Agenda item

Local Government (Miscellaneous Provisions) Act 1982 - Licensing of Sex Establishments - Sexual Entertainment Venue - Application for the grant of a licence - Elegance, 149 Albert Road, Southsea, PO4 0JW

 

 

Purpose of report

The purpose of this report is for the Committee to determine an application for the grant of a sexual entertainment venue licence in respect of the premises situated at 149 Albert Road, Southsea, Portsmouth, PO4 0JW and known by the name of Elegance. The application has been submitted by Mr Jaspal Singh Ojla.

 

 

RECOMMENDED

That the Committee determine the application for the grant of a sexual entertainment venue licence in respect of the premises situated at 149 Albert Road, Southsea, Portsmouth, PO4 0JW and to be known by the name of Elegance.

 

Decision:

 

In the Matter of the Local Government (Miscellaneous Provisions) Act 1982

Licensing of Sex Establishments- Sexual Entertainment Venue.

Application for the grant of a licence-Mr Jaspal Singh Ojla - Elegance 149 Albert Road Southsea PO4 0JW.

 

The Committee have considered all written material placed before them along with the submissions made by leading counsel retained by the applicant together with all comments made by the Licensing Authority and the individual objectors to the application. The Committee has looked at the specific objections from page 317 of the bundle to page 415. 

Portsmouth City Council adopted Schedule 3 of the LG (MP) 1982 as amended by the Policing and Crime Act 2009 so that as an Authority, PCC could regulate Sexual Entertainment Venues- this decision was made by PCC on the 22nd of March 2011.

Portsmouth City Council following consultation between 1st March 2012 and 12th April 2012 adopted the Sex Establishment Licensing Policy in October 2012. 

This Committee is asked to determine the application 23 January 2018.

Each application should be decided upon its own merit and subject to the individual circumstances of the case.

The application is limited to the upstairs of the relevant premise. Details of the application have been advertised and the appropriate responses sought from: the Chief Officer of Police, Chief Fire Officer along with other consultees as stated at page 241 of the bundle. No objections have been raised by these agencies.

 

The Committee is aware that the applicant holds 2 SEV licences, one at Surrey Street and the other being at Granada Road Southsea .The current application is for a new licence at the above premise, that said the applicant concedes that he will surrender his current licence at Granada Road- this offer being contingent upon success of the current application.

The Act sets out the basis for refusal of an application based upon either mandatory  grounds being engaged or discretionary grounds.

It is common ground and clear that the application cannot be rejected upon engagement of any of the applicable mandatory grounds.

The Committee is therefore engaged in considering the application upon merit having due regard to the following:

·           The discretionary statutory grounds for refusal.

·           The Portsmouth City Council SEV policy.

·           The Statutory Guidance.

·           The Human Rights Act 1998.

 

The Committee is engaged in considering whether there is any discretionary basis to refuse the application. The Committee is required to consider the current PCC policy paying regard to paragraph 7.3 to 7.17. Having considered all the written evidence and the objections from those attending today the Committee make the following observations using the policy guidance:

 

· Unsuitability of the applicant- looking at 7.3 to 7.6 of the policy:

 

o    The Committee could not find that there were any grounds upon which the suitability of the applicant could be questioned.  It is clear and having regard to the fact that none of the responsible authorities have made representation that the premises owned by the applicant are run on a professional basis and have been successfully trading for a number of years.

        

 

·           Unsuitable manager of the business or other beneficiary- looking at 7.7 of the policy:

 

o    The Committee accepts the representations made by the applicant and the evidence which suggests and maintains that the applicant is the primary decision maker in his businesses and as such the Committee is satisfied that he will be fully engaged.     

 

·           Number of sex establishments- looking at 7.8 to 7.10a of the policy:

 

o     The Committee recognise the position with respect to its own policy being that as a preliminary conclusion that there is no place within the City of Portsmouth of which it could be said that it was situated in a locality in which it would be appropriate to licence a sex establishment- the effect being that nil is the starting position.  The Committee recognise the force of this position.  In addition the Committee specifically looked at 7.9, Portsmouth's Local Strategic Partnership vision for the city. 

 

o     Whilst the above was a stated position in 2012 the Committee are also aware that no policy will ever be considered as an absolute and there may be occasions where the Licensing Committee may depart from the policy having regard to the unique characteristics of any one particular application. The Committee are therefore engaged in considering whether the facts warrant an exception to the policy.       

