing Board erred in law by failing to consider overprovision as a separate ground for refusal under section 23(5) of the Licensing (Scotland) Act 2005 and by treating itself as bound by the Tesco decision. The Board also failed to provide adequate reasons for its decision, particularly in relation to the licensing objectives and overprovision. The plea of mora, taciturnity and acquiescence was not sustained as all three elements were not present and the delay was not excessive given the circumstances.

Court Disposition

Petition sustained; decision of the Licensing Board reduced and remitted for reconsideration.

Orders

  • The decision of the South Ayrshire Licensing Board of 11 November 2010 to grant a Provisional Premises Licence for premises at 87 Main Street, Prestwick to J D Wetherspoon plc is reduced.
  • The matter is remitted to the Licensing Board for reconsideration in accordance with the court's opinion.