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V26-764 : 17 COMMERCIAL ROAD, LOWESTOFT

APPLICATION FOR A LICENCE FOR A SEX ESTABLISHMENT

The Chairman explained how the debate would proceed. The Director of Housing and Environmental Services would put the officers' interpretation of the issue to members, followed by Mr. Morss, the Applicant, and his solicitor. Questions would be put to both sides by members, who would then withdraw into private session to come to a decision. The Panel would be advised as necessary by the Independent Legal Advisor.

The Director of Housing and Environmental Services reported that an application was received for the grant of a Licence to permit the operation of a sex establishment at 17 Commercial Road, Lowestoft. Following consultation, 79 letters and 5 petitions totalling 328 signatures had been received objecting to the application, and five letters had been received supporting it. The Police had no objection.

The Director advised that a large majority of the objections were based on "moral" grounds, and the Panel was not lawfully entitled to take such grounds into account when determining the application.

Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 provided a comprehensive framework for determining applications for licences for sex establishments. The public consultation had produced a number of legally relevant representations arguing for the refusal of the application. A refusal of the application could be based on comparatively limited grounds within the Schedule.

On 14 January 1987 the Council adopted the policy that the appropriate number of sex establishments for Waveney be set at nil. Each application had to be considered on its individual merits, however, and if there were no sustainable reasons for refusing it the application should be approved.

The Panel would also have to decide the "relevant locality" of the application site, in order to then decide the appropriate number of sex establishments in that locality, and it was unlikely to be lawful to decide that the whole of Waveney was the "relevant locality". Thereafter members would have to assess the character of the area they have determined as the relevant locality and consider whether or not a sex establishment in that locality was appropriate. Finally the Panel would need to consider the "vicinity" of the premises, which was arguably narrower than locality, and consider the use of the premises close by the application site.

Following the Director's presentation, the Panel agreed to suspend Standing Orders to allow the Applicant and his solicitor to put their case.

RESOLVED

1. That Standing Orders be suspended for the Applicant and his solicitor to put their case in requesting an application for a licence for a sex establishment at 17 Commercial Road, Lowestoft.

The Applicant's solicitor was then asked to give his interpretation of the application, which he did by means of questions to the Director of Housing and Environmental Services and the Applicant. The questions to the Director resulted in the answers that another premises had been considered for the application, in Bevan Street, that the locality of Commercial Road was relatively run down and that it was not a thoroughfare and people would be unlikely to walk down it for no reason.

The Applicant's solicitor's questions to the Applicant resulted in the following answers. Mr Morss had six years' experience as a sales assistant and then shop manager in sex establishments in Clacton and Colchester. Regarding the objection that the proposed establishment was near a youth centre, Mr Morss was willing to limit access to his premises to persons over the age of 21, who would be asked for identification if there was any doubt. Mr Morss advised that in his experience he did not have many customers aged 18 to 21 in any case. There was a youth establishment near to his premises in Clacton, and there had never been an objection to yearly renewals of the licence for the premises in the four years it had been established.

Concerning choice of premises, Mr Morss explained that Bevan Street was too central and was, indeed, a thoroughfare where people might come upon his shop. Commercial Road was not. 17 Commercial Road was derelict and would require renovation which he felt would brighten up the area and the shop itself. Outside the shop's windows would be blacked out, with just one small sign.

The shop would be run initially by Mr Morss himself, who would leave his current employment, but he hoped eventually to employ two part time staff, whose details would be provided to the Council for a police check if required. The stock would consist of licensed videos, magazines etc from safe suppliers. A mail order service may also be provided depending on demand. Mr Morss envisaged the shop would be open from 9.30am to 6.00pm Monday to Saturday, and to 8.00pm Friday, although he would alter this in line with any conditions members may wish to impose on the licence.

Mr Morss felt that his shop would have no adverse effect on the area, and in fact would brighten it up. People would be unlikely to pass his premises by chance, and it was far enough away from the amusement arcade and tourist area for any tourists to be unaware of its existence.

