Cornwall policy consultation database sex establishment policy – 28 July to 20 October 2010


Section 9 – Determination of Applications



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Section 9 – Determination of Applications




Stithians Parish Council (30)

28 Sept 2010

9.1. Hopefully the grounds for revocation of a licence are shown further along in the document?

Policy has been amended to include information regarding revocation of licences.

Current version of policy –

New Item 9.10 inserted “Revocation of Licence


The Licensing Authority is given jurisdiction to revoke a sex establishment licence by virtue of Schedule 3 paragraph 17(1) of the Local Government (Miscellaneous Provisions) Act 1982.
The Licensing Authority may call a hearing, without requiring a third party to request such a hearing, and give the licence holder an opportunity to appear before them.
The Licensing Authority may revoke the licence on any of the mandatory grounds which are detailed at 9.1 (above) or in respect of the first two grounds detailed at section 9.3 (above), namely that the licence holder is unsuitable or that the manager or beneficiary of the licence is unsuitable.
Should the Licensing Authority revoke a Sex Establishment licence then full reasons for the revocation would be provided to the licence holder within 7 days of the decision.
Revocation of a Sex Establishment licence would disqualify the licence holder from holding or obtaining another Sex Establishment licence in the Licensing Authority’s area for a period of 12 months. However this does not prevent the licence holder from holding a licence in another Licensing Authority’s area.”
Item 9.11 amended to read “The Licensing Authority will, unless there are exceptional reasons otherwise, grant licences for the maximum duration of one year to provide certainty to those operating businesses, unless the licence is revoked during this period.”
Item 9.12 amended to read “If an application is refused, or revoked, following a hearing, then the applicant will be informed of the decision and whether there is any right of appeal.”
Rest of item remains unchanged.

YES

YES




Stithians Parish Council (30)

28 Sept 2010

9.1. If a refusal was reversed on appeal it is not a refusal?

This wording is taken directly from Schedule 3 paragraph 12(1)(e) of the Local Government (Miscellaneous Provisions) Act 1982

None



N/A

YES




Stithians Parish Council (30)

28 Sept 2010

9.1. Surely these are not grounds but conditions?

This wording is taken directly from Schedule 3 paragraph 12(1)(e) of the Local Government (Miscellaneous Provisions) Act 1982

None

N/A

YES




Ms B (115)

20 Oct 2010

In item 9.2. delete the reference to “statutory” grounds, the word statutory is off putting for ordinary objectors and there is a general impression being given in this item and the rest of the policy that objections are not welcome and may be ruled out before they even reach Committee stage. This is unfair because it will stop the local community having a proper say, which they should be entitled to do so at the Committee stage. The policy should be written in user friendly language which welcomes objections which will be considered fully at Committee stage.


Not agreed. There are statutory grounds for refusal and these need to be identified as opposed to general grounds submitted which are not relevant.

None

N/A

YES




Local Safeguarding Children Board (109)

20 Oct 2010

9.3 First bullet point: It should be made clear what convictions apply e.g. someone convicted of driving without due care and attention would not necessarily be incompetent to run an establishment of this nature. However, someone who has been convicted of offences relating to sex or violence may present a significant risk to those employed at or are patrons of the premises.

This wording is taken directly from Schedule 3 paragraph 12(3) of the Local Government (Miscellaneous Provisions) Act 1982

None

N/A

YES




Mrs C – Truro (142)

21 Oct 2010

Para 9.3. I am greatly concerned about “locality” – “zero capping” “zoning “ whatever one cares to call it. I cannot understand the Home Office being able to categorize say Redruth with Bristol. I would appreciate far more information in how Cornwall Council hopes to resolve this matter. It is extremely important and I shall be glad to have a conversation before any decision is made, especially as far as Truro is concerned.
I have listed (in the main response document) my main concerns but would value a further discussion on “zoning” etc.

Noted.

None

N/A

YES




Stithians Parish Council (30)

28 Sept 2010

9.3. ‘Ór for any other reason’ this is too broad and could be challenged in court

This wording is taken directly from Schedule 3 paragraph 12(3) of the Local Government (Miscellaneous Provisions) Act 1982

None


N/A

YES




Stithians Parish Council (30)

28 Sept 2010

9.3. That the applicant is a front man. How do you prove this? What about corporate bodies like companies? Also further down the rules allow for the designation of a manager. How does this square here?

Not a matter for the Licensing Authority to prove – this would be likely to be the subject of a representation from the Police. They would have to provide adequate evidence for the Committee to consider.

