R (ALISTAIR LOCKWOOD THOMPSON) v OXFORD CITY COUNCIL

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From the verdict concerning Oxford City Council’s decision to refuse renewal of a licence for the Lodge in Oxford, a club whose recent history has been mired by opposition despite lack of police complaint or allegation of any criminality. The refusal to renew has been upheld in a decision that again suggests the discretion available to councils is wide indeed, and may take into account future uses. The following extracts are taken verbatim from the verdict:

“Licensing decision-makers are entitled to take into account both the present and future “character” of an area. There is no reason to limit the reference to “character” in paragraph 12(3)(d) only to the present character of the area. Indeed, it would make no sense to do so in the context of prospective licenses which were to be granted for 12 months in the future. Prospective licenses required a prospective view. The fact that an area is developing and in a continued state of change is a relevant consideration to why renewal might be inappropriate.”

The verdict also analyses the Council’s justification for refusal point by point as follows:

“A fair reading and analysis of the 2012 Reasons is as follows. The ground for refusal is to be found in paragraph 5: “…renewal of the license would be inappropriate having regard to the character of the relevant locality or use to which premises in the vicinity are put”, i.e. the ground of refusal at paragraph 12(d) of Schedule 3). Seven separate reasons for reaching this conclusion are set out by the 2012 Sub-Committee in the bullet points (see above). The following observations are pertinent to each bullet point:

(1) It is clear from the first bullet point in the 2012 Reasons that the differently constituted 2012 Sub-Committee came to a different conclusion from the 2011 Sub-Committee when concluding that “the Resolution of 19/04/2010 on generally inappropriate locations was engaged in respect of the Ice Rink and College”. The members of the 2012 Sub-Committee were entitled to take a fresh look and a different view of the matter. As Mr Bhose QC points out, had the 2012 Reasons ended there without more, the Claimant’s might have had some reason to complain. But the 2012 Reasons went on to give six further reasons (see below).
(2) The proximity of the Oxpens car and coach car park only merited a glancing reference in the 2011 Reasons (paragraph 5). In contrast, however, the second bullet point in the 2012 Reasons made the point that the Oxpens car and coach car park brought “many tourists, visitors and local residents into the area of the premises at all hours” and the 2012 Sub-Committee clearly regarded this factor as significant enough to justify their view that a SEV in the locality was therefore “not appropriate”.
(3) The 2011 Reasons expressed the view that the residential areas of St Thomas and St Ebbe’s were not sufficiently proximate to engage The Resolution (paragraph 7). In contrast, however, third bullet point in the 2012 Reasons made the practical point that the Oxpens Road was “a busy transport link and pedestrian route for visitors and residents” living in the St Thomas and St Ebbe’s areas and the 2012 Sub-Committee clearly regarded this factor as significant enough to justify their view that a SEV was “not appropriate in such a well used location”.
(4) The 2011 Reasons make no mention of any increase in student accommodation in the area. In contrast, however, the fourth bullet point in the 2012 Reasons expressly referred to the fact that the development of student housing at Luther Court, Mill Street and Park End Street and the fact that this meant “an increased use of the locality by young and possibly vulnerable students as a route to and from their accommodation”. (The Claimant brings a separate challenge in respect to this evidence – see further below).
(5) The fifth bullet point in the 2012 Reasons highlighted the 2012 evidence regarding the change in the character of the vicinity “brought about by the opening of the premises”.
(6) The sixth bullet point in the 2012 Reasons highlighted the 2012 evidence that operation of the lap-dancing club had created “a hostile atmosphere in the locality” and “a heightened fear of the risk of sexual violence”. The 2012 Sub- Committee went on to express the view that, whilst there was no evidence of any actual violent incidents, the heightened fear reported was at least “in part” due to the existence of the lap-dancing club and they were “mindful” of the Council’s duty to take reasonable steps to prevent crime and disorder.
(7) The seventh bullet point in the 2012 Reasons referred to the 2012 anonymous and hearsay evidence of incidents of harassment by users of The Lodge toward a user of the Ice Rink and took “some account” of them.

64. It should be noted that bullet points (2) to (7) were new or substantially new matters, and bullet points (4) to (6) related to entirely fresh factors or circumstances, namely the reported effect of the operation of the club on the area in the previous 12 months. Individually, they each represented significant, relevant, stand-alone considerations militating against an SEV licence. Cumulatively, in my judgment, they represented a reasonable, comprehensive and comprehensible catalogue of reasons explaining objectively a change of heart from the 2011 decision and a refusal to renew in 2012.”

For coverage and interpretation see:

http://www.11kbw.com/blogs/local-government-law/leisure-5/289
http://www.licensingresource.co.uk/?q=news/councils-are-entitled-take-“-fresh-look”-and-change-their-minds-mr-justice-haddon-cave

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