 

o    It is clear that that since the applicant began trading he has essentially run the only two remaining currently active SEV premises within Portsmouth and that the numerical number of licences have for the last 7 years remained as 2 in number. The Committee are of the view that the effect of the current application is such that it can at least consider the application as being one that is unique in that it amounts to the same operator moving the licence to an alternative premise, with no overall increase in numbers of establishments.

 

o    Whilst the above is stated, the majority of the Committee were not satisfied that there were any unique circumstances to justify rebutting a preliminary position of refusal.  The fact that the applicant and current owner seeks to move his operation from one premises to another within a geographical perimeter of one half a mile of itself is not unique, it is merely the exercise of a business consideration as against the desire to operate on a more efficient and potentially profitable basis.

 

o    Whilst it could be said that the grant to the applicant with his concomitant surrender of Granada Road premises amounts to no overall increase in the number of sex establishments, the Committee again fall back to the policy which is clearly drafted on the basis that the preliminary position for the grant of a new SEV premises would start with a presumption of refusal.

 

o    Further the Committee were mindful at paragraph 7.10a of its policy that the basis upon which the presumption to refuse would not apply were specifically prescribed to renewals, transfers or variations of existing licences.  The Committee had it in mind therefore that as the current application did not fall within that remit the correct starting point was 7.10. The Committee do not accept the submissions by leading counsel for the applicant that this is a case about maintaining the status quo, quite the contrary, the policy as drawn clearly considers two distinct positions at the time it was promulgated, the first position being the existence of SEVs at that point in time and the second being the position with respect to future applications.   The Committee were of the view that the numerical starting point is that Portsmouth's written policy is not to have any SEVs and that the inclusion of 7.10a was for the purpose of managing the limited number of clubs in existence at the point in time when the policy was adopted. 

 

o    The Committee were further of the view, having particular regard to para 2.2 and 2.3 of the policy, that the basic starting point is that this is a fresh application and the particulars are not unique as stated above.

 

o    The Committee further considered the planning inspector's decision dated 29 November 2016 and accept at paragraph 11 the findings of the inspector that the grant of a change of use would have a limited effect and would be unlikely to sufficiently affect the viability and vitality of the district centre as a whole.  This stated the Committee again fall back to considering its own policy and in particular matters pertaining to character and relevant locality, having taken into account the nature and content of the representations by deponents and the consistency and relevancy of all comments made.  Whilst considering and giving great weight to the Planning Inspector's decision, the Committee felt able to use their own experience and knowledge of the area to look at the application in the context of reality, which is the current application is for the grant of a new SEV. 

 

·           Character of the relevant locality- (looking at 7.11 of the policy  in that the Committee will take into account the relevant factors and such other factors as may be considered relevant in the individual circumstances of the case).

 

o        The Committee heard very articulate representations made by a number of interested persons.  What can be gathered from those representations is that whilst the proposed location is within an area of night time economy, there is a heavy existence of family residential premises including but not limited to persons living above their own business premises who are clearly engaged within being part of a local community in the wider sense.  The Committee were of the view that in allowing the application there would be an impact upon the general character of the area to the extent that to disregard the representations would not be logical.    Additionally it is clear that there are within the premises area local schools, educational facilities and premises that would be affected in an impactful sense should the grant be permitted.  

 

o        The Committee also took the view that the current applicant has a maintained premises (Elegance, Granada Road) that is such as to be a sufficient provider for this form of activity within the PO4 locality.  The fact that the applicant's particular business model meant it would be preferable to him to relocate to the Albert Road premises was not something that impressed the Committee.

 

o    Additionally whilst gender equality issues were considered, it was not such that the Committee are of the view that women would be deterred from using the area comfortably or at all.  Additionally they do not accept that the existence of the club would of itself give rise to fear of crime.   This was a conclusion reached upon considering the current existence over a number of years of the Elegance establishment at the end of Granada Road.  In addition the Committee having considered all the deputations cannot reasonably ascribe a link to either the existing Elegance establishment or proposed Elegance establishment as to issues pertaining to gender equality and/or crime as stated above.  The evidence that was led was anecdotal and not based upon direct testament. 

