Sheriffdom of South Strathclyde, Dumfries and Galloway at Hamilton

Sheriffdom of South Strathclyde, Dumfries and Galloway at Hamilton

B898/14

Judgement

Of

Sheriff V Smith

In the Summary Applications

of

KAREN McCLUSKEY v NORTH LANARKSHIRE COUNCIL

STEPHEN KERR v NORTH LANARKSHIRE COUNCIL

PATRICIA HARDIE v NORTH LANARKSHIRE COUNCIL

ANN MARIE PRATT v NORTH LANARKSHIRE COUNCIL

CAROLINE KANE v NORTH LANARKSHIRE COUNCIL

HAMILTON, 27 November 2015.

The Sheriff, having resumed consideration of the cause, SUSTAINS the first, second, third and fourth pleas-in-law for the pursuers; quoad ultrarepels the parties’ pleas; REVERSES the decision of the defender made on 20 August 2014 to vary the terms of the street trader’s licences issued to the pursuers; FINDS the defender liable to the pursuers in the expenses of the action; ALLOWS an account thereof to be given in and REMITS same, when lodged, to the Auditor of Court to tax and to report; CERTIFIES the cause as being suitable for the employment of junior counsel.

Introduction

[1]The pursuers hold street trader licences granted by the defender which allow them, within set hours, to sell hot and cold food from snack vans placed on designated static sites at various locations within the local authority area of the defender.

[2]On 20 August 2014 the defender varied these licences to include the following condition (“the condition”):

“The street trader will be prohibited from operating within a distance of 250 metres from the defined perimeter, as constituted by the physical boundaries in place, of all secondary schools in the North Lanarkshire Area from 8.00 am to 5.00 pm on any school day during term time. The prohibition will apply to snack vans selling or offering for sale hot or cold food, fish and chip vans and ice cream vans.”

[3]All of the static sites where the pursuers trade are within 250 metres of a secondary school and the pursuers operate during these hours.

[4]By way of summary applications the pursuers seek to reverse the defender’s decision to impose this conditionin terms of schedule 1, paragraph 18(1) of the Civic Government (Scotland) Act 1982 (“the 1982 Act”).

[5]The matter called before me over 3 days. The pursuers were represented by Mr Blair, advocate and the defender by Mr Skinner, advocate. It was agreed by the parties that no evidence was required to be led and that the matter could be dealt with by way of submissions. The factual averments were not in dispute.

Background to the imposition of the condition

[6]The genesis of the condition can be found in two publications ,“The Hunger for Success Iniative” of the Scottish government, 2004 and the defender’s “diet and nutrition policy 2013-14 revision”(sic) (item 6/15 of process). Inter alia the aims of both are to promote the benefits of healthy eating and healthy lifestyles for all children, to improve and promote the nutritional content and balance of food offered in schools and to influence the eating habits of children.

[7]At a council meeting on 27 March 2014 a motion was carried in the following terms:

“In accordance with the council’s Health and Wellbeing strategy, the council resolves to establish a policy excluding snack vans from parking and vending within 250 metres of North Lanarkshire schools”(6/10 page 209)(“the policy”).

[8]The matter was referred to the acting head of legal services who prepared a report, dated 22 April 2014 (6/8), the purpose of which was to advise the defender’s corporate services committee of the issues associated with snack vans which trade within the vicinity of schools and to recommend a licensing policy to regulate them.

Report of 22 April 2014

[9]The report referred to the defender’s commitment to the above aims and explained that a decision had been made to adopt an exclusion zone for snack vans trading in the vicinity of schools because the defender considered it had to deal with factors which “have been shown to contribute to child obesity. This is particularly so when considered against the duty imposed on the Council, as local education authority, under sec 53A of the Education (Scotland) Act 1980 to promote the availability of school lunches and to encourage pupils to use this facility” (para 2.2). Snack vans are seen as a significant challenge to the promotion of healthy eating in schools, offering less healthy alternatives to school meals (2.3). Other councils have imposed similar conditions (3.1).

