Scottish Sheriff Court Decisions

B2110/09

JUDGMENT

OF

SHERIFF PRINCIPAL

JAMES A TAYLOR

in the cause

Kell (Scotland) Ltd

APPELLANTS

against

City of Glasgow Licensing Board

RESPONDENTS

                                                                       

GLASGOW, 28 May 2010.

The Sheriff Principal, having resumed consideration of the cause, Answers the questions in the stated case in the affirmative; Allows the appeal and Reverses the decision of the respondents in terms of Section 131(5)(b) of the Licensing (Scotland) Act 2005; Remits the application to the respondents and Ordains them to grant the appellants' application for a Premises Licence in respect of the premises known as and forming Ground Floor Basement, 15 Elmbank Gardens, Glasgow; Finds the respondents liable to the appellants in the expenses of the appeal as taxed; Allows an account thereof to be made up and remits same, when lodged, to the auditor of court to tax and to report; Certifies the appeal as suitable for the employment of junior counsel.

NOTE:-

[1] The appellants made application to the respondents in terms of paragraphs 17 and 18 of the Licensing (Transitional & Savings Provisions) (Scotland) Order 2007 in anticipation of the Licensing (Scotland) Act 2005 (hereinafter "the Act") coming into force on 1 September 2009. The application was known as a "conversion" application. The conversion was from an Entertainment Licence held under the Licensing (Scotland) Act 1976 to a Premises Licence under the Act. The appellants operated the premises, in respect of which they held an Entertainment Licence, as a lap dancing club. They opened for business in about April 2003. On an annual basis they applied for and were granted regular extensions of permitted hours. It was not suggested that there had been any objections in the past to the grant of a regular extension nor to the renewal of the licence when appropriate. The respondents refused the appellants' application for a Premises Licence to enable them to sell alcohol. Their application was heard on 1 June 2009.

[2] Section 4 of the Act sets out what are known as the licensing objectives. It is in the following terms:-

"4(1) For the purposes of this Act, the licensing objectives are -

(a) preventing crime and disorder,

(b) securing public safety,

(c) preventing public nuisance,

(d) protecting and improving public health, and

(e) protecting children from harm."

Section 6 of the Act requires every Licensing Board to publish a statement of their policy in respect of their functions under the Act. Section 6(3) requires the policy to seek to promote the licensing objectives set out in Section 4. In the course of formulating their policy a Licensing Board must enter into a consultation process (Section 6(3)(b)). The respondents' licensing policy statement was lodged by both parties (Nos 6/4 and 7/4 of process). Paragraph 10.3 of the policy statement details the respondents approach to adult entertainment in licensed premises. Adult entertainment was said to be "dance entertainment of an erotic or explicitly sexual nature". The policy statement (sometimes referred to in the course of the appeal as "the code") states that the licensing objectives which paragraph 10.3 of the policy statement was intended to promote were preventing crime and disorder and protecting and improving public health. It provides that exemptions from the policy will be considered on their merits. The appellants had not sought any exemptions. The licensing statement in respect of changing facilities states that "The facilities should be located near to but not within sanitary conveniences". In respect of performances the policy statement made the following provision:-

"Performers' genitalia should be covered at all time. There should be no touching between performers and patrons at any time during a performance, the only contact allowed being the hand to hand payment of money at the conclusion of the performance. Performers remaining in the public areas before, following or between performances should be suitably clothed at all times with no exposure of breasts or genitalia. Any advertising of performances outwith the licensed premises, including newspaper advertisements, 'flyers' or other promotional material or notices at the premises, may only depict performers suitably clothed as aforesaid."

[3] The reason the respondents gave for refusing the application was that the respondents considered that the granting of the application would be inconsistent with one or more of the licensing objectives (Section 23(5)(c) of the Act) and also that the premises were unsuitable for use for the sale of alcohol (Section 23(5)(d) of the Act). The basis upon which the respondents reached their decision was that the policy statement had not been complied with in that (a) toilets for the sole use of the dancers had not been provided, (b) dancers had breached the policy statement by exposing their genitalia and there had been touching between performers and patrons during a performance and (c) a promotional flyer used by the appellants depicted a performer unsuitably clothed. The respondents also refused the application on the basis of a conviction which a director of the appellants had sustained. At the appeal it was explained that both parties now accepted that the conviction ought not to have been considered relevant to the application. I was asked to deal with the issue of the conviction by treating the issue as "pro non scripto". It was also a matter of agreement that should I find any one of the three alleged breaches of the policy statement not to have warranted a refusal of the application, I should allow the appeal. The respondents, correctly in my view, accepted that the refusal under Section 23(5)(d) could not stand if any one of the three reasons set out supra was held by the court to be unjustified. Furthermore, it was also agreed that in the event that I came to the view that the appeal should be allowed, my interlocutor should remit the case back to the respondents with a direction to them to grant a licence to the appellants. I will look at each of the three alleged breaches of the policy statement starting with the manner in which the respondents dealt with the flyer.

