3. The application and determination process
Making an application
- Whilst not required, the council would normally expect that applications for licences for permanent commercial premises should be from businesses with planning consent for the property concerned.
- The authority expects that applicants will have consulted with local residents, businesses and/or community groups in the vicinity of the premises so far as is reasonable practicable.
- Applicants are advised to consult the licensing authority’s pool of sex establishment conditions in order to ascertain the standard of the premises required, and the types of controls typically applied.
- The authority recognises that a partnership approach is more likely to ensure the licensing objectives are achieved and maintained. Pre-application discussions between the applicant, the council’s licensing service and other relevant agencies will be encouraged so that the licensing process can be as trouble free as possible.
- Applications in respect of premises must state the full address of the premises. Applications in respect of a vehicle, vessel or stall must also state where it is to be used as a sex establishment.
- Applications should be made in line with Appendix B to the policy, which explains the council’s application process including that required by legislation. Examples of these requirements include the requirement to notify the police of an application and the display and publication of public notices giving notice of the application. Application forms can be downloaded from our website, completed online or are available upon request to the council’s licensing service.
- An application form and relevant documentation for the new licence, renewal, variation or transfer must be completed and returned with the appropriate fee as set down by the council. The current fee levels can be obtained by reference to the council’s licensing service.
Duration of licences
- Licences will generally be issued on an annual basis but can be issued for a shorter term if deemed appropriate.
Commenting on licence applications
- Unlike some other licensing regimes (for example, those for alcohol, entertainment, or gambling), a wide range of people can raise objections about sex establishment licences. The police are a statutory consultee for all applications. Objectors should have something to say which is relevant to the statutory grounds for refusal that are set out in the Act.
- Representations must state the grounds on which the objection/positive representation is made. Objections must be made in writing and should ideally:
- be made in black ink
- indicate the name and address of the person or organisation making the representation
- indicate the premises to which the objection relates
- indicate the proximity of the premises to the person making the representation.
- Representations may only be made within the period of 28 days following the date on which the application was given to the licensing authority.
- The licensing authority will not normally consider any objection or positive representation that does not contain the name and address of the person making it.
- Representations received that are frivolous or vexatious or which relate solely to moral grounds are likely to be given lesser weight.
- A vexatious objection is generally taken to be one which is repetitive, without foundation or made for some other reason, for example - malice. A frivolous objection is generally taken to be one that is lacking in seriousness.
- Where representations are made the council will provide copies to the applicant. The council will not divulge the identity of the objector(s) to the applicant without the objector’s permission to do so.
Determination of applications
- When considering applications, the Licensing Authority will have regard to:
- The Local Government (Miscellaneous Provisions) Act 1982 (as amended)
- Any supporting regulations
- This Licensing Policy
- Any supporting Government Guidance
- This does not, however, undermine the rights of any person to apply for a licence and have the application considered on its individual merits, nor does it override the right of any person to make objections on any application where they are permitted to do so under the Act.
- When determining applications, the licensing authority will take account of any comments made by the chief officer of police and any representations made.
- We take the following approach to deciding applications:
- Each application will be decided upon its merits. This authority will not apply a rigid rule to its decision making
- Objectors can include residents/tenants associations, community associations and trade associations. Councillors and MPs may also raise objections. Elected councillors may represent interested parties providing they do not also sit on the Licensing Sub-Committee determining the application in question
- We will give clear reasons for our decisions.
- Where objections are made and not withdrawn, a hearing before a Licensing Sub-Committee will normally be held within 20 working days of the end of the period during which representations may be made, unless all parties agree that a hearing isn’t necessary.
- Objections will be considered by a Licensing Sub-Committee, where both applicants and objectors will be provided with an equal opportunity to address the Sub-Committee.
- As provided for by Paragraph 13 of Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982 the Authority will maintain a set of “standard conditions” to be attached to each sex establishment licence granted, renewed or transferred by the authority unless expressly excluded or varied. The standard conditions will be kept under review by the council’s Licensing and Enforcement Committee and if the need is identified separate sets of standard conditions will be maintained for sex shops, sex cinemas and sexual entertainment venues. Further conditions may be attached to individual licences where the authority considers it necessary. A copy of the council’s CCTV Standards Policy appear at Appendix C and a copy of the District Councils Standard Licensing Conditions appear at Appendices D and E.
