Sheriff court case considering the decision of the City of Glasgow Licensing Board to refuse an application to vary a premises licence for an Indian Restaurant known as The Dhabba at Candleriggs in Glasgow.  The owners sought the varying order so as to include within the premises licence external seating for 24 people on the pavement outside the restaurant and to amend the operating plan to include the provision of outdoor drinking.

The Licensing Board refused the application as: (1) granting the licence would be inconsistent with the licensing objective of preventing a public nuisance in terms of the s30(5)(b) of the Licensing (Scotland) Act 2005; and (2) the area was unsuitable for use for the sale of alcohol (in terms of the s30(5)(c)). The Board’s refusal was founded upon its conclusion that the location of the tables on a busy street would cause congestion.

The sheriff allowed an appeal of the decision. In the first place, there was inadequate evidence of the congestion, the only factual evidence before the Board being a plan of the subjects and an assertion by Bapu’s solicitor to the effect that the pavement was three metres wide and the tables took up one metre of that:

“In my view, absent some other material consideration or information, it does not logically follow that the mere narrowing of a three metre footpath by one metre, leaving two metres clear and available for pedestrians, would cause any congestion to occur, still less congestion of such an intolerable volume, intensity, frequency and duration as to cause a public nuisance. Something more would be required to justify those conclusions. That might be based, for example, upon factual information regarding the current and anticipated density and frequency of pedestrian and vehicular traffic at that location, viewed against an informed assessment of the likely impact upon such traffic of a narrowing of the footpath in the manner proposed in the application. No such information was before the Board.”

In the second place, the public nuisance anticipated by the Board was not linked to the sale of alcohol. It arose from the expected congestion which, if it had existed at all, would have been attributable to the physical presence of the tables and chairs (which had already been sanctioned by a section 59 agreement and planning consent). Thirdly, this also rendered the Board’s decision irrational as the congestion and public nuisance would exist whether or not the variation application was granted.

The full decision is available from Scottish Courts here.

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