[10]The report recognised that the defender is limited in its ability to prevent fixed retail or food outlets near to schools from selling less healthy food but it had the power to regulate street traders by imposing the condition on their licences (4.1). Some street traders would be adversely affected by this condition and there would be financial implications (5.1 and 5.3).

[11]The report recommended that the condition be incorporated into all street trader licences. All licence holders would be invited to address a licensing sub-committee to state a case for an exemption from the condition (6.1).

[12]The recommendation was approved by the defender’s corporate services committee on 1 May 2014.

Freedom of Information request and response

[13]The pursuers became aware of the proposed condition and took legal advice. On 13 June 2014 their solicitor wrote to the defender seeking information in terms of the Freedom of Information (Scotland) Act 2002 (6/6). This asked numerous questions including what scientific or nutritional material had been obtained that demonstrated that snack vans challenged the promotion of healthy eating or that the food sold was less healthy than school meals, what consultation had taken place, the basis for a radius of 250 metres, what alternative means of control had been considered, the number of pupils who can be accommodated for school meals and what assessment had been made of the financial impact upon street traders affected by the condition .

[14]The defender’s response, dated 11 July 2014, explained there had been no analysis of the nutritional value of food sold by the pursuers but they would be invited to a hearing before a licensing sub-committee when this matter could be addressed (6/7). There had been no consultation or consideration of the financial impact upon traders but these could be discussed at the same hearing. A radius of 250 metres was adopted as being the apposite distance to be imposed taking into account the defender’s wishes that the benefits of healthy eating and healthy lifestyles for all children within schools ought to be promoted. No other radius was considered. No alternative means of control of licensing of street trading in food near secondary schools was considered. In general schools can accommodate 30-40% of the school roll at a lunch sitting.

Hearing of 20 August 2014

[15]On 4 August 2014 a letter was sent to each pursuer setting out the condition to be imposed on their licences (6/14). They were invited to attend a meeting on 20 August 2014 when they would be given the opportunity to argue for an exemption from the condition. The pursuers attended the meeting and were represented by Mr McGowan, solicitor. In short he argued inter alia that the condition was ultra vires of a licensing authority,breached natural justice, was incompatible with human rights law and the underlying policy was unfair and disproportionate. These arguments were rejected and the condition was imposed.

Statement of Reasons

[16]After the hearing a statement of reasons was requested for each pursuer (6/1-6/5).

[17]In response to the pursuers’ submissions the defender stated that, as a responsible licensing authority, it was acting intra vires by imposing the condition in order to further the aims of reducing obesity among young persons and to encourage healthier eating. The 1982 Act provides that a licensing authority can at any time vary a licence “on any grounds they think fit”. This allowed the committee a degree of latitude when considering whether a licence could be varied. It was also thought that the committee could consider, in terms of the 1982 Act, “any other good reason” when dealing with the grant or refusal of a licence and this could be extended to varying a licence. The committee was receptive to considering exemption applications. With regard to convention rights the committee considered that any interference with property rights or possessions was of a limited nature. The licences were not being removed but varied to achieve a legitimate aim namely promoting healthy eating among school pupils. There is a general awareness of a problem with childhood obesity partly caused by the lack of healthy, nutritional, balanced diets. This general awareness and the fact that other local authorities had adopted similar conditions provided a sufficient evidential basis for the defender to impose the condition.

[18]I was referred to the following authorities and statutes in the course of the hearing:

Rossi v Edinburgh Corp. [1905] AC 21

Macbeth v Ashley (1874) 1 R (HL) 14

Stewart v Perth and Kinross Council 2004 SC (HL) 71

Mitchells and Butlers Retail Ltd. v Aberdeen City Licensing Board 2005 SLT 503

Brightcrew Ltd v City of Glasgow Licensing Board [2011] CSIH 46

L v Board of State Hospital 2011 SLT 233

Calderwood v Renfrewshire Council 2004 SC 691

Ahmed v North Lanarkshire Council 1999 SLT 1064

Elder v Ross and Cromarty Licensing Board 1990 SLT 307

Mixnam’s Properties Ltd v Chertsey Urban DC [1965] AC 735

R v Warwickshire County Council [1995] ELR 217

R v London Borough of Bexley [1995] ELR 42

R v The Secretary of State for the Environment [2011] EWHC 1975 (Admin)

