Sitting at Manchester Civil Justice Centre
1 Bridge Street West
Manchester Greater Manchester
England
M60 9DJ
Before:
THE HONOURABLE MR JUSTICE STUART-SMITH
Between:
The Queen on the application of Bridgerow Limited | Claimant |
- and - | |
Cheshire West and Chester Borough Council | Defendant |
-and-
Whitefriars Resident Association
Interested Party
Richard Clayton QC and Sarah Clover (instructed by Poppleston Allen Solicitors) for the Claimant
James Rankin (instructed by Cheshire West and Chester Borough Council Legal Department) for the Defendant
Hearing dates: Wednesday 2 April 2014
Judgment
Mr Justice Stuart-Smith:
Introduction
The Claimant [“Bridgerow”] is the proprietor of Platinum Lounge, a lap and table dancing venue that has been operating in the heart of Chester’s City Centre since 2005. In March 2011 the Defendant Council resolved to adopt the SEV licence provisions of the Local Government (Miscellaneous Provisions) Act 1982 as amended by s. 27 of the Policing and Crime Act 2009 [“LGMPA”]. On its first application under the new regime, Bridgerow was granted an SEV licence in April 2012. When that licence was coming to an end, Bridgerow applied for renewal. The Council refused to renew the licence by a decision made on 17 September 2013. The relevant parts of the 2012 and 2013 Decision Notices are set out at Annexe A and Annexe B respectively.
Bridgerow now challenges the Council’s decision of 17 September 2013. In the light of Bridgerow’s challenge, the Council took steps to try to provide amplified reasons for its decision. For sound reasons, the Council conceded at the hearing that it should not attempt to rely upon those steps to supplement the original decision. It follows that the Council’s decision stands or falls by what happened at the meeting that made the decision and the terms of its Decision Notice.
As originally formulated, Bridgerow’s challenge was based on alleged:
Failure of the Committee to follow their own policy;
Failure to consider making an exception to policy in the individual circumstances of the case;
Failure to give reasons;
Failure to have regard to the importance of consistency and failure to give proper reasons for departing from the decision of the previous Committee;
Failure to consider Bridgerow’s human rights.
By supplemental grounds Bridgerow alleged that the Council acted in contravention of its constitution because the decision should have been taken by a panel of three but was in fact taken by twelve councillors.
By the time of the hearing, Bridgerow placed the constitutional point at the forefront of its submissions. Turning to the original grounds, Leading Counsel for Bridgerow submitted that his most powerful point was the alleged failure of the 2013 Committee to give due weight to the fact of the 2012 Committee’s decision combined with a failure to articulate its reasons for reaching a different conclusion. I agree with his analysis. I shall therefore deal with the constitutional point and due weight/inadequate reasons point first and in that order.
The Statutory Framework, Ministerial Guidance and Applicable Legal Principles
The Statutory Framework and ministerial guidance have been considered in a number of recent cases including R (ex parte KVP Ent Limited) v South Bucks DC [2013] EWHC 926 (Admin) and R (ex parte Thompson) v Oxford City Council [2013] EWHC 1819 (Admin) and 2014 EWCA Civ 94.
In Bean Leisure & Ruby May v Leeds CC [2014] EWHC 878 (Admin) I attempted to summarise the position at [5]-[11]. For present purposes it is only necessary to recapitulate briefly:
The discretionary ground for refusal that is relevant in this case is under paragraph 12(3)(d) of Schedule 3 to LGMPA and is 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 … in respect of which the application is made.”
Parliament’s intention was to give primacy to the evaluative judgment of local authorities who have the advantage of local knowledge, the responsibility vested in them by election and the accountability to their constituents imposed by the local democratic process. The Courts should respect that primacy and not interfere unless necessary.
The principles relating to the obligation to give reasons generally and when departing from a previous decision are also familiar. The parties in the present case did not dissent from the summary that I provided in Bean Leisure at [48] and [50-53] which is attached as Annexe C. Once again, therefore, I provide only a brief recapitulation here:
Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues;
In a case such as this, a committee is entitled to take a fresh look at a matter and to reach a decision that differs from a decision taken previously by another committee. If it proposes to do so when nothing has changed since the previous decision, it must give its reasons for doing so. However, even where circumstances have changed, the committee is under the general obligation that its reasons must enable the reader to understand why the matter was decided as it was by the present committee. In reaching its decision, the later committee must give due weight to the previous decision, though it is not in any way bound by it.
I merely add that what constitutes “due weight” will depend on the facts of each case and will be the weight that is appropriate in all the circumstances: see by way of analogy R (ex parte Baker) v Secretary of State for the Communities [2008] EWCA Civ 141 at [31] per Dyson LJ.
I will consider the principles that apply to the alleged breach of the Council’s constitution when dealing with that ground of challenge.
The Factual Background
The Premises and their Location
As is well known, Chester has a long history. It still has many ancient and historical buildings, including the largest stone-built Roman Amphitheatre in Britain. The City Centre is justly famous for its historical buildings, including the Cathedral and many half-timbered buildings that remain in daily use. Platinum Lounge is at 42 Bridge Street Row, which is in the heart of the City Centre and is one of the celebrated “Rows” of half-timbered galleries, reached by steps, which form a second row of shops above those at street level.
The City Centre is predominantly commercial and provides a busy shopping centre and thriving tourist destination with some residential accommodation. Bridge Street Row exemplifies these characteristics. Although the main thoroughfare is substantially retail and commercial, there are houses, apartments and dedicated student accommodation in the vicinity. By way of example, Three Old Arches is at 48 Bridge Street, within 50 metres of Platinum Lounge: it is designated Grade I Listed, is the oldest shop front in England (dating back to 1274) and has 25 apartments above.
