Refusing the Renewal of Sex Establishment Licences
| Date | 01 March 1990 |
| Author | Colin Manchester |
| Published date | 01 March 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01809.x |
The
Modem
Law Review
[Vol.
53
process’.62 That criticism has yet to be tested, but seems exaggerated. Whether the
plurality’s restraint is to
be
admired or condemned is a question which depends on larger
ones, of the balance between the Supreme Court and local democracies, and of the role
of the Supreme Court in deciding contentious issues.
Refusing the Renewal
of
Sex Establishment Licences
Colin
Manchester*
The question of the scope of discretion when considering a renewal application for a licence,
as distinct from the grant of an initial licence, was considered recently by the Court of
Appeal in
R
v
Birmingham City Council
ex
parte Sheptonhurst
Ltd.‘
The proceedings
concerned an appeal by Sheptonhurst Ltd, operators of a national sex shop chain, against
the refusal of judicial review of
the
decisions of four local authorities
-
Birmingham,
Bury, Norwich and Rushmoor
-
refusing to renew licences for shops operated by the
company.
In
all cases the authorities had refused renewal on the ground that it would
be inappropriate having regard to the character of the locality where the premises were
situated and, additionally in the cases of Birmingham and Rushmoor, on the ground that
it would
be
inappropriate having regard to the use to which premises in the vicinity were put.
The main issue for determination was whether the discretion to refuse to renew a licence
was different from the discretion to refuse to grant a licence and if
so
what limitations
there were on the discretion to renew. The applicants submitted that the discretion to renew
was limited
in
that a licence holder had a legitimate expectation that the licensing authority
would act consistently and fairly when considering a renewal application and that consistency
and fairness required that renewal should not
be
refused unless there had been some change
in the relevant circumstances or some overriding matter of public concern had emerged.
Since the licences had not been refused at the outset when the applications were made,
the authorities had presumably taken the view that the shops were not inappropriately
located.
The applicants accordingly contended that renewal could not subsequently be refused on
locality grounds
anless
there had been some change
in
the character of
the
relevant locality
or in the use to which premises
in
the vicinity were put.
For
three authorities, it was alleged
that there had been some change (although this was disputed by the applicants), but in
the case of Birmingham, where the shop was located in the Bull Ring Shopping Centre
in the middle
of
the city, it was conceded that there had been no change. Nevertheless,
the authority’s Licensing Sub-Committee (which was differently constituted from previous
years) took the view that it was not limited in its discretion on a renewal application, and
was entitled to look at the matter afresh and determine whether the shop was appropriately
or inappropriately located. This view was endorsed by the Court of Appeal, which decided
that an unfettered discretion existed both for grant and renewal, the only difference being
that there was an obligation to take into account that the applicant was an existing licence
holder in the case of a renewal, and that no change of circumstances was necessary to
justify refusal to renew. An authority would be justified in refusing renewal provided the
grounds would have justified a refusal to grant a licence initially.
There was no authority on the issue directly in point and reliance was placed on a number
of authorities in the liquor licensing field.
In
R
v
Windsor Licensing Justices ex parte
62
*Lecturer in Law, University
of
Birmingham.
At
p.
20,
n
11
of
the
dissent.
1
The
Zhes,
29
June
1989.
248
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