Snack van traders win Scottish licensing appeal

A sheriff has, this week, overturned a ruling banning snack van operators from operating within 250 metres of local schools.
Sheriff Vincent Smith reversed the decision of North Lanarkshire Council’s Licensing Committee to impose the condition and upheld the pleas-in-law on behalf of the traders in the case involving ‘Karen McLuskey & Others’.
Five of the businesses affected were called to a hearing where the condition was imposed on the their street trader licences and later appealed.
It’s now thought the Scottish licensing case, in which Edinburgh-based TLT solicitors represented 30 affected operators, may have repercussions for other local authorities.
It has already attracted press coverage across the UK when the case was debated at Hamilton Sheriff Court.
Stephen McGowan, partner and head of Licensing (Scotland) at TLT LLP, represented the traders at the original hearings and instructed Scott Blair, advocate, who appeared in relation to the appeal.
He said: “I am delighted for the van owners that the appeal has been upheld. In some cases, the traders have been at their location for three decades and long before the development of nearby schools.
“We argued at the original hearing that the licensing authority was acting outside its powers by using licensing law to achieve another purpose – in this case, to purportedly further a legal duty placed on the local authority to promote healthy school meals – and the Sheriff has certainly taken this point. We also argued that a licensing authority does not have power to consider nutritional standards of food sold by a licensed street trader, which Sheriff Smith has also agreed with.
“I am aware that a number of other Scottish licensing authorities have similar policies which ban snack vans from being located next to schools. So it may be that these policies will be revisited following this judgement, but it is of course now open to the licensing authority to consider any appeal to the Court of Session.”
Sheriff Smith said: “That obesity among the general population and children especially is considered problematic is not in dispute. That elected representatives wish to confront this problem and take steps to promote healthier lifestyles is to be commended. Neither of these is the issue in this case.  The issue is whether the defender, as a licensing authority, has the power to impose this particular condition upon the licences of street traders. In my judgement it does not.”

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