[4] As has been seen, the policy statement provides that "Any advertising of performances outwith the licensed premises, including..."flyers"...may only depict performers suitably clothed as aforesaid". Although I was not addressed on the issue it seems clear to me that if one reads the paragraph (set out in [2] supra) as a whole, the reference to the expression "suitably clothed as aforesaid" can only refer back to "no exposure of breasts or genitalia". The flyer in question is lodged by the appellants and forms 6/5 of process. It was submitted by Mr Skinner, Advocate, who appeared on behalf of the appellants, that more revealing pictures can be seen daily in tabloid newspapers. Mr Blair, Advocate, who appeared on behalf of the respondents, said it was a matter for judgement as to whether the flyer breached the policy statement and it was for the respondents to exercise that judgement. He accepted that the respondents' opinion on this issue would be open to attack if it was unreasonable in the sense set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1KB 223. It was not specified during the appeal hearing which aspect of the photograph on the flyer was said to be "unsuitable".

[5] I agree with Mr Blair that it is a matter of judgement as to whether the female in the flyer is dressed in a manner which contravenes the terms of the policy statement. However, in my view, the judgement of the respondents in considering the flyer to depict a woman unsuitably dressed is seriously flawed. It is so flawed that it can be said that no reasonable Licensing Board properly applying its mind to the issue could possibly say that the female is unsuitably dressed. Thus the appellants are entitled to say that the test set out in Wednesbury, which is the test the respondents submitted fell to be applied, is met. The front of the flyer shows a single female. It is clear that there is only one figure and that what one has on the right-hand side of the flyer is a mirror image of the female shown on the left. The view is more of the rear of the model. There is text covering her buttocks but it is clear that she is wearing a pair of yellow briefs. There is no exhibition of a bare bottom far less genitalia. The model's upper arm is over her breast so that only a very small part of the side of her breast is depicted in the photograph. For example, there is no exposure of a nipple. There is certainly more breast exposed, as Mr Skinner submitted, in certain daily tabloid newspapers. Indeed, if one looks at the advertisements for perfumes etc in magazines normally read by women, one sees more breast exposed than in the flyer. Many evening dresses worn by women will expose more of the wearer's breast than appears on the flyer. The context adds nothing to enable a conclusion of unsuitability to be drawn. In short, I can see nothing unsuitable in the degree of breast exposed. There seems to me to be nothing else in the flyer which could be said to be unsuitable. My attention was not directed to any particular aspect of the model. Thus to judge that the flyer in question is unsuitable for the purpose of promoting a lap dancing nightclub, and thus in breach of the policy code, is in my opinion wholly unreasonable. No genitalia are exposed and only a small part of a woman's breast. In short, the respondents' judgment is absurd. No reasonable Licensing Board properly applying their mind to the flyer could come to the view that the female depicted in the flyer was unsuitably clothed. Since it was agreed that should I find against the respondents in any one of the three legs upon which the respondents refused the application, the appeal must succeed, I perhaps do not require to say any more with regard to the other grounds of appeal. That is the end of the matter. However, that the respondents acted unreasonably becomes even clearer when it was explained by the appellants, and not challenged by the respondents, that upon the respondents making their view that the flyer was unsuitable known to the appellants, the appellants submitted to the respondents an alternatively designed flyer for approval by the respondents. The respondents approved what was submitted. Thus by the time of the hearing of the application, the flyers to which the respondents took exception and upon which they refused the application, were not in use.