None



N/A

YES




Stithians Parish Council (30)

28 Sept 2010

9.3. That the grant of a licence would exceed the number of establishments the authority consider appropriate for the locality. This is subjective. The authority either needs to specify a number or lay down criteria for establishing the appropriate number. Otherwise such subjective decisions can be subject to judicial review. The note at the foot of the page does not say if guidance is provided or not. Hopefully it is further down.

This wording is taken directly from Schedule 3 paragraph 12(3) of the Local Government (Miscellaneous Provisions) Act 1982.
The subject of numerical limits is detailed at 11.2 of the policy consulted upon. Should any numerical limits be set by the authority they will be contained in Appendix F of the policy.

None



N/A

YES




Stithians Parish Council (30)

28 Sept 2010

9.3. Transfer can only be refused on the first two bullet points. OK, so get a licence in one area and then transfer it to somewhere else regardless of the character, number of establishments etc? Surely this is a loophole?


Transfer of licence only relates to transferring an existing licence from one named person (i.e. the licence holder) to another and not in relation to the relocation of a business.

None



N/A

YES




Truro City Council – (113)

20 Oct 2010

Para. 9.3 - Bullet point 3 which deals with numerical limits to be imposed on the number of licensed sex establishments within specific localities in the County. This matter is also dealt with on page l5 para.11.1. A locality cannot be the whole county. The Home Office say it cannot be the whole of any particular town or city, although licensing officials say they have seen case law which suggests otherwise. It seems the question being asked by the Council which areas within the County may be subject to such a numerical limit: more specifically streets or sectors within areas. The draft policy(page l5 para.11.1) says that when considering the characteristics of a locality the Licensing Authority shall particularly take account of the “density and proximity” of and then it lists 1-6. The policy should be firmer than this. It should state that localities within 250m of schools/nurseries/ creches etc. parks/childrens play areas, residential accommodation or religious/community buildings should have a zero limit. Case law has also held that a local authority may refuse a sex establishment licence on the grounds that the character of the locality is a family shopping area” This too could be grounds for designating a locality with a limit of “Nil”.

This has never been said by licensing officials.
Numerical limits and characteristics of a locality (page 15 para 11.1 are two separate matters, although matters for consideration to adopt a numerical limit in any area do take into consideration matters contained within 11.1.
Relevant localities with regard to characteristics should be considered in relation to each individual application and therefore it is difficult to specify certain “ranges” as there may be no relevant types of facilities in a 250m range of a premises subject to application, however there could be numerous relevant types of facilities 300m away. Would this mean they should not be considered – clearly not. Furthermore a relevant type of premises may not be within close proximity to a premises which is the subject of an application, however the street on which that premises is located may be the only access route to a relevant type of facility, and therefore the main thoroughfare, and this is a matter that can also be taken into consideration.

None

N/A

YES




Ms B (115)

20 Oct 2010

This part of the policy in items 9.3, 9.4 and 11.2 should be changed as there is no need to have any

policy, the legislation itself could just be used. If you do have a policy the idea of the changes in the new regime are supposed to help objections to such applications not hinder them. This view is supported by paragraph 1.3 of the Home Office guidance in relation to sexual entertainment venues which states that:


Section 27 gives local authorities more powers to control the number and location of lap dancing clubs and similar venues in their area. These powers are not mandatory and will only apply where they are adopted by local authorities. Where adopted, these provisions will allow local authorities to refuse an application on potentially wider grounds than is permitted under the 2003 Act and will give local people a greater say over the regulation of lap dancing clubs and similar venues in their area. 1
There is therefore no need whatsoever for the Council to define a relevant locality or state the number which may be appropriate. It is recommended that item 11.2 is deleted and replaced by the same draft policy as Haringey Council which has listed all of the 19 wards in the Borough and has determined

that the appropriate number is nil, as detailed in the following quote:


3.4. The Council has considered the character of its wards and determined that the appropriate number of sex establishments for each ward is nil. I The Council’s vision is to achieve greener, cleaner, sustainable communities and neighbourhoods to enable a good quality of life for all. The Council’s “nil per ward policy” responds to this concern and in addition to the above is based on the following factors which justify this safeguarding step: It will not allow licences to be granted where the appropriate number is exceeded.2
This type of policy would provide the most protection for Cornwall to achieve greener, cleaner, sustainable communities and neighbourhoods to enable a good quality of life for all.

