Oxford City Council wins lap dancing club judicial review claim in the High Court
The High Court has rejected Alistair Thompson's claim for Judicial Review of a decision by Oxford City Council's Licensing Sub Committee on 24 September 2012 to refuse his application for a Sexual Entertainment Venue (SEV) licence in respect of premises known as The Lodge, located at Oxpens Road, Oxford.
Mr Thompson had previously, successfully, applied for a licence permitting lap dancing in respect of premises at Pennyfarthing Place in Oxford in 2009.
Since 2010 however, lap dancing clubs have been brought within the same licensing regime as sex shops, sex cinemas and other "sex establishments". Oxford City Council adopted the new legislative regime in April 2010.
In May 2011, Mr Thompson lodged a fresh application for an SEV licence for new premises on Oxpens Road, located about half a mile due west of Pennyfarthing Place and about three quarters of a mile from the centre of Oxford, St Giles and the High Street.
Applicants such as Mr Thompson now need to apply every year for a licence unlike the previous regime under the Licensing Act 2003. Furthermore, when considering an application for an SEV licence, local Licensing Sub Committees have a wider discretion than ever before in that they are now permitted to refuse an application on the basis that to grant a licence would be 'inappropriate' having regard to the character of the locality and the use to which any premises in the vicinity are put.
Local authorities can take into account any "strong body of feeling in the locality" and to add to the woes of potential applicants, the case law has endorsed the view that the legislation recognises that circumstances in which a licence was granted may change and there can be no expectation of annual renewal.
Not only do local authorities have a wider discretion at the decision making stage but the extent to which courts will supervise the exercise of their discretion is also limited because the only way of challenging a decision to refuse a licence on 'inappropriate' grounds is to make a claim for judicial review, which can be very costly.
On 12 July 2011 the hearing of Mr Thompson's application for an SEV licence for the Oxpens Road premises took place before the Licensing and Registration Sub Committee of Oxford City Council.
The Sub Committee granted the licence and in doing so had regard to the Resolution of Oxford City Council relating to the adopting of the new licensing regime in 2010 namely that: Sexual entertainment venues are not generally appropriate near or in locations / or areas containing any of the following:
- Historic buildings or tourist attractions;
- Schools, play areas, nurseries, children's centres or similar premises;
- Shopping complexes; residential areas; and
- Places of worship.
The Sub Committee considered representations about the proximity of the proposed premises to the Oxford Ice Rink, Cherwell Valley College (and West Gate Shopping Centre) and residential housing.
The Sub Committee concluded that neither the Oxford Ice Rink nor the Oxford & Cherwell Valley College fell squarely within any of the categories and was satisfied that amended hours of operation at the proposed premises would mean that the College would be closed and public skating sessions over way before any sexual entertainment began.
The Sub Committee also found that whilst the premises were between two residential areas in Oxford, they could not reasonably be considered to be in or sufficiently near them to engage the Resolution. The Sub Committee was of the view that the Resolution focused on the welfare of children and prevention of nuisance and crime and that with appropriate conditions the premises could operate without aggravating these aims.
Mr Thompson proceeded to operate The Lodge as a lap dancing club with effect from 17 November 2011. Lap dancing continued there happily for the next twelve months without incident.
Given the change in the law though, it was necessary for Mr Thompson to apply to renew the licence in July 2012. His application was considered by a differently constituted Sub Committee on 24 September 2012.
Mr Thompson contended that there had been no change in character in the twelve months that had passed since the application was approved by the 2011 Sub Committee. He pointed out that Thames Valley Police had not made any objections to the licence and that the conditions added to the licence by the 2011 Sub Committee were being strictly adhered to and in particular owing to the lack of advertising on the premises no-one would know that The Lodge was operating as a lap dancing club – it was innocuous.
However the application for a renewal attracted considerable opposition and a number of representations against the application were made.
The principal objections were that there was evidence that there were some night time sessions going on at the Oxford Ice Rink, which were in turn much used by student sporting groups. Others noted that the ice rink was a family facility. There were also representations to the effect that Oxford & Cherwell Valley College had a nursery attached and held classes in the evening. The Chair of St Ebbes New Development Residents Association recorded it was open for use by its pupils until 22:00 hrs.
There was also evidence that the Oxpens Road car and coach park was less than 100m away and was referred to in correspondence as a place where visitors arrive from "all over the world" to visit Oxford. Objection was also taken on the basis that the area consisted overwhelmingly of residential accommodation with one objector referring to there being a number of student accommodation developments in train in the area.
There were also representations from women who felt threatened and uncomfortable walking past The Lodge having been harassed by individuals in the street who had left the club.
The Sub Committee in 2012 disagreed with the 2011 committee on every point. They concluded that the premises were near the Oxford Ice Rink, Oxford & Cherwell Valley College and the Oxpens car and coach park. This was despite the fact that the buildings were in the same place! They went on to conclude that the increase in concentration of student accommodation in the area including development of student housing at Luther Court, Mill Street and Park End Street meant an increased use of the locality by "young and possibly vulnerable students" as a route to and from their accommodation.