Following Mr Morss's answers to his questions, the Applicant's solicitor made a final statement. He felt that although the Council determined the number of sex establishment in the locality to be nil, this was open to question. Provided the applicant abided by the conditions of the licence, the premises were suitable and unobtrusive. He felt the "relevant locality" of the establishment to be Central Lowestoft, and the vicinity to be Commercial Road as far as Station Square.

At present the area was run down, and the establishment could only be an asset to help regenerate the area. It would also create employment, advertising revenue and bring people to the area. Obscenity rules applied, and only items which the Police felt would not "deprave and corrupt" would be sold. The premises would be inspected to ensure that only licensed material was on sale. The Applicant's solicitor felt that the public's interests would be better served by having a licensed premises to sell glamour magazines than to have them on sale to anyone in garages.

Finally, the Applicant would abide by any reasonable conditions imposed by the Council.

The Panel then retired, with the Independent Legal Advisor, to discuss the matter.

RESOLVED

2. That under Section 100(A)(4) of the Local Government Act 1972 (as amended) the public be excluded from the meeting for the debate of the Panel on the above matter on the grounds that it involved the likely disclosure of exempt information as defined in paragraph 12 of Part I of Schedule 12A of the Act.

On the return of the Panel, the Independent Legal Advisor, at the behest of the Chairman, read out a statement of the Panel's decision, which follows:

"For the reasons now to be given, the Licence is to be granted subject to conditions.

(1) The law on how a Council must deal with an application for the grant of a Licence for a Sex Establishment is in Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982.

(2) This Schedule provides an all embracing code as to what matters shall or may be taken into account in determining an Application. Any issues falling outside the Schedule are legally irrelevant.

(3) This is an important point because the Panel was advised, and accepts, that nowhere in the Schedule is there any place for refusing an application on what, broadly, may be called "moral" or "religious" grounds.

(4) A large number of objections received by the Council after the public consultation exercise were based on such grounds, eg the lowering of the moral tone or moral decency of Lowestoft, the potential exposure to depravity, the potential moral degeneration, all being offensive to Christians and Christian beliefs.

(5) The Panel wishes to make it clear at the outset that deeply held and sincere as these sentiments undoubtedly are, they are legally irrelevant to the determination of this Application.

(6) The Panel accordingly did not take any account of such views in arriving at its decision.

(7) The Panel accordingly went on to determine the Application based on the matters which it properly could take into account.

(8) In doing so the Panel paid careful attention to the points raised by the Council's Director of Housing and Environmental Services in a full written report previously circulated with the Agenda for the meeting.

(9) It also bore closely in mind the matters raised in a full and careful presentation by the Applicant and the answers given by the Applicant to a number of questions put to him by the Panel.

(10) Finally it weighed carefully those representations received following the public consultation exercise which it had been advised it could lawfully take into account. Those representations, both for and against, had also previously been circulated with the Agenda.

(11) The basis on which an Application for a Licence firstly must or secondly may, be refused is set out in paragraph 12 of Schedule 3 to the 1982 Act.

(12) Paragraph 12(1) deals with the grounds on which an Application must be refused, ie if one or more of those grounds is made out the Council has to refuse.

(13) These grounds are that the applicant is under 18 years of age, is for the time being disqualified from holding a licence or has been refused a grant of a licence for the particular premises or in the case of a sole trader, as here, that trader is not resident in the United Kingdom.

(14) As a result of the information available to the Panel, it is completely satisfied that none of those grounds apply in this case. The Panel therefore finds that there is no compulsion on it within paragraph 12(1) of the Act to refuse the Application.

(15) Paragraphs 12(2) and (3) deal with the discretionary grounds available to refuse an application, ie the Council does have a choice as to whether to approve or refuse the application.

(16) The Panel considered and dealt with each of these grounds in turn and as follows:-

(a) Ground 12(3)(a)

The Applicant is unsuitable to hold a Licence having been convicted of an offence or for any other reason.