Alternatively, Cheshire East draft sexual entertainment policy which is in line with the legislation states that:



“..Paragraph 12 of Schedule 3 provides that a local authority may refuse an application if it is satisfied 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. The Council does not seek within this policy to place a figure on the number of sexual entertainment venues which it considers appropriate in any locality within the Council‘s administrative area. Consideration will be given to the locality in each case and to the number of Sexual Entertainment Venues suitable for that locality.

The Council is able to determine that the appropriate number for a locality is nil.”3

Item 9.3 is taken directly from Schedule 3 paragraph 12(3) of the Local Government (Miscellaneous Provisions) Act 1982.
9.4 ensures that it is clear to all parties that there is no predetermination and that there is no policy in place likely to refuse one type of application over another.
This policy relates to all types of Sex Establishment applications, not merely Sexual Entertainment Venues.

None

N/A

YES




Stithians Parish Council (30)

28 Sept 2010

9.4. The authority will not apply a rigid rule. OK what about the numbers issue and the guidance on that? It seems dangerously subjective.


The Authority may specify numerical limits. However just because numerical limits have been specified for any individual area does not mean that the committee must maintain this limit rigidly. Should an applicant or objector provide good reason as to why a limit should not be adhered to then the committee may consider this accordingly, and choose to deviate from the policy. Any deviations from policy will be fully explained as part of the reasons for the decision. Therefore there is no bias.

None

N/A

YES




Stithians Parish Council (30)

28 Sept 2010

9.7. …a fine of 20 000 or revocation of the licence’?


This is prescribed by legislation.

None

N/A

YES




Stithians Parish Council (30)

28 Sept 2010

9.8. Surely this can’t be right. Changing the standard conditions which then apply retrospectively to all licences? That negates that every case is judged on its merits etc.


Standard conditions would apply to all licences, however when the application is determined the applicant could make submission as to why certain standard conditions should not apply to them.
It is a recommendation of the report that the Committee give consideration to existing licensed premises and the application of the standard conditions.

None

N/A

YES




























Section 9.9 – Length of Licence




Stithians Parish Council (30)

28 Sept 2010

9.9. One year seems a short term for such a licence when proprietors are expected to invest in modifying their premises etc to meet the conditions. Would three years not be a more reasonable term? It can always be revoked for non compliance.


Schedule 3 paragraph 9(1) of the Local Government (Miscellaneous Provisions) Act 1982 provides a maximum licence period of one year. The authority may grant a licence for a shorter period if it feels this appropriate. This could be used in respect of exhibitions, etc.


None

N/A

YES




























Section 9.10 – Right to appeal a decision




Stithians Parish Council (30)

28 Sept 2010

9.10. This implies that the right of appeal is also subjectively granted? A poor basis for a policy to work on.


It is explained at item 9.1 that there is no appeal where a licence has not been granted due to the mandatory grounds for refusal; a hearing may not require to be held if an application is refused on these grounds. However where an application is determined following a hearing then there is usually a right to an appeal.
The right of appeal is not something that is “granted” – it is prescribed by the primary legislation.

None

N/A

YES




Stithians Parish Council (30)

28 Sept 2010

9.10. A fee may be payable. More subjectivity. Who decides?


The Magistrates courts decides if a fee is payable – the Licensing Authority has no control over this. Therefore the authority is merely advising as a matter of courtesy that a fee may be payable.

None

N/A

YES




Local Safeguarding Children Board (109)

20 Oct 2010

9.10 If the grant of a licence was refused, in the first instance, on the grounds of an applicant having held a conviction, surely the same should apply with the appeal as the conviction would still stand?

Also, the first bullet point does not need to start with ‘that’ as it is used at the end of the previous line.



This is a matter for the courts and not the licensing authority – no relevant to the policy.
“that” – amendment to policy has already been made by officers whilst correcting typographical errors.

None

N/A

YES




























Section 10 – Fees




Local Safeguarding Children Board (109)

20 Oct 2010

10.2 Would suggest the end of this paragraph could read: ‘refund of 25% of the application fee when it is established that any/all appeals have been dismissed.


This is lifted directly from the resolution of the minutes for the meeting stated.
However, this is a very valid point and we would request that the Committee consider this suggestion and consider adding this to the previous resolution.

Committee agreed on 10/11/10 to amend this item to add the following text to the existing item: “Refund of application fees is only permitted once and will only be made after the expiration of the appeal period, and only if an appeal has not been lodged. If an appeal is lodged refunds will only be made if the appellant is unsuccessful, officers will refund the appropriate proportionate element.”

N/A

YES




























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