Business premises – Sexual entertainment venue (SEV) licence – Renewal – Claimants each owning lap-dancing club operating under one-year SEV licences – Claimants applying for renewal of licences –Defendant local authority refusing applications – Claimants seeking judicial review – Whether defendants erring in law – Whether adequate reasons being given for refusal to renew licences – Applications dismissed
The claimants each owned a lap-dancing club in Leeds which were sexual entertainment venues (SEVs) within the meaning of the Local Government (Miscellaneous Provisions) Act 1982, as amended by section 27 of the Policing and Crime Act 2009. In 2012, the defendant local authority reviewed its policy to be applied when granting licences to sex establishments and considered the renewal of licences for a number of similar establishments. There was a quota of four licences potentially available and the defendants refused to renew the licences for the claimants’ clubs. The claimants both sought judicial review of the defendants’ decision.
The claimants contended, among other things, that the defendants’ approach to ranking the premises applying for the renewal of their sexual entertainment licences breached the rules of natural justice in that the claimants were not informed that such an exercise was part of the decision-making process and were not informed of the criteria used in ranking the premises. Further, the defendants had erred in law in deciding that, irrespective of the ranking, the premises were excluded from the maximum of four because of their location near to properties in sensitive locations. The defendants had also erred in conflating paragraphs 12(3)(c) and (d) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 and deciding, on the discretionary ground under paragraph 12(3)(d) that the grant or renewal of the licence would be inappropriate.
Held: The applications were dismissed.
(1) The provision of amplified reasons was appropriate where a disappointed applicant complained that the reasons given were inadequate. Generally they should only elucidate what had been provided before. Where reasons were provided after a decision was challenged, they had to be scrutinised carefully to see whether they were new reasons contrived to provide an ex post facto justification or genuine amplification of the reasons already given. The provision for annual renewal of licences meant that the local authority was entitled to have a fresh look at the matter. If there had been no change in circumstances since an earlier decision and the local authority wished to depart from an earlier decision, it had to give its reasons for so doing: R v Birmingham City Council, ex parte Sheptonhurst Ltd [1990] 1 All ER 1026 applied.
(2) On an application to renew an SEV licence it was not necessary for an objector to demonstrate that something had changed since the decision granting the licence. Were the position otherwise, the efficacy of annual reconsideration would be much reduced. However, the decision maker had to have due regard to the fact that a licence had been previously granted. If there was no relevant change of circumstances, the decision maker had to give his reasons for departing from the earlier decision. The need to explain why a different conclusion was reached formed part of the function of reasons as a safeguard of sound decision making. It also flowed directly from the requirement that the reader had to be able to understand why the matter was decided as it was, with the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasons for not reaching the same conclusion as a previous decision were infinitely variable and might range from where a subsequent committee took a different view of unchanged circumstances to where circumstances had changed to such an extent that the basis for the previous decision had ceased to apply. Wherever in that spectrum a case might lie, the over-riding principle was that the reasons for the new decision had to be intelligible. Where a decision might be seen as differing from an earlier decision, it would almost invariably be necessary for the later decision at least to acknowledge the existence of the earlier: it was not possible to be prescriptive about what more was required to show that the later decision maker had given it any weight that is appropriate. Subject to the obligation to give adequate reasons and to have due regard to earlier decisions, a later committee was entitled to take a fresh look and was not bound in any way by the views of an earlier one: R v Birmingham City Council, ex p. Sheptonhurst Ltd [1990] 1 All ER 1026, South Bucks District Council v Secretary of State for Transport, Local Government and the Regions [2004] 4 PLR 50 and R (on the application of Thompson) v Oxford City Council [2014] EWCA Civ 94 applied.
(3) If the licensing regime engaged the human rights of operators of lap dancing clubs at all, it did so at a very low level. The running of a lap dancing venue was an area of social control in which the broad power of judgment entrusted to local authorities by the legislature was accorded a wide margin of appreciation. If the local authority exercised that power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on European Convention rights. The question in every case was whether the applicant’s rights had been infringed, which was a question of substance and generally not simply one of procedure. Proportionality required the striking of a fair balance between a claimant’s economic interests and the general public interest: Tre Traktorer Aktiebolag v Sweden (1991) 13 EHRR 309. Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420 considered.
(4) On the evidence in the present case, the defendants had been entitled to reach their conclusions on the comparative sensitivity of the various premises. The decision letter reflected and explained that the clubs could not meet the requirements of the defendants’ policy and there was no arguable basis on which it could be said that it had been irrational for the defendants to regard the clubs’ proximity to sensitive premises as more objectionable than other clubs. There had been no error of law or irrationality in deciding that the number of sex establishments had been equal or had exceeded the number appropriate for the locality. There was no basis upon which the court could properly intervene. Furthermore, on its proper construction, the decision letter had addressed both paragraphs 12(3)(c) and (d) of Schedule 3 to the 1982 Act in turn. The defendants had been under no obligation to issue four licences and the reasons given had been such that the claimants could not have been in any doubt as to why their applications had been refused.
David Mattias QC and Isabella Tafur (instructed by Woods Whur LLP) appeared for the first claimant; Charles Holland (instructed by Ford & Warren) appeared for the second claimant; Ranjit Bhose QC and Josef Cannon (instructed by Leeds City Council Legal Services) appeared for the defendants.
Eileen O’Grady, barrister