Two aspects of the residential accommodation near Platinum Lounge require mention. The first is that Platinum Lounge is just over 50 metres from one end of White Friars, a street predominantly made up of old buildings now having mixed commercial and residential uses. The significance of White Friars is that its residents were vocal in their opposition to the proposed renewal of Bridgerow’s SEV licence and had by 2013 organised themselves to form a Residents Association, the purpose of which was to promote what they consider to be the improvement of the City Centre. The second is that the ratio of residential to commercial occupancy has been shifting with an increase in the number of properties being refurbished or developed for residential use. The exact figures are a matter of dispute between the parties, but it is not in dispute that during the period with which this case is concerned, a significant development of 28 units at Bollands Court and Commonhall Street (for which permission had originally been granted some years before) began to come on stream and to be built. The position of residential properties near to Platinum Lounge was before the 2013 Committee when it made its decision.
In addition to its SEV licence, Platinum Lounge is licensed for regulated entertainment and the sale of alcohol. That licence is unaffected by the 2013 decision not to renew the SEV licence. Since 2005, when the club started operating as a lap and table dancing venue, there have been no licensing issues, no warnings and no enforcement activity. It is Bridgerow’s evidence that no resident has made a complaint to it and that no complaint or regulatory steps have been taken against it by either the Police or Environmental Protection Officers. There were, however, objections from residents in both 2012 and 2013 to which I shall return.
The Council’s Constitution
The Local Government Act 2000 altered the balance of local government away from a council-based style of governance to vest executive functions in a mayor or a mayor and cabinet. The effect of the change was described by Hickinbottom J, whose description was adopted by the Court of Appeal in R (Ex parte Buck) v Doncaster MBC [2013] EWCA Civ 1190 as follows:
“2. Prior to the Local Government Act 2000 (“the 2000 Act”), the power to make all decisions on behalf of a local authority vested in the full Council; although it could, and of course did, delegate much decision-making to committees or officers, and committees subdelegated to officers or subcommittees. In practice, most important decisions were taken by committees, the constitution of which usually reflected the political balance of the full Council.
3. That picture of local government governance was radically altered by the 2000 Act, as supplemented by guidance issued under that Act on 26 October 2000 by the Secretary of State, “New Council Constitutions: Guidance to English Authorities” (“the 2000 guidance”). The new statutory provisions … were designed to provide “efficient, transparent and accountable decision making”, through “new constitutions which [would] deliver identifiable, accountable, corporate leadership for a local authority and the community it serves” by removing most decision-making from the full Council altogether, and putting it into the hands of a small executive (paragraphs 1.8 and 1.10 of the 2000 guidance). Those principles are underscored by section 37 of the 2000 Act, the Local Government Act (Constitutions) (England) Direction 2000 and paragraph 4.65 of the 2000 guidance which require to be made publicly available the scheme of delegation of functions which are the responsibility of the executive, including delegations to individual portfolio holders.”
Part II of the 2000 Act governs arrangements for executive activities. Section 11 describes the various alternative arrangements, of which one had to be adopted by each local authority. Section 25 requires every local authority to draw up proposals for the operation of executive arrangements and to send a copy of the proposals to the Secretary of State. The proposals must include the form which the executive is to take and the extent to which various functions are to be the responsibility of the executive. They must also include a timetable for implementation, which the local authority must then follow. By section 29 of the Act, the proposals are implemented by a resolution of the local authority. It is then obliged to publish a document setting out the provisions of the arrangements that have been implemented and to make it available to members of the public.
Section 37 of the Act provides:
“37. Local authority constitution.
(1) A local authority which are operating executive arrangements … must prepare and keep up to date a document (referred to in this section as their constitution) which contains-
(a) such information as the Secretary of State may direct,
(b) a copy of the authority’s standing orders for the time being,
(c) a copy of the authority’s code of conduct for the time being under section 51, and
(d) such other information (if any) as the authority consider appropriate.
(2) A local authority must ensure that copies of their constitution are available at their principal office for inspection by members of the public at all reasonable hours.
(3)A local authority must supply a copy of their constitution to any person who requests a copy and who pays to the authority such reasonable fee as the authority may determine.”
The Secretary of State has given directions pursuant to s. 37(1) of the Act by the Local Government Act 2000 (Constitutions) (England) Direction 2000. The information that is required to be contained in the constitution includes the membership, terms of reference and functions of the authority’s committees or sub-committees and any rules governing the conduct and proceedings of meetings of those committees or sub-committees whether specified in the authority's standing orders or otherwise.
The Council’s constitution was produced as a result of the process that I have just described (Footnote: 1). It was made publicly available by being published on the Council’s website. It sets out the Council’s executive arrangements and details of its committees, their membership, terms of reference, functions and their composition, as required by the 2000 Direction.
