High Court judge quashes decision to introduce ‘no cap’ strip club licensing policy

A High Court judge has quashed a local authority's decision to adopt a policy of having no cap on the number of sexual entertainment venue (SEV) licences that may be granted in its area.

In CDE v Bournemouth, Christchurch and Poole Council [2023] EWHC 194 (Admin), the claimant, a survivor of domestic and sexual abuse, sought judicial review of the BCP Council’s decision of 9 November 2021 to adopt a new Sexual Establishment Policy (“the Policy”).

Outlining the background to the case, Mr Justice Choudhury noted that the Policy had two features relevant to the claimant’s challenge: the first was a policy to impose “no cap on the number of SEV licences that may be granted to establishments in the BCP areas”; the second was a policy that those SEVs already licensed to operate in BCP enjoy a “presumption in favour of annual renewal of their licence for the duration of the Policy”.

A consultation was launched by BCP after a merger of the three council districts in 2019, to determine the number of SEVs the new local authority could licence.

The first public consultation invited respondents to record their level of agreement or disagreement with each of two propositions:

(1) BCP Council should not seek to limit the number of sex establishments in any given area.

(2) The proximity of the following types of premises should be taken into account when considering a licence application.

Looking at the consultation questions, Mr Justice Choudhury said: “It is clear from the terms of Question 1 that, although the draft policy did not include a specific cap on numbers, the Defendant was seeking views on whether there should not be a cap, and, by necessary corollary, whether there should be one”.

In February 2021, the council published a consultation report. This recorded that:

1. 70% of respondents disagreed with the policy of setting no cap on the number of SEVs in BCP;
2. 64% strongly disagreed;
3. 80% of those who disagreed with this policy were women;
4. of the 82 respondents who addressed the question whether there were additional locality characteristics that should be considered, the majority stated that no locality was suitable and that sex establishments should not be allowed anywhere;
5. there was a high volume of comments opposing the licensing of SEVs, which described the venues and the activities within them as “degrading and abusive to women”.

Furthermore, many of the respondents felt that the council would be failing in its equalities duty if such venues were permitted, the report revealed.

On 9 November 2021, however, the council adopted a licensing policy that allowed for an unlimited number of strip clubs. At that meeting several councillors had voiced strong objections to the Policy but members voted to accept the Licencing Committee’s recommendations by a majority of 35 to 14 with 13 abstentions.

The three grounds on which the claimant was granted permission were as follows:

• Ground 1 – The defendant council had failed to take into account consultees’ objections to the Policy, and, in particular, in declining to have regard to the ‘sex equality-based concerns’ (SEB) raised by many such consultees. The claimant maintained that BCP was required to take these concerns into account, and that its grounds for not doing so, namely that these were deemed to be “moralistic” grounds or “in principle” objections to SEVs outside the scope of the defendant’s consideration, were erroneous in law.
• Ground 2 – Breach of the Public Sector Equality Duty (PSED) and/or failure of adequate inquiry and/or failure to take into account relevant considerations. The claimant contended that the council failed to have due regard to mandatory considerations under the PSED and failed to adopt the requisite approach to the relevant statutory criteria with the necessary rigour or to take steps to inform itself properly of equalities implications before reaching the decision.
• Ground 3 – The effect of the ‘Acquired Rights Policy’ (ARP), whereby the existing licensees would be granted a renewal of their SEV licences so long as there had been no material change in the character of the locality and unless there were any objections, amounted to an unlawful fetter on the defendant’s discretion and/or amounted to a “rubber stamping” of a renewal contrary to the statutory requirement to review the licence each year.

Discussing Ground 1, Mr Justice Choudhury considered the question “what does a proper consultation require?” He considered the well-known case of R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, in which the Court of Appeal stated as follows:

108 “It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168 .” (Emphasis added by High Court Judge)

Mr Justice Choudhury noted: “It is this fourth requirement, namely that the product of consultation must be conscientiously taken into account, that is relevant to this case. To satisfy this requirement, a local authority would generally have to go further than merely acknowledging the product of consultation."

The High Court judge noted that the key factual dispute at the heart of the case “lies in whether the SEB concerns raised by a large number of consultees were taken into account”.

In deciding the issue, the judge considered the various documents produced during the process leading to the decision made by full council on 9 November 2021.

Jessica Boyd KC, on behalf of the claimant, submitted that, to the extent that those concerns were referred to in the documents, the defendant had done “no more than acknowledge them”.

Josef Cannon, on behalf of the defendant, submitted that it “cannot be said that SEB concerns have illegitimately been left out of account”.

