Renewal of SEV's - R (Alistair Thompson) v Oxford City Council [2014]EWCA Civ94
2014
The Court of Appeal has dismissed an appeal brought by the operators of a lap dancing venue.
In 2011, Oxford City Council granted a Sexual Entertainment Venue (SEV) licence for a lap dancing club called the Lodge. The following year the Council refused to renew the same licence in the same location which led to the decision being challenged by way of Judicial Review to the High Court in 2013.
At that time Mr Justice Haddon-Cave ruling 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]
Further, in relation to taking into account the future character of the area as opposed to the current at the time the application was made 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 licences which were to be granted for 12 months in the future. Prospective licences 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]
The Court of Appeal has now dismissed the Appeal brought by the operators of the club and held that is lawful for a Council to take account of the character of the area in terms of the suitability of the grant of a licence with regard to future developments in that area.
Lord Justice Lloyd Jones held that ”Under Schedule 3, LG(MP)A 1982, a Council is given a wide discretion in the assessment of whether the grant or renewal of a licence would be appropriate having regard to the character of the relevant locality. It seems to me that in making that assessment it should be permitted, at least, to have regard to an imminent development of which it is aware, even if there can be no certainty that it will be completed and operational within the period of the licence“. [para 49]
However, the ruling does distinguish this further by stating: “Nevertheless, the ability to take account in this context of forthcoming developments cannot be open-ended. The fact that SEV licences can be granted for very short periods which may not, in any event, exceed twelve months has an important bearing on this. Accordingly, I would suggest that it would not be open to a Council to rely, in refusing to grant an SEV licence, on a Development Plan which contemplated development say some five years in the future“.[para 50]
The Judgment also ruled that there was no breach of the Licensing Authority’s obligations under the EU Services Directive with Lord Justice Lloyd Jones stating “I can see nothing in the statutory scheme for SEV licences, the approach of the Sub-Committee or in its 2012 decision which conflicts in any way with the Services Directive (2006/123 EC) which is implemented in the United Kingdom by the Provision of Services Regulations (SI 2009/2999). In particular the nature of the activities licensed is such that there are compelling justifications for limiting the period of authorisation and for granting to local authorities a wide discretion on applications to renew.”[para 45]