Posted by Woods Whur | Licensing Law

I was instructed to represent City Traders, the owners of Club Flamingo on Alie Street, Aldgate, to attempt to have its Sexual Entertainment Venue Licence (SEV) returned after an unsuccessful renewal application in 2016.

The decision which brought about the immediate closure of the venue was like an exam question, made significantly harder by the fact that we had not been instructed from the outset. The Licence had been the subject of a contested annual renewal and non-specialist lawyers had undertaken representation of the company.

SEV applications are always some of the most tricky, and Tower Hamlets Licensing Committee had refused the licence renewal because they had felt distinctly underwhelmed with the quality of the application to renew. There is a lesson to be learnt here: I would never look to represent my clients in attempting to secure a property deal on new premises. I simply do not have the legal training to do my client’s instructions justice. It is the same with Licensing Applications which become contested, particularly SEV applications. Non-specialist representation had meant that many of the subtle issues (and some not so subtle) had been missed. The renewal process in 2016 had got out of hand and, upon reading all of the papers and the decision, I could easily see that the situation would take some unravelling.

The licensing and control of Sex Establishments is governed by the Local Government (Miscellaneous Provisions) Act 1982. Schedule 3 deals with the licensing and renewal of licences for premises such as Club Flamingo. Paragraphs 8-13 are the critical parts of the Schedule and, in particular, paragraph 12.

Paragraph 12(3) deals with the discretionary grounds that the Licensing Authority has to grant or renew licences.

The discretion to refuse is engaged in the following situations:

(a) that the applicant is unsuitable to hold the licence by reason of having been convicted of an offence or for any other reason;

(b) that if the licence were to be granted, renewed or transferred the business to which it relates would be managed by or carried on for the benefit of a person, other than the applicant, who would be refused the grant, renewal or transfer of such a licence if he made the application himself;

(c) that the number of sex establishments in the relevant locality at the time the application is made 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.

The Licensing Committee had refused the 2016 renewal application for Club Flamingo under sub-paragraphs (a) and (d). This refusal meant that any attempt to over turn the decision became complicated. We lodged an appeal to Thames Magistrates Court for the refusal under para (a) as the legislation gives a statutory right of appeal. The lodging of the appeal stays the decision of the Authority. If that were the only ground for refusal then the premises would have been allowed to reopen.

BUT, and it was a big BUT, the renewal had also been refused under para (d), which has no statutory right of appeal. As a result, we worked in collaboration with Philip Kolvin QC of Cornerstone Chambers to apply for permission to judicially review this ground of refusal, and we had to apply for a stay of the decision while the High Court adjudicated on the point, as there is no automatic stay under this para.

We were granted permission, and a stay, which in these types of cases is hugely significant as it means that the premises can reopen and trade pending the substantive decisions in the Magistrates’ Court Appeal and the High Court action. Philip Kolvin QC had persuaded the High Court on his written submissions that there was an arguable case, which was a major step in unlocking the issues.

I am grateful that, at this stage, Tower Hamlets Council representatives accepted our invitation to meet and discuss the full case, as I had never had an opportunity to engage with the Authority previously, due to not being instructed from the outset.

I was able to supply significantly more information about the company, operation and management of the business than had been made available to the Licensing Committee as part of the previous renewal application. We were able to offer additional conditions to be attached to the licence, and as a result the Authority agreed to settle both the statutory appeal and the Judicial Review proceedings, something which allowed the licensee to have certainty to continue to invest.

This was all concluded satisfactorily last week, when the Licensing Authority agreed to renew the licence again for 2017-2018. A considerable amount of work had been undertaken to unravel the issues of the previous refusal.