 

o    Additionally the Committee are not swayed by any references to the usage of the premises from a morality point of view, the Committee accepting that the applicant is a highly competent and credible business operator who has run premises successfully over a number of years. 

 

o    The Committee did consider the general locality of the premises in Albert Road, accepting that a number of traders and businesses have actively participated in regenerating the area, so that the grant of the application for a premises seeking to provide SEV facilities would not be consistent with the promotion of para 7.11 of the policy. 

 

 

o    Additionally the Committee were not convinced that there was a level of genuine demand given that demand had been satisfied by the Granada Road premises and could still be should its current owner seek to invest in that premises.  The alternative position is such that if the Granada Road premises is unable to trade the current sufficiency of need within the location has obviously lessened to the point where it could reasonably be construed as being nil.  The clear position is that this is a fresh application made by a perfectly competent owner/manager for a grant which must be looked at within the context of the existing policy. 

 

o    As stated, the Committee were of the view that the current application, a fresh application, is not a transfer, it is a stand-alone application to be looked upon in terms of its own circumstances and facts and that to conflate it with the fictional idea of a transfer is not logical or consistent with the policy as currently framed. 

 

·           Use of premises in the vicinity/layout character or condition looking at 7.12 to 7.17 of the policy

 

o    In relation to these grounds the key considerations are detailed above but that said the Committee were of the view that the normal position was refusal given that the premises is located within the vicinity of a number of schools and places of worship all within the PO4 area together with facilities used by the young, elderly and disadvantaged.  It was not unreasonable for the Committee to consider those facts when balancing consideration of the application. 

 

o    The Committee considered the expert evidence of the applicant's expert, Mr Studd, whose qualifications could not be in any way criticised.  Whilst it is clear that Mr Studd has visited a premises (Surrey Street) and that he can give good evidence as to the applicant's ability to run a premises, the Committee could not find that his evidence was supportive beyond the applicant's competency of the establishment of an SEV in the Albert Road location.  Indeed, Mr Studd in his own evidence at paragraph 9 eludes to the fact that within a short proximity to the proposed location there is a junior school, a Methodist church, a Salvation Army hall and St Swithun's church.  Whilst he does not directly say, it is clear from his report that Albert Road is a highly diversified area in terms of activity, usage and premises occupancy and whilst he can say that an SEV within his experience can often co-locate and co-exist within these areas, in the context of the current PCC policy when balanced with the level and consistency of objectors, his evidence does not persuade the Committee that there would be a limited impact should the licence be granted.  

 

o    The Committee was drawn to the paragraphs 7.11 to particularly 7.14 of the policy in that it is clear from the evidence that the Committee heard that there are many sensitive issues applicable to a potential relocation of the premises to an Albert Road location.  The Committee were particularly impressed by the number of individual members of the public making representations who occupied premises within a very short distance of the proposed premises and the fact that the general Albert Road area does have a palpable sense of "community" that is an individual circumstance of this case. 

 

o    The Committee has also weighed into the mix the fact that the applicant has attempted to provide extensive conditions to assuage concern and that they are also aware that none of the responsible authorities  have made representations.  The Committee felt that maintaining the current policy was justified and that as set out above the application is not unique in characteristic. 

 

 

o    The Committee were also of the view that they were not prepared to set aside their policy irrespective of the conditions offered by the applicant and the fact that the license is renewable on a 12 month basis or that a shorter period of licensable activity would be appropriate.

 

o    In essence the Committee were of the view that in terms of the current application for the grant of a new licence they were entitled to maintain their own policy at paragraph 7.10 in that there is no place within the city of Portsmouth of which it could be said that it was situated in a locality in which it would be appropriate to licence a sex establishment.   The Committee distinguished between licences that existed pre-policy and the intention post-promulgation of the policy which is to presume that future applications would be refused.    

  

The Committee is reminded that the Human Rights Act applies to this application ( Art 10 - Right to freedom of expression is engaged along with Art 1 Protocol 1 - protection of property).The Committee has been advised that the Act ( LGMP as amended by the Policing and Crime Act 2009) is subject to Human Rights Act compatibility. 

Given the comments made by a number of the deponents, the Committee have attempted to consider equality issues and the applicant's human rights as part of this decision making process and has balanced the rights of the applicant as against those of the community as a whole. 