The Constitution states the composition of the committees it lists. Typically it states that “the committee comprises x members” and the basis on which they are chosen. Thus the Audit and Governance Committee “comprises 9 Elected Members appointed on a politically proportionate basis in line with the political composition of the Council” (Footnote: 2). The composition of the Staffing Committee is worded almost identically (“comprises 9 members and is constituted on a politically proportionate basis ….”) as is that of the Appeals Committee (11 members), the Strategic Planning Committee (9 members), the Planning Committee (11 members), the Licensing Committee (15 members), and the Public Rights of Way Committee (7 members) (Footnote: 3). The wording for the Community Governance Review Committee is slightly different but the effect is the same – “Membership: Seven Councillors appointed in accordance with political proportionality.” (Footnote: 4) The composition of the Health and Well-Being Board adopts the same approach but identifies particular members such as the Leader of the Council and Director Strategic Commissioning – “The Board comprises the following members who have all signed up to the Council’s Code of Conduct: …”
In stating the terms of reference of some (but not all) of the committees, the constitution specifies that certain functions shall be undertaken by panels rather than the full Committee. So the terms of reference of the Appeals Committee are “Sitting as a panel comprising 3 members (drawn from the Committee on a broadly politically proportionate basis) to hear and determine any appeals lodged (a) in respect of the provision of school transport (b) … etc.” This approach is adopted for the licensing committee as follows:
“Terms of Reference
7.3 Sitting as the full Committee, to:-
(a) …
(b) determine applications for the grant waiver or revocation of Sex Establishment licences
(c) …
7.4 Sitting as a panel comprising 3 Members (drawn from the full Committee on an ad-hoc basis):-
(d) to hold hearings to determine licensing matters where such hearings are required by the Licensing Act 2003 (“the 2003 Act”) and associated regulations
…
7.5 Sitting as a panel comprising 3 Members (drawn from the full Committee on a politically proportionate basis):-
(a) …
(e) to determine all applications for sex establishment licences other than those referred to in paragraph 7.3(b) above.
The Council’s decision which is now being challenged falls within paragraph 7.5(e) as Bridgerow was applying for renewal and not for grant, waiver or revocation of an SEV.
The reason for the requirement that the full Committee should determine applications for grant, waiver or revocation of an SEV but that renewals were to be determined by a panel comprising 3 Members was not explained in evidence. It may have been thought that the initial grant, waiver of the need for a licence or the revocation of an existing licence were more serious decisions than the renewal of an existing one, but that is speculation.
In addition to specifying the composition of the committees and the provisions about how various functions were to be discharged, the Constitution made provision for the conduct of meetings, including provisions as to quorum, as follows:
“Quorum
3.6 Where the total membership of a committee is 12 Members or less, the quorum will be 3 members.
3.7 Where the total membership of a committee is more than 12 Members, the quorum will be one quarter of the total membership.
3.8 No business will be transacted at a meeting that is inquorate.
3.9 …”
The Council’s Policy
The Council adopted a written Policy entitled “Statement of Licensing Policy Sex Establishments”. Relevant extracts are set out at Annexe D. The following points emerge:
The character of the locality was given prominence as a matter to be considered ([4.2], [4.3]) and a matter specified to be taken into account on application for renewal ([4.6]);
The Policy then dealt with location and relevant locality in greater detail in section 5 including that licenses would normally only be granted in predominantly commercial areas ([5.1]); but also that in considering the location of all applications, the Council would take into account proximity to residential areas, places of worship and schools and other sensitive locations ([5.5]);
Applications would not normally be granted where the premises are located near residential accommodation ([17.7]);
The Council would consult with residents in the immediate local area, which was defined as a radius of 50m (though this could be extended) ([8.2]);
Where relevant objections were received, applications for renewal could not be decided under delegated powers but would be referred to “the Licensing Committee/Sub-committee”, the clear implication being that the application would then be heard at a public hearing in accordance with the Council’s Constitution ([12.1]).
The 2012 Application
The Licensing Committee met on 17 April 2012. There were eleven objections of which one was from a Councillor and three were anonymous. Two of the anonymous objections were disregarded, one because it stated no reason for the objection and one because it advanced moral grounds of objection.
The application was heard by 10 members of the Council. Voting was close with five in favour, four against and one abstention.
As can be seen from Annexe A, the 2012 decision was shortly stated. Although it rehearsed some of the submissions and evidence, it did not obviously express any views on them. It did not specifically refer to any provisions of its policy, though there was a general reference at the outset. In particular, it did not address the policy provision that applications would not normally be granted where the premises were located near residential accommodation.
The 2013 Application
The Licensing Committee met on 17 September 2013. Bridgerow’s renewal application was Item 5 on an agenda containing 9 items. The relevant papers supplied to members were a report and attachments amounting to 81 pages in aggregate. The report made clear that the application was for renewal of the existing licence. Eight written objections had been received (from a Ward Councillor, local businesses and Chester residents) and were included in the papers, as were seven letters and a petition in support of the application. The Police raised no objections and the compliance checks and inspections carried out at the premises over the previous year revealed no very serious issues or repeated breaches. The written objections focussed on whether Platinum Lounge was appropriate for the locality and complaints of antisocial behaviour and inconvenience from residents.
Twelve councillors took part in the hearing of Bridgerow’s application for renewal. At the time, the Conservatives had more councillors than Labour, but seven from Labour and five from the Conservatives made up the twelve who took part. Eight of the twelve had been party to the 2012 decision. Bridgerow had legal representation provided by its solicitors. Written and oral submissions were made in support of the application, and oral submissions were heard in opposition. In the event, the meeting was evenly divided and the decision was taken on the casting vote of the chair. No point was taken at the time on the composition of the meeting.