As to this Ground the Panel noted:

(i) The Applicant did not declare any previous convictions on his application form and in answer to questions today he stated that he did not have any such previous convictions.

(ii) The Police were consulted and raised no objection.

On the facts available to it, the Panel sees no justification in refusing the Application on this Ground.

(b) Ground 12(3)(b)

If the Licence was to be granted the business to which it relates would be managed or carried on for the benefit of a person, other than the Applicant, who would be refused the grant if he made the application himself.

As to this Ground the Panel noted that following enquiries by Council Officers and in answer to questions put to him, there is no suggestion that anyone other than the Applicant would manage or carry on the business.

The Panel noted that although the Applicant proposes to run the business himself, he intends if trading circumstances permit, to employ part time staff in the future. The Panel further noted the voluntary offer by the Applicant to submit details of any prospective employees to the Council prior to their employment to enable appropriate enquiries to be made.

On the facts available to it the Panel sees no reason to refuse the Application on this Ground.

(c) Ground 12 (3)(c)

At the time the application was made, the number of sex establishments in the relevant locality is equal to or exceeds the number the Licensing Authority considers appropriate for the locality (Note: the Act provides that "nil" may be an appropriate number).

This Ground requires the Panel firstly to form a view as to what, in the circumstances of this Application, is the "relevant locality".
The Panel was advised that it should not approach this issue from a strict geographical standpoint. Rather it should look at the matter from a common sense aspect, applying the local knowledge of members.

Applying such criteria and bearing in mind all comments made to it, the Panel decided that for the purposes of this Application the "relevant locality" was the part of Commercial Road from its junction with Station Square, but excluding the premises on the Station Square frontage, to the Shunters Social Club, both sides of Commercial Road being included for this purpose.

Having decided that, the Panel went on secondly to consider what number, if any, of sex establishments it considered appropriate for this locality.

Bearing in mind all of the points put to it, the Panel decided that the appropriate number was in excess of "nil". In arriving at this finding the Panel was advised and accepted that a decision passed by the Council in 1987 that the appropriate number for the whole of the Waveney area was "nil" was neither relevant to this Application nor binding on the Panel. It reached this decision based on the passage of time that had elapsed since that decision had been taken and also that on the facts of this case there was no reasonable and therefore lawful, way in which the whole of Waveney could be argued to be the "relevant locality". The Panel also noted that the 1987 decision had been subject to the initial requirement that the decision was "without prejudice to applications being considered on their merits". The Panel therefore took the view that the 1987 decision was no more than a general expression of intent and not binding upon it in considering and determining this particular application on its particular merits.

Under this heading and before it reached its decision, the Panel considered those lawful objections which dealt with the perceived effect of the Application on tourism and shopping. The Panel considered that these concerns, whilst genuinely held, were overstated. Commercial Road is not in general terms used by the public in significant numbers and neither is it in practice a through route used, for example, by the public to get from "place (a)" to "place (b)".

With its appearance controlled by condition, eg a lack of external advertising, illuminated or otherwise, there would be no significant likelihood of the establishment attracting tourists or shoppers from arguably nearby areas such as Station Square or London Road North. The Panel believes that the vast majority of the public using Station Square would be unaware of the establishments presence.

Having also excluded Station Square from the definition of "relevant locality", the Panel did not accept those objections which cited the proximity of amusement arcades as being significant. Again, most, if not all of the patrons of the Arcade would not be aware of the existence of the establishment. Any visitor would have to make a conscious decision to visit the establishment rather than coming upon it by accident whilst passing or repassing.

Since the Panel decided on the facts that the appropriate number of sex establishments in the relevant locality was in excess of nil and since there are presently no sex establishments in this locality, it follows that the Application, cannot be refused on this ground.

Having reached this decision the Panel did not in the circumstances of this Application, find it necessary to go on and decide whether more than one sex establishment would be appropriate in this locality, as found.