The Committee have further addressed their minds to the Public Sector Equality Duty contained within the Equality Act 2010 and note that this does not impose a positive duty to eliminate unlawful discrimination, harassment and victimisation but rather requires that decisions which may have a negative impact on equality are taken after due consideration of any such negative impact and the ways in which such impact may be mitigated.

Whilst the Committee have considered all the evidence and objections they are of the view that given the above comments and consideration of the policy and all other relevant matters that the objections and policy considerations, when balanced as against the positives of the application, are such as to justify the refusal of the application. 

 

By majority decision, the Committee will accordingly refuse to grant the application.

 

Minutes:

The Licensing Sub-committee hearing procedure was followed.

 

Present:

 

Peter Baulf, Legal Advisor

Tracy Blair, Legal Advisor

Nickii Humphreys, Licensing Manager

Derek Stone, Licensing Officer

Mr Paul Ojla, Applicant

Mr Philip Kolvin, QC for the Applicant

Mr Jon Wallsgrove, Solicitor for the Applicant. 

Mr Adrian Studd, expert witness on behalf of the Applicant.

 

Interested parties making deputations

Ms C Storey

Cllr Lee Hunt

Ms C Dacke

Cllr Suzy Horton

Ms H Reed

Cllr S Pitt

Ms C Davies

Ms M Bonner-Janes

Mr M Mitchell

Mr Andrew Pearce

Mr Richard Adair

 

The Licensing Manager introduced the report. 

 

There were no questions from members to the Licensing Manager.   

 

There were no questions from the applicant to the Licensing Manager.

 

In response to questions from the interested parties, the Licensing Manager advised the following:

·         With regard to paragraph 2.2 of the policy, officers cannot give information and will refer applicants to the policy. 

·         The application was received in January 2018 and the current policy applies.

 

Applicant's case

Mr Kolvin said that he had previously made some preliminary submissions and said they would apply to both applications.  Mr Studd spoke earlier as a witness so he will not call Mr Studd again. 

 

He explained that if the licence is granted Mr Ojla's intention is to surrender the licence at Granada Road.  Any SEV licence will be granted for a maximum period of one year.  SEVs were formerly operated as members clubs and their status in licensing regulation was not clear.  They did not need planning permission.  When the Licensing Act was introduced they were treated as regular entertainment and in 2009 Parliament looked at the issues and there was considerable debate.  Parliament decided that sexual entertainment was a lawful activity and permitted authorities to regulate it.  The transformation of the treatment for SEVs has been salutary as council's have been free to adopt standard conditions.  Where venues exist they must do so without impact to the environment. 

 

Previously SEVs used to be 'seedy' shop fronts however now there is never a view of the inside from outside which reduced the environmental impact.  The applicant has offered the standard 61 conditions and gives assurance that if permitted to operate he must do lawfully and respectfully.  However, if he is not as good as his word he will find himself in difficulties in 12 months' time when it comes back to committee to review performance.  The committee has broad discretion to add more conditions that think proportionate to meet any further concerns. 

 

The context of grounds of refusal presumption is to grant there needs to be a specific reason to refuse.  None of the mandatory grounds for refusal are relevant as confirmed by the Licensing Manager.    

 

With regards to the discretionary grounds:

(1)  The suitability of Mr Ojla - Mr Ojla is a highly experienced businessman in the city and a personal licence holder who has run two compliant SEVS in the city for many years. There are no grounds to suggest he is unsuitable to be the holder of a SEV.

(2)  Managed by someone else - There is no such person, Mr Ojla will be taking full responsibility of the running of the club.

(3)  Number of SEVs - the policy expresses the preliminary conclusion that no locality in Portsmouth is suitable for a sex establishment' (paragraph 11.6) however this is only a preliminary conclusion and the Licensing Committee may depart from this. The presumption to refuse does not apply to the existing licence.  This application if granted will go hand in hand with the surrender of the Granada Road licence.  Overall consequence is that there will be no more licences in the city, or in postcode PO4. 

If this licence can be granted without harm then that is a reason why the preliminary conclusion should not apply. If the licensing system prevents something from happening that can happen without harm then it fails. 

(4)  Character of locality and use of premises in the vicinity.

The question is whether there will be an unacceptable impact on the character of the locality or on the neighbouring uses.  He asked the committee to look at one of the groups of conditions which govern impact on page 307 of the agenda papers, these mirror the local authority standard conditions. 
Condition 11 - that external doors closed at all times other than when entering/exiting the premises.  Will be a retail premises and on the left hand side will be a door to the SEV.