Civic Government (Scotland) Act 1982

7 Offences, etc.S

(1)Any person who without reasonable excuse does anything for which a licence is required under Part II of this Act without having such a licence shall be guilty of an offence and liable, on summary conviction

(a)in a case where the licence so required is a public entertainment licence, to a fine not exceeding £20,000 or to imprisonment for a term not exceeding six months or to both; and

(b)in any other case, to a fine not exceeding level 4 on the standard scale.

(2)If a condition attached to a licence is not complied with, the holder of the licence shall, subject to subsection (3) below, be guilty of an offence and liable, on summary conviction

(a)in a case where the licence is a public entertainment licence and the condition is attached under section 41(3)(b) of this Act, to such fine or imprisonment as is mentioned in subsection (1)(a) above (or to both); and

(b)in any other case, to a fine not exceeding level 3 on the standard scale.

24 Second-hand dealers’ licences.S

(1)Subject to subsection (3) below, a licence, to be known as a “second-hand dealer’s licence”, shall be required for carrying on business as a second-hand dealer.

(2)In this section and in sections 25 to 27 and 36 of this Act “second-hand dealer” means a person carrying on a business as a dealer in second-hand goods or articles of any description.

(4)Without prejudice to paragraph 5 of Schedule 1 to this Act, a licensing authority may, after consultation with the chief constable, attach conditions to a second-hand dealer’s licence requiring the keeping of records in relation to the dealer’s stock-in-trade; and conditions so attached may, without prejudice to the authority’s power under this subsection, include provision as to—

(a)the information to be included in these records;

(b)their form;

(c)the premises where they are to be kept; and

(d)the period for which they are to be kept.

39 Street traders’ licences.S

(1)Subject to subsection (3) below, a licence, to be known as a “street trader’s licence”, shall be required for street trading by a person, whether on his own account or as an employee.

(2)In this section “street trading” means doing any of the following things in a public place—

(a)hawking, selling or offering or exposing for sale any article;

(b)offering to carry out or carrying out for money or money’s worth any service,

to any person in the public place and includes doing any of these things there in or from a vehicle or in or from a kiosk or moveable stall not entered in the valuation roll except where it is done in conjunction with or as part of a retail business being carried on in premises abutting the public place.

(4)Where an application for a street trader’s licence is made in respect of an activity which—

(a)consists of or includes food business within the meaning of sections 1(3) of the Food Safety Act 1990; and

(b)involves the use of a vehicle, kiosk or moveable stall,

the licensing authority shall, without prejudice to paragraph 5(3) of Schedule 1 to this Act, refuse the application unless there is produced to them a certificate by the food authority (for the purposes of section 5 of the Food Safety Act 1990) stating that the vehicle, kiosk or moveable stall complies with the requirements of any relevant regulations made under section 16 of the Food Safety Act 1990.

SCHEDULE 1S

5(1)Where an application for the grant or renewal of a licence has been made to a licensing authority they shall, in accordance with this paragraph—S

(a)grant or renew the licence unconditionally;

(b)grant or renew the licence subject to conditions; or

(c)refuse to grant or renew the licence.

(2)The conditions referred to in sub-paragraph (1)(b) above shall be such reasonable conditions as the licensing authority think fit and, without prejudice to that generality, may include—

(a)conditions restricting the validity of a licence to an area or areas specified in the licence; and

(b)in relation to the grant of a licence, where that licence is intended to replace an existing licence, a condition requiring the holder of the existing licence to surrender it in accordance with paragraph 13 below.

