In what is thought to be the first challenge of its kind, an appeal by a sexual entertainment venue operator to a raft of standard conditions imposed by a licensing authority has failed.

Secrets have run table dancing venues in Euston, Holborn, Swiss Cottage and Covent Garden for many years, without regulatory problems. Upon adoption by the London Borough of Camden of the sexual entertainment venue provisions in the Policing and Crime Act, Secrets applied for SEV licences for each of their venues. They argued that various standard conditions should be varied or excluded in their case. These included:

• conditions prevented visibility into the premises. Secrets argued that it was sufficient for passers-by not to see the performance;
• conditions preventing distribution of literature. Secrets wished to be able to distribute literature in the street, but were given only a limited permission to distribute literature on private premises with the owners’ consent;
• conditions regulating the performance, including the ability of the performer to apply their fingers, lips and tongues to private parts of their body. Secrets argued that conditions preventing masturbation were sufficient.

The essence of their argument was that none of these matters had ever caused contention before and so could safely be permitted.

The standard conditions were contained in Camden’s sex establishment licensing policy, which had been the subject of a two-stage consultation process.

In a detailed judgment, District Judge McPhee reminded himself that this was a statutory process adopted by the local authority which involved a significant local consultation process leading to the adoption of the policy and the standard conditions, against which there had been no legal challenge. He also stated that the decision of the sub-committee is the exercise of a power delegated by the people as a whole to decide what the public interest requires. He found that there was good reason for all of the conditions challenged and could not find the decisions to have been wrong.

He therefore dismissed the appeals and awarded costs of £22,000 to the Council.

Philip Kolvin QC, instructed by Sandra Ballentine, acted for the London Borough of Camden.

Simon Bird Q.C., Tom Cosgrove and Clare Parry are representing Powys County Council at the Inquiry which will consider several large scale (over 50 MW each) proposals by applicants for wind farms at Llanbadarn Fynydd, Llaithddu, Llanbrynmair, Carnedd Wen and Llandinam, all in Powys. 

The inquiry will also consider related electricity grid line connections and the implications of the inquiry proposals for further nationally significant infrastructure projects being considered by the National Grid to connect such wind farms to the grid.

Because of their size and national significance as infrastructure projects, the proposals are being determined under the provisions of the Electricity Act 1989 by the Secretary of State for Energy and Climate Change.

The inquiry opened on the 4^thJune 2013 and is expected to conclude in the Spring of 2014.

Links to news coverage:

BBC – http://www.bbc.co.uk/news/uk-wales-mid-wales-22758109

ITV- http://www.itv.com/news/wales/update/2013-06-04/windfarms-public-inquiry-gets-underway/

Local news coverage – http://www.shropshirestar.com/news/2013/06/05/no%E2%80%88case%E2%80%88for-new-wind%E2%80%88farms-in-mid-wales-inquiry-told/

145 of the barristers appointed as Treasury Counsel, who act for the Crown and Government Departments, have provided a joint response to the Ministry of Justice’s consultation “Transforming legal aid: delivering a more credible and efficient system”. The response focuses on the areas of pubic law and judicial review, and points out how the government’s the proposals will undermine the accountability of public bodies, to the detriment of society as a whole and the vulnerable in particular.

For a copy of the response please click: Panel letter to AG 4 June 2013

In a written statement to Parliament[1], which will be welcomed by those seeking to resist onshore wind development, Eric Pickles MP noted the coalition agreement pledge to decentralise power to local people and give people far more ability to shape the places in which they live. However, he also noted the reality that current planning decisions on onshore wind do not always reflect a locally-led planning system. Following the publication of the NPPF and the revocation of top-down regional strategies, the response to the call for evidence by DECC made clear that action was needed to deliver the balance expected by the NPPF for onshore wind.

In a simultaneous Press Release by DECC[2], communities are expected to have a greater say on the siting of onshore wind farms. Best practice guidance to developers will make pre-application consultation with local communities compulsory for the more significant[3] onshore wind applications, and higher standards will be expected in relation to engagement with communities. By the end of the year, the industry’s Community Benefit Protocol should be revised to include a fivefold increase in the benefit package in England (from currently £1000/MW of installed capacity per year to £5000/MW per year for the lifetime of a wind farm).

The detail of the guidance and the weight to be attached to it as a material consideration will be critical. Currently, the footnote to paragraph 97 of the NPPF provides that the approach in the National Policy Statement for Renewable Energy Infrastructure (EN-3) should be followed (read with relevant sections of EN-1) in determining planning applications. The written statement is also cautiously worded where Councils have identified areas suitable for onshore wind (for example in a DPD). In those circumstances, Councils ‘should not feel they have to give permission for speculative applications outside those areas when they judge the impact to be unacceptable’ (emphasis added).

Despite acknowledging localised impacts on landscape, amenity, and impacts on the setting of heritage assets, Inspectors have regularly found the planning balance to favour wind farm development given the national (and international) need for such development. By this proposed Guidance, it would seem that the Government is seeking to give teeth to its localism agenda for onshore wind farm development.

