Bean Leisure Trading A Ltd, R (On the Application Of) v Leeds City Council

“Wildcats” and “Deep Blue” are lap dancing clubs in the centre of Leeds. They are Sexual Entertainment Venues [“SEVs”] within the meaning of the Local Government (Miscellaneous Provisions) Act 1982 [“LGMPA”] as amended by s. 27 of the Policing and Crime Act 2009 [“PCA 2009”]. On 3 December 2013 Leeds City Council [“the Council”] made decisions refusing to renew the SEV licences for each club. Decision letters were sent on 4 December 2013. The decisions have provoked two applications for Judicial Review, the Claimants in each action being the proprietors of their respective clubs. I shall refer to the Claimant in application CO/17374/2013 as “Bean Leisure” and the Claimant in application CO/17440/2013 as “Ruby May”.

The Council’s decisions not to renew the licences were to take effect at 4am on Friday 13 December 2013. Bean Leisure issued proceedings on 9 December 2013 and sought interim relief. On 12 December 2013 Griffith Williams J stayed the Council’s decision in relation to Wildcats pending the hearing of Bean Leisure’s application for permission to bring proceedings. On the same day, Ruby May issued proceedings and HHJ Belcher sitting as a Judge of the High Court made a similar order to that of Griffith Williams J, staying the Council’s decision in relation to Deep Blue pending the hearing of Ruby May’s application for permission. After further orders of the Court, the applications came to be listed on 6 and 7 March 2014 for a rolled up permission hearing.

The applicable legal framework and most of the factual background is common to each of the applications. This judgment therefore follows the following course:

In each case I grant permission to bring the proceedings, but for the reasons set out below, conclude that the challenge fails. The Council was entitled to reach the conclusions it did, which were in accordance with its published policy. Its decisions were rational and proportionate.

The powers provided under Schedule 3 of LGMPA come into operation where a local authority resolves to adopt them and takes the steps prescribed for that purpose: see s. 2(1)-(4) of LGMPA.

Paragraph 12 of Schedule 3 to LGMPA sets out various mandatory and discretionary grounds for refusing applications. The grounds that are relevant to the present applications are set out in paragraphs 12(3)(c) and (d) and are:

“(c)

that the number of sex establishments in the relevant locality at the time the application is determined is equal to or exceeds the number which the authority consider is appropriate for that locality;

(d)

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, vehicle, vessel or stall in respect of which the application is made.

(4)

Nil may be an appropriate number for the purposes of sub-paragraph (3)(c) above.

Other relevant provisions of Schedule 3 are that:

In March 2010, the Home Office published guidance for local authorities carrying out their functions under Schedule 3. The Ministerial Forward gave a clear statement of the policy aims that had driven the introduction of SEVs as a new category of sex establishment to be regulated by local authorities:

“In September 2008, the previous Home Secretary announced the Government’s intention to give local people greater say over the number and location of lap dancing clubs in their area. This followed a consultation with local authorities which highlighted concerns that existing legislation did not give communities sufficient powers to control where lap dancing clubs were established.

In order to address these concerns, section 27 of the Policing and Crime Act 2009 reclassifies lap dancing clubs as sexual entertainment venues and gives local authorities in England and Wales the power to regulate such venues as sex establishments under schedule 3 of the [LGMPA].

These new measures … will, if adopted by local authorities, give local people a greater say over where and how many lap dancing clubs open and operate in their neighbourhoods.

These are important reforms to further empower local communities and the purpose of this guidance is to provide advice to local authorities, operators, local people and other interested parties on the new measures introduced by section 27 and the associated secondary legislation.”

I respectfully adopt and endorse the observations of Sales J in R(ex parte KVP Ent Limited) v South Bucks DC [2013] EWHC 926 (Admin) at [12], [15] and [17]:

“12.

It is clear from the terms of paragraph 12(3)(d)(i) that a local authority has 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. That imports a significant evaluative power for the local authority at two levels: first, in assessing whether the grant or renewal of the licence would be “inappropriate” — which is 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.

…

15.

I accept the submission by Mr Cannon for the Council that the inference from this is that Parliament plainly intended to provide that the considerations inherent in paragraph 12(3)(d) were considerations for the local authority's own evaluative judgment, subject only to the supervisory jurisdiction of this court.

…

17 Parliament came to consider that that regime did not adequately meet community concerns about SEVs. Parliament passed section 27 of the 2009 Act in order to bring SEVs under the same system of control as sex shops and sex cinemas. This was a deliberate act by Parliament so as to widen the grounds upon which a licence for an SEV might be refused and also to enable such discretion to be exercised annually.”

To similar effect, in R (ex parte Thompson) v Oxford City Council [2014] EWCA Civ 94 at [25], Lloyd Jones LJ said:

“The Schedule 3 regime gives a wide discretion to licensing authorities, in particular in forming value judgments as to whether the grant or renewal of a licence would be appropriate having regard to the character of the locality. … Moreover, the fact that the maximum term of an SEV licence is twelve months indicates that local authorities are to keep these matters under frequent review.”