As Annexe B shows, the 2013 Decision adopted the same structure as the previous one but provided more detail (Footnote: 6). The following points emerge:
The Committee appreciated that it was dealing with a renewal, since its decision was expressed as “[Refusal] to renew” and the first paragraph of the reasons for the decision gave details of the grant of the previous licence. Later in its reasons, it referred to paragraph 4.6 of its written policy, which required the Council to give due weight to the fact that the licence was granted in the previous year, and noted that the application was to renew the licence for the same activity, hours of operation and conditions as previously licensed;
The Committee considered the nature of the locality in greater detail than its predecessor, which had not expressed any conclusion on how best to describe it. By contrast, the 2013 Committee took into account Bridgerow’s submission that the venue is located in a predominantly commercial area and, although not persuaded that the area was predominantly residential, expressed the view that the area had a mixture of commercial premises and residential properties and that “there was a significant presence of residents in the locality and that there is a trend continuing to increase the number of residents in the area near the premises”;
The Committee also considered the question of impact on the locality. It did so specifically in the context of its reference to Paragraph 4.6 of its written Policy and having heard objections to the effect that the location of the premises was detrimental to the character of the locality; and it concluded that “the historic rows gave the locality a special significance and is therefore an area unsuitable for the activity;”
Having expressed that view, the Committee faced up squarely to Paragraph 5 of the written Policy and the fact that the Committee considered that the premises were in a predominantly commercial area so that it was “therefore possible that a licence could be granted or renewed in that area.” Having done so, it concluded that there was “sufficient reason to renew the licence” on the basis that “the location of the premises in that area had an impact on the character of the locality” and “the premises’ proximity to residential areas”;
The decision does not use the words “The Committee’s reasons for departing from the previous Committee’s views/decision are …” or any similar phrase.
Breach of the Constitution
The terms of the Constitution are clear:
The Licensing Committee comprises 15 members and is constituted on a politically proportionate basis in line with the political composition of the Council: paragraph B2/7.2;
Certain functions (of which the renewal of SEVs is not one) shall be carried out “sitting as the full committee”, in which case the quorum will be one quarter of the total membership (i.e. four or more): paragraphs B2/7.3 and B5/3.7;
Certain functions (of which the renewal of SEVs is not one) shall be carried out “sitting as a panel comprising 3 members, drawn from the full Committee on an ad-hoc basis”: paragraph B2/7.4;
The renewal of SEVs (paragraph B2/7.5(e)) and certain other functions shall be carried out “sitting as a panel comprising 3 members, drawn from the full Committee on a politically proportionate basis”: paragraph B2/7.5.
The Council submitted that the provision that the panel could be more than 3 members, so that the terms of paragraph B2/7.5 should be read as if they merely established a quorum for the panel. Once paragraph 7.5(e) is read in context, that submission is clearly unsustainable for a number of reasons. First, the word “comprise” normally means “consist of” or “be made up of”; it does not normally mean “consist of” or “be made up of” at least a certain number or other minimum. Second, the use of the word “comprise” in the Constitution clearly has this normal meaning, since it is used to define the numbers of people who shall be on various committees, as I have summarised at [20] above. Third, the Constitution makes separate provision (at paragraphs B5/3.6-3.8) about what will generally constitute a quorum for committees of different sizes, which demonstrates that the previous provision that the committees shall “comprise” certain numbers must be using the term in its normal sense. Fourth, the use of the word “comprise” is consistent in the Constitution, including in Paragraph 7 when drawing the distinction between the full Committee (which “comprises” fifteen members) and the two panels (each “comprising” three members, though the panels are differently selected).
By the end of the hearing, by which time the relevant provision had been looked at in the broader context of the Constitution as a whole, the Council’s submission that “comprised” was permissive and not prescriptive of numbers had become rather muted, though it was not formally abandoned. To my mind it is clear beyond argument that the Constitution said and meant that Bridgerow’s renewal application should have been decided by a panel of three members drawn from the full Committee on a politically proportionate basis. Equally clearly, that is not what happened.
The Council submits that whether or not the Committee was properly constituted should not affect the validity of the decision. It accepts that the Constitution is a legal document, but submits that there are no grounds for complaint since “it is better in a case such as this to have more people sitting rather than fewer.” It goes on to submit that, even if the Council was acting in breach of its constitution then the “any alleged breach is negligible and de minimis”. In support of its position it refers to the decision of the House of Lords in Berkeley v Secretary of State for the Environment [2001] 2 AC 603, where the Secretary of State had failed to comply with his obligation to consider whether a grant of planning permission should be quashed because the Secretary of State failed to consider whether there should have been an environmental impact assessment. There Lord Bingham of Cornhill said that, where the Council had acted in excess of its powers:
“even in a purely domestic context, the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown, is very narrow. In the Community context, unless a violation is so negligible as to be truly de minimis and the prescribed procedure has in all essentials been followed, the discretion (if any exists) is narrower still: …”
Counsel were not able to identify any authority that was directly in point. However, in R. (on the application of Domb) v Hammersmith and Fulham LBC[2008] EWHC 3277 (Admin), Sir Michael Harrison treated it as axiomatic that where a decision was taken by a council in a way that did not comply with the constitution established pursuant to s. 37 of the 2000 Act, that would be unlawful and liable to be quashed.
