KAREN McCLUSKEY, STEPHEN KERR, PATRICIA HARDIE, ANN MARIE PRATT AND CAROLINE KANE AGAINST NORTH LANARKSHIRE COUNCIL [2016] ScotSC 3 (13 January 2016)

KAREN McCLUSKEY, STEPHEN KERR, PATRICIA HARDIE, ANN MARIE PRATT AND CAROLINE KANE AGAINST NORTH LANARKSHIRE COUNCIL [2016] ScotSC 3 (13 January 2016)

The licensing authority lacked statutory power under the Civic Government (Scotland) Act 1982 to impose a blanket prohibition on street trading within 250 metres of secondary schools during school hours for public health purposes. The condition was ultra vires, unreasonable, arbitrary, and disproportionate, exceeding the intended scope of licensing regulation. The authority cannot restrict trade for aims not expressly provided by statute, and the process breached principles of natural justice.

Citation
[2016] SC HAM 3 B898
Parties
Pursuer: Karen McCluskey; Pursuer: Stephen Kerr; Pursuer: Patricia Hardie; Pursuer: Ann Marie Pratt; Pursuer: Caroline Kane; Defender: North Lanarkshire Council
Jurisdiction
Scotland
Judgment Date
13 January 2016
Procedural Posture
Summary Application / Judgment
Outcome
decision reversed
Legal Topics
Street Trading, Licensing Conditions, Ultra Vires, Natural Justice, Proportionality, Public Health, Regulation of Trade
Administrative Law Licensing Law Human Rights Street Trading Licensing Conditions Ultra Vires Natural Justice Proportionality +2 more

Case Brief

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Parties

Karen McCluskey

Pursuer

Stephen Kerr

Pursuer

Patricia Hardie

Pursuer

Ann Marie Pratt

Pursuer

Caroline Kane

Pursuer

North Lanarkshire Council

Defender

Procedural Posture

Summary Application / Judgment

Legal Issues

  1. 1 Whether the licensing authority had power to impose a condition prohibiting street trading within 250 metres of secondary schools during school hours
  2. 2 Whether the condition was ultra vires, unreasonable, arbitrary, or breached natural justice
  3. 3 Whether the condition was compatible with human rights law

Ratio Decidendi

The licensing authority lacked statutory power under the Civic Government (Scotland) Act 1982 to impose a blanket prohibition on street trading within 250 metres of secondary schools during school hours for public health purposes. The condition was ultra vires, unreasonable, arbitrary, and disproportionate, exceeding the intended scope of licensing regulation. The authority cannot restrict trade for aims not expressly provided by statute, and the process breached principles of natural justice.

Court Disposition

decision reversed

Orders

  • Reverses the defender's decision to vary the street trader licences with the condition
  • Finds the defender liable in expenses