R Kvp Ent Ltd v South Bucks District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sales |
| Judgment Date | 14 March 2013 |
| Neutral Citation | [2013] EWHC 926 (Admin) |
| Docket Number | CO/1927/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 March 2013 |
[2013] EWHC 926 (Admin)
Mr Justice Sales
CO/1927/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Juan Lopez (instructed by Simon & Co) appeared on behalf of the Claimant
Mr Josef Cannon (instructed by Sharpe Pritchard) appeared on behalf of the Defendant
This is an application for judicial review of a decision of the defendant Council, acting by its Licensing Sub-Committee, to refuse to grant a licence for premises owned by the claimant ("KVP") on the Uxbridge Road at George Green, Buckinghamshire SL3 6AN ("the premises") to be used as a sexual entertainment venue ("SEV"). A licence for such use is required under Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, as amended by Section 27 of the Policing and Crime Act 2009.
The decision to refuse to grant the SEV licence was taken by the Licensing Sub-Committee of the Council, composed of Councillor Peter Hardy (the chairman of the Sub-Committee), Councillor David Pepler and Councillor Alan Samson after a hearing attended by representatives of KVP and objectors on 28 November 2011. The decision was recorded in a decision notice dated the same day.
In its letter before claim, sent some eight weeks later, KVP complained about the adequacy of the reasons in the decision notice of 28 November 2011. In light of that complaint the Council undertook to go back to the Sub-Committee to ask it to explain its reasons more fully. The Sub-Committee reconvened and produced what it described as "Amplified Reasons for Refusal", dated 8 February 2012 (i.e. some two weeks after the complaint from KVP). Despite the giving of these further reasons by the Council, KVP remained dissatisfied and launched this claim for judicial review. An issue arises whether the Council is entitled to rely on the Amplified Reasons in these judicial review proceedings.
Another important feature of the case is that a different committee of the Council, the Planning Committee, decided, after a meeting on 23 November 2011, to grant planning permission for a change of use of the premises from a public house and restaurant to a lap and pole dancing club. That decision was taken by reference to relevant planning law and policies and in light of a report from the Council's planning officers ("the Planning Report"), which recommended grant of planning permission for such a change of use.
The formal grant of planning permission for that change of use was by letter dated 24 November 2011, very shortly before the hearing before the Licensing Sub-Committee on 28 November.
KVP complains that there was inconsistency between the decision of the Planning Committee to grant planning permission and the decision of the Licensing Sub-Committee to refuse an SEV licence for the premises to be used as a lap and pole dancing nightclub.
The legal framework .
The relevant licensing regime for SEVs is now contained in Schedule 3 to the 1982 Act as amended by the 2009 Act. It is distinct from the planning regime contained in the Town and Country Planning Act 1990, although there is a significant overlap between the objectives and factors relevant to the two regimes.
The control of sex establishments by way of a licensing regime was introduced for the first time in 1982 in the provisions of Schedule 3 to the 1982 Act. When first enacted this covered only a sex cinema or a sex shop. The 1982 Act gave local authorities power to refuse to grant and an equal power to refuse to renew licences for sex establishments, namely, sex shops and sex cinemas. Those powers provided under the 1982 Act come into operation only where a particular local authority resolves to adopt them and takes the steps prescribed for the purpose: see section 2(1)-(4) of the 1982 Act.
The Council adopted Schedule 3 to the 1982 Act in December 1982. Paragraph 12 of Schedule 3 sets out various mandatory and discretionary grounds for refusing applications. The ground that is relevant in the present case is set out in paragraph 12(3)(d)(i).
Paragraph 12 provides, in relevant part, as follows:
"(2) Subject to paragraph 27 below, the appropriate authority may refuse -
(a) An application for the grant or renewal of a licence on one or more of the grounds specified in sub-paragraph (3) below ...