I am unable to accept the Council’s submissions on this point. First, I agree with Hickinbottom J that the purpose and effect of the process leading to the adoption of the Constitution and its publication is “to require to be made publicly available the scheme of delegation of functions which are the responsibility of the executive, including delegations to individual portfolio holders.” It is therefore important that the manner in which executive functions will be carried out (and to whom they are to be delegated) is published, transparent, and reliable. Second, local authorities are corporate personalities established by statute and the process leading to the adoption and publication of the Constitution is the statutory route for the delegation of functions. Third, it is plain that the power to make the decision in this case has been sub-delegated to a panel of three. That is not a delegation by the Licensing Committee as such: rather, the executive function is delegated by the Constitution to the panel. It is not therefore open to the full Licensing Committee to arrogate the delegated power to itself. Fourth, and to my mind of critical importance, it cannot be suggested that the fact that the decision was taken by twelve members of the Licensing Committee rather than a panel of three was negligible on the facts of this case, for two reasons. The first reason is that, since the panel of twelve was equally divided, it is theoretically possible that a panel of three could have voted 3-0 or 2-1 in either direction, depending upon which of the twelve (or other members of the Licensing Committee) was on the panel. The second is that the twelve who made the decision were not constituted on a politically proportionate basis in line with the political composition of the Council. Although any suggestion of whipping is now abandoned, there can be no certainty how twelve members or a panel of three who were constituted in line with the political composition of the Council would have voted. So, although there is a superficial attraction in the submission that having the decision taken by more than three was an advantage, what matters is that the decision should have been taken by three and it cannot be said that a panel of three would have reached the same result as the twelve who in fact made the decision. Seen in this light, the observation of Lord Bingham of Cornhill in Berkeley supports Bridgerow’s position and not that of the Council.
For these reasons I conclude that the decision of the 17 September 2013 must be set aside because it was taken by a group of people who had no power to take it.
Failure to give due weight to or give adequate reasons for departing from the 2012 decision
Given my conclusion on the first issue, I deal with the second in less detail than would otherwise be the case. If those deciding the application had been properly constituted, I would have refused to set the decision aside. When it is read fairly, the reasoning is clear. There were two matters which affected the minds of the committee and led them to their conclusion in the knowledge that they were differing from that of the previous committee:
The first was their assessment of the area: while being predominantly commercial it was regarded by the 2013 committee as being mixed in a way which gave greater prominence to the residential accommodation than had been accorded to it in 2012. The paragraph in which the members expressed their view that “the area has a mixture of commercial premises and residential properties” also referred to the acceptance by Bridgerow’s solicitor that it was open to the committee to take a fresh look. Taking the paragraph as a whole it is plain that the committee recognised that it was or might be taking a different view of the balance of the area and that it was doing so having looked at the information provided to them, including the evidence provided by Bridgerow;
The second was their conclusion that the location of the premises in that area had an impact on the character of the locality. Taken together, these were sufficient reason to refuse to renew.
Four points may be made:
The committee was entitled to conclude that the premises were near to residential accommodation and that therefore paragraph 17.7 of the Council’s policy applied. On its terms, paragraph 17.7 provided a policy barrier to renewal even though the 2012 Committee had granted the original licence;
I reject the submission that the Council was obliged to be more specific about the nature or extent of the impact of Platinum Lounge on the character of the locality: the nature of the objections were well known in advance and the decision that the location of the premises was detrimental given “the age, extent, rarity, and archaeological importance of the location and the fact that it presents an iconic and unique townscape for the City” was perfectly comprehensible to anyone engaged with the issue of licensing sex establishments in the environment of a City centre;
The express reference to paragraph 4.6 of the Policy and to the application being based on the same activity, hours of operation and conditions and that the premises were previously licensed shows that consideration of the weight to be given to the 2012 decision was at the heart of the 2013 committee’s decision making process. The text of the letter also shows that the committee carried out a balancing exercise, on one side of which was the fact that the premises had previously been licensed while on the other were the considerations which the committee ultimately concluded should lead to refusal. The absence of a formulaic response is less important than the substance of the reasoning: the only advantage of including words that signpost the fact that necessary considerations have been taken into account is that they may discourage applications asserting that the substance of the decision is inadequate. The inclusion of such words is not necessary where, as here the substance of the reasoning is clear and sufficient;
The Decision Letter “grasped the nettle” of the previous decision and gave its reasons for reaching the conclusion it did. Quite apart from the fact that a decision maker in 2013 was entitled to have a second look whether or not circumstances had changed, there was material on the basis of which the decision maker could conclude that circumstances had changed with the progress of time towards the new residential development coming on stream. However, I do not consider that the presence or absence of changed circumstances would be determinative, provided that the general obligation to give reasons that enable the reader to understand why the decision maker has decided as it has: see Bean Leisure at [50]-[53] and [8(ii)] above.
I accept that the 2013 Decision Letter could have been fuller and could have been more clearly expressed. However, I do not accept that the essential reasoning is unclear, for the reasons I have set out above. It is positively unhelpful to engage in minute textual analysis when the overall meaning is clear and it is common ground that Decision Letters are not to be interpreted as if they were statutes. It is also salutary at this point for the Court to remind itself that licensing and planning functions are paradigm examples of matters that are matters for local policy and local knowledge to determine, subject to intervention by the Courts only where necessary. Once it is clear that the committee carried out a balancing exercise giving weight to the fact of the previous committee’s decision on one side and to rational policy-led considerations on the other, and that they came to a conclusion that was more obviously in conformity with the Council’s policy (and, in particular, paragraph 7.15 of that Policy) it is neither necessary nor appropriate for the Court to accede to a reasons challenge on the facts of this case.
Given my conclusion on the constitution point and on what Leading Counsel for Bridgerow regarded as Bridgerow’s strongest other argument, I say nothing about the other pleaded grounds save to say that I would not have upheld them on the material that was available of the decision letter at the hearing. As elsewhere in this judgment, that does not mean that certain aspects could not have been more clearly expressed or signposted.
Conclusion
The decision on 17 September 2013 must be quashed because of the serious procedural irregularity which led to it being taken by the wrong persons.