[6] In deference to the submissions made by counsel I will offer my views on the other issues raised. The second issue which the respondents put into focus in refusing the application was in relation to the provision of sanitary conveniences or toilets. It was common ground that what the respondents required was for there to be toilets designated solely for the use of dancers. Although it was submitted that a failure to have such was a breach of the policy statement, it is not clear to me how that comes to be. The policy statement provides that changing facilities should be located near to but not within sanitary conveniences. That is the only reference to sanitary conveniences in the policy statement to which my attention was directed. The policy statement also provides that the changing facilities for dancers "should be secure, private and for single sex use only and should not be accessible by patrons". I note that it is the changing facilities and not the toilet facilities which are required to be secure etc. It is clear from the transcript of the hearing on 1 June 2009 (No 6/4 of process), the statement of reasons dated 28 July 2009 (6/3 of process) and the stated case (No 3 of process) that no issue was being taken with the changing facilities provided for the dancers but issue was taken with the sanitary conveniences. The stated case states on page 3:-

"...the issue regarding the provision of sanitary conveniences to provide security to performers from intrusion by members of the opposite sex and from patrons, remained outstanding and had still not been addressed by the Applicant when the Licensing Standards Officers inspected the premises on 2 May 2009."

It would appear that this had been raised by the respondents' predecessors in 2005. At the hearing of the application the appellants' solicitor informed the respondents that the appellants had "restricted the use of toilets on one of the floors for dancers only". The stated case records on page 3:-

"Insofar as the issue regarding the provision of sanitary conveniences was concerned, Mr Maciver advised that toilets on one of the floors of the premises had now been designated as solely for the use of "staff only...dancers only""

It is not immediately clear to me how the designation of toilets as being for the exclusive use of dancers addresses intrusion by members of the opposite sex. However the actions of the appellants seemed to satisfy the respondents who then took issue with the delay on the part of the appellants in complying with their requirements in this respect. Mr Skinner pointed out in his submission that the lack of toilets being designated for the exclusive use of dancers had not caused any problems. There was no suggestion that the facilities were otherwise unsuitable by, for example, being dirty. Mr Skinner submitted that the respondents had erred in that they ought to have considered the premises at the time when the licence applied for would come into force on 1 September 2009 and not as the premises had been in the past. He referred me to Bantop v City of Glasgow Licensing Board 1990 SLT 366 at 369C. He also submitted that any provision in the policy statement regarding sanitary conveniences fell foul of Section 27(7) of the Act. Section 27(7) of the Act is in the following terms:-

"A Licensing Board may not impose a condition under subsection (6) which -...

(c) relates to a matter (such as planning, building control or food hygiene) which is regulated under another enactment."

The provision of sanitary conveniences in a workplace is covered by Regulation 20 of the Workplace (Health, Safety and Welfare) Regulations 1992. Accordingly, there was duplication of a provision which was struck at by Section 27(7).

[7] In reply, Mr Blair submitted that the respondents were entitled to make provision for sanitary conveniences in the policy statement. This was not a case of the respondents duplicating the provisions made elsewhere. In the opinion of the respondents, Regulation 20 of the 1992 Regulations did not go far enough as the regulation did not provide that toilets should be for the exclusive use of workers. Mr Blair referred me to the case of R (Bristol City Council) v Bristol Magistrates Court & Somerfield Stores [2009] EWHC 625 (Admin). He relied particular on what was said by the judge (John Howell QC) at paragraph 38:-

"In my judgment, the statement by the magistrates' court in the first of these two paragraphs, that they did not consider that a licensing authority can lawfully strengthen Parliament's clearly stated statutory provisions without specific reasons which relate to the premises in question, may go too far. A licensing authority has power to impose conditions that are necessary to promote the licensing objectives. Such a condition may be unnecessary if the relevant objective is sufficiently secured by the application of other legislation. That may involve a judgment about what is necessary to promote the licensing objectives in a particular case and what any other relevant legislation provides. Such other legislation may be relevant, but insufficient generally to achieve what is necessary to promote the licensing objectives."

On my reading of the respondents' policy statement it does not make provision that there should be sanitary conveniences dedicated for the exclusive use of dancers. The only reference to sanitary conveniences in the policy statement to which my attention was directed by counsel, provides that the changing facilities for the dancers should be close to sanitary conveniences. Thus the respondents erred in holding that the appellants were in breach of the policy statement by not providing toilets for the exclusive use of dancers. This forms a further ground for allowing the appeal.