Condition 12 - inner entrance lobby

Condition 13 - no access to other premises.

Condition 14 - no part of the licence premises should be visible to persons outside the premises.

Condition 15 - no external advertising word/signs/displays illuminations permitted unless previously approved by the council.

Condition 16 - external fabric to ensure frontage is discreet and is appropriate to the locality.  This means that the colour and lighting of premises must be approved by council to ensure that it fades into the background. The applicants intention is to respect that and simply have the word 'Elegance' above the door as shown on page 12 of the applicants bundle. 

 

With regard to impact there will be no impact during the day.  There will be a shop open during the day.  The venue only operates in the night time economy which is presumably why the schools nearby have not objected. No statutory authorities have objected nor have the Wedgewood Rooms.  No regeneration or tourism bodies have objected and no child protection agencies have objected to say that children would be of aim.  The views of Responsible Authorities are strongly corroborated by Mr Studd. 

With regard to the issue of impact on the character of the area, the committee have already received independent scrutiny following its referral to the planning inspectorate one year ago after the planning committee refused the application.  The report that came to the planning committee is set out in the applicant bundle at page 46.  In the planning officer's report they listed the main issues and also pointed out that the Wedgewood Rooms are immediately adjacent to the site.  Page 48 views gives the views of various authorities including the Environmental Health Officer.  He drew attention to the representations.  63 representations made and a petition of 580 signatures and an online petition of 622 signatures.  Objections included the proximity to religious buildings, schools, parks, cultural, increase in antisocial behaviour etc.  The planning officer felt however that this was an appropriate town centre use and would not give rise to harm to the character of the area. Traffic levels unlikely to be significantly greater so no objection on planning grounds.  The planning authority decided to refuse this which led to an appeal.  The Planning Inspector had to consider the same considerations and he drew attention to her report at tab 5.  There were no highway or amenity issues which was the view of authority represented to inspector. The inspector considered some of the local objections - safety of women and children and concluded that the presence of venue may deter some from using that part of Albert Road but due to first floor location and only operating at night, it would not deter from the character of the area.

With regard to fear being a factor, the inspector said this was capable as being a consideration but must be some evidence of this. Reference made to research showing links to lapdancing venues and increase in noise were noted.  The inspector concluded no conclusive evidence to refuse the application.  Concerns about noise and disturbance as were the highways concerns were discounted by the Planning Inspectorate. There was limited factual evidence to refuse. 

 

The planning decision will turn largely on the inspector's decision on the assessment on the character of the area. 

 

Also in the applicant bundle was a case 'Dransfield' - he drew attention to page 93.  Arguments raised in that appeal are similar to this appeal. 

 

Mr Kolvin went on to say that it is important to recall that the effect of this application is that rather than a licence at Granada Road there will be a licence at Albert Road, 0.5miles away.  It is not a new licence altogether.  In terms of proximity to schools etc. there is not a great deal of difference between the two venues.

In summary, in relation to character, use

1)    The venue trades only at night;

2)    The venue will only operate on the first floor of the premises;

3)    Exterior impact is negligible

4)    Nothing outside proclaiming its use as a SEV;

5)    No evidence their customers will impact negatively on the locality;

6)    No objections from statutory bodies;

7)    Issues of character and vicinity have already were looked at carefully by the Planning Inspectorate, entitled to give great weight to this;

8)    Supported by independent expert Mr Studd;

9)    The venue will operate without harm

10)Replacement of licences one for one, one half mile apart.

 

With regard to the layout, character and condition of the premises this is listed in the bundle.  The applicant intents to produce a high specification venue with decent lighting as agreed by responsible authorities.  Nothing in the plan to suggest this will not be a well-designed venue.

 

The committee had no questions for the applicant's solicitor. 

 

In response to questions from interested parties the following points were clarified:

·         Sometimes there is a view about how bad something will be before it happens but when it is there turns out no impact at all.  If the bridal shop customers have appointments before 21:00 they will not see the SEV open and they will see nothing.  If they have appointments after 21:00 they will see a uniform SIA person stood outside so doubt will notice anything.  If they do the matter is subject to reappraisal by licensing and planning committees.  The dislike of a SEV is not a grounds for refusal.