(3) The grounds mentioned in sub-paragraph (2) above are -
(a) That the applicant is unsuitable to hold the licence by reason of having been convicted of an offence or for any other reason;
(b) That if the licence were to be granted, renewed or transferred the business to which it relates would be managed by or carried on for the benefit of a person, other than the applicant, who would be refused the grant, renewal or transfer of such a licence if he made the application himself;
(c) That the number of sex establishments, or of sex establishments of a particular kind, in the relevant locality at the time the application is determined is equal to or exceeds the number which the authority consider is appropriate for that locality;
(d) That the grant or renewal of the licence would be inappropriate, having regard -
(i) to the character of the relevant locality; or
(ii)to the use to which any premises in the vicinity are put; or
(iii)to the layout, character or condition of the premises, vehicle, vessel or stall in respect of which the application is made.
(4) Nil may be an appropriate number for the purposes of sub-paragraph (3)(c) above.
(5) In this paragraph 'The relevant locality' means:
(a) In relation to premises, the locality where they are situated; and
(b) In relation to a vehicle, vessel or stall, any locality where it is desired to use it as a sex establishment."
The width of the powers given to local authorities as licensing authorities under Schedule 3 has been emphasised by the courts. In R (The Christine Institute) v Newcastle-Upon-Tyne City Council [2001] BLGR 165, Collins J said at paragraph [17]:
"It will, therefore, be apparent that the local authority is granted a very wide discretion by the provisions of the Schedule in deciding whether or not a licence should be granted."
In my view, it is clear from the terms of paragraph 12(3)(d)(i) that a local authority has a very broad power to make an evaluative judgment whether the grant of a licence would be inappropriate having regard to the character of the relevant locality. That imports a significant evaluative power for the local authority at two levels: first, in assessing whether the grant or renewal of the licence would be "inappropriate" - which is a very broad and general concept; and, secondly, in assessing the character of the relevant locality - which, again, involves questions of fact and degree and local knowledge which import, at that level also, a broad power of evaluative judgment to be exercised by the local authority.
Paragraph 27 of Schedule 3 to the 1982 Act provides that, in most cases, an applicant aggrieved by a decision to refuse to grant him a licence or renew his licence may appeal to a Magistrates' Court against that decision. Such an appeal would, like ordinary licensing appeals, involve a consideration de novo of the application for the licence and a rehearing of the merits. There is a further right of appeal to the Crown Court.
However, in the case of refusals under paragraph 12(3)(d) the position is different. The right of appeal on the merits to the Magistrates' Court is specifically excluded. There is no statutory right of appeal.
I accept the submission by Mr Cannon for the Council that the inference from this is that Parliament plainly intended to provide that the considerations inherent in paragraph 12(3)(d) were considerations for the local authority's own evaluative judgment, subject only to the supervisory jurisdiction of this court.
SEVs were not included in the legislation in 1982 but instead fell to be considered under the provisions relating to public entertainment. In 2005, the Licensing Act 2003 replaced those provisions and SEVs fell to be considered under that Act as licensable activities governed by premises licences. However, the 2003 Act only permitted control on the grounds of the four licensing objectives, namely, the prevention of crime and disorder, the prevention of nuisance, public safety and the protection of children from harm. That regime also establishes a presumption of grant unless it can be shown, by way of relevant representations, that refusal is necessary for the promotion of the licensing objectives. Further, where a licensing authority faced with such an application has concerns, they may only refuse to grant a premises licence where conditions cannot be shown to overcome those concerns. Once granted, such a premises licence is of infinite duration, subject only to a right to review it on the application of specified parties. In particular, the centrality of the four licensing objectives to any consideration regarding grant of a licence under the 2003 Act regime meant that questions of, inter alia, the character of a particular locality or proximity of an SEV to certain establishments such as schools or places of worship could not be considered unless evidence was placed before the licensing authority to show that the proposed activity would fail to promote one or more of the four licensing objectives.
Parliament came to consider that that regime did not adequately meet community concerns about SEVs. Parliament passed section 27 of...
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