Lap dance no more

Predeterminiation iStock 000016468646Small 146x219In two recent decisions the courts have affirmed the wide powers enjoyed by licensing authorities to refuse renewals of licences for lap dancing clubs. Ranjit Bhose QC, Philip Kolvin QC and Josef Cannon review the judgments.

In R (Bean Leisure Trading A Limited) v Leeds City Council and R (Ruby May (1) Ltd) v Leeds City Council [2014] EWHC 878 (Admin) the Administrative Court has reaffirmed the breadth of a licensing authority’s discretion to refuse to renew annual SEV (lap dancing) licences, when upholding two decisions of Leeds City Council and dismissing claims by way of judicial review.

This judgment follows on from last month’s rejection by the Court of Appeal - in Thompson v Oxford City Council [2014] EWCA Civ 94 - of an appeal against a similar refusal to renew by Oxford City Council.

In Thompson, the Administrative Court (Haddon-Cave J) confirmed that licensing authorities are entitled to "have a fresh look" at an application for renewal of an SEV licence, and may refuse to renew even where there is no material change in circumstance. On appeal, the Court of Appeal upheld that approach; it confirmed the "wide discretion" afforded to authorities. So long as the refusing sub-committee "grasps the nettle" of any disagreement with its predecessor’s decision, and gives reasons for its departure, it acts lawfully.

Similar issues arose in the Leeds cases. The two claimants operated lap dancing clubs in the city centre and were granted annual licences in 2012, along with a number of others. In 2013, Leeds published a new policy which  provided for a maximum of four lap dancing clubs in the city centre, so long as they were not near properties with sensitive uses or in sensitive locations. Following the adoption of the new policy, six clubs applied to renew. The council heard all six applications consecutively,  before deciding to grant three (one for a limited duration) and refuse three. Two of the unsuccessful applicants brought claims for judicial review, which were heard by Stuart-Smith J.

In rejecting each claim, the court held that the council had:

  • been entitled to ‘take a fresh look’. Whilst there was no change to the character of each locality, the policy itself was a material, new factor;
  • ‘grasped the nettle’ of any differences with its previous decisions;
  • given sufficient reasons for its decision not to renew;
  • acted fairly and rationally in the comparative exercise it had undertaken.

The Court also rejected challenges under the Provision of Services Regulations 2009, the Equality Act 2010, and Articles 10 and Article 1 Protocol 1 ECHR.

These decisions of the Court of Appeal and Administrative Court are timely reminders that when it comes to the licensing of lap dancing clubs, under the Local Government (Miscellaneous Provisions) Act 1982, licensing authorities have been entrusted with very broad powers indeed. Only rarely will the courts intervene.

Ranjit Bhose QC, Philip Kolvin QC and Josef Cannon are barristers at Cornerstone Barristers. Ranjit appeared for Oxford City Council in Thompson and - alongside Josef Cannon - Leeds City Council in Bean Leisure and Ruby May. Philip acted for the intervener in Thompson.
A&M Bacon