ON THE DECISION IN THE ENGLISH COURT OF APPEAL IN THE MATTER OF THOMPSON v OXFORD CITY COUNCIL  EWCA CIv 94, CONCERNING THE REFUSED RENEWAL OF A SEXUAL ENTERTAINMENT VENUE LICENCE
As the Scottish Government looks to introduce a licensing regime for Sexual Entertainment Venues (SEVs) in the forthcoming Licensing Bill this spring, operators north of the border would do well to cast an eye to the growing jurisprudence on the almost identical system already in place in England & Wales.
This case, which concerns a lap dancing club in Oxford called The Lodge, is a decision from the English Court of Appeal following an unsuccessful appeal to the magistrates court by the operator, following a decision to refuse to renew the licence by Oxford City Council. In short, the Court of Appeal has upheld the previous decision meaning the council’s decision stands.
The case is interesting because it deals with issues such as whether the council is entitled to take account of future developments in the vicinity of the SEV premises, and also how the council should deal with a renewal where previously granted and there is no new adverse material.
The Court of Appeal has held that is lawful for a council to take account of the character of the area in terms of the suitability of the grant of a licence with regard to future developments in that area. This means that an existing SEV licence operator could have his licence renewal refused because, for example, planning permission has been granted for some nearby development: ” [the Council] is given a wide discretion in the assessment of whether the grant or renewal of a licence would be appropriate having regard to the character of the relevant locality. It seems to me that in making that assessment it should be permitted, at least, to have regard to an imminent development of which it is aware, even if there can be no certainty that it will be completed and operational within the period of the licence“.
The courd does find room to limit this, however, going on to say: “Nevertheless, the ability to take account in this context of forthcoming developments cannot be open-ended. The fact that SEV licences can be granted for very short periods which may not, in any event, exceed twelve months has an important bearing on this. Accordingly, I would suggest that it would not be open to a Council to rely, in refusing to grant an SEV licence, on a Development Plan which contemplated development say some five years in the future“.
The case also looks at issues such as the consideration and granting of the licence at previous renewals and whether it is appropriate for the licensing authority to depart from a previous decision to grant the renewal when there is no new material. The court helpfully provides us with three bullet points to summarise the position:
“(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”
The court also rejected a suggestion that the decision and procedure involved with this case was in breach of the licensing authoritys obligations under the EU Services Directive and in particular says that the “type of activities” which are to be licensed create sufficient justification for it to be treated as exceptional, and places particular emphasis on the statutory limitation of 12 months for the duration of a SEV licence as evidence that Parliament intended usch premises to be kept under a close watch (the implication being that if that were not the case such licences would have had an indefinite duration akin to the licensing system under the Licensing Act 2003).
Whilst an English case, this, and the other SEV appeals from England, will have some form of predential value to any Scottish SEV regime, especially because the draft regulations which introduce the SEV licence to the Civic Government (Scotland) Act 1982 are virtually identical to the English ones.