Dr Ashley Bowes appeared for the successful applicant, and also succeeded in persuading the Council to depart in a number of respects from its recently adopted standard conditions. The Council considered whether there would be harm to the relevant locality and concluded that there was not enough evidence of this to justify refusing the application.
The Policing and Crime Act 2009 introduced for the first time a licensing regime to cover pole-dancing, lap-dancing, strip-shows and other relevant entertainment. "Relevant entertainment" is widely defined and covers:
"... a live performance or live display of nudity and must be of such a nature that, ignoring financial gain, it must reasonably be assumed to have been provided solely or principally for the purpose of sexually stimulating any member of the audience."
Interestingly, "relevant activity" does not automatically require a licence throughout the country. Every Council in the country has to decide whether to adopt the new powers of control. If it has not opted-in by 6 April 2011 a Council must consult local people about whether or not it should do so.
If a Council has adopted the new powers, it can refuse to grant an SEV license on a broad range of grounds, wider than the licensing objectives which are in play when a premises license application is determined. The grounds, set-out within Schedule 3 Local Government (Miscellaneous Provisions) Act 1982 (as amended by the 2009 Act), are:
- that the applicant is unsuitable to hold the licence by reason of having been convicted of an offence or for any other reason;
- that if the licence were to be granted, renewed or transferred the business to which it relates would be managed by or carried on for the benefit of a person, other than the applicant, who would be refused the grant, renewal or transfer of such a licence if he made the application himself;
- that the number of sex establishments, or of sex establishments of a particular kind, 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;
- that the grant or renewal of the licence would be inappropriate, having regard
- to the character of the relevant locality; or
- to the use to which any premises in the vicinity are put; or
- to the layout, character or condition of the premises, vehicle, vessel or stall in respect of which the application is made.
"With more authorities opting to adopt these new powers the issues presented by the new regime are likely to become more prevalent. One particularly unusual aspect is that a local authority is only able to grant a licence for a maximum period of 1 year. This will put inevitable pressure on resource-stretched local authorities to process renewal applications where very little may have changed since the grant of the license. It also increases commercial risk for operators especially in light of the judgment in R(Thompson) v Oxford City Council  EWHC 1819 (Admin.) in which Haddon-Cave J held that the Council were entitled to refuse to renew a licence granted only 1 year previously (upheld on appeal  EWCA Civ. 94)."