(d) Ground 12(3)(d)

This ground effectively falls into 3 distinct areas:

(i) The grant of a Licence would be inappropriate having regard to the character of the relevant locality.

The Panel has already indicated what it considers to be the "relevant locality" in the context of this Application.

It considers that there are no significant numbers of residential premises or commercial premises in the locality as found.

There are no schools or churches.

One side of the road is open land. The rear of properties face onto railway land the appearance of which leaves much to be desired.

The locality as found is characterised by many of its properties being in need of repair. In the opinion of the Panel the locality gives an impression of being run down.

Given that finding as to character, the Panel do not consider that the presence of a sex establishment in this locality would be inappropriate.

The Panel is unwilling to refuse the Application on this Ground.

(ii) The Grant of a Licence would be inappropriate having regard to the use to which any premises in the vicinity are put.

The Panel decided on the facts of this case that for the purposes of this Ground, "vicinity" was the same as "locality".

This Ground was used by the Panel to weigh the large number of lawfully relevant objections which referred to the presence of premises such as "the Metro, Insight", "the Riverside Welfare Association", and some residential premises all of which pointed to the adverse effect a sex establishment would have on visitors to/occupants of such premises.

The Panel took very careful note of these objections but weighed them against the following points:

(a) The external appearance of the establishment particularly with obscured/glass and lack of external advertising would mean that people could pass and repass without offence being caused.

(b) The applicant had volunteered that he would not permit anyone under 21 years of age to enter and/or purchase. This dealt with many of the concerns expressed about the possible adverse effect on youth in the area.

(c) There would be no late night opening to disturb any residents in the area, generally closed 6 pm with 8 pm close on Fridays only. Again the external appearance of the establishment would mean no offence would be caused to passing residents, eg they could not see into the windows.

In all of the circumstances the Panel therefore considers that it is not appropriate to refuse the Application on this Ground.

(iii) The grant of a Licence would be inappropriate having regard to the layout, character or condition of the premises the subject of the Application.

The Panel noted that none of the objections received cited the character or condition of 17 Commercial Road.

The Panel is not surprised. The premises are derelict and run down. They can, as a building, only benefit from being brought back into use.

The premises are not listed under the Planning Acts and neither are they in a Conservation Area.

There is no room for refusing the Application on this Ground.

(17) Generally, the Panel notes that any Licence would be for 12 months, renewable on application. Accordingly the Panel believes that there is an incentive for the Applicant to run the establishment carefully and properly and in accordance with his assurances, lest he run the risk of either having the Licence revoked within the 12 months or alternatively not being renewed at the end of the 12 months.

(18) The Panel also notes that the appearance and operation of the establishment can, and will, be controlled by appropriate conditions.

(19) As to the items proposed to be sold in the establishment the Panel noted the Applicants comments as to the controls to be applied, particularly in relation to persons under 21 years of age. The Panel also took the point that the general law of obscenity would still apply and that would be a further safeguard.

(20) For all of the reasons now given, the Panel finds firstly that there are no issues requiring it to refuse the Application and secondly that there are no issues which convince it that it should exercise its discretion in favour of refusing the Application.

The Application is approved and the Licence for a sex establishment at premises known at 17 Commercial Road, Lowestoft granted for 12 months, subject to conditions. These conditions to be agreed between the Applicant and the Director of Housing and Environmental Services acting on behalf of the Council and the issue of the Licence to be conditional upon such agreement being reached and to be withheld until such agreement has been reached."

RESOLVED

3. That a licence be granted for a sex establishment at 17 Commercial Road, Lowestoft, subject to conditions to be agreed between the applicant and the Director of Housing and Environmental Services, in consultation with the Chairman, the issue of the Licence to be witheld until such conditions have been agreed.

The meeting was concluded at 5.50 pm.

Chairman

LICENSING PANEL - 27/08/98

LICENSING PANEL - 27/08/98

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Volume 26 Minute 763

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