They also noted that many of the representations received indicated that there had been a negative change in the character of the vicinity brought about by the opening of the premises including a hostile atmosphere in the locality and a heightened fear of the risk of sexual violence. It was agreed though that no crime had been reported that related directly to the use of the Lodge as an SEV.
But wasn't this a second 'bite at the cherry' for the objectors?
Despite the fact that Mr Thompson had been granted a licence, and that the premises were in exactly the same place as the year before, with no one having complained about his operation of the premises, he had been deprived of the licence to operate. He argued he had spent tens of thousands of pounds on a business and provided considerable local employment into the bargain, on the back of his licence which was granted to him but which had now been taken away from him through no obvious fault of his own.
Blake Morgan has successfully acted for a client in Salisbury found himself in an identical position to Mr Thompson. In our client's case he had been granted an SEV licence under the existing licensing regime, only for that to change so that he then had to go back to the local Council and fight for the licence to be renewed every year under the new regime.
This comes despite the fact that no complaint had been made about the manner in which the premises were being run and that it had been operating happily for years. The firm argued on our client's behalf that (as in Mr Thompson's case) there was no direct evidence of crime or disorder attributable to the running of the premises as an SEV and that the premises had been trading happily and without incident for years.
Our client won his case because the Sub Committee was persuaded about the lack of reliable evidence put forward by objectors. Our client was understandably pleased to have been successful but the fact remains that he will have to apply every year for the licence to be renewed and that will not be an easy task.
Mr Thompson sought a Judicial Review of that decision on three grounds:
- Insufficiency of reasons;
- Taking into account irrelevant and / or inaccurate considerations; and
- Apparent bias in a member of the Sub Committee.
The matter of bias was dismissed at the outset in part due to the applicant's silence on this matter prior to at the hearing of the Sub Committee when the renewal application was determined on 24 September 2012.
Haddon-Cave J also held that notwithstanding that, the merits of the complaint relating to alleged bias was so that no reasonable minded individual knowing the facts would have considered that the Councillor in question was biased in relation to the application.
In relation to Ground 2, Haddon-Cave J held that as matter of law licensing decision makers are entitled to take into account both the present and future character of an area and there is no reason to limit the reference to character to the present. The Judge concluded that there was ample evidence before him to justify the conclusion that the 2012 Sub Committee reached, in relation to increasing concentration of student accommodation in the area.
The greatest part of the Judgement is given over to Mr Thompson's complaint that the 2012 Sub Committee gave inadequate reasons for reaching a different view on his application to other councillors just twelve months earlier despite there having been no complaints or incidents reported to the police and the police having no ongoing objection to either the premises being run as a lap dancing club or Mr Thompson being the person running such a club.
In the present case Haddon-Cave J rejected the argument that the Sub Committee in 2012 had failed to provide adequate reasons pointing out that the ground for refusal could in his view "clearly be gleaned" namely that "renewal of the licence would be inappropriate having regard to the character of the relevant locality or use to which premises in the vicinity are put".
Haddon Cave J also concluded that the 2012 Committee was entitled to place more emphasis on some factors (such as the coach park) than the 2011 Sub Committee had done. The Judge rejected the claimant's criticism of the 2012 Committee in failing to mention in its reasons any of the positive points the 2011 Committee had made in granting the application.
As a matter of fact though it would seem from the 2012 reasons (re-produced in full in the Judgement) that the 2012 Sub Committee did not make reference to those points which were made in 2011 in favour of the application being granted.
The 2012 Committee noted that there was no evidence of actual violent incidents although there was a 'heightened fear of the risk' of such violence. We would advise potential applicants that this is the effect of Parliament bringing into force the new licensing regime and giving local authorities such wide discretion; different panels can reach different decisions about the same premises even if no complaint has been made about them if the subsequent panel deems the application would be 'inappropriate'.
The argument that a premises licence is an item of property that attracts property rights under international and domestic human rights law does not seem to have been argued fully before the High Court.
However in his evidence before the Sub Committee Mr Thompson pointed out that he had invested tens of thousands of pounds in good faith on the strength of his being granted a licence (as our own client had done) only to see the rules change and him having to surrender that licence despite the fact that the premises had been operating perfectly happily and no one ever having complained about the running of the venue.
We cannot imagine that the public at large would consider it could be right to permit a business to operate under licence so that they invest in their business only to change the rules and require them to have to get another licence every year.
Guidance issued by the Secretary of State accepts that it is improper for Council's to grant licences, then adopt a Cumulative Impact Policy and then seek to curtail the hours of operation etc of premises under those licences by means of a premises licence review. The analogy with the present case is clear.
It must be right that a person who is granted a licence to carry on an activity at premises must be allowed to continue with that activity until such time as there is sufficient complaint about the use of those premises for that activity. That did not happen in Salisbury and it did not happen in Oxford, yet Mr Thompson is now deprived of his licence.
Mr Thompson has said that he will appeal this decision to the Court of Appeal and it is envisaged that The Lodge will continue opening pending the outcome of that further appeal.
We imagine that this case will run and run for a good while yet.