Court of Appeal upholds refusal of sexual entertainment venue licence

The Court of Appeal has upheld a decision by a council’s licensing sub-committee to refuse to renew a licence for a sexual entertainment venue.

The venue at the centre of the dispute in Thompson, R (On the Application Of) v Oxford City Council [2014] EWCA Civ 94 was a lap-dancing club known as ‘The Lodge’ and located at Oxpens Road in Oxford.

The licensing sub-committee published its decision on 24 September 2012, finding that renewal of the licence would be inappropriate having regard to the character of the relevant locality or use to which premises in the vicinity were put.

The sub-committee acknowledged that its findings were a departure from the city council’s decision to grant the licence in July 2011 but found that as a differently constituted sub-committee with the benefit of evidence concerning the operation of the premises over the previous year they were entitled to reach a different conclusion.

Mr Justice Haddon-Cave dismissed a claim for judicial review in the High Court. The licence holder appealed to the Court of Appeal.

Giving the judgment of the court, Lord Justice Lloyd Jones found that:

  • The principles in Dunster Properties Ltd v. The First Secretary of State [2007] EWCA Civ 236 (duty to explain departure from decision of previous planning inspector) are of general application and not limited to planning cases. “I consider that while it was open to the sub-committee in the present case to depart from the decision of its predecessor, it was under a duty to take account of the earlier decision, to grasp the nettle of any disagreement with the earlier decision and to state its reasons for coming to a different conclusion.”
  • There was a “considerable body of evidence” relating to the impact of the club on the area in the first year of its operation. The Court accepted that this evidence was hearsay evidence from anonymous sources and therefore carried less weight than might otherwise have been the case. Nevertheless the sub-committee was entitled to have regard to this evidence and it was capable of sustaining the sub-committee’s conclusions.
  • On a fair reading of the 2012 decision, it was “clear that the committee concluded on the evidence relating to the club's operation over the previous year that the limitation of opening times and absence of external indications as to the nature of the activities taking place had not been sufficient to protect the character of the area.”
  • A council has 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.
  • In making that assessment, the sub-committee was permitted to have regard to an imminent development of which it was aware [developments of student housing], even if there could be no certainty that it would be completed and operational within the period of the licence.
  • 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.”
  • The sub-committee did not take account of an irrelevant consideration in referring to the increasing use of Oxpens Road as a route to and from student accommodation.
  • The use of Oxpens Road as a busy transport link and pedestrian route was not a new point and could not have taken the counsel to the appellant by surprise. It was clearly in issue at the meeting of the sub-committee.

The appeal was dismissed.