[8] In any event it is my opinion that the respondents were not entitled to impose any conditions regarding the provision of sanitary conveniences. Section 27(6) of the Act empowers a Licensing Board to impose a condition which the Board considers is "necessary or expedient for the purposes of any of the licensing objectives". Section 27(7) of the Act provides that a Licensing Board may not impose a condition under sub-section (6) which "relates to a matter...which is regulated under another enactment". The Workplace (Health, Safety and Welfare) Regulations 1992 deals with the provision of sanitary conveniences in the workplace. Thus the provision of sanitary conveniences is regulated under another enactment. By virtue of Section 27(7) the respondents had no power to require the appellants to provide sanitary conveniences dedicated for the use of dancers. The Bristol City Council case is of no assistance unless there is provision in the relevant English legislation similar to Section 27(7). Mr Skinner submitted there was no such provision. Mr Blair did not direct me to any such provision. I do not consider Mr Blair's submission, that the respondents have the power to demand that an applicant should go beyond what was required under another enactment, to be well-founded. Section 27(7) precludes a Licensing Board from imposing a condition under Section 27(6) which relates to (my emphasis) a matter regulated by another enactment. The requirement which one sees in the policy statement relates to sanitary conveniences. Therefore the respondents erred in making reference in the policy statement to the provision of sanitary conveniences. Although not part of any submission I note that Section 27 permits a Board to attach a condition to the grant of a licence (my emphasis) providing the condition does not relate to a matter regulated under another enactment. In this case the respondents did not grant a licence subject to such a condition. However, it seems to me that if a Licensing Board has no power to grant a licence subject to such a condition it should not refuse to grant a licence because such a condition has not been complied with. That position was fortified when one considers the terms of Section 142 of the Act to which Mr Skinner directed my attention. That section empowers the Scottish Ministers to issue guidance to Licensing Boards. Section 142(3) provides that each Licensing Board must (my emphasis) have regard to any guidance. The guidance issued to Licensing Boards by the Scottish Ministers provides at paragraph 26:-

"Statements of licensing policy should include a firm commitment to avoid duplication with other regulatory regimes so far as possible. For example, legislation governing health and safety at work and fire safety will place a wide range of duties on the self‑employed, employers and operators of venues. These may be in respect of employees and customers on the premises. Similarly, many aspects of fire safety will be covered by existing and future legislation and should not be duplicated through the licensing regime."

I agree with Mr Skinner's submission that the respondents have not had regard to this guidance. When framing their statement of licensing policy they have sought to regulate the provision of sanitary conveniences in duplication of the provisions in the Workplace (Health, Safety and Welfare) Regulations 1992. The duplication goes further as a quick look at the policy statement discloses. Regulation 22(1) of the Workplace Regulations provides "An adequate supply of wholesome drinking water shall be provided for all persons at work in the workplace." The policy statement provides at page 85 "The facilities should include a plentiful supply of wholesome chilled drinking water for all performers". It seems to me that the respondents ignored the guidance issued by the Scottish Ministers.

[9] In my opinion, if guidance is to be followed, the provision of, for example, sanitary conveniences or drinking water (chilled or otherwise) should not feature in a Board's policy statement. For a Board to refuse an application for a licence because the applicant failed to meet a requirement in the Board's policy statement, which requirement was in breach of the Act and guidance, would be unreasonable to the extent that the Board's decision could be reversed on appeal. The test set out in Wednesbury has been met. Thus for this further reason I would allow the appeal.

[10] The final ground which the respondents relied upon for refusing the application was the displaying of genitalia by eight dancers on 2 May 2009. There had also been touching between performers and patrons. The appellants accepted that this had occurred. This was in breach of the respondents' policy statement. I noted from the stated case and the transcript of proceedings which Mr Skinner invited me to have regard to, and with which Mr Blair took no issue, that the dancers in question had previously worked in Edinburgh where the exposure of genitalia is not prohibited in lap dancing clubs. Furthermore the dancers had not been permitted to dance on the premises since the incident. However, what seemed to cause concern to the respondents was the lack of any intervention by the stewards during the 30 minute period when eight separate dancers removed their lower garments to their knees. The respondents took this to be an indicator that the appellants were prepared to tolerate breaches of the respondents' policy statement. The respondents were also critical of the means by which the appellants drew to the attention of the dancers that they had to comply with the appellants' in-house rules and regulations and the system in place for monitoring compliance. In my opinion the respondents were entitled to the come to the view that the appellants had disregarded the terms of the policy statement regarding the exposure of genitalia and touching beyond hand to hand contact and in this respect I would not have allowed the appeal.

