R (KVP ENT LTD) v South Bucks DC
In this case a licensing sub-committee of South Buckinghamshire District Council refused to grant an application for a Sexual Entertainment Licence (SEL).
The subcommittee refused the application on the grounds that the grant of this SEL would be inappropriate having regard to –
- the character of the locality where the Premises are situated
- in accordance with paragraph 12(3)(d)(i) of the 1982 Act in particular the Premises being in close proximity to a residential area.” (Paragraph 12(3)(d)(i) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982).
A week prior to the sub-committee hearing, the same council in its role as the planning authority granted planning permission for a change of use to use as a lap dancing venue. The planning officer made a detailed assessment of the ‘character’ of the surrounding area and concluded that there were no reasons to refuse the application.
A the hearing the sub-committee was advised of the fact that planning permission had been granted but that, that was immaterial because the two regimes were separate and the one was not binding on the other.
The applicant did not raise the issue of planning permission with the sub-committee. Subsequent to the sub-committee hearing, the applicant complained to the Council that the reasons it had given were inadequate and secondly, of the fact that since planning permission had been granted so recently meant that the sub-committee’s decision was perverse and needed to be justified by more specific reasons.
The sub-committee reconvened to respond to the complaint. A response was sent to the applicant who nonetheless sought permission to judicially review the decision.
The application was refused by Mr Sales J.
Key points from the judgment:
- “The local authority was entitled to provide and rely on the amplified reasons provided after the letter before claim. It was ‘clear’ that the amplified reasons elucidated, rather than changed or modified, the brief reasons originally given;
- The regimes of planning and licensing are distinct, and as such there was no mandatory requirement to have regard to the Planning Officer’s Report or to ‘distinguish’ the conclusions contained within it before ‘departing’ from it. The views of the Planning Officer (adopted by the Planning Committee) were not binding on the sub-committee who had to come to their own judgment within the terms of the test contained in Schedule 3;
- The focus of the assessment of character in the Planning Officer’s Report was distinct and referable to the planning control regime and there was no requirement to have regard to it in the context of this application;
- - The sub-committee had not ‘wrongly conflated’ (as was contended) the question of the character of the relevant locality (for Paragraph 12(3)(d)(i)) with the uses to which premises in the vicinity were put (from 12(3)(d)(ii)). Questions of character will inevitably include consideration of the use to which premises are put; there may be cases where although the character of a locality does not compel refusal, the use to which specific premises nearby are put (for example a primary school) would.
- Indeed the shifting of the SEL regime from the Licensing Act 2003 to the provisions of Schedule 3 was done specifically to widen the grounds on which applications for
- In an intriguing post-script to the judgment, when dealing with costs the judge indicated that he was "by no means convinced that the claim would have succeeded even if the original decision notice had stood" and that it was distinctly possible that had he been required to decide the claim in the absence of the amplified reasons, the decision would have been the same.” [Source]