Asitha Ranatunga is a member of our Planning Group and one of a number of members who are regularly instructed in relation to wind farm inquiries and related high court matters.

[1] https://www.gov.uk/government/speeches/local-planning-and-onshore-wind

[2]https://www.gov.uk/government/news/onshore-wind-communities-to-have-a-greater-say-and-increased-benefits

[3] It is not yet clear how more significant onshore wind applications will be defined. Pre-application consultation with local communities is already compulsory for national infrastructure applications.

- In a fix? Flexible tenancies for local authorities, NLJ, 29 June 2012

- In a fix (2)? Flexible tenancies for housing associations, NLJ, 13 July 2012

Having assisted a number of housing associations and local authorities Jon offers his top tips for housing associations when drafting flexible fixed term tenancy agreements.

1.      Increasing the rent

With periodic assured tenancies the statutory procedure can be used to increase the rent, if needed, but the statutory procedure cannot be used during a fixed term (HA 1988, s13).  So if there isn’t a valid contractual basis for increasing the rent the landlord will be left without a mechanism for the duration of the fixed term.

Tip: specify a valid contractual basis for increasing the rent.

2.      ‘I’m off’

Assured tenants can serve a notice to quit to end unilaterally a periodic tenancy but a NTQ is of no effect with a fixed term tenancy.  Since demand for social housing is usually greater than its supply housing associations will probably want their fixed term tenants to be able to unilaterally end their agreements early.  This can be catered for with a carefully worded break clause.

Tip: include a break clause that allows the tenant a contractual right of unilateral early termination.

3.      ‘I’m off, but he isn’t’

One joint tenant may unilaterally terminate a periodic tenancy by giving a NTQ.  This right has many uses but particularly with a departing partner that the landlord wants to re-house on account of alleged domestic violence.  As above, this can be catered for in a fixed term tenancy with a break clause.  But since rights under a break clause are contractual the agreement needs to expressly allow one joint tenant to terminate early, even if the other(s) do not consent.

Tip: grant one of several joint tenants a contractual right of unilateral early termination.

4.      Possession during assured fixed period

The Housing Act 1988 allows the court to make a possession order before the fixed term ends providing ‘the terms of the tenancy make provision for it to be brought to an end on the ground in question’ (s7(6)).  Furthermore, the Act states that the provision can take the form of a provision for forfeiture or ‘for determination by notice or otherwise’.  Not all statutory grounds can be relied on but the ones that housing associations are most likely to use are available, including the three rent grounds (8, 10 & 11) and breach of a tenancy term (Ground 12).  Suitable alternative accommodation (Ground 9) is not available.  These restrictions do not apply when the fixed term has come to an end (s7(7)).

Tip: ensure there is a contractual right of early termination on all grounds that may be used.

5.      Possession during non-assured fixed period

The statutory mechanisms for terminating a fixed term assured tenancy (HA 1988, ss7&21(1A)) will not apply if the tenancy ceases to be assured.  Housing officers are used to terminating non-assured periodic tenancies with a NTQ.  But with a fixed term that ceases to be assured the landlord will need to invoke either a break clause or a forfeiture clause.  Forfeiture clauses are surrounded with common law rules about their exercise, such as waiver, and once exercised the tenant may be able to get relief, even if his common law tenancy can never become assured again (such as with a previous sub-letting under HA 1988, s15A, when the Prevention of Social Housing Fraud Act 2013 comes into force).  The extent to which break clauses may be used in preference to forfeiture clauses will no doubt be tested in court.

Tip: play safe and include break and forfeiture clauses that the landlord can invoke in specified circumstances.

6.      Assured: Tenant has died and claims to have succeeded

The Localism Act 2011 amended rights of succession for assured tenants, and for periodic assured tenants it allowed statutory rights to be extended with ‘an express term of the tenancy [that] makes provision for a person other than … a spouse or civil partner of the [deceased] tenant to succeed’ (s17(1A)(d)).  This provision does not apply to fixed term flexible tenants but the unwary landlord could inadvertently create such a right with a badly worded tenancy agreement.  This is because when an assured fixed term ends by effluxion of time a periodic tenancy automatically arises (s5(2)).  This periodic tenancy will create additional rights if the agreement so provides.

Tip: it’s not necessary to incorporate statutory rights in a tenancy agreement and stating nothing about succession in the agreement avoids the risk of inadvertently creating succession rights.

7.      Not assured: Tenant has died and claims to have succeeded

There is a statutory mechanism for seeking possession where an assured tenant dies and the tenancy devolves under the will or intestacy provisions (HA 1988, Sch 2, Ground 7).  But this provision only applies where the tenancy is assured at the time of death.  Where statutory status has been lost at the time of death the fixed term will continue and the statutory mechanism for seeking possession does not apply.  Neither would the landlord be able to rely on a NTQ as it would with a periodic tenancy.  To facilitate possession proceedings the landlord should have both a break clause and forfeiture clause that would enable it to terminate the fixed term early following the tenant’s death.