[11] However, Mr Skinner further submitted that there should not be provision in the policy statement regarding the exposure of genitalia, and the prohibition against touching between dancers and patrons, unless the prohibition could be said to promote one or more of the licensing objectives. He referred me to Section 4 of the Act where the licensing objectives are set out. I was then directed to Section 6(3) of the Act which provides that the policy statement "must ensure that the policy stated in the statement seeks to promote the licensing objectives..." Mr Skinner submitted that it could not be said that the prohibition promoted any one of the objectives. Mr Blair submitted that the respondents relied upon the objective to prevent crime and disorder. Mr Skinner drew my attention to the view of the police that lap dancing clubs do not tend to cause disorder. On page 68 of the transcript the appellants' agent is recorded as stating to the Board at its hearing on 1 June 2009 that the view of the police was "That this type of club is one that really causes little in the way of problems from a policing perspective." I note that at the hearing, Chief Inspector Neil was present and would not appear to have contradicted this assertion. In his submission, Mr Skinner questioned what form the disorder might take were genitalia to be exposed. He mused as to whether patrons might have a heart attack or whether patrons might be overcome by lustful desires and attack the dancers. He submitted that there is no similar prohibition in many cities in the UK. There was no evidence, he submitted, that the lowering of briefs had caused disorder problems in such cities. He referred me to Risky Business Ltd v City of Glasgow Licensing Board 2000 SLT 923 as authority for the proposition that the appellants were entitled to know what local knowledge and experience the Board had brought to bear on the issue. The appellants were entitled to know what evidence the respondents had relied upon to support their decision. He further submitted that the respondents had to always bear in mind that they were concerned with the sale or supply of alcohol and what was in issue was a licence to permit the sale of alcohol and no more. He referred me to Mitchells & Butler Ltd v Aberdeen City Licensing Board 2005 SLT 13 where a Board was held to have no power to require licensees to set minimum prices for alcohol. He submitted that it was the function of the Board to ascertain the use to which the premises were to be put and then address whether such use was consistent with the sale of alcohol, and no more. The respondents could not dictate that premises were not to be used as a driving school, for example, but they would be entitled to refuse a licence to enable alcohol to be sold from premises from which a driving school operated. He also referred me to the case of La Belle Angele v City of Edinburgh Licensing Board 2002 SLT 801 in which a licensee was refused a regular extension of permitted hours until 3.00 am due to fly posting carried out by promoters who were independent of the licensee. The court held that fly posting was not "a necessary consequence of the use of the premises for the sale of alcohol". He also submitted that the respondents required to give proper reasons for their decision. In that regard I was referred to Mirza v City of Glasgow Licensing Board 1996 SLT 1029 and Wordie Property Company Ltd v The Secretary of State for Scotland 1984 SLT 345. He also submitted that not only must there be a proper reason but there must also be a proper basis in fact to support the reason. As authority for that proposition I was referred to Leisure Inns UK Ltd v Perth & Kinross District Licensing Board 1991 SC 224 and in particular at 233.

[12] In reply, Mr Blair submitted that the reference to "disorder" in Section 4 and in the policy statement stopped short of criminal activity. When pressed as to what form the disorder might take, he submitted that the exposure of genitalia was in itself a form of disorder. The touching of a dancer by one of the patrons of the club would also be a form of disorder. Disorder, it was said, was an elastic term and it was for the respondents to determine what constituted disorderly behaviour. The court could only interfere with the respondents' decision if the court held that the respondents' approach was so unreasonable that the test set out in Wednesbury was met. At this juncture a dictionary (Collins) was obtained and disorder was found to mean "a disturbance of public order or peace". Mr Blair then referred me to the cases of Calderwood v Renfrewshire Council 2004 SC 691 and Ahmed v North Lanarkshire Council 1999 SLT 1064 to explain the role of policy in administrative decision making and for judicial recognition that a policy can have the status of a rule. It was said that a Board could not be expected nor called upon to set out the evidence to support a policy as that would undermine the whole value of policy. The Mitchells & Butler case was an illustration of a decision of a Licensing Board being ultra vires. The respondents' approach was not ultra vires. The respondents' policy did not pre-determine the outcome as the respondents were prepared to listen to individual cases. Exemptions from the policy were permitted but the appellants had not sought such. The decisions in cases such as Leisure Inns, Mirza and Wordie were of limited assistance to the appellants as it was sufficient for the respondents to say that the reason for refusal was the failure of the appellants to comply with the terms of the respondents' policy statement.