·         They have already given evidence about the content and the Council is entitled to conduct a public consultation which it did and published it views.  The policy sets out a guideline and in this case the policy sets out a preliminary conclusion subject to the individual merits of individual case.  

·         The public sector equality duty does not fall on applicants but on the local authority to perform the duty and that is what the inspector did in this case.  The planning inspector weighed up all the relevant factors and therefore performed that duty.  She was of the view that it was not harmful to the protected characteristics but instead planning conditions were imposed.  These included signage, hours of operation and period of use. The Human Rights Act would carry through into decision of Parliament made in 2009.  He was not sure what human rights would be in play here and could not think of a case where it would affect the article 8 rights.  When the courts have looked at human rights in terms of planning and licensing.  As long as the authority is satisfied it has applied a fair balance between the applicant and objectors they have met that duty. 

·         With regard to the detail included about Dransfield, Mr Kolvin said that if the High Court Judge pronounces law it is the law until a court of a higher jurisdiction says have found it wrong. Dransfield pointed out that when a planning inspector has made a decision their view is given great weight.

Representations to the SEV licence

 

 Councillor Hunt whose main points included:

·         Mr Kolvin has put great weight on the fact that the police and other statutory bodies have not objected to the application.  However all the statutory bodies were consulted on the SEV policy and assume they did not put in an objection.

·         Paragraph 2.2 of the policy states that each application is considered on its individual merits but Mr Kolvin said this is not the case.  Even if minded to put policy to one side have to look at the locality and advice of policy at 7.11. 

·         The council has a good SEV policy in place which the committee should adhere to.  If this application is allowed it will open the floodgates for other applications. 

Mr Charlie Dacke

·         This is a new application for a SEV for Albert Road, the policy does not allow for a transfer. The application must be considered on its own merits.

·         The council's SEV policy is solid and will stand up in court. The policy refers to a zero cap policy for SEVs in the city and does not make reference to maintaining the status quo. 

·         There are solid discretionary grounds for refusing the application.

·         Albert road has worked hard to become a quirky night time destination and this application will create a 'no go' zone for many women.

·         The submitted report from the expert consultant reviewed the scene on one night only.  The consultant does not live in the area.

·         It is not true that the police never received any complaints.  Reports have been made to police and ward councillors regarding inappropriate parking and graffiti. 

·         The number of objectors to these applications must be taken into account.

Councillor Horton

·         There is a grey area around morality and safety.  Lot of issues of personal safety.

·         It is her understanding that existing venues in the city owned by the applicant is not relevant.

·         Planning Committee members are told that licensing issues are not relevant so this must apply the other way around.

·         The Planning Committee did reject the application.  The Planning Inspector visited the area on a Monday night. No logic that those reasons that were put forward for planning cannot be used for licensing.

·         The proposed opening time of 04:00 does not reflect other venues in the area.

·         Even with soundproofing there will be an unacceptable level of activity which will be more disturbing than people leaving pubs.

 

 

Ms Hilary Read

·         Completely support the planning committee decision and weight should be given to this.  The planning inspector mentioned this is a town centre site but this is not accurate as it is a local shopping centre. 

·         Other concern is that the licence for Elegance in Granada Road cannot be transferred.  This is a new application.

·         If approve the application this will drive a coach and horses through the existing policy and set a dangerous precedent.

Ms Davies

·         There is a causal link between lap dancing clubs and violence towards women.  This is based on a home office endorsed report in Camden.

·         Men will leave venue and walk down backstreets there will be no one to protect people on their way home.

Mr Adair had nothing further to add to his earlier representation. 

 

Mrs Bonner-Janes, Mr Mitchell, Mr Pearce, Ms Storey and Councillor Pitt all had made their comments to the SEV application in their earlier representation. 

 

 

Summing up

The interested parties had nothing further to add.

 

Mr Kolvin as the legal representative for the applicant, made reference to the highly articulate representations from those objecting today.  The presumption in this case is grant and it is an evidence based hearing about the relevant harm that are covered by the legislation and not based on fear.  The committee have heard in great detail the concerns if the application is approved and incidents occur however this has not happened in Mr Ojla's 23 years' experience in running SEVs. Mr Studd has said this is not even a suggestion.  On one side there are the well-articulated fears of residents but the other side have evidence from the venues run by Mr Ojla, along with the views of expert bodies, evidence of Mr Studd and the views of the planning inspector.  The evidence very clearly favours grant and the maximum period this can be granted for is 12 months. The committee are entitled to grant for a shorter period and when come back to committee will have all evidence to ascertain whether the licence should be renewed.  Mr Ojla has an operable licence and can open again but Mr Ojla would rather move the licence to a recognised night time economy area.  If he had not mentioned this in his statement he would have been seen as greedy as would have three SEV licences.    