On Ground 1, Mr Justice Choudhury concluded: “Based on this review of the documents, and in the absence of any witness evidence from the Defendant, I conclude that Ms Boyd’s submission under Ground 1 is made out. That is to say, the product of the two consultation exercises, insofar as it related to the SEB concerns, was not conscientiously taken into account before deciding upon the Policy. I reach this conclusion with some reluctance because the Defendant has undertaken an otherwise diligent and extensive consultation.

“Regrettably, however, and possibly as a result of construing the Christian Institute decision too broadly, the Defendant has consistently downplayed and/or side-lined SEB concerns which ought to have been the subject of conscientious consideration before reaching a final decision. As such, Ground 1 succeeds”.

On Ground 2 ‘Breach of the Public Sector Equality Duty (PSED)’, Jessica Boyd KC submitted that, “having regard to the “heavy burden” (Bracking at [60]) which the PSED imposes on public authorities and the need for the decision maker to “properly appreciate[..] and address[..] the full scope and import of the matter which she [was] obliged to consider pursuant to the PSED” (Bracking at [77]), it is clear that the Defendant did not comply with the duty”.

She added: “The lack of conscientious engagement with the SEB concerns under Ground 1 is itself evidence of a failure to comply with PSED.

“Moreover, whilst passing reference was made to the PSED at various points, none of the material before the Court suggests that LC members were, at any stage, directed to the specific requirements under 34 s.149(1), (3) and (5) of the 2010 Act or that any of these matters were considered in adequate detail or with the necessary rigour”.

Mr Cannon submitted that “one should focus on substance and not on form and the mere fact that the court might have attached more weight to the equality implications of a decision would not entitle it to interfere (Bracking at [26(5)(iii) and (8)])”.

He further submitted that “the requirements set out by the Court of Appeal in Bracking are not to be treated as provisions in a statute and must be viewed in context; there the decision was that of a Minister in respect of a policy having national effect whereas the decision-making here only had a local impact. The same degree of rigour in complying with the PSED cannot be expected here”.

Discussing Ground 2, Mr Justice Choudhury said: “Whilst there was mention of the PSED at various stages, I am not satisfied on the material available that there was rigorous consideration of it with a proper and conscientious focus on the statutory criteria.”

He concluded: “Mr Cannon warns against the taking of a hypercritical approach resulting from an over-forensic analysis of the Defendant’s documentation. However, none of the above conclusions derives from such an approach. The conclusion that the PSED was not complied with follows from the application of well-established principles as to what is required of the decision-maker. Ground 2 succeeds”.

On Ground 3, ‘Fettering of discretion’, the High Court judge analysed the operation of the ‘Acquired Rights Policy’ (ARP).

He noted: “The ARP is set out at paragraph 10 of the Policy. So far as relevant to this ground, it provides:

“10.1 It is acknowledged that there are currently three licenced Sexual Entertainment Venues within the Old Christchurch Road and Yelverton Road areas of Bournemouth Town Centre. These are For Your Eyes Only, Wiggle and Spearmint Rhino and that these venues have been licenced for a number of years.
...

10.4 It has been determined that these existing licences will continue to be renewed, on application, by the existing operators during the lifetime of this policy if there is not material change in the character of the area in the intervening period. If there are any objections to an application, it will be considered by the Licensing Committee in accordance with the relevant statute. This essentially provides acquired rights to these existing operators for the current time”.”

Josef Cannon, on behalf of the defendant council, provided further explanation as to how the ARP would work in practice. “He emphasises that, as the ARP provides, renewal is not automatic in that an application for renewal still needs to be made in accordance with paragraph 13 of the Policy”, the judge noted.

Ms Boyd, on behalf of the claimant, submitted that the ARP had the effect of fettering the defendant’s discretion in relation to the issuing of SEVs.

Mr Cannon submitted that the effect of paragraph 10.4 of the Policy was to set up a “rebuttable presumption” that licences held by existing licensees would be renewed upon application if: (i) there was no change in the character of the locality; and (ii) there were no objections.

He submitted that if there was a change or an objection then the application would fall to be considered in the usual way.

On Ground 3, Mr Justice Choudhury concluded that “on this issue, Mr Cannon’s submissions are to be preferred”.

The judge said: “In fact, the reason for the claim under this ground may be the result of a lack of clarity as to how the ARP would operate in practice, and, in particular, whether renewal would be granted automatically or only upon an application being made."

He added: “In my judgment, the ARP does no more than give due weight to the fact that the Existing Licensees had held licences for a number of years. That is perfectly permissible and indeed appropriate."

Mr Justice Choudhury concluded that Ground 3 of the claim failed and should be dismissed.

However, with the claim succeeding on Grounds 1 and 2, the High Court judge concluded: “It follows that the decision to adopt the Policy is quashed”.

Lottie Winson