(3)A licensing authority shall refuse an application to grant or renew a licence if, in their opinion—

(a)the applicant or, where the applicant is not a natural person, any director of it or partner in it or any other person responsible for its management, is either—

(i)for the time being disqualified under section 7(6) of this Act, or

(ii)not a fit and proper person to be the holder of the licence;

(b)the activity to which it relates would be managed by or carried on for the benefit of a person, other than the applicant, who would be refused the grant or renewal of such a licence if he made the application himself;

(c)where the licence applied for relates to an activity consisting of or including the use of premises or a vehicle or vessel, those premises are not or, as the case may be, that vehicle or vessel is not suitable or convenient for the conduct of the activity having regard to—

(i)the location, character or condition of the premises or the character or condition of the vehicle or vessel;

(ii)the nature and extent of the proposed activity;

(iii)the kind of persons likely to be in the premises, vehicle or vessel;

(iv)the possibility of undue public nuisance; or

(v)public order or public safety; or

(d)there is other good reason for refusing the application;

and otherwise shall grant the application.

10(1)A licensing authority may, at any time, whether or not upon an application made to them by the holder of the licence, vary the terms of a licence on any grounds they think fit.S

(2)A licensing authority, before proceeding to vary the terms of a licence under sub-paragraph (1) above—

(a)shall, not later than 7 days before the day on which the proposed variation is to be considered, notify the holder of the licence, the chief constable and, where the licence relates to an activity wholly or mainly carried on in premises, the fire authority of the proposed variation; and

(b)shall give each of the persons mentioned in sub-sub-paragraph (a) above an opportunity to be heard by the authority on that day.

Education (Scotland) Act 1980

53 Provision of school meals.S

(1)An education authority—

(a)may provide milk, meals or other refreshment for pupils in attendance at public schools and other educational establishments under their management and may do so either on the premises or at any place other than the school premises where education is being provided; and

(b)shall provide such facilities as the authority consider appropriate for the consumption of any meals or other refreshment brought to the school or other educational establishment by such pupils.

(2)Subject to subsection (3) below, an authority must charge for anything provided by them under subsection (1)(a) above and must charge every pupil the same price for the same quantity of the same item.

(3)Subsection (3AA) below applies in relation to a pupil—

(a)whose parents are in receipt of—

(i)income support;

(ii)an income-based jobseeker’s allowance (payable under thobseekers Act 1995); or

(iii)support provided under Part VI of the Immigration and Asylum Act 1999; or

(b)who is himself in receipt of income support or an income-based jobseeker’s allowance.

(3AA)Anauthority shall so exercise the power conferred by subsection (1)(a) above as to ensure that such provision is made for the pupil in the middle of the day as appears to the authority to be requisite and shall make that provision for him free of charge.

53APromotion of school lunches

(1)An education authority must—

(a)promote the availability of school lunches in public schools and other educational establishments under the authority's management, and

(b)encourage pupils in attendance at those schools and other educational establishments to consume school lunches.

(2)In particular, an education authority must take reasonable steps to ensure that every pupil who is entitled, by virtue of section 53(3), to receive school lunches free of charge, receives those lunches.

56AFood and drink: nutritional requirements

(1)Where subsection (2) applies in relation to food or drink provided for pupils in attendance at public schools, an education authority must ensure that the food or, as the case may be, drink complies with nutritional requirements specified by the Scottish Ministers by regulations.

(2)This subsection applies where—

(a)food or drink is provided under section 53(1)(a), or

(b)food or drink provided on the premises of a public school or on the premises of a hostel provided and maintained by the education authority for pupils—

(i)is not provided under section 53(1)(a), and

(ii)does not fall within subsection (3).

(3)Food or drink falls within this subsection if it is—

(a)brought onto the premises of the school or hostel by a pupil, or

(b)provided as part of a social, cultural or recreative activity (whether or not the activity is organised by an education authority).

Submission of Pursuers

[19]Mr Blair submitted that the decision to vary the licences was ultra vires and based upon an error in law, proceeded upon inadequate reasoning, was an unreasonable exercise of discretion, breached natural justice and in terms of the Human Rights Act was unlawful and disproportionate. The decision ought to be reversed. It would not be appropriate to remit the matter to the defender for further consideration.