Agenda and minutes

Apologies for absence were received from Councillors Gordon Blair, Rory Colville, Mary-Jean Devon, Graham Archibald Hardie, Donald MacMillan and Jean Moffat.

Councillor George Freeman declared a non-financial interest as he is an objector to this application. 

 

Mr Reppke advised Councillor Freeman that in terms of the Councillors’ National Code of Conduct, he would be required to leave the room at the point when the Committee came to determine the Application.

Report by Head of Governance and Law

The Chair welcomed everyone to the meeting and introductions were made.  He then outlined the procedure that would be followed and invited the Applicant to speak in support of his application.

 

APPLICANT

 

Mrs MacLeod spoke on behalf of the Applicant.  She advised that Mr Serapiglia was a member of a large Italian family.  His father moved to Scotland in 1956 and has had an ice-cream van since 1957.  No objections have been made in the past for Mr Serapiglia’s previous applications for renewal and there have been no objections to him in the other Council areas he operates.  Mrs MacLeod then read out the following statement on behalf of the Mr Serapiglia’s Solicitor:

 

I have been asked by Patrick Campbell Corcoran of Miller Samuel Hill Brown to represent Mr Serapiglia at today’s Hearing.  I confirm that my instructions are to ask the Board to grant the Application but not to impose on the new Licence a newly worded condition which replaced a condition on Mr Serapiglia’s previous Licence which prohibited trading within 100m of any establishment selling goods similar to those being sold by Mr Serapiglia. 

 

The New Condition which I will read out shortly comes as a result of challenges made by Mr Serapiglia and his advisors who are not happy with the newly worded condition which they consider void from uncertainty and ultra vires.

 

I am accordingly asking the Licensing Authority to use the discretion referred to and not apply the New Condition to Mr Serapiglia’s Licence.

 

Background

 

Mr Serapiglia trades in parts of Kilcreggan, Rosneath, Garelochhead, Rhu, Helensburgh, Cardross, Tarbet, Arrochar, Luss, Oban, Campbeltown, Cowal, Inveraray, Furnace, Lochgilphead, Ardrishaig and Tarbert. 

 

Two Luss shop-keepers and a Councillor have been vociferous in their opposition to Mr Serapiglia’s ability to trade in Luss and have relied upon Condition 17 of the currently extant Licence (the “100m Condition”).

 

Mr Serapiglia instructed Miller Samuel Hill Brown to apply to vary his Street Trader’s Licence by way of removing the 100m Condition.  The Application to Vary was first heard on 24^th January 2018, continued to 21^st March 2018, 16^th May 2018 and 20^th June 2018 on which date the Committee refused the Application to remove the 100m Condition. 

 

A Court challenge was raised by Mr Serapiglia’s agents.  The case did not proceed as it would not have concluded before this Hearing and it was agreed that this is the correct forum to debate the New Condition at the same time as renewing Mr Serapiglia’s Licence.

 

My instructions are to the effect that the 100m Condition and the New Condition are both ultra vires and separately void due to uncertainty.  At earlier Hearings on this matter discussion centred on the reason for the 100m Condition with some Councillors accepting that it simply amounted to an attempt to unfairly protect local shops from competition.  The Committee appears to have accepted one or both of those arguments, and have now decided upon the New Condition which is to the effect that:-

“A mobile Street Trader shall not trade in any one location for longer than 30 minutes before moving to another location, not less than 200 metres away and shall not return to a previous location within the same calendar day.  If a Licence Holder requires to trade in any one location for a duration which is longer than 30 minutes, they must ensure they have obtained the necessary planning permission and have sought and obtained exemption from the provisions of this Condition from the Licensing Authority.  This Condition shall not apply to mobile Street Traders who are operating in an area which has been defined as an “Economically Fragile Area” in terms of Argyll and Bute Council’s Local Development Plan, adopted in March 2015 (a copy of the map detailing said Economically Fragile Areas is attached as Appendix 1 to these conditions).” (the “New Condition”)

 

Luss is not an Economically Fragile Area.

 

Mr Serapiglia’s advisors consider that the New Condition is also ultra vires and also void from uncertainty.  The arguments made previously on Mr Serapiglia’s behalf, and which appear to apply to the New Condition, are as follows.

 

Ultra Vires

 

The Sheriff court decision of McCluskey v North Lanarkshire Council 2016 SLT (ShCt) 31 is the leading authority.  This case concerned a restriction on burger vans operating within 250m of any school.  At paragraph 17, the Sheriff narrates that the licensing authority was of the view that it was acting within its powers by imposing the condition in so far as it was furthering the aim of reducing childhood obesity.

 

At para. 73, the Sheriff held that a similar condition to Mr Serapiglia’s is “unqualified and amounts to a blanket ban”.  It goes on, at para. 75, to consider the terms of para. 10(1) of Schedule 1 to the 1982 Act, and at para. 76 the last sentence, the Sheriff holds that if “the effect of the condition is to require street traders to do more than a licensing authority is empowered to require of them the condition must be held to be ultra vires of the local authority.”

 

At para. 77:  “In analysing the condition the first question to be asked is what is the effect of the condition?  This will depend upon what it requires the pursuer to do…The next question to be asked is what effect, if any, this has on the street trader’s contracts or dealings with her customers.”

 

As regard the first question, the effect of the New Condition will, given (1) the small size of Luss and (2) the limited roads that it is expected that Mr Serapiglia be allowed to trade from, amount to a severe restriction on the amount of time that Mr Serapiglia be able to trade in Luss.  This will clearly be to the benefit of local shops, and reduce competition. 

 

On the second question, the effect of the New Condition will be to restrict heavily the volume of customers that Mr Serapiglia could deal with.

 

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