[13] It is quite clear that the Act has changed the manner in which Licensing Boards must operate. The requirement to publish a policy statement, and to consult before publication, has also altered the previously established legal framework. Mr Skinner is correct in submitting that when refusing an application made under the Licensing (Scotland) Act 1976, a Licensing Board required to give proper reasons with a satisfactory evidential basis. However, now that every Licensing Board requires to have a policy statement, it seems to me that it is sufficient for a Board to refuse a licence on the basis that the application breaches that policy statement always providing that the Board is prepared to admit exemptions to the policy if there is specific justification for departing from it. It was well put by Lord Weir in Elder v Ross & Cromarty District Licensing Board 1990 SLT 307 as quoted in Calderwood:-

"However, such a declared policy may be objectionable if certain conditions are not fulfilled. A policy must be based on grounds which relate to and are not inconsistent with or destructive of the purposes of the statutory provisions under which the discretion is operated. Moreover, the policy must not be so rigidly formulated so that, if applied, the statutory body is thereby disabled from exercising the discretion entrusted to it. Finally, the individual circumstances of each application must be considered in each case whatever the policy may be. It is not permissible for a body exercising a statutory discretion to refuse to apply its mind to that application on account of an apparent conflict with policy."

The policy to which Lord Weir was referring would not have been a formal policy as now required by the Act. Should an applicant take issue with the terms of a Board's policy statement the applicant is not without a remedy. The respondents are prepared to entertain applications for an exemption. In any event, I note from Section 6(4) of the Act that when the Board is exercising its functions under the Act it is only provided that it "must have regard to the licensing policy statement". It does not provide that the Licensing Board is obliged to slavishly follow what is contained in the licensing policy statement. In this appeal the appellants sought to argue that the terms of the policy statement in relation to the performance of adult entertainers could not be said to promote any of the licensing objectives set out in Section 4 of the Act. I agree with Mr Blair that once a policy has been issued it is unnecessary for a Licensing Board to have to justify the terms of the policy either at the hearing of an application or on appeal. That would defeat the purpose in having a policy statement.

[14] I do not think it is open to this court to say whether the respondents' policy statement when it addresses the issue of how dancers should perform either promotes or seeks to promote the licensing objectives set out in Section 4 of the Act. That is a matter for the Board and their consultees exercising their background knowledge and experience. In any event, I note that Section 6(3) only requires a Licensing Board to ensure that the policy stated in the statement seeks (my emphasis) to promote the licensing objectives. Whether the respondents' statement seeks to promote the licensing objectives might be a different test than whether the policy does promote the licensing objectives. I was not addressed on whether it is appropriate to draw such a distinction. It also seems to me that evidence might be required, or at least some agreed evidential base, before an opinion could be formed as to whether the Board's policy with regard to the performance of dancers could on any view promote or seek to promote the policy objectives. Although I was not formally addressed on this issue it appears to me, at least on a preliminary view, that such a challenge should probably be made in a process for the judicial review of the respondents' decision to issue a licensing policy statement in the terms which they did. I, on the material before me, cannot say whether the banning of the exposure of female genitalia by dancers in an establishment where alcohol is on sale is likely to seek to prevent crime and disorder. I appreciate that in Risky Business, a case involving a similar application, the Inner House held that the application should have been granted because the Licensing Board did not identify what background knowledge or experience they had relied upon and there was no material before the Board which any reasonable Board could have considered justified a refusal. However, given the new statutory basis for a policy statement, with the requirement to consult before issuing the policy, I believe that it is enough for a Board to refuse an application on the basis that it breaches the published policy statement, providing always that in so doing the Board approaches the application of the policy statement in a reasonable manner and is prepared to admit exceptions to the terms of the policy statement. On the other hand, I think it is open to this court to come a view on whether it is appropriate for the respondents' policy statement to make provision for sanitary conveniences, for example, as that issue can be determined as a matter of construction of the Act and the guidance issued by Scottish Ministers. It is not an issue which depends upon the experience and local knowledge of the respondents.

[15] I have accordingly answered the questions in the stated case in the affirmative and in accordance with the position adopted by both counsel I have remitted the case to the respondents with a direction to grant the application. The appellants have been successful and it was agreed that the expenses of the appeal should follow success. Parties were agreed that the case was suitable for the employment of junior counsel and I have so found.