At first instance in Thompson [2013] EWHC 1819 (Admin), Haddon-Cave J had said at [49] that the differing appeal treatment applied to the grounds specified in paragraph 12(3)(c) and (d):

“flags up Parliament’s intention to give local authorities a wide discretion under grounds (c) and (d) without unnecessary supervisory interference of the courts.”

I respectfully agree. It seems to me to be plain that 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.

On 19 January 2011 the Council resolved to adopt the provisions of Schedule 3 of LGMPA (as amended) with effect from 1 October 2011. The intervening period was used for consultation and formulation of policy and standard conditions to be applied when determining sex establishment licences in the Leeds district. The overriding principle when determining a licensing application was that “each application will be determined on its own merit, taking into account local knowledge, this licensing policy and the guidance issued by the Home Office.” (Footnote: ¹) The 2011 Policy did not identify any locations or land uses for special treatment and imposed no numerical limit on the number of SEV licences that might be issued. It acknowledged the terms of paragraph 12(3) of Schedule 3 of LGMPA by setting out the discretionary grounds on which permission could be refused: see paragraph 8.31: the Council’s policy formulation in relation to locations and land usage was accordingly left at a very general level. Acting in accordance with the 2011 Policy, the Council issued seven SEV licences, including one to Bean Leisure and one to Ruby May.

In June 2012 the Council resolved to review the 2011 Policy. As part of that review the Council established a working group of members and officers. That working group recommended wider consultation to see if there were localities within the district that were unsuitable for SEVs. Leeds already had in place a Citizen’s Panel of 4000, which the Council consulted. 1847 responses were received, though not every respondent replied to every question (Footnote: ²). On the evidence, this was a reasonable rate of return from a group which can suffer from progressive consultation fatigue, and the Council took the results into account in its formulation of its revised Policy.

The results of the Citizens’ Panel Consultation provided the following information:

A report to the Licensing Committee meeting on 25 June 2013 summarised the results of the public consultation and recommended that the Committee consider the draft policy and refer it to the Executive Board. The Policy then went to the Council’s Executive, which approved it on 17 July 2013. The 2013 Policy was in force when the two decisions now under challenge were made. It represented a major shift in policy because it addressed the issue of inappropriate numbers, localities and land usage in much greater detail than the 2011 Policy. It did so having set out the wide-ranging considerations that influenced the formulation of policy on sex establishments for the future. It is central to the present applications and relevant extracts (with summaries of some of its contents) are set out in Annexe A. Some of the text was common to the 2011 and 2013 Policies. Text that was new in 2013 is highlighted in Annexe A.

Certain points may be noted at this stage:

Viewed overall, the 2013 Policy represented a marked tightening of the criteria for the regulation of SEVs. In particular it represented a significant shift of emphasis towards promoting and furthering the vision of Leeds as a city that is culturally diverse and which is moving towards being “locally and internationally recognised as the best city in the UK”, “fair, open and welcoming” and with a particular emphasis on being child friendly.

The significance of this shift cannot have been lost on the SEV operators in Leeds; nor was it, either before or after the introduction of the 2013 Policy. It cannot have been lost on them because it was an inevitable consequence of the general principles set out in section 7 of the 2013 Policy that, if more than four SEVs were otherwise appropriate to be licensed in the city centre, the Council would determine which should be licensed and which should not. It was equally inevitable that, in making that decision, it would do so in accordance with the general principles set out in section 7 and would do so using local knowledge.

Mr Whur, the solicitor who had represented all seven of the SEVs to whom licences had been granted under the 2011 Policy, clearly appreciated the significance of the shift. He wrote in response to the public consultation, not doing so not on behalf of any of the SEVs but as an experienced Licensing Lawyer and businessman of Leeds over 20 years. He wrote:

“As an immediate point of note it seems inconceivable and unfair that operators under three sets of legislation, without negative regulatory interaction, now run the risk of having their authorisations taken away from them.

…

It is firmly my view that if Leeds wishes to place a numerical limit on the number of premises that can be given SEV Licences in Leeds, then this number should not be reduced from those that have traded successfully with SEVs since they were granted last summer. If there is to be a cap, then it should be set at this level, but there should not be the removal of legitimate and licensed businesses within Leeds purely on a numerical reduction.”

That this represented the view of the SEV operators is supported by a letter written by Mr Gourlay (the owner of Bean Leisure and therefore effectively the proprietor of Wildcats). Although he did not write in response to the consultation, he later wrote to the Council in support of the Bean Leisure application for renewal that is the subject of these proceedings:

“You can … imagine our surprise when we learned earlier this year of a new consultation process that it seems is designed once again to reduce the number of clubs in Leeds and that once again, we as a business, and our employees face an uncertain future. As I stated earlier, given that we have traded without any license infringements, we find the current situation intolerable.”

As will be seen, both Bean Leisure and Ruby May specifically addressed the general principles introduced and enhanced by the 2013 Policy when they submitted their applications for renewal.