Tip: include a break clause and a forfeiture clause that can be invoked by the landlord if the tenant dies.

8.      ‘Whether the rent has been lawfully demanded or not.’

There is a reason why this wording is often found in leases.  There is a common law rule that when the landlord forfeits for non payment of rent he is obliged to make a formal written demand before proceedings are issued unless the tenancy gives the landlord a right to re-enter if there are arrears ‘whether the rent has been lawfully demanded or not.’  The tenancy should also provide that ‘rent’ includes other relevant charges such as water, sewerage and fixed service charge (ie not one that comes within L&T 1985, s18(1) for which a prior determination of the amount may be required under HA 1996, s81).

Tip: look at other tenancy agreements to see what terms are used.

9.      ‘It’s unfair.’

Tenancy terms that cause a significant imbalance in the parties’ rights and obligations to the detriment of the tenant will be unfair and unenforceable (Unfair Terms in Consumer Contracts Regs 1999/2083, regs 5 & 8).

Tip: look at the OFT’s website and particularly its Guidance on unfair terms in tenancy agreements.

This time the appeal has been dismissed in accordance with the report of the inspector who found that the many benefits linked to the proposal were outweighed by a combination of the harm to the character and appearance to the area of the mini roundabout required to obtain access to the proposals and the substantial and irreversible diminution of the significance of the heritage asset that would arise from the proposals.

So the message is never give up, and list your reservoir embankment whenever you can!

Mark Lowe QC appeared for Cardiff City and County Council in all three inquiries; Anthony Dinkin QC appeared for the local residents group in 2012; Clare Parry appears for them in 2011.

A group of sex shop owners has won a major victory in the Court of Appeal after a three year campaign to reduce its licence fees. The judgment of the Court of Appeal is set to cost the licensing authority, Westminster City Council, up to £2 million. The judgment also has a potentially far-reaching effect on other fields of regulation.

Since 2005, Westminster City Council charged sex shop owners in the West End of London £29,102 for their annual licence. In 2009, new European laws came into force in the United Kingdom, which prevented licensing authorities from charging fees going beyond the actual costs of the authorisation process.

The Provision of Services Regulations 2009 transposed into UK law the European Services Directive 206/123/EC and became law on 28th December 2009. Regulation 18(4) states that any charges provided for by a competent authority which applicants may incur under an authorisation scheme must be reasonable and proportionate to the cost of the procedures and formalities under the scheme and must not exceed the cost of those procedures and formalities.

A group of seven shop owners, represented by licensing barrister Philip Kolvin QC, claimed that at most 10% of the fee was justified – the remainder being spent by the Council on prosecuting unlicensed operators, which, it was argued, could not be charged back to the licensees. In May 2012 their claim was upheld in the High Court, but Westminster City Council appealed to the Court of Appeal, arguing that their charges were not affected by the new laws.

On 24^th May 2013 three judges of the Court of Appeal, led by Master of the Rolls Lord Dyson, dismissed the Council’s appeal. The effect of the judgment is that Westminster City Council will have to repay the great majority of fees charged since the beginning of 2010. Also, the Council has been ordered to pay interest at 10% above the Bank of England Base Rate and “indemnity costs” because it rejected an offer to compromise the claim on much better terms at the start of the proceedings.

Westminster City Council was also ordered to recalculate fees going back to 2004 because of deficiencies in its procedures for determining fees. The cost to the Council of the award, the interest and costs is likely to approach £2 million.

The judgment has important consequences for the funding of regulation in the United Kingdom because the new laws apply to all forms of authorisation to provide service activities. These include all forms of licensing (except for gambling and taxis which are excluded), street trading, subscriptions payable by professions including the legal professions in order to be able to practice and even the fees for planning applications.

Most importantly, the judgment will limit the scope of fees which licensing authorities will be able to charge under the Licensing Act 2003, following the right to determine fees introduced by the Police Reform and Social Responsibility Act 2011. The Home Office has delayed introducing Regulations implementing the legislation, it is thought in order to enable it to consider the Hemming judgment.

To read full judgement please click: Hemming APPROVED Judgement

Licensed Premises: Law, Practice and Policy, 2^nd edition

The Hemming judgment will be dealt with fully in the Second Edition of Licensed Premises: Law, Practice and Policy, which is being published on 28^th June 2013. To see more, visit www.bloomsburyprofessional.com/licensedpremises Quote TOLPPK15 for a 15% discount.

On 13 May 2013, the Court of Appeal dismissed an appeal against the decision of Mr Justice Holman that a planning inspector had not erred in refusing to grant temporary planning permission for a Gypsy site in Basildon.

Melissa Murphy represented Basildon Council.

The conference will focus on how best to overcome obstacles to development.

For full flyer, click here.