July 5th, 2013 by James Goudie KC

What is a local authority entitled to take into account when deciding whether or not to renew a sex establishment licence for a lap dancing club?  That was the issue before the Court in Thompson v Oxford City Council [2013] EWHC 1819 (Admin).  Haddon-Cave J held that the fact that the character of an area was in the process of changing was a relevant consideration when deciding upon the appropriateness or otherwise of such a licence in accordance with Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, as amended by Section 27 of the Policing and Crime Act 2009.

At paragraph 50 of his Judgment he summarised the general principles to be derived from the authorities regarding the licensing of sex establishments as follows:-

(1)        Local authorities are granted a very wide statutory discretion to decide whether or not a licence should be granted;

(2)        Local authorities can take into account “any strong body of feeling in the locality” which objects to the existence of a sex shop there, although this does not include moral objections to its activities;

(3)        The legislation expressly contemplates that the circumstances in which a licence has been granted or renewed may change and there can be no expectation of annual renewal;

(4)        Local authorities have “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”: this imports “a significant evaluative power” at two levels: first, in assessing whether the grant or renewal of the licence would be “inappropriate” (a very broad and general concept); and, secondly, in assessing the character of the relevant locality, which, again, involves questions of fact and degree and local knowledge which import, at that level also, a broad power of evaluative judgment to be exercised by the local authority;

(5)        There is no radical conceptual divide between “the character of the relevant locality” and “the use to which any premises in the vicinity are put”: the former is a concept calling for “a compendious and general evaluative judgment to be made by the authority”, having regard to a range of factors which may be relevant to that question, including not least the use to which properties within the relevant locality happen to be put, the latter simply provides an additional ground for refusal if, eg, it cannot be said that it would be inappropriate to grant a licence given the general character of the locality, but the use of particular premises within the vicinity does give cause for concern viz eg a church, or primary school;

(6)        The considerations were intended by Parliament to be considerations for the local authority’s own evaluative judgment, subject only to the Court’s supervisory jurisdiction on a claim by way of judicial review.

At paragraph 68 the Judge said:-

“…  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” 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.”

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