Wildcats’ premises are on the South side of the Headrow between East Parade and Park Row. They are directly opposite the block on the North side between Calverley Street and Cookridge Street. Running from West to East, the buildings on that block which face the Headrow and Wildcats are the City Library, City Art Gallery and the Henry Moore Institute, in front of which stands the Cenotaph on Victoria Square. Immediately to the West of that Block stands the Town Hall and, next beyond that, the Oxford Place Methodist Church. During the hearing that collection of buildings was described as “iconic” and as the heart of municipal and civic Leeds, both of which descriptions are apt. All are within approximately 100 metres of Wildcats apart from the Oxford Place Methodist Church which is just over 150 metres away. The buildings on the South side of the Headrow are not themselves municipal or civic and are not as distinguished as those to the North. They are mainly offices with some licensed premises, all of which are immediately recognisable as such. Although not themselves part of the civic edifice of the city, they provide the southern boundary for what is unquestionably one of the best known vistas in Leeds, if not the best known.

The positions of Wildcats and the other 2013 applicants’ premises are shown on the Annotated Plan. Red Leopard is also on the South side of the Headrow, about 40 metres to the West of Wildcats, just beyond East Parade. It faces the same buildings as Wildcats, being directly opposite the Town Hall, closer than Wildcats to the Oxford Place Methodist Church but further than Wildcats from the City Library, City Art Gallery, the Henry Moore Institute, and the Cenotaph. Deep Blue is to the North of Leeds City Station and about 50-75 metres from City Square. It is on Wellington Street, which is a major thoroughfare, near to where it becomes New Station Street. Silks is to the South of Leeds City Station in an area which is not specifically identified in the consultation or the 2013 Policy but which is subject to some redevelopment. Liberte and Purple Door are on York Place, a road in the office quarter on which there are some residential flats but no other buildings with sensitive uses. It is less of a thoroughfare than the Headrow or New Station Street.

Mr Gourlay’s evidence is that Wildcats has been a “Gentlemen’s Club” since 2005. It has a capacity of 450 and has 150 “entertainers/dancers” on its books in addition to 36 directly employed managerial and administrative staff.

In July 2007 the Council granted planning permission to change the use of the premises from being a shop to mixed use. The application had been made (and was understood by the Council to be made) with a view to running the premises as a lap dancing club, as was shown by the plans submitted with the application. In granting permission the Council took into account the various policies then in force and concluded that “on balance the [Council] considers the development would not give rise to any unacceptable consequences for the environment, community or other public interests of acknowledged importance.”

Until 1 October 2012, Wildcats operated under the licensing regime established by the Licensing Act 2003 without any regulatory concerns being raised. When the new regime was introduced, the then owners applied for and obtained an SEV license for 12 months from 1 October 2012. The Council’s Licensing Sub-committee took the decision in June 2012 after considering objections from members of parliament, councillors, interested organisations and other members of the public. The objections raised various topics of concern, including the unsuitability of the locality of the premises and women’s safety, both leaving work at night and going to work early in the morning. Conditions were imposed, including that Wildcats’ hours of opening should be 10pm-4am Sunday to Thursday and 10pm-5am Friday and Saturday. The Notice of Decision stated:

“The locality was the subject of many objections to this application. The licensing sub committee heard expert evidence of behalf of the applicant and market research results together with a change in the visual appearance of the premises that has already occurred. The applicant also consented to the removal of the cat woman logo if it was considered, as in the many objections, to cause offence.

The locality was not considered unsuitable given that the opening hours suggested by the applicant places this premises operating in the late hours of the night to the early hours of the morning. The licensing sub committee were of the opinion that appropriately set hours could ensure that the premises could operate without impacting upon the surrounding locality. With regard to the close proximity of one other lap dancing club, it was the licensing sub committees view that this did not ghettoise or create a specific area of Leeds given over to lap dancing clubs. The bus stop mentioned by objectors outside the Red Leopard Club was for one bus service only that ceased to run at 9pm. The concession by the applicant regarding opening hours was sufficient to address the concerns raised relating to the perceived risk to women’s safety.”

During 2013 Mr Gourlay bought Bean Leisure and so became the proprietor of Wildcats. He knew that the Council’s policy on SEVs was changing but considered that his purchase was worth the commercial risk because, in his view, Wildcats was the best lap dancing club in Leeds. The commercial risk included that there is 15 years left on the lease with no break clause and a current rental of £120,000 per annum, an annual service charge of £15,000 and non-domestic rates of approximately £60,000 per annum. Mr Gourlay entered into a personal guarantee in respect of the full extent of Bean Leisure’s obligations under the lease. He has invested additional substantial sums in the business since taking it over.