- Should the authority decide to grant a licence issues that it may seek to restrict by way of condition are:
- The hours of opening and closing
- Display and advertisements on or in the sex establishment
- The visibility of the interior of a sex establishment to passers-by
- Any change of use from one kind of sex establishment to another
- The authority will seek to avoid duplicating licence conditions where a premises holds licences under both the Licensing Act 2003 and the Local Government (Miscellaneous Provisions) Act 1982.
- In the case of sex establishments (other than sexual entertainment venues), for example shops and cinemas, the licensing authority will normally expect that these premises will only open between 9.30am and 6pm and remain closed on Sundays, all bank holidays and public holidays.
- In the case of sexual entertainment venues the licensing authority will normally expect that these premises to only provide sexual entertainment between the hours of 12noon and 12midnight on Mondays to Saturday inclusive. However in the case of premises that already hold a premises licence under the Licensing Act the opening hours will normally be no earlier than 12noon or the start time for the regulated entertainment of dancing at those premises whichever is the later and the closing time no later than the closing time for the premises as shown on the premises licence issued under the Licensing Act 2003.
Refusal of licences
- Except where the council is prohibited from granting, renewing, varying or transferring a licence, the council will not refuse a licence without first:
- Notifying the applicant or holder of the licence in writing of the reasons
- Giving the applicant or holder of the licence the opportunity of appearing and making representations before a Licensing Sub-Committee.
Mandatory grounds for refusal
- The council must refuse to grant or transfer a licence to:
- A person under the age of 18
- A person who is for the time being disqualified from holding a licence
- A person who is not resident in an EEA state or was not so resident throughout the period of six months immediately preceding the date upon which the application was made
- A body corporate which is not incorporated in an EEA state or
- A person who has, within the period of 12 months immediately preceding the date upon which the application was made, been refused the grant or renewal of a licence for the premises, vehicle, vessel or stall in respect of which the application is made, unless the refusal has been reversed on appeal.
Discretionary grounds for refusal
- An application for grant or renewal of a licence may be refused on one or more of the grounds shown below:
- That the applicant is unsuitable to hold the licence by reason of having been convicted of an offence or for any other reason
- 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
- That the number of sex establishments in the relevant locality that the application is made is equal to or exceeds the number which the council considers is appropriate for that locality (nil may be an appropriate number for these purposes)
- That the grant or renewal of the licence would be inappropriate having regard to:
- The character of the relevant locality
- The use to which any premises in the vicinity are put or
- The layout, character or condition of the premises, vehicle, vessel or stall in respect of which the application is made.
- An application for transfer of a licence may be refused on either or both of the grounds shown in paragraphs (a) and (b) in paragraph 3.28 above.
Revocation of licences
- The council may revoke a licence:
- on any of the grounds specified in paragraph 3.27 (Mandatory Grounds for Refusal);
- on either of the discretionary grounds specified in paragraph 3.28 (a) and (b).
- The council will not revoke a licence without first giving the holder of the licence the opportunity of appearing and making representations before a Licensing Sub-Committee.
Cancellation of licences
- The licence-holder may surrender the licence at any time and may request the council in writing to cancel the licence.
- In the event of the death of a licence-holder, the licence will be deemed to have been granted to his personal representatives and will remain in force for three months from the date of death, unless previously revoked.
- Where the council are satisfied that it is necessary for the purpose of winding up the estate of the deceased licence-holder, it may extend or further extend the period in which the licence remains in force.
- Section 27 of the Act permits appeals by the applicant/licence holder against the decisions of the council in relation to sex establishments. The magistrates court will hear appeals in the first instance. Under normal circumstances a request for an appeal must be made to the magistrates court within 21 days of the council’s decision being notified to the applicant/licence holder.
- An appeal can be made in the following circumstances:
- Refusal of an application for the grant, renewal or transfer of a licence.
- Refusal of an application to vary terms, conditions, or restrictions on or subject to which any licence is held.
- A grievance relating to any term, condition or restriction on or subject to which a licence is held.
- Revocation of a licence.
- There is a right of appeal against refusal on mandatory grounds, only where the appellant alleges the ground did not apply to them.
- There is no right of appeal against refusal on the grounds that there are sufficient sex establishments in the locality or that to grant would be inappropriate having regard to the character of the locality, use of premises in the vicinity and the layout, character, condition and location of the premises.
- There is no right of appeal for objectors.
- A person wishing to appeal against a council decision on a sex establishment is strongly advised to seek legal advice prior to starting any action in a court of law.