Councils are entitled to take “a fresh look” and change their minds - Mr Justice Haddon-Cave
In this case a decision by Oxford City Council’s licensing sub-committee to refuse an application for a renewal of a sexual entertainment licence was challenged in the High Court. The premises in question was granted a SEV licence in 2011 by the Council but a year later the Council refused to renew the same licence in the same location.
Amongst other things Mr Gouriet QC, acting for the claimant, submitted that his client “was understandably bemused and at a loss to understand why his application for an SEV licence in relation to Oxpens Road was granted in 2011 but not renewed in 2012.”
On this point, Mr Justice Haddon-Cave confirmed that, with reference to renewal applications, local authorities are entitled to take “a fresh look” at the matter and accordingly, it is open to a local authority to refuse to renew a licence even where no change in the character of the relevant locality or in the use to which any premises in the locality are put. [para. 57]
The claimant also argued that the Council had taken into account irrelevant matters by taking into account the future character of the area as opposed to the current at the time the application was made.
In rejecting this argument, Mr Justice Haddon-Cave stated “...licensing decision-makers are entitled to take into account both the present and future “character” of an area. There is no reason to limit the reference to “character” in paragraph 12(3)(d) only to the present character of the area. Indeed, it would make no sense to do so in the context of prospective licenses which were to be granted for 12 months in the future. Prospective licenses required a prospective view. The fact that an area is developing and in a continued state of change is a relevant consideration to why renewal might be inappropriate.” [para 68]
Apart from confirming the two points above, Mr Justice Haddon-Cave also helpfully outlined the general principles that can be derived from the authorities regarding the licensing of “sex establishments” which will be of assistance to licensing practitioners.
- Local authorities are granted a very wide statutory discretion to decide whether or not a licence should be granted (R v Newcastle Upon Tyne City Council ex p. The Christian Institute (unreported), 5th September 2000) at .
- Local authorities can take into account “any strong body of feeling in the locality” which objects to the existence of a sex shop there (but not moral objections) (The Christian Institute (supra), at .
- The legislation expressly contemplates that the circumstances in which a license has been granted or renewed may change and there can be no expectation of annual renewal (R v LB Wandsworth ex p. Darker Enterprises Limited (1999 WL 478089)).
- Local authorities have “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” (under criteria (d)(i)). This imports “a significant evaluative power” at two levels: first, in assessing whether the grant or renewal of the licence would be “inappropriate” (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) (R (KVP ENT Limited) v South Bucks District Council  EWHC 926 (Admin), at .)
- There is no radical conceptual divide between the first two criteria under subparagraph (d), i.e. (i) “the character of the relevant locality” and (ii) “the use to which any premises in the vicinity are put”. Criteria (i) is a concept calling for “a compendious and general evaluative judgment to be made by the authority”, having regard to a range of factors which may be relevant to that question, including not least the use to which properties within the relevant locality happen to be put. Criteria (ii) simply provides an additional ground for refusal if, e.g., it cannot be said that it would be inappropriate to grant a licence given the general character of the locality, but the use of particular premises within the vicinity does give cause for concern, viz. e.g. a church, or primary school (KVP ENT Limited, at  and .)
- Considerations inherent in paragraph 12(3)(d) were intended by Parliament to be considerations for the local authority’s own evaluative judgment, subject only to this court’s supervisory jurisdiction on a claim by way of judicial review (per Sales J in KVP ENT Limited at ). This follows from the omission of a statutory right of appeal to the magistrates in relation to sub-paragraph (d) (see above).