ANNEXE A
THE COUNCIL’S 2012 NOTICE OF DETERMINATION
The Licensing Committee considered the following documents:
Report of Regulatory Services Manager (Compliance and Commercial
Support)
2…
The Licensing Committee heard oral evidence from the following persons:
…
The Licensing Committee disregarded the following matters which were not relevant to the application: objection Number 9 to the report as no grounds were given for the Objection and objection number 11 to the report as the reason for objection was on moral grounds.
In reaching its decision, the Licensing Committee had regard to:
The Local Government (Miscellaneous Provisions Act) 1982 as amended
The Council’s Statement of Licensing Policy - Sex Establishments
The Licensing Committee decided to GRANT the licence subject to the appropriate standard conditions as amended by the Committee and conditions transferred from the existing premises licence issued under the Licensing Act 2003 together with additional conditions as to hours as indicated below:
…
Reasons for the decision:
The Licensing Committee was told that the Applicant is an existing operator which has been operating for the last 6 and a half years at that location under a Premises Licence issued under the Licensing Act 2003. The Application had been properly made and there had been no objection from Environmental Protection and comments received from Cheshire Police made no objection to the application. The Committee noted that letters had gone out to all residential and commercial addresses within a fifty metre radius of the premises and no objections were received from them. There had been few complaints about the premises over the years: a complaint about advertising and one concerning a fun casino gambling activity which had been addressed and dealt with satisfactorily.
The Licensing Committee took into account that there is University accommodation near the premises and although it was not established whether the resident students had been made aware of the application, the Committee noted that when the University was asked for comments, no objection was made.
The Applicant’s representative told the Licensing Committee that as the premises generally open as a sexual entertainment venue from 21.30, the hours applied for could be amended so that this is the standard starting time, with exception being made for an earlier start time of 17.30 at weekends and on Bank holidays and Chester Race days.
The Licensing Committee took into account the character of the locality as presented by the Applicant, that the venue is located in a predominantly commercial area; however objections raised by Councillor Dixon and objectors expressed concern that there are residential properties and university accommodation in the area and that the premises is very close to the Dewa Roman Experience which is used by schoolchildren participating in educational visits exploring Chester’s Roman streets and archaeological remains. The Committee noted that the Dewa Experience itself had not made any objection to the application.
Objections noted were about the activity of lap dancing fuelling a sexist culture and one which objectifies women; when the Committee was told that the location was unsuitable for a “sex club” the Applicant pointed out that the premises is not a sex club. Objections were made about the content of advertising leaflets and website content. Although there were concerns from the objectors that vulnerable young women were being approached and recruited by the Applicant and employment was encouraged as a way of earning a living and funding university education; the Applicant informed the Committee of its recruitment procedures which are carried out by the use of auditions and that girls are not approached to take part. The Committee was told that the application should be refused as its existence on the unique historic rows is contrary to the One City Plan which promises a safe place to live work and visit; its existence will create a “ no go area” where women will feel vulnerable. The Committee noted from the Applicant that residents in close proximity now felt safer at night during opening time due to increased security in the area.
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The Licensing Committee decided to grant the application with the revised licensable hours as indicated above and the standard conditions were attached to the licence together with an amended condition 10 to better control advertising and website material. The Licensing Committee removed standard conditions 19 and 32 at the request of the Applicant. Additional conditions were transferred from the existing premises licence as indicated above.
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ANNEXE B
THE COUNCIL’S 2013 NOTICE OF DETERMINATION
[Passages that are new in 2013 are in italics]
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The Licensing Committee considered the following documents:
Report of Regulatory Services Manager (Compliance and Commercial
Support)
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The Licensing Committee heard oral evidence from the following persons:
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The Licensing Committee disregarded the following matters which were not relevant to the application: references in objections based on moral grounds.
In reaching its decision, the Licensing Committee had regard to:
The Local Government (Miscellaneous Provisions Act) 1982 as amended
The Council’s Statement of Licensing Policy - Sex Establishments
Case Law: [2013] EWHC 1819 (Admin) Alistair Lockwood Thompson v Oxford City Council
The Licensing Committee decided to REFUSE TO RENEW for the reasons indicated below:
Reasons for the decision:
The Licensing Committee noted that the Applicant is an existing operator which has been operating as a lap/table dancing venue at that location under a Premises Licence since 23 November 2005 issued under the Licensing Act 2003 and under a Sex Establishment Licence issued on 17 April 2012 and effective from 11 May 2013. The Application had been properly made and there had been no objection from Environmental Protection and comments received from Cheshire Police made no objection to the application. The Committee noted that letters had gone out to all residential and commercial addresses within a fifty metre radius of the premises. It was noted that there had been no complaints to the Council about the premises and the Committee noted the summary of compliance checks made by officers.
The Licensing officer told the Committee that he had obtained further information about a violent crime which had taken place near the premises involving 2 groups of men. The incident happened near the premises and its own door supervisors had radioed to and assisted Police. The Committee was told that a number of Temporary Event Notices had been given to the Licensing Authority and during those events the premises had conducted the lap dancing activity which was contrary to legislation. No enforcement action had been taken and the Applicant assured the Committee that it would not happen in the future.
The Licensing Committee took into account the submissions of the Applicant’s Solicitor giving details of the nature of the establishment and background, hours of trading, impact on crime & disorder and steps taken to prevent disturbance. The Committee took note that concerns raised in objections could actually be linked to the activity under the Licensing Act Premises Licence but nevertheless that the Applicant had acknowledged the issues and had dealt with some of them to lessen the anti social behaviour, parking problems and problems with waste disposal which had occurred outside the premises.
