Business premises – Sexual entertainment venue (SEV) licence – Renewal — Claimant operating lap-dancing club under one-year SEV licence – Claimant applying for renewal of licence –Defendant local authority refusing application – Claimants seeking judicial review – Whether defendants acting in contravention of constitution – Whether defendants giving adequate reasons for departing from earlier decision – Application granted
The claimant company was the proprietor of a lap and table dancing venue which had been operating in Chester city centre since 2005. In 2011, the defendant council resolved to adopt the sexual entertainment venue (SEV) licence provisions of the Local Government (Miscellaneous Provisions) Act 1982, as amended by s. 27 of the Policing and Crime Act 2009. On its first application under the new regime, the claimant was granted an SEV licence in April 2012. When that licence was coming to an end, the claimant applied for renewal. The defendants refused to renew the licence by a decision made in September 2013.
The claimant applied for judicial review of the defendants’ decision. Its main contention was that the defendants had acted in contravention of their constitution because the decision should have been taken by a panel of three but was in fact taken by twelve councillors. The claimant also argued, among other things, that the defendants had failed to give adequate reasons for departing from the 2012 decision.
Held: The application was granted.
(1) Under the terms of the defendants’ constitution, established pursuant to section 37 of the Local Government Act 2000, the licensing committee comprised 15 members and was constituted on a politically proportionate basis in line with the political composition of the defendants. The renewal of SEVs and certain other functions were to be carried out sitting as a panel comprising three members, drawn from the full committee on a politically proportionate basis. A decision taken by a council in a way that did not comply with the constitution established under section 37 of the 2000 Act would be unlawful and liable to be quashed. In a domestic context, where a council had acted in excess of their powers, the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power had been shown, was very narrow. In the EC Community, unless a violation was so negligible as to be truly de minimis and the prescribed procedure had in all essentials been followed, the discretion, if any existed, was narrower still: Berkeley v Secretary of State for the Environment [2001] 2 AC 603 applied; R (on the application of Domb) v Hammersmith and Fulham London Borough Council [2008] EWHC 3277 (Admin) considered.
The purpose and effect of the process leading to the adoption of a constitution and its publication was to require to be made publicly available the scheme of delegation of functions which were the responsibility of the executive, including delegations to individual portfolio holders. It was therefore important that the manner in which executive functions would be carried out (and to whom they were to be delegated) was published, transparent and reliable. Local authorities were corporate personalities established by statute and the process leading to the adoption and publication of the constitution was the statutory route for the delegation of functions. The power to make the decision in the present case had been sub-delegated to a panel of three by the constitution. It was not open to the full licensing committee to arrogate the delegated power to itself. The fact that the decision was taken by twelve members of the licensing committee rather than a panel of three was not negligible on the facts of the present case. There could be no certainty how twelve members or a panel of three which was constituted in line with the political composition of the council would have voted. Accordingly, the 2013 decision had to set aside because it was taken by a group of people who had no power to take it.
(2) If those deciding the application had been properly constituted, the court would have refused to set the decision aside. The reasoning in the decision letter was clear. While being predominantly commercial, the area had been regarded by the 2013 committee as giving greater prominence to the residential accommodation than had been accorded to it in 2012. They had also concluded that the location of the premises in that area had an impact on the character of the locality. Those conclusions were sufficient to justify refusing to renew. The defendants were not obliged to be more specific about the nature or extent of the impact of the premises on the character of the locality. The nature of the objections were well known in advance and the decision that the location of the premises was detrimental given the age, extent, rarity and archaeological importance of the location and the fact that it presented an iconic and unique townscape for the city was comprehensible to anyone engaged with the issue of licensing sex establishments in a city centre. Further, the decision letter grasped the nettle of the previous decision, giving reasons for the conclusion reached and enabling the reader to understand why the decision maker had decided as it had: R (on the application of KVP Ent Ltd) v South Bucks District Council [2013] EWHC 926 (Admin), R (on the application of Thompson) v Oxford City Council [2013] EWHC 1819 (Admin); [2013] EGLR 21; [2014] EWCA Civ 94 and R (on the application of Bean Leisure Trading A Ltd) v Leeds City Council [2014] EWHC 878 (Admin) applied.
Richard Clayton QC and Sarah Clover (instructed by Poppleston Allen Solicitors) appeared for the claimant; James Rankin (instructed by Cheshire West and Chester Borough Council Legal Department) appeared for the defendants.
