The Queen (on the application of Bean Leisure Trading a Ltd) v Leeds City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 25 March 2014 |
| Neutral Citation | [2014] EWHC 878 (Admin) |
| Date | 25 March 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/17374/2013 and CO/17440/2013 |
[2014] EWHC 878 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds Combined Court Centre
1 Oxford Road, Leeds
West Yorkshire
LS1 3BG
The Honourable Mr Justice Stuart-Smith
Case No: CO/17374/2013 and CO/17440/2013
David Matthias QC and Isabella Tafur (instructed by Woods Whur LLP) for Bean Leisure
Charles Holland (instructed by Ford & Warren) for Ruby May
Ranjit Bhose QC and Josef Cannon (instructed by Leeds City Council Legal Services) for the Defendant
Hearing dates: 6 & 7 March 2014
Introduction
"Wildcats" and "Deep Blue" are lap dancing clubs in the centre of Leeds. They are Sexual Entertainment Venues ["SEVs"] within the meaning of the Local Government (Miscellaneous Provisions) Act 1982 ["LGMPA"] as amended by s. 27 of the Policing and Crime Act 2009 ["PCA 2009"]. On 3 December 2013 Leeds City Council ["the Council"] made decisions refusing to renew the SEV licences for each club. Decision letters were sent on 4 December 2013. The decisions have provoked two applications for Judicial Review, the Claimants in each action being the proprietors of their respective clubs. I shall refer to the Claimant in application CO/17374/2013 as "Bean Leisure" and the Claimant in application CO/17440/2013 as "Ruby May".
The Council's decisions not to renew the licences were to take effect at 4am on Friday 13 December 2013. Bean Leisure issued proceedings on 9 December 2013 and sought interim relief. On 12 December 2013 Griffith Williams J stayed the Council's decision in relation to Wildcats pending the hearing of Bean Leisure's application for permission to bring proceedings. On the same day, Ruby May issued proceedings and HHJ Belcher sitting as a Judge of the High Court made a similar order to that of Griffith Williams J, staying the Council's decision in relation to Deep Blue pending the hearing of Ruby May's application for permission. After further orders of the Court, the applications came to be listed on 6 and 7 March 2014 for a rolled up permission hearing.
The applicable legal framework and most of the factual background is common to each of the applications. This judgment therefore follows the following course:
Summary of Conclusions
| Introduction | 1 |
| Summary of Conclusions | 4 |
| The Statutory Framework and Ministerial Guidance | 5 |
| The Council's Policies | 12 |
| The Factual Background: Bean Leisure | 22 |
| The Factual Background: Ruby May | 37 |
| The Applicable Legal Principles | 47 |
| The Bean Leisure Application | 55 |
| The Ruby May Application | 85 |
In each case I grant permission to bring the proceedings, but for the reasons set out below, conclude that the challenge fails. The Council was entitled to reach the conclusions it did, which were in accordance with its published policy. Its decisions were rational and proportionate.
The Statutory Framework and Ministerial Guidance
The powers provided under Schedule 3 of LGMPA come into operation where a local authority resolves to adopt them and takes the steps prescribed for that purpose: see s. 2(1)-(4) of LGMPA.
Paragraph 12 of Schedule 3 to LGMPA sets out various mandatory and discretionary grounds for refusing applications. The grounds that are relevant to the present applications are set out in paragraphs 12(3)(c) and (d) and are:
"(c) that the number of sex establishments 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
…"
Other relevant provisions of Schedule 3 are that:
i) Licences shall be in force for one year or for such shorter period specified in the licence as the appropriate authority may think fit: paragraph 9; and
ii) Disappointed applicants whose application is refused under paragraph 12(3) have a right of appeal to the magistrates' court unless the grant or renewal of their licence was refused on either ground specified in paragraph 12(3)(c) or (d): paragraph 27(3).
In March 2010, the Home Office published guidance for local authorities carrying out their functions under Schedule 3. The Ministerial Forward gave a clear statement of the policy aims that had driven the introduction of SEVs as a new category of sex establishment to be regulated by local authorities:
"In September 2008, the previous Home Secretary announced the Government's intention to give local people greater say over the number and location of lap dancing clubs in their area. This followed a consultation with local authorities which highlighted concerns that existing legislation did not give communities sufficient powers to control where lap dancing clubs were established.
In order to address these concerns, section 27 of the Policing and Crime Act 2009 reclassifies lap dancing clubs as sexual entertainment venues and gives local authorities in England and Wales the power to regulate such venues as sex establishments under schedule 3 of the [LGMPA].
These new measures … will, if adopted by local authorities, give local people a greater say over where and how many lap dancing clubs open and operate in their neighbourhoods.
These are important reforms to further empower local communities and the purpose of this guidance is to provide advice to local authorities, operators, local people and other interested parties on the new measures introduced by section 27 and the associated secondary legislation."
I respectfully adopt and endorse the observations of Sales J in R(ex parte KVP Ent Limited) v South Bucks DC [2013] EWHC 926 (Admin) at [12], [15] and [17]:
"12. 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.
…
15. 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.
…
17 Parliament came to consider that that regime did not adequately meet community concerns about SEVs. Parliament passed section 27 of the 2009 Act in order to bring SEVs under the same system of control as sex shops and sex cinemas. This was a deliberate act by Parliament so as to widen the grounds upon which a licence for an SEV might be refused and also to enable such discretion to be exercised annually."
To similar effect, in R (ex parte Thompson) v Oxford City Council [2014] EWCA Civ 94 at [25], Lloyd Jones LJ said:
"The Schedule 3 regime gives a wide discretion to licensing authorities, in particular in forming value judgments as to whether the grant or renewal of a licence would be appropriate having regard to the character of the locality. … Moreover, the fact that the maximum term of an SEV licence is twelve months indicates that local authorities are to keep these matters under frequent review."
At first instance in Thompson [2013] EWHC 1819 (Admin), Haddon-Cave J had said at [49] that the differing appeal treatment applied to the grounds specified in paragraph 12(3)(c) and (d):
"flags up Parliament's intention to give local authorities a wide discretion under grounds (c) and (d) without unnecessary supervisory interference of the courts."
I respectfully agree. It seems to me to be plain that Parliament's intention was to give primacy to the evaluative judgment of local authorities who have the advantage of local knowledge, the responsibility vested in them by election and the accountability to their constituents imposed by the local democratic process.
The Council's Policies
On 19 January 2011 the Council resolved to adopt the provisions of Schedule 3 of LGMPA (as amended) with effect from 1 October 2011. The intervening period was used for consultation and formulation of policy and standard conditions to be applied when determining sex establishment licences in the Leeds district. The overriding principle when determining a licensing application was that "each application will be determined on its own merit, taking into account local knowledge, this licensing policy and the guidance issued by the Home Office." 1 The 2011 Policy did not identify any locations or land uses for special treatment...
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...R (ex parte Thompson) v Oxford City Council [2013] EWHC 1819 (Admin) and 2014 EWCA Civ 94. 7 In Bean Leisure & Ruby May v Leeds CC [2014] EWHC 878 (Admin) I attempted to summarise the position at [5]–[11]. For present purposes it is only necessary to recapitulate briefly: i) The discretion......