The Licensing Committee took into account the character of the locality as presented by the Applicant, that the venue is located in a predominantly commercial area; and her acknowledgment that it was open to the Committee following the Oxford City case, to take a fresh look at the operation taking into account the character and locality of the area. The Licensing Committee’s view was that the area has a mixture of commercial premises and residential properties. This could be seen on the Ordnance survey map submitted by the Applicant.
However objections raised by Councillor Dixon expressed concern that there are residential properties and university accommodation in close proximity to the premises and that the location of the premises is detrimental to the character of the locality as it is situated on Chester’s historic rows which given the age, extent, rarity and archaeological importance of the location and the fact that it presents an iconic and unique townscape for the City, makes the location of a sexual entertainment venue in that area inappropriate.
The Licensing Committee took note from Mr Lyons, (representing Vanessa Bond and Whitefriars Residents’ Association - a body of local residents) of the number of residential properties in close proximity to the premises at Commonhall Street and Whitefriars and of the planning applications in respect of Bolland’s Court which are intended to further develop other nearby properties for residential use. This could be seen on the Ordnance survey plan submitted by the objectors.
The Committee was told that the application should be refused as its existence on the unique historic rows is contrary to the One City Plan
The Licensing Committee was not persuaded that the area was predominantly residential although it did consider that there was a significant presence of residents in the locality and that there is a trend continuing to increase the number of residents in the area near the premises.
Relying on the Council’s Statement of Licensing Policy in relation to Matters to be Considered on renewal at 4.6, the Committee noted that the application was based on the same activity, hours of operation and conditions and was previously licensed; however, it also took into account the character of the locality in which the premises is situated. The Committee concluded that the historic rows gave the locality a special significance and is therefore an area unsuitable for the activity. Relying on paragraph 5 of the Policy: Location and Relevant Locality, it considered that the premises are in a predominantly commercial area where licences will normally only be granted and it was therefore possible that a licence could be granted or renewed for a premises in that area; the Committee concluded however that the location of the premises in that area had an impact on the character of the locality. That consideration, together with the premises’ proximity to residential areas, was sufficient reason to refuse to renew the licence.
ANNEXE C
THE OBLIGATION TO GIVE REASONS AND DEPARTING FROM A PREVIOUS DECISION
(PARAGRAPHS 48 AND 50-53 FROM BEAN LEISURE)
The Obligation to Give Reasons
The principles summarised at [35-37] of South Bucks DC v Porter [2004] UKHL 33 apply to reasons on SEV applications: see Thompson in the Court of Appeal at [44] per Lloyd Jones LJ.
Departing from a previous decision
The provision for annual renewal of licences means that the Council is entitled to “have a fresh look” at the matter. If there has been no change in circumstances since an earlier decision and the Council wishes to depart from an earlier decision, it must give its reasons for so doing. This is clear from the judgment of O’Connor LJ in R v Birmingham City Council ex parte Sheptonhurst Ltd [1990] 1 All ER 1026, where he said:
“…[W]here Parliament, having expressly limited the grounds on which a licence may be refused, has drawn no distinction between grant and renewal of the licence and provided that a licence shall not last for more than a year, then it seems to me that to accede to Mr. Tabachnik’s submission [that Parliament cannot have intended that the vagaries of local opinion should be determinative of an existing trader’s rights to continue to trade] would be to introduce a fetter on the discretion of the Local Authority in cases of renewal which Parliament has not done. However, although the discretion is unfettered, there is a difference between an application for grant and an application for renewal and that distinction, as the cases have pointed out, is that when considering 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. It is of particular importance that the licensing authority should give due weight to this fact in this field, for I do not doubt that there is opposition to sex shops on grounds outside the limits imposed by paragraph 12 of the Schedule. I have come to the conclusion that the licensing authority were entitled to have a fresh look at the matter… In a case where there has been no change of circumstances, if the licensing authority refuses to renew on the ground that it would be inappropriate having regard to the character of the relevant locality, it must give its reasons for refusal: see paragraph 10(20) of the Schedule. If the reasons given are rational, that is to say properly relevant to the ground for refusal, then the court cannot interfere. I believe this to be the true protection for a licence holder applying for renewal against a wayward and irrational exercise of discretion. 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 Thompson, Lloyd Jones LJ referred to the need to “grasp the nettle of any disagreement with the earlier decision” and summarised the position at [35] as follows:
“In summary, therefore:
(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.”
It is clear from [34] of Thompson in the Court of Appeal that, in this context as elsewhere, the need to explain why a different conclusion is reached forms part of “the function of reasons as a safeguard of sound decision making.” It may also be said to flow directly from the South Bucks v Porter requirement that the reader must be enabled to understand why the matter was decided as it was, with the degree of particularity required depending entirely on the nature of the issues falling for decision. The Court of Appeal in Sheptonhurst and Thompson respectively said that reasons for departing from an earlier decision should be given “where there has been no change of circumstances” or “if there is no relevant change in circumstances”. I would only add that 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; and it may involve a combination of changed circumstances and a different view being taken of those that are unchanged. Wherever in this spectrum a case may lie, the over-riding principle is that 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 may be seen as differing from an earlier decision, it will almost invariably be necessary for the later decision at least to acknowledge the existence of the earlier: it is not possible to be prescriptive about what more is required to show that the later decision maker has given it any weight that is appropriate.
