CDE, R (on the application of) v Bournemouth, Christchurch and Poole Council

A licensing authority may not exclude sexual entertainment venues solely because it considers them immoral. It may consider community objections about the consequences of such venues, including effects on relations between the sexes and attitudes towards women and girls, when determining an appropriate number for a locality.

Consultation responses must be conscientiously considered. A public authority must also comply with the Public Sector Equality Duty by rigorously focusing on the statutory criteria before adopting its policy. A renewal policy may give due weight to existing licence-holders, but must not fetter the authority’s statutory discretion. A policy which unlawfully excludes relevant equality concerns is liable to be quashed.

The claimant sought judicial review of the Council’s decision of 9 November 2021 to adopt a new Sexual Establishment Policy. The policy removed any numerical cap on sexual entertainment venue licences and created a presumption in favour of annual renewal for three existing venues.

The claimant alleged that the Council had failed conscientiously to consider consultation responses concerning sex equality, objectification, exploitation, harassment and violence against women and girls; had breached the Public Sector Equality Duty under section 149 of the Equality Act 2010; and had unlawfully fettered its discretion through the acquired-rights policy.

1. Grounds 1 and 2 succeeded. The Council had repeatedly treated substantial sex equality-based concerns as personal, moralistic or outside the licensing framework. The consultation responses were within scope, including responses advocating a cap of zero, since nil could be an appropriate number under paragraph 12(3)(c) and (4) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982.
2. Following Coughlan, consultation responses must be conscientiously taken into account. That may require analysis, further investigation and ensuring that decision-makers are properly informed. Mere acknowledgement is insufficient. The Council’s blanket discounting of the sex equality-based concerns diminished their force and was unlawful.
3. Paragraph 12(3)(c) confers a broad discretion to determine the number of establishments appropriate for a locality. The words “for the locality” do not exclude broader concerns which may also be relevant to other localities. The reasoning in Christian Institute did not preclude consideration of sex equality-based concerns directed to the consequences and effects of venues in the locality.
4. The Council also failed to comply with the Public Sector Equality Duty. The principles in Bracking, approved in Hotak, applied fully to local authority decision-making. There was no sufficient evidence of rigorous, substantive and conscientious consideration of the statutory criteria, including eliminating discrimination and fostering good relations. References to the duty and to dancer welfare or local crime statistics did not cure that deficiency.
5. Ground 3 failed. The acquired-rights policy required an application for renewal and did not make renewal automatic. It required consideration of the applicant’s suitability and whether there had been a material change in the character of the locality. Objections could trigger consideration of the remaining statutory factors. The policy therefore did not preclude the exercise of discretion in every case and did not unlawfully fetter it. It permissibly gave due weight to the fact that the existing licensees had held licences for several years, consistently with Sheptonhurst.
6. The decision to adopt the Policy was quashed. Ground 3 was dismissed.