There is no evidence that the external appearance of Wildcats changed materially during the period of the initial SEV license. At the time of the challenged decision, the name “Wildcats” appeared prominently above the entrance. Apart from that it had no signage displaying its name, any logo, or any description of the use of the premises that was visible from the Headrow. As part of the 2013 application, Bean Leisure volunteered to remove the sign above the door, which has now been done. As a result, there is now no signage at all, which is itself a contrast to the buildings around it, most or all of which provide some indication of what they are. What were shop windows are now plain with a purple (or “dark plum”) curtain in each that blocks the view into the premises. The only other embellishment is the placing of chairs and a table on which stand silver ice buckets containing champagne-type bottles. I understand that the shop windows were either exactly or generally the same at the time of the challenged decision. Whether this presentation (with or without the name above the entrance) really anonymises the premises or does the opposite by suggesting the true nature of their use is debateable and may ultimately be for local councillors rather than a judge to decide, though I informed the parties of my personal view.

In his oral submissions, Mr Matthias QC submitted on behalf of Wildcats that it had the reputation as the premier venue of its kind in Leeds. Given the attempts to anonymise the frontage of the premises, that submission raises the question whether the reputation is widespread in Leeds or limited to those who wish to use the club. In 2012 Wildcats, Deep Blue and another club (Purple Door) commissioned research in order to support their application for a licence under the new regime. The main objectives of the research included testing awareness of the specific venues. The researchers based their report on 100 interviews with respondents who had to be 21 or over and had to live in the city centre or visit the city centre at least once every two months. 76% of respondents were aware of the presence of lap dancing venues in Leeds and were asked further questions. When asked to name any lap dancing venue that they could, Wildcats (42% of the 76%) was the most commonly cited venue, with Red Leopard (the other club on the Headrow – 39%) second. Deep Blue was cited by 5%. Not least because of the gender split of the respondents (46 men/54 women) it is overwhelmingly unlikely that the 76% of all respondents who were aware of the presence of lap dancing venues were all or even preponderantly users or potential users of the clubs. No evidence was given of advertising (online or otherwise) but the inference from the market research is that most people in Leeds know that there are lap dancing venues with a significant proportion (about 1/3) being aware of and able to name Wildcats.

The report of the Head of Licensing and Registration on Bean Leisure to the 2013 Sub-committee provided details of objections, confirmed that there had been no regulatory breaches in the past year, and drew attention to the introduction of the 2013 Policy. It highlighted “notable comparable differences” in sections 2, 5, 7 and 8 of the Policy and (at [9.4]) set out sensitive uses and sensitive locations that were listed in the 2013 Policy. It included a map of the locality showing Wildcats’ proximity to the North side of the Headrow. Bean Leisure had the report.

Mr Whur acted for Bean Leisure on its application for renewal. It is clear from his evidence in these proceedings that Bean Leisure (and he) realised that the policy limit of four SEVs in the City Centre meant that there would be an element of competition between the six applicants for renewal: fairness was to be achieved by considering all applications and then deciding on them all at the same time. Bean Leisure and Mr Whur analysed the policy changes and decided in the circumstances that they needed to produce expert evidence. They commissioned three reports including one from Mr Etchells, an expert surveyor in licensing matters, who was instructed to consider the issues of numbers and location identified in section 7 of the 2013 Policy. His report reviewed the 2013 Policy and considered the position of Wildcats and other SEVs. Specifically, he noted the proximity of Wildcats to the Civic Buildings (at [4.21]) but made the point that other SEV premises were closer to residential accommodation, citing Liberte and Purple Door (at [6.2]). In addition to Mr Etchells’ report, Bean Leisure submitted photographs of Wildcats taken by day and night from some of the sensitive premises on the North side of the Headrow, namely the Town Hall, the Leeds Art Gallery, the Cenotaph and from the junction of the Headrow and Cookridge Street. In addition to the original images, Bean Leisure submitted edited ones showing the frontage with no signage. It is plain from Bean Leisure’s submission and its evidence in this case that it was fully conversant with the terms and effect of the 2013 Policy and that it tried to address the potential policy implications of its proximity to the sensitive premises on the North side of the Headrow by its evidence and submissions.

Bean Leisure attended the hearing of its application and Mr Whur made oral submissions in support. Mr Whur referred the committee to the photographs that had been taken, and offered that Wildcats should open an hour later than at present and be open only to those who were 21 or over. He addressed the objections that had been made and submitted that there had been no real negative impact. Mr Etchells gave evidence and was asked about the presence of the Civic Buildings and also the relative impact of other clubs on their areas (Footnote: ³). In summing up, Mr Whur submitted that the key paragraphs of the 2013 Policy were [2.3] and [4.7] and that it would be irrational to refuse to renew the licence for Wildcats on the basis that “there is no real risk, it is all perceived.” (Footnote: ⁴). He did not at that point refer to [7.17] of the 2013 Policy or to the presence of sensitive buildings on the North side of the Headrow.

At the application hearing the committee had available to it six “Radius Plans”. Each plan showed the position of an applicant and a ring centred on that applicant’s position with a radius of 250 metres. Buildings with sensitive uses were identified within the 250 metre radius. Bean Leisure obtained a copy of the Radius Plan for Wildcats but not for the other applicants. As would be expected, the public buildings on the North side of the Headrow were shown on the Wildcats Radius Plan, as were other buildings that were further away.

