R (Thompson) v Oxford City Council (Spearmint Rhino Ventures (UK) Ltd intervening)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones,Lord Justice Longmore,The Master of the Rolls |
| Judgment Date | 11 February 2014 |
| Neutral Citation | [2014] EWCA Civ 94 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2013/1844 |
| Date | 11 February 2014 |
[2014] EWCA Civ 94
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR. JUSTICE HADDON-CAVE
CO/10908/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Longmore
and
Lord Justice Lloyd Jones
Case No: C1/2013/1844
and
Gerald Gouriet QC and Jeremy Phillips (instructed by Berwin Leighton Paisner LLP) for the Appellant
Ranjit Bhose QC (instructed by Jeremy Thomas, Head of Law & Governance of Oxford City Council) for the Respondent
Philip Kolvin QC (instructed by Robert Sutherland of Jeffrey Green Russell Ltd) for the Intervener
Hearing date: 27 January 2014
Approved Judgment
Introduction.
This is an appeal by Mr. Alistair Lockwood Thompson ("the appellant") against the Order of Haddon-Cave J. dated 28 June 2013 dismissing his claim for judicial review of Oxford City Council's ("the Council") refusal on 24 September 2012 to renew a licence for a sexual entertainment venue ("the SEV licence") for a lap-dancing club known as "The Lodge" at Oxpens Road in Oxford.
The statutory background.
As originally enacted, the provisions in Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982 ("LGMPA 1982") concerning the licensing of "sex establishments" were limited to the regulation of sex cinemas and sex shops. They did not include other sexual entertainment venues such as strip clubs or lap-dancing clubs, which were subject to the licensing regime under the Licensing Act 2003. However in 2009 Parliament brought lap-dancing clubs within the licensing regime of Schedule 3 to LGMPA 1982. Section 27 of the Policing and Crime Act 2009 ("PCA 2009") amended the definition of "sex establishments" in paragraph 2 of Schedule 3 to LGMPA 1982 so as to include a "sexual entertainment venue". Local authorities were given the option of adopting Schedule 3 as amended so as to give effect to the new regime in their area.
By resolution passed on 19 April 2010 Oxford City Council resolved to adopt the amended Schedule 3 to LGMPA 1982. The resolution included the following statement:
"(c) That "Sexual Entertainment Venues" are not generally appropriate near or in locations or areas containing any of the following:
(i) Historic buildings or tourist attractions.
(ii) Schools, play areas, nurseries, children's centres or similar premises.
(iii) Shopping complexes.
(iv) Residential areas.
(v) Places of worship."
Whereas previously, under the Licensing Act 2003, licences had been of an indefinite duration, under the LGMPA 1982 licences for lap-dancing clubs may only be granted for a maximum of a year and therefore have to be renewed at least annually. Paragraph 8 of Schedule 3 gives appropriate authorities the power to grant or renew SEV licences and draws no distinction between fresh applications and renewal applications.
The statutory grounds for grant or renewal or refusal are set out in paragraph 12 of Schedule 3. Paragraph 12(2)(a) provides that the authority may refuse an application for the grant or renewal of a licence on one or more of the grounds specified in Paragraph 12(3) which provides as follows:
"(3) The grounds mentioned in sub-paragraph (2) above are—
(a) that the applicant is unsuitable to hold a 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) …."
Paragraph 10(2) of Schedule 3 provides:
"Where the appropriate authority refuse to grant, renew or transfer a licence, they shall give him a statement in writing of the reasons for their decision."
The effect of paragraph 27 of Schedule 3 is that appeals against refusals on the grounds specified in paragraph 12(3)(a) and (b) are to a Magistrates' Court and then the Crown Court, whereas refusals on the grounds specified in paragraph 12(3)(c) and (d) are subject only to review by the High Court.
The Home Office Guidance on Sexual Entertainment Venues published in March 2010 states (at para. 3.36) that "the relevant locality" does not have to be a clearly pre-defined area and that local authorities are free to conclude that it simply refers to the area which surrounds the premises.
The Pennyfarthing Place premises.
The appellant had previously operated a similar establishment, also called The Lodge, at premises at Pennyfarthing Place in Oxford. A Public Entertainment Licence had been in force in respect of those premises from at least 1996. From 2007 the appellant and his business partner, Mr. Opher, ran The Lodge as a bar and nightclub as tenants of the landlord and licensee, Greene King Retailing Limited ("Greene King").
On 14 October 2009 Greene King applied for a licence variation to alter the layout of the premises in Pennyfarthing Place and to add the licensable activities of "film, performance of dance, facilities for making music and anything of a similar description". This variation was sought in preparation for the operation of the premises as a lap-dancing club. Objections were made to the variation, particularly in light of the proximity of the premises to St. Ebbe's Church. On 10 December 2009 Greene King's application for variation of the licence was granted. An appeal against the grant of the licence by the Rector of St. Ebbe's Church was subsequently dismissed by Oxford Magistrates' Court on 30 June 2010.
On 10 February 2010 the Council granted a licence to the claimants specifically for the operation of the Pennyfarthing Place premises as a lap-dancing club. The Lodge operated as a lap-dancing club continuously thereafter until March 2011 when a renewal of the licence was refused.
Following the Council resolution of 19 April 2010 adopting the new licensing regime under the amended Schedule 3 to the LGMPA 1982, the appellant had to apply for a licence under the new regime to enable the Pennyfarthing Place premises to continue to operate as a lap-dancing club. On 2 March 2011 the Council's Licensing and Registration Sub-Committee ("the Sub-Committee") heard the appellant's application for an SEV licence for the Pennyfarthing Place premises. The application was refused. On 1 April 2011 the appellant lodged a claim for judicial review of the refusal. The premises at Pennyfarthing Place were closed on 10 June 2011. The application for judicial review was subsequently discontinued on 22 September 2011 following the grant of an SEV licence in respect of the Oxpens Road premises.
The Oxpens Road premises.
The appellant decided to move the club to a new location at premises in Oxpens Road, Oxford, which had previously been occupied by a bar called The Coven. On 19 May 2011 he made an application for an SEV licence for those premises in Oxpens Road which are located about half a mile from the centre of Oxford.
On 12 July 2011 the Licensing and Registration Sub-Committee of the Council heard the application in respect of the Oxpens Road premises. The Committee was addressed by Mr. Gouriet QC on behalf of the appellant and by a number of objectors, including Mr. John Payne, Solicitor, for St. Ebbs Church. At the meeting Mr. Gouriet amended the application so that the licence, if granted, would permit the premises to open at 11.00 p.m. rather than 9.00 p.m.
On 18 July 2011 the Sub-Committee published its decision granting to the appellant an SEV licence for the premises at Oxpens Road for one year ("the 2011 decision"). It is necessary to set out the reasons in full:
"[The Sub Committee examined all the documents submitted and considered all the representations made at the hearing. It had particular regard to the written objections concerning the location of the premises and the Council resolution of 19/04/2010 (the Resolution) concerning generally inappropriate locations for sexual entertainment venues.
2. The Sub Committee noted that government guidance and case law made clear that moral objections to sexual entertainment were not relevant to consideration of the Application. With this in mind the Sub Committee disregarded any passages within the representations received which expressed moral concerns.
3. The Resolution states 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...
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