In a judgment that will be of great assistance to licensing authorities, a judge of the High Court dismissed an application for judicial review against a refusal to grant a Sex Entertainment Venue licence for a lapdancing venue in a rural location.
R(KVP ENT LTD) v South Bucks DC
The applicant for the SEL applied for a licence to operate a lapdancing club on the edge of a rural village. The application attracted 201 representations against it. A week prior to the sub-committee hearing of the application the same authority but in its role as the local planning authority granted planning permission for a change of use to use as a lapdancing venue. The grant followed the recommendation by the planning officer, which itself had made a detailed assessment of the 'character' of the surrounding area and concluded that there were no reasons to refuse the application.
The licensing sub-committee were told that planning permission had been recently granted and advised that the two regimes, planning and licensing, were separate and that the grant of planning permission did not bind them in their decision-making. No attempt was made by the applicant (who was represented by counsel) to raise the contents of the Planning Officer's Report or suggest that any of his findings as to character in the planning context ought to be followed.
The licensing sub-committee resolved to refuse the licence on the basis of Paragraph 12(3)(d)(i) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982. Paragraph 12(3)(d) provides:
"(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."
At first their reasons merely said:
"Reason for REFUSING this application...
– That the grant of this Sex Establishment Licence would be inappropriate having regard to –
the character of the locality where the Premises are situated
in accordance with paragraph 12(3)(d)(i) of the 1982 Act in particular the Premises being in close proximity to a residential area."
The applicant wrote a letter before claim alleging, amongst other things, that the reasons were inadequate; but also that the fact that planning permission had been granted so recently meant that the sub-committee's decision to refuse the application was perverse and/or needed to be justified by specific reasons.
In response to the criticism about the extent of reasons, the sub-committee reconvened to provide amplification of the reasons for its decision to refuse, a statement of which was then sent to the applicant by way of response to its letter before claim. The applicant nonetheless made a claim for JR and got permission on the papers to argue its case fully.
Mr Justice Sales dismissed the claim for judicial review and ordered the applicant to pay the respondent's costs.
Key points from the judgment:
– The local authority was entitled to provide and rely on the amplified reasons provided after the letter before claim. It was 'clear' that the amplified reasons elucidated, rather than changed or modified, the brief reasons originally given;
– The regimes of planning and licensing are distinct, and as such there was no mandatory requirement to have regard to the Planning Officer's Report or to 'distinguish' the conclusions contained within it before 'departing' from it. The views of the Planning Officer (adopted by the Planning Committee) were not binding on the sub-committee who had to come to their own judgment within the terms of the test contained in Schedule 3;
– The focus of the assessment of character in the Planning Officer's Report was distinct and referable to the planning control regime and there was no requirement to have regard to it in the context of this application;
– The sub-committee had not 'wrongly conflated' (as was contended) the question of the character of the relevant locality (for Paragraph 12(3)(d)(i)) with the uses to which premises in the vicinity were put (from 12(3)(d)(ii)). Questions of character will inevitably include consideration of the use to which premises are put; there may be cases where although the character of a locality does not compel refusal, the use to which specific premises nearby are put (for example a primary school) would.
– Indeed the shifting of the SEL regime from the Licensing Act 2003 to the provisions of Schedule 3 was done specifically to widen the grounds on which applications for SEV licences could be considered and refused.
In an intriguing post-script to the judgment, when dealing with costs the Judge indicated that he was 'by no means convinced that the claim would have succeeded even if the original decision notice had stood' and that it was distinctly possible that had he been required to decide the claim in the absence of the amplified reasons, the decision would have been the same.
1. The breadth of the discretion in applications for SEV licences is confirmed. It is intended to be wide;
2. Although it is important to give reasons for a decision to refuse, those reasons need only be sufficient to enable the losing party to know why he has lost;
3. Where the extent of reasons given is criticised it is permissible to produce 'amplified reasons' – in this case a reconvened sub-committee (the same 3 members) produced a fuller note of their reasons, which was accepted;
4. The assessment of 'character' for the purposes of the planning regime is distinct from the assessment of 'the character of the locality' for the purposes of the SEL regime, and can lawfully produce different outcomes. One need not follow the other.
Josef Cannon of Cornerstone Barristers appeared for the successful local authority in this case.