When the committee came to make its decision on 3 December 2013, it renewed the licences for Liberte and Purple Door for a year and the licence for Silks for eight months, but refused to renew the licences for Wildcats, Red Leopard or Deep Blue.

The material parts of the Council’s decision letter for Bean Leisure dated 4 December 2013 are at Annexe B. The following points emerge:

After Bean Leisure and Ruby May had moved for interim relief, the Council issued amplified reasons, while not accepting that its original reasons were deficient. Relevant extracts from those reasons are at Annexe D. The following points emerge:

Deep Blue has been at 36 Wellington Street since 2002. It is about 50-75 metres from City Square. Its frontage faces South and is near to one of the pedestrian entrances to Leeds City Station. It is common ground that Deep Blue does not face a collection of buildings and monuments of the same level of significance as those facing Wildcats. Wellington Street is a busy pedestrian and traffic thoroughfare in what is essentially a prime office area of the city centre.

Deep Blue has traded as a lap dancing club for 11 years. It employs 61 staff. During that time there has never been any police or regulatory objection to the licensing of the club. The outstanding term of the lease is 19 years at an annual rent of £88,000. The proprietors of Ruby May have given personal guarantees under the lease for that term. There is no evidence that the lease includes a break clause.

When the new regime was introduced Ruby May applied for and obtained a SEV licence for 12 months from 1 October 2012. The Council’s Licensing Sub-committee took the decision in June 2012 after receiving objections from a similar body of objectors to those who objected to Wildcats, being primarily of a general nature and addressing similar concerns to those expressed in relation to other clubs. Conditions were imposed including that opening hours should be 10pm-4am Sunday to Thursday and 10pm-5am Friday and Saturday (as with Wildcats) and in relation to leafleting and distribution of flyers and use of vehicles for solicitation or touting. In addition, the applicant was required to submit a revised draft logo for approval. In giving its reasons, the Sub-committee said:

“Deep Blue occupies a small premises on Wellington Street. The immediate locality is predominantly office buildings with a public house next door and residential flats close by. The lap dancing clubs of Purple Door and Liberte are to be found on York Place to the rear…

The locality was not considered unsuitable given the opening hours suggested by the applicant places this premises operating in the late hours of the night to the early hours of the morning. The licensing sub committee were of the opinion that appropriately set hours could ensure that the premises could operate without impacting upon the surrounding offices and workers.

With regard to the close proximity of two other lap dancing clubs, it was the licensing sub committees view, due in part by the size of the three clubs, that this did not ghettoise or create a specific area of Leeds given over to lap dancing clubs. The concession by the applicant regarding opening hours was sufficient to address the concerns raised relating to the perceived risk to women’s safety.

Councillor Lowe objecting pointed out that the locality was sensitive due to the premises being viewable from Leeds railway station. The sub committee accepted the evidence of the expert for the applicant that the view of the premises was oblique. The proposed changes to the front of the premises would be made it less visible.

The logo was considered inappropriate and could be offensive due to it portraying male genitalia. It was noted that the applicant was happy to make any changes required by the council. Other imagery proposed to be used at the venue and on flyers was not considered offensive. The licensing sub committee felt that the reference to “stunning girls” waiting for customers should be changed to “dancers” waiting for customers so as to remove any ambiguity that may be regarded as offensive.

Flyer distribution was said to take place along the street and city square which may or may not exceed 100 metres of the establishment. Dancers, when smoking, are not visible from the street and are separated from members of the public. They are further to be wrapped in gowns of at least knee length so are not portraying an indecent image when seen by the public outside the venue.”

Apart from the removal of the logo that had been considered unacceptable, the exterior of Deep Blue did not change materially during the period of the initial SEV licence. At the time of the challenged decision, the name “Deep Blue” appeared prominently above the entrance. It had no other signage displaying its name or any description of the use of the premises that was visible from the exterior.

Ruby May commissioned an expert report from Mr Martin Nicholson, a chartered surveyor. His evidence was that the presentation of the premises was low key and opaque to casual people passing by on foot or by car or bus and that the outside of the premises does not identify them as an SEV “without very close inspection.” He noted and emphasised the lack of objections to Deep Blue’s presence and business over years.

The Report of the Head of Licensing and Registration to the 2013 Sub-committee was in the same form as the report on Bean Leisure: see [30] above. The attached map showed the proximity of Deep Blue to the Railway Station and City Square. Ruby May had the report.