One of the features in Sheptonhurst, to which Mann LJ referred at first instance, was that the committee taking the second decision was differently constituted from the one that took the first. He pointed out that “the legislature must be taken to know that a local authority is a body of changing composition and shifting opinion, whose changes and shifts reflect the views of the local electorate. …. What is “appropriate” may be the subject of different perceptions by different elected representatives.” I respectfully agree. 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.
ANNEXE D
EXTRACTS FROM THE COUNCIL’S STATEMENT OF LICENSING POLICY
SEX ESTABLISHMENTS
INTRODUCTION
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This document outlines Cheshire West and Chester Borough Council’s policy for considering applications for sex establishment licences. The Council may depart from this policy when there are sufficient grounds to do so bearing in mind the spirit and intent of the Act and case law decided since it was passed. It is therefore the policy of this Council that each case shall be decided on its merits.
When considering applications the Council will also take into account the relevant provisions of the following legislation:
• • • • • Home Office Guidance
• Any other relevant legislation
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MATTERS TO BE CONSIDERED
In considering applications for the grant of new licences or variation of conditions, the Council will assess the likelihood of a grant causing adverse impacts, particularly on local residents.
The Council will take the following general matters into account: -
• type of activity;
• duration of proposed licence;
• proposed hours of operation.
• layout and condition of the premises
• the use to which premises in the vicinity are put
• the character of the locality in which the premises are situated
In considering all applications for the grant of new licences or applications for variation of conditions the Council will take into account the potential impacts of the licensed activity on:-
• crime and disorder;
• cumulative impact of licensed premises in the area, including hours of operation.
• the character of the locality in which the premises is situated
In considering all applications for renewal the Council will take into account: -
• levels of recorded crime and disorder in the area;
• past demonstrable adverse impact from the activity.
• whether appropriate measures have been agreed and put into effect by the applicant to mitigate any adverse impacts.
Conditions will be applied to the licence to control the hours of operation.
Where an application is made to renew a licence for the same activity, hours of operation and conditions as previously licensed the Council shall give due weight to the fact that the licence was granted in the previous year and for a number of years before that as appropriate. However, the Council will take into account: -
• levels of recorded crime and disorder in area;
• evidence of past demonstrable adverse impacts from the activity on the safety and amenity of local residents;
• whether appropriate measures have been agreed and put into effect by the applicant to mitigate any adverse impacts.
• the character of the locality in which the premises is situated.
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LOCATION AND RELEVANT LOCALITY
Licences will normally only be granted in predominately commercial areas and the Council is mindful of its power to determine that no sex establishment should be located in a particular locality.
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The Council has determined that it is appropriate to consider a predominantly residential area as a relevant locality and has determined that the number of sex establishments that it believes to be appropriate in each residential area as nil.
In considering the location of all applications, the Council will take into account:
• proximity to residential areas, places of worship and schools;
• proximity to areas with the highest levels of recorded crime;
• cumulative effect of existing related licensed activities in the vicinity.
• proximity to residential areas, places of worship, village halls, youth centres, schools and open spaces e.g. playgrounds;
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CONSULTATIONS
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PUBLIC
The Council will consult residents in the immediate local area relation to applications for grant, renewal or variation of the terms or conditions of a licence. The nature and extent of consultation will depend on the history of a particular premises and the perceived likelihood of problems occurring and objections being received. The Council will inform every domestic dwelling and commercial unit within a radius of 50m of the premises subject to the application. This consultation area may be extended if it is appropriate to do so.
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CONSIDERATION OF CONSULTATION RESPONSES
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Objections made simply on moral grounds will be disregarded.
HEARINGS
All applications for new Sex Establishment Licences and variations will be considered by the Licensing Committee/Sub-committee at a public hearing in accordance with the Council’s constitution.
Applications for renewals and transfers may be decided under delegated powers by officers. However where relevant objections are received the application be referred to the Licensing Committee/Sub-Committee.
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DISCRETIONARY REFUSAL
The Council may refuse to grant a licence on one or more of the following grounds:
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that the grant of the licence would be inappropriate, having
regard to:
the character of the locality where the premises are
situated;
the use to which any premises in the vicinity are put;
the layout, character or condition of the premises in respect of which the application is made.
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17 ADDITIONAL POLICY RELATING TO SEXUAL ENTERTAINMENT VENUES
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Premises providing relevant entertainment are likely to raise concerns relating to disorderly behaviour, public decency and public nuisance particularly if they are in or near residential areas, close to schools, places of worship or community facilities. These premises may also expose individuals in the vicinity – particularly women – to a heightened risk of facing criminal and disorderly behaviour or conduct amounting to nuisance.
It is the view of this Council that an application for the grant of a Sexual Entertainment Venue Licence or Premises Licence incorporating regulated entertainment of a form that meets the definition of relevant entertainment shall only be granted if the Licensing Authority is satisfied, having regard to all the circumstances including; the nature and extent of the activities; the location of the premises; and, the conditions proposed by the applicant or which might properly be imposed by the authority, are compatible with the promotion of the objectives of prevention of crime and disorder, prevention of nuisance and the protection of children from harm.
In particular, while each such application will be considered on its own merits:
• Applications are more likely to be granted in respect of premises in locations where licensed entertainment already takes place and where the locality is demonstrably capable of absorbing the impact of the night-time economy, than in other locations.
• In such cases, applications may be subject to the cumulative effect of premises offering relevant entertainment in a particular area; and, in future, to any special policy which the licensing authority may adopt should a particular location become saturated with such premises.
• Applications will not normally be granted where the premises are located:
(a) near residential accommodation,
near places of worship, community facilities or public buildings,