R (Bridgerow Ltd) v Cheshire West and Chester Borough Council

The court quashed the Council’s decision of 17 September 2013 refusing renewal of Bridgerow’s Sexual Entertainment Venue (SEV) licence because the decision was taken by a body that had no power to take it. The Local Government (Miscellaneous Provisions) Act 1982 (as amended by s.27 of the Policing and Crime Act 2009) and the Council’s own constitution governed who was entitled to decide SEV renewals. The constitution delegated the determination of renewals to a politically proportionate panel of three members (paragraph B2/7.5(e)), but twelve members of the Licensing Committee sat and decided the renewal, so the decision was procedurally unlawful.

As a subsidiary point the court considered whether the 2013 Committee had given adequate reasons and due weight to the 2012 grant. The judge found that, read fairly, the 2013 Decision Letter acknowledged the prior grant, applied the Council’s policy (including paragraph 4.6 on giving due weight to previous grants and paragraph 17.7 concerning proximity to residential accommodation) and gave intelligible reasons for reaching a different conclusion. Had the committee been properly constituted the reasons challenge would have failed.

Background and parties: Bridgerow Limited (operator of the Platinum Lounge, a lap and table dancing venue in Chester) applied to renew its SEV licence. Cheshire West and Chester Borough Council refused renewal on 17 September 2013. Bridgerow sought judicial review challenging that decision. The Whitefriars Resident Association appeared as an interested party.

Nature of the claim and relief sought: Bridgerow challenged the lawfulness of the Council’s refusal on multiple grounds, principally (i) that the Committee breached the Council’s constitution by deciding renewal as a body of twelve councillors rather than a politically proportionate panel of three; and (ii) that the 2013 Committee failed to give adequate reasons and failed to give due weight to the 2012 Committee’s grant of the licence. Other grounds (failure to follow policy, failure to consider exceptions to policy, human rights) were pleaded but became subsidiary at hearing.

Issues framed: (i) Whether the Council acted in breach of its constitution such that the decision was unlawful; (ii) whether the 2013 decision gave adequate reasons and properly took account of the prior 2012 decision and the Council’s written policy; and (iii) whether any other procedural or substantive defects required relief.

Statutory and policy framework: The relevant statutory scheme included paragraph 12(3)(d) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 (as amended), which permits refusal where renewal would be inappropriate having regard to the character of the locality, use of premises nearby or the premises themselves. The Council’s Statement of Licensing Policy (Sex Establishments) contained provisions requiring due weight be given to prior grants on renewal (paragraph 4.6), setting out that licences would normally be granted only in predominantly commercial areas (paragraph 5.1) and that applications would not normally be granted where premises are located near residential accommodation (paragraph 17.7). The Council’s constitution set out that renewals were to be decided by a panel comprising three members drawn on a politically proportionate basis (paragraph B2/7.5(e)).

Court’s reasoning: On the constitutional point the judge concluded that the word "comprise" in the constitution meant the panel must consist of three members; this was not a mere quorum provision. The council’s decision to have twelve members decide the renewal was therefore ultra vires the delegated arrangement in the constitution and could not stand. The court rejected submissions that the breach was negligible: the twelve members were not politically proportionate as required and a differently constituted panel of three might have produced a different result. The judge therefore quashed the 17 September 2013 decision for serious procedural irregularity.

On the reasons point the judge analysed the Decision Notice and concluded that it did acknowledge the earlier grant, referred to the Council’s policy (including paragraph 4.6), and set out the committee’s assessment of the character of the locality and the impact of the premises on that locality (including the historic rows and nearby residential development). Those reasons were intelligible and sufficient; accordingly, had the correct decision‑makers made the decision, the court would not have quashed it on a reasons challenge.

Procedural posture and outcome: This is a first instance administrative court judgment quashing the Council’s decision on procedural grounds. The judge made no order upholding or replacing the Council’s decision on the merits but remitted the matter (by quashing the unlawful decision) for reconsideration by the properly constituted decision‑making body.

The claim succeeds. The court quashed the Council’s decision of 17 September 2013 because it was taken by a body that had no power to take it: the Council’s constitution had delegated renewal decisions to a politically proportionate panel of three members (paragraph B2/7.5(e)), but twelve members decided the matter. Although the court found that the 2013 Decision Letter, read fairly, gave intelligible reasons and had given due weight to the prior 2012 grant (referring to paragraph 4.6 and paragraph 17.7 of the Council’s policy and the statutory test in paragraph 12(3)(d) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982), the constitutional defect required quashing of the decision.