Mr Nicholson attended the application hearing with Ruby May, as did Ruby May’s solicitor. Before doing so, there was a meeting of the proprietors, Mr Nicholson and others at which final preparations for the hearing were made. Deep Blue’s location and proximity to Leeds Central Railway station were discussed as an issue and it was “decided it was best to mention this straight away.” The issue was addressed by Mr Nicholson in his evidence. While accepting that Deep Blue was not far from the station, he said that not many people who visit Leeds go down Wellington Street: most head up Park Row and Boar Lane towards the shops and restaurants. He said that only office workers use Wellington Street during the day, when Deep Blue would be closed. In addition, since the club was opening at 10pm, he said that most trains had departed from or arrived at the station by then and that Deep Blue was not visible from the City Square exit, and its appearance was discreet. Summing up for Ruby May, their solicitor said that Deep Blue was well run, was a good neighbour, was not subject to objections and was not obviously an SEV from its external appearance. After the hearing, the solicitor emailed the Council offering that Deep Blue would open later, in line with other SEVs and, by a separate email, offering “to alter the appearance of the premises to such an extent and in such a way as to address any concerns which Leeds City Council may possibly have in respect of it.”

Ruby May’s Radius Plan identified the Leeds Railway Station and City Square as being near to Deep Blue with other buildings further away.

The material parts of the Council’s decision letter for Ruby May dated 4 December 2013 are at Annexe C. The following points emerge:

The Amplified Reasons provided by the Council applied to Ruby May and Bean Leisure. Relevant extracts are at Annexe D. The same points emerge as are set out at [37] above.

In large measure, the applicable legal principles are clear and not in dispute between the parties. I bear the following matters in mind when considering the challenges to the Council’s decision in this case.

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.

The provision of amplified reasons is appropriate where a disappointed applicant complains that the reasons given are inadequate. Generally they should only elucidate what has been provided before: see KVP at [62]-[68]. Where reasons are provided after a decision is challenged, they should be scrutinised carefully to see whether they are new reasons contrived to provide an ex post facto justification or genuine amplification of the reasons already given.

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.

If the licensing regime engages the Human Rights of operators of lap dancing clubs at all, it does so at a very low level. While some may wish to argue that there are material distinctions between the sale of pornography and the running of a lap dancing venue, they have in common that they are areas of social control in which the broad power of judgment entrusted to local authorities by the legislature is accorded a wide margin of appreciation. If the local authority exercises that power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights. If the local authority does not refer to an applicant’s Convention rights that may be an indication that it has given inadequate attention to them; but the question in every case is whether the applicant’s rights have been infringed, which is a question of substance and generally not simply one of procedure: see Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420 at [16], [17], [37], [91-95]. Proportionality requires the striking of a fair balance between a Claimant’s economic interests and the general public interest: see Tre Traktorer Aktiebolag v Sweden (1991) 13 EHRR 309.

Bean Leisure’s amended Statement of Facts and Grounds lists eight grounds of challenge, as follows:

The central proposition underlying this ground of challenge is that Bean Leisure was not told either that some premises would be regarded as more or less objectionable than others or what considerations would inform the committee’s views when deciding on the comparative sensitivity of the various premises. The proposition is unsustainable.

Bean Leisure accepts that it was aware that a new policy had been adopted, which identified certain types of use that were deemed to be sensitive and which provided (at [7.17]) that the appropriate number of SEVs in the city centre is a maximum of four providing those premises are not near properties with sensitive uses or in sensitive locations. It also knew that there were more than four applicants for renewal. It followed inevitably that the Sub-committee would in all probability reject at least two applications for renewal and that proximity to sensitive properties or being in sensitive locations would be policy criteria that would be applied. Bean Leisure understood this, as is plain from its instruction of Mr Etchells and the content of his evidence and its submissions to the Sub-committee. Mr Etchells’ discussion of the proximity of Wildcats to the Civic Buildings was evidently an attempt to meet the clear and new emphasis of the 2013 Policy to which I have referred; and his evidence that other SEV premises were closer to residential accommodation was a comparative exercise going directly to the competitive nature of the application. It is therefore incorrect for Bean Leisure to submit that “it had not had the opportunity to submit any written evidence as to the comparative sensitivity of the Wildcats and other premises in light of the evidence shown in the radius plans.” Although Bean Leisure was not shown the Radius Plan for Wildcats until the hearing and was not shown the Radius Plans for the other applicants, Mr Matthias QC correctly accepted that it could have drawn up plans serving an identical function had it wished to do so. It is clear from Mr Etchells’ evidence that Bean Leisure was able to submit written evidence on comparative sensitivity, and that it did so.

That is not to say that proximity to sensitive properties or being in sensitive locations were the only factors to be taken into account by the committee. Although the changed emphasis of the 2013 Policy was (and was appreciated to be) very important, other matters going to the history and management of Wildcats remained relevant and were addressed by the Sub-committee at the hearing.

