The High Court has recently ruled in Bean Leisure Trading A Ltd, R (On the Application Of) v Leeds City Council .
Wildcats” and “Deep Blue” were lap dancing clubs in the centre of Leeds. They were Sexual Entertainment Venues [“SEVs”] within the meaning of the Local Government (Miscellaneous Provisions) Act 1982 [“LGMPA”] as amended by s. 27 of the Policing and Crime Act 2009 [“PCA 2009”].
On 3 December 2013 Leeds City Council [“the Council”] made decisions refusing to renew the SEV licences for each club.
The powers provided under Schedule 3 of LGMPA come into operation where a local authority resolves to adopt them and takes the steps prescribed for that purpose: (Section 2(1)-(4) of LGMPA).
Paragraph 12 of Schedule 3 to LGMPA sets out various mandatory and discretionary grounds for refusing applications.
The grounds that were relevant to the present applications are set out in paragraphs 12(3)(c) and (d) and are:
“(c) that the number of sex establishments 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;
(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.
(4) Nil may be an appropriate number for the purposes of sub-paragraph (3)(c) above.
(5) In this paragraph “the relevant locality” means—
(a) in relation to premises, the locality where they are situated; and….”
Quoting Sales J in R(ex parte KVP Ent Limited) v South Bucks DC  the court said:
“..It is clear from the terms of paragraph 12(3)(d)(i) that a local authority has 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..
..the inference from this is that Parliament plainly intended to provide that the considerations inherent in paragraph 12(3)(d) were considerations for the local authority’s own evaluative judgment, subject only to the supervisory jurisdiction of this court.”
The provision for annual renewal of licences meant that the Council was entitled to “have a fresh look” at the matter.
If there had been no change in circumstances since an earlier decision and the Council wished to depart from an earlier decision, it must give its reasons for so doing.
See O’Connor LJ in R v Birmingham City Council ex parte Sheptonhurst Ltd  in which he said that where the statutory grounds for refusing a licence made no distinction between grant and renewal of the licence, and laid down that a licence should not exceed a year, Parliament could not have excluded the vagaries of local opinion from deciding an existing trader’s rights to continue to trade.
However, although the discretion is unfettered, there is a difference between an application for grant and an application for renewal and that in applying that distinction to an application for renewal the Local Authority has to give due weight to the fact that a licence was granted in the previous year and, indeed, for however many years before that.
If the reasons given are rational, that is to say properly relevant to the ground for refusal, then the court cannot interfere.
The fact that in previous years the licensing authority did not chose to invoke those reasons for refusing to grant or renew the licence does not make the reasons irrational.
In R (ex parte Thompson) v Oxford City Council , Lloyd Jones LJ advocating the need to “grasp the nettle of any disagreement with the earlier decision” said:
“(1) On an application to renew an SEV licence it is not necessary for an objector to demonstrate that something has changed since the decision granting the licence. Were the position otherwise, the efficacy of annual reconsideration would be much reduced.
(2) However, the decision maker has to have due regard to the fact that a licence was previously granted.
(3) If there is no relevant change of circumstances, the decision maker has to give his reasons for departing from the earlier decision.”
The reasons for not reaching the same conclusion as a previous decision are infinitely variable and may range from where a subsequent committee takes a different view of unchanged circumstances to where circumstances have changed to such an extent that the basis for the previous decision has ceased to apply.
It may also involve a combination of changed circumstances and a different view being taken of the unchanged circumstances.
The reasons for the new decision must be intelligible and enable the reader to understand why the matter was decided as it was.
Where a decision differs from an earlier decision, the later decision must almost invariably at least acknowledge the existence of the earlier decision.
One factor may be that the committee taking the second decision is differently constituted from the one that took the first.
However the legislation must have contemplated that local authorities change composition and shift opinion, and that those changes and shifts reflect the views of the local electorate.
What is “appropriate” may be differently perceived by different elected representatives.
To summarise, subject to the obligation to give adequate reasons and to have due regard to earlier decisions, a later committee is entitled to take a fresh look and is not bound in any way by the views of an earlier one.
The committee were entitled to take into account any changes since June 2012.
The introduction of the new Council SEV Policy reducing by two the numbers and laying down criteria for the position and distribution of SEVs was a significant change they could take into account.
The introduction of the new Policy had not been legally challenged by any of the applicants.
The Council committee had been entitled to decide that these premises were very close to not just one but more than one building which could be described as having a sensitive use as set out in section 7 of the Policy and that the buildings with sensitive uses were set very close together in a small area. The committee had been entitled to find that the objections relating to sensitive use of location were valid.
Leeds has sought to establish itself as a major European city and cultural and social centre with an intention to create a vibrant 24 hour city. The importance of cultural activities in Leeds relevant to these applications had been set out in section 6 of the Policy.
Wildcats was directly opposite the Art Gallery and the Henry Moore Sculpture Gallery which are on Victoria Gardens where also stands the Cenotaph. The Library is in the same building as the Art Gallery. Oxford Road Methodist Church was nearby.
The decision letter stated expressly that other premises were in less sensitive locations and set out detailed reasons that enabled the reader to understand why the Sub-committee regarded the proximity of Wildcats to the number of identified buildings with sensitive uses as rendering its application for renewal objectionable.
The Council was entitled to consider that the introduction of the 2013 Policy was a significant change, with its emphasis on sensitive uses and locations and the aspirations for Leeds that were reflected in the Policy.
The fact that a particular venue had not been regarded as inappropriate when considered in the context of the earlier Policy did not indicate that it should not be so regarded under the new policy.
The Sub-committee set out fully its reasons for concluding that, under the 2013 Policy, Wildcats could and should be regarded as inappropriate.
It was not enough to say that the 2012 Decision had addressed the suitability of the location.
The 2013 Sub-committee was differently constituted, was entitled to have a fresh look, was obliged to apply the 2013 Policy, and was entitled to come to a different view provided that it gave rational and sufficient reasons for its conclusion.
The reasons given were clear. They were rational in being properly relevant to the ground for refusal. Accordingly there was no basis upon which the Court could properly intervene and quash the committee’s decision.
This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.