Eileen O’Grady, barrister
R (on the application of Bridgerow Ltd) v Cheshire West and Chester Borough Council
Business premises – Sexual entertainment venue (SEV) licence – Renewal — Claimant operating lap-dancing club under one-year SEV licence – Claimant applying for renewal of licence –Defendant local authority refusing application – Claimants seeking judicial review – Whether defendants acting in contravention of constitution – Whether defendants giving adequate reasons for departing from earlier decision – Application grantedThe claimant company was the proprietor of a lap and table dancing venue which had been operating in Chester city centre since 2005. In 2011, the defendant council resolved to adopt the sexual entertainment venue (SEV) licence provisions of the Local Government (Miscellaneous Provisions) Act 1982, as amended by s. 27 of the Policing and Crime Act 2009. On its first application under the new regime, the claimant was granted an SEV licence in April 2012. When that licence was coming to an end, the claimant applied for renewal. The defendants refused to renew the licence by a decision made in September 2013.The claimant applied for judicial review of the defendants’ decision. Its main contention was that the defendants had acted in contravention of their constitution because the decision should have been taken by a panel of three but was in fact taken by twelve councillors. The claimant also argued, among other things, that the defendants had failed to give adequate reasons for departing from the 2012 decision.Held: The application was granted.(1) Under the terms of the defendants’ constitution, established pursuant to section 37 of the Local Government Act 2000, the licensing committee comprised 15 members and was constituted on a politically proportionate basis in line with the political composition of the defendants. The renewal of SEVs and certain other functions were to be carried out sitting as a panel comprising three members, drawn from the full committee on a politically proportionate basis. A decision taken by a council in a way that did not comply with the constitution established under section 37 of the 2000 Act would be unlawful and liable to be quashed. In a domestic context, where a council had acted in excess of their powers, the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power had been shown, was very narrow. In the EC Community, unless a violation was so negligible as to be truly de minimis and the prescribed procedure had in all essentials been followed, the discretion, if any existed, was narrower still: Berkeley v Secretary of State for the Environment [2001] 2 AC 603 applied; R (on the application of Domb) v Hammersmith and Fulham London Borough Council [2008] EWHC 3277 (Admin) considered.The purpose and effect of the process leading to the adoption of a constitution and its publication was to require to be made publicly available the scheme of delegation of functions which were the responsibility of the executive, including delegations to individual portfolio holders. It was therefore important that the manner in which executive functions would be carried out (and to whom they were to be delegated) was published, transparent and reliable. Local authorities were corporate personalities established by statute and the process leading to the adoption and publication of the constitution was the statutory route for the delegation of functions. The power to make the decision in the present case had been sub-delegated to a panel of three by the constitution. It was not open to the full licensing committee to arrogate the delegated power to itself. The fact that the decision was taken by twelve members of the licensing committee rather than a panel of three was not negligible on the facts of the present case. There could be no certainty how twelve members or a panel of three which was constituted in line with the political composition of the council would have voted. Accordingly, the 2013 decision had to set aside because it was taken by a group of people who had no power to take it.(2) If those deciding the application had been properly constituted, the court would have refused to set the decision aside. The reasoning in the decision letter was clear. While being predominantly commercial, the area had been regarded by the 2013 committee as giving greater prominence to the residential accommodation than had been accorded to it in 2012. They had also concluded that the location of the premises in that area had an impact on the character of the locality. Those conclusions were sufficient to justify refusing to renew. The defendants were not obliged to be more specific about the nature or extent of the impact of the premises on the character of the locality. The nature of the objections were well known in advance and the decision that the location of the premises was detrimental given the age, extent, rarity and archaeological importance of the location and the fact that it presented an iconic and unique townscape for the city was comprehensible to anyone engaged with the issue of licensing sex establishments in a city centre. Further, the decision letter grasped the nettle of the previous decision, giving reasons for the conclusion reached and enabling the reader to understand why the decision maker had decided as it had: R (on the application of KVP Ent Ltd) v South Bucks District Council [2013] EWHC 926 (Admin), R (on the application of Thompson) v Oxford City Council [2013] EWHC 1819 (Admin); [2013] EGLR 21; [2014] EWCA Civ 94 and R (on the application of Bean Leisure Trading A Ltd) v Leeds City Council [2014] EWHC 878 (Admin) applied.Richard Clayton QC and Sarah Clover (instructed by Poppleston Allen Solicitors) appeared for the claimant; James Rankin (instructed by Cheshire West and Chester Borough Council Legal Department) appeared for the defendants.Eileen O’Grady, barrister