Bean Leisure asserts that the fact of “ranking” was rendered unfair because it was not told what criteria would be adopted or how they would be applied. Specifically, it complains that it was not told what use would be made of the Radius Plans or how the comparative sensitivity of the various locations was to be determined. I reject these complaints. First, the criteria to be applied in assessing the various applications were those set out in the 2013 Policy, which was clear. Second, Bean Leisure invests the “ranking” with a formality that is not warranted. There is no evidence to suggest that the Sub-committee applied mathematical precision or pre-determined weighting to different considerations and no reason to suspect that it did so. Rather, the terms of the decision letters (and the Amplified Reasons) indicate that, having considered all of the applications, the Sub-committee formed a view based on all of the evidence about which applicants were sufficiently acceptable to merit renewal and which were not. That inevitably involved forming a view of the absolute merits or demerits of each application, which in turn was bound to lead to an informal view of the order of merit, or “ranking”, of the applications. The Radius Plans were obviously useful tools for the Sub-committee. The fact that the radius was drawn at 250 metres does not suggest that all sensitive premises within the radius would be afforded equal significance and it is plain from the decision letters that they were not. No criticism can be made of the Sub-committee having before it a plan which showed the immediate proximity of the Civic Buildings to Wildcats or the fact that there were other properties with sensitive uses further away. The decision letter identified the buildings and locations which had led it to its conclusion that the application should be rejected: they were the Cenotaph and the buildings on the North side of the Headrow.

In its written and oral submissions, Bean Leisure repeatedly asserted that it was unable to understand the reasons for the Council’s decision to refuse to renew its licence or to regard Wildcats as being in a more sensitive location than other premises. That is a surprising assertion.

Any reasonable appreciation of the impact of the 2013 Policy would lead to the recognition that the North side of the Headrow could rationally be seen as one of the most sensitive areas in Leeds. The decision letter showed that to be the Sub-committee’s view and gave their reasons for taking it:

“The concern in relation to Wildcats was the number of buildings with sensitive uses nearby, and the density of such buildings within a small area.

…

The Policy

The committee found that they were entitled to take into account any changes since June 2012. They found that the introduction of the new Policy was a significant change they could take into account. The committee noted that the introduction of the current Policy had not been legally challenged by any of the applicants.

Further they decided that the policy in place in June 2012 when the original decision to grant the licence was made was different to the one in place now. The policy previously adopted by Leeds City Council and in place when the June 2012 Decisions were made did not set a limit on the numbers of establishments and each application was judged on its own merits.

…

The committee decided that these premises were very close to not just one but more than one building which could be described as having a sensitive use as set out in section 7 of the Policy and that the buildings with sensitive uses were set very close together in a small area. The committee found that the objections relating to sensitive use of location were valid.

The committee found of importance that Leeds has sought to establish itself as a major European city and cultural and social centre with an intention to create a vibrant 24 hour city. The importance of cultural activities in Leeds relevant to these applications is set out in section 6 of the Policy.

These premises are situated directly opposite the Art Gallery and the Henry Moore Sculpture Gallery which are on Victoria Gardens on which also stands the Cenotaph. The Library is in the same building as the Art Gallery. The premises are diagonally opposite the Town Hall. There are residences close to the premises and nearby are offices and other bars. Behind the Art Gallery is Millennium Square, bars and restaurants and other public buildings. Oxford Road Methodist Church is nearby.

…

The committee was of the view that the premises could never be invisible. The premises and entry to them are on a main road. If the signage was removed activity around the premises through people entering and exiting and promotion nearby would indicate what the premises are used for.

…

… The committee took the view that people should be able to consider Leeds as a 24 hour city, safe to walk about particularly in sensitive locations including those with cultural activities. The committee was aware that some functions at the Town Hall finished at 11pm and following that people would be in the area. People would also be in the area following any event in Millennium Square or following events or being out for the night at locations nearby. The committee thought there was a valid objection that women walking by should feel safe and free to do so without concern.

Leeds Vision 2011-2030 focuses on the aspiration to be the best city in the UK. The committee was of the view that this includes the way the city is viewed by local people, and visitors. The sensitivity of locations near visitor attractions is therefore important to this vision, a point reflected in the Policy consultation replies.

…

In addition to the sensitive uses in paragraph 7.11 the committee took into account the fact that the premises are on one of the city’s main roads. The committee found of significance the nature of the road. The road is only a few metres wide so only a very short distance from the nearby sensitive buildings and locations such as the Art Gallery and Cenotaph.

The Headrow can be described as one of the key gateways into and out of the city of Leeds, being the main road which runs through it and the road on which significant buildings such as the Town Hall and Art Gallery stand. This is a road which brings a number of visitors including tourists to the city. The relevance of the events since June 2012 as set out above include the opening of the Arena and Trinity and are indicative of the growing number of visitors to the city. They are both specifically referred to, including their impact on visitors to the city in paragraphs 6.10 and 6.11 of the Policy.

…”

Even without the Amplified Reasons, the decision detter reflected and explained the view of the Sub-committee that Wildcats could not meet the requirements of the 2013 Policy (and, specifically paragraph 7.17) and that it fell short by a wide margin. It set out its reasons for reaching that conclusion with a clarity that defies misunderstanding, as set out above. The Amplified Reasons elucidated why other applicants were regarded as less objectionable than Wildcats and Red Leopard in terms that were clear and reasonably calibrated. While being suitably cautious of the risk of ex post facto justifications, the Amplified Reasons provide a cogent elucidation of why the Sub-committee came to the views that it did. Bean Leisure has not demonstrated that the Amplified Reasons should be rejected or disregarded. On the contrary, to my mind, a fair reading shows that, although doubtless drafted by a lawyer or with a lawyer’s assistance, they are reasonably consistent with the decision letter.

Bean Leisure attempts to avoid this conclusion by pointing to the fact that Liberte and Purple Door were nearer to residential accommodation than Wildcats, this being the very point that Mr Etchells had made in his evidence. The argument proceeds on the implicit assumption that proximity to residential accommodation “trumps” other sensitivities. The assumption is not justified and is wrong. First, none of the applicants were within a residential area within the meaning of paragraph 2.11 of the 2013 Policy: they were in the city centre. Second, the listing of areas in paragraph 2.13 did not establish a rigid hierarchy to be applied with mathematical precision. If it had done so it would not have helped Bean Leisure since it was “on” the Headrow (the fourth in the list) and “near to” two of the first three areas, namely, Millenium Square/Calverley Street, and the area round the combined Courts. Third, and in the same way, the listing of sensitive uses in paragraph 2.15 did not establish a rigid hierarchy such that proximity to a building with a use higher up the list would inevitably be regarded as more objectionable than proximity to one lower down. To have adopted such a policy would itself have been arguably irrational, given that the percentages of respondents who regarded it as objectionable to site SEVs near to any of the types of areas and buildings other than “late night entertainment areas” exceeded 50%, and the percentage variation between different types were often modest: see [14(iv)] above. Fourth, the proviso to paragraph 7.17 of the 2013 Policy (“… providing those premises are not near properties with sensitive uses or in sensitive locations”) includes two variables which cannot be the subject of formulaic precision, namely the degree of proximity involved in “near” and the level of sensitivity of “properties with sensitive uses or in sensitive locations.”

Adopting the South Bucks v Porter approach to the obligation to give reasons, the decision letter stated expressly that other premises were in less sensitive locations and set out detailed reasons that enabled the reader to understand why the Sub-committee regarded the proximity of Wildcats to the number of identified buildings with sensitive uses as rendering its application for renewal objectionable.

Bean Leisure submits that it was irrational to decide that Wildcats was excluded because it was near to premises with sensitive uses while deciding that Liberte and Purple Door were included even though they were near to other premises with sensitive uses.

There can be no doubt that Wildcats was near properties with sensitive uses or in sensitive locations, for the reasons already discussed. It would therefore not be arguable that, viewed in isolation, it was irrational to exclude Wildcats from the maximum of four: it contravened paragraph 7.12 and failed to meet the requirements of the proviso to paragraph 7.17 of the 2013 Policy. This ground of challenge must necessarily be by reference to the comparative merits of Wildcats on the one hand and Liberte and Purple Door on the other.

Although presented as a rationality challenge, this ground of challenge requires the Court to consider the factual basis for the Sub-committee’s conclusion that the licence for Wildcats should not be renewed while reaching the opposite conclusion on the licences for Liberte and Purple Door. In addressing the challenge, it is necessary to bear well in mind the respective roles of the Council, with its broad power to make an evaluative judgment taking into account its local knowledge, and the Court, which is not in a position to replicate the Council’s role and, in any event, not entitled to do so.

Bean Leisure’s submissions on this ground again rely upon the assertion that Liberte and Purple Door were closer than Wildcats to premises used as schools or education centres, which it describes as “the most sensitive type of use”, or residential accommodation, which it describes as “the second most sensitive use”. Accepting the factual assertion for the purposes of the challenge, it does not begin to show that the Council behaved irrationally. In the light of the 2013 Policy there is no arguable basis on which the Court could properly form the view that it was irrational for the Council to regard Wildcats’ proximity to the North of the Headrow as being more objectionable than the proximity of Liberte and Purple Door to other buildings having other sensitive uses. To my mind, that is precisely the sort of evaluative judgment that is for the Council to take. It is not susceptible to a formulaic or mathematically precise calculation that is capable of being objectively assessed by the Court. To the contrary, the Policy emphasises the increased weight to be given to all sensitive uses and the Council was entitled rationally to conclude that the “iconic” beating heart of civic Leeds on the North side of the Headrow was highly sensitive in a way that York Place was not.

Bean Leisure submits that this section of the decision letter was patently wrong because it only authorised three renewals, so that the maximum number of four was not exceeded. It suggests that the Sub-committee was confused by the fact that there were six applications and was therefore wrongly considering that number rather than the three which it decided to renew.

I have referred at [35(iii)] above to the initially confusing terms of the section of the Decision relating to the discretionary ground under paragraph 12(3)(c). To my mind, once the section is read as intended, the meaning is clear and the factual basis for this ground of challenge goes. I do not accept that the Sub-committee’s incorrect reference to the time when the applications were “made” shows that they misunderstood the nature of the exercise on which they were engaged. It is clear from the terms of the decision letter read as a whole that the Sub-committee appreciated that six was not the relevant number. I consider that it is also clear that the reason why the Sub-committee considered that three was equal to the number considered appropriate was because only three applicants satisfied the terms of the proviso.