The population figures for PO4 in the applicants submissions, suggest that 2.5% of the population of PO4 have taken the time to object.  However this is not a numbers game, the committee need to assess the quality of the evidence, rather than the fears.  The key point is what will the impact of this venue be trading at night, with all the conditions in place. Unless the committee are satisfied that with all conditions in place there is unacceptable impact the application should be granted.   

 

 

 

The Chair thanked all those present for their time.  He advised that the committee would now adjourn and would meet in the next few days to deliberate.  The decisions would be finalised within 5 working days for the premises licence and within 7 working days for the SEV licence.

 

The decisions would be emailed out by the licensing department to all interested parties.

 

 

DECISION:

 

In the Matter of the Local Government (Miscellaneous Provisions) Act 1982

Licensing of Sex Establishments- Sexual Entertainment Venue.

Application for the grant of a licence-Mr Jaspal Singh Ojla - Elegance 149 Albert Road Southsea PO4 0JW.

 

The Committee have considered all written material placed before them along with the submissions made by leading counsel retained by the applicant together with all comments made by the Licensing Authority and the individual objectors to the application. The Committee has looked at the specific objections from page 317 of the bundle to page 415. 

Portsmouth City Council adopted Schedule 3 of the LG (MP) 1982 as amended by the Policing and Crime Act 2009 so that as an Authority, PCC could regulate Sexual Entertainment Venues- this decision was made by PCC on the 22nd of March 2011.

Portsmouth City Council following consultation between 1st March 2012 and 12th April 2012 adopted the Sex Establishment Licensing Policy in October 2012. 

This Committee is asked to determine the application 23 January 2018.

Each application should be decided upon its own merit and subject to the individual circumstances of the case.

The application is limited to the upstairs of the relevant premise. Details of the application have been advertised and the appropriate responses sought from: the Chief Officer of Police, Chief Fire Officer along with other consultees as stated at page 241 of the bundle. No objections have been raised by these agencies.

                           

The Committee is aware that the applicant holds 2 SEV licences, one at Surrey Street and the other being at Granada Road Southsea .The current application is for a new licence at the above premise, that said the applicant concedes that he will surrender his current licence at Granada Road- this offer being contingent upon success of the current application.

The Act sets out the basis for refusal of an application based upon either mandatory  grounds being engaged or discretionary grounds.

It is common ground and clear that the application cannot be rejected upon engagement of any of the applicable mandatory grounds.

The Committee is therefore engaged in considering the application upon merit having due regard to the following:

·                     The discretionary statutory grounds for refusal.

·                     The Portsmouth City Council SEV policy.

·                     The Statutory Guidance.

·                     The Human Rights Act 1998.

 

The Committee is engaged in considering whether there is any discretionary basis to refuse the application. The Committee is required to consider the current PCC policy paying regard to paragraph 7.3 to 7.17. Having considered all the written evidence and the objections from those attending today the Committee make the following observations using the policy guidance:

 

·         Unsuitability of the applicant- looking at 7.3 to 7.6 of the policy:

 

o   The Committee could not find that there were any grounds upon which the suitability of the applicant could be questioned.  It is clear and having regard to the fact that none of the responsible authorities have made representation that the premises owned by the applicant are run on a professional basis and have been successfully trading for a number of years.         

 

·         Unsuitable manager of the business or other beneficiary- looking at 7.7 of the policy:

 

o   The Committee accepts the representations made by the applicant and the evidence which suggests and maintains that the applicant is the primary decision maker in his businesses and as such the Committee is satisfied that he will be fully engaged.     

 

·         Number of sex establishments- looking at 7.8 to 7.10a of the policy:

 

o    The Committee recognise the position with respect to its own policy being that as a preliminary conclusion that there is no place within the City of Portsmouth of which it could be said that it was situated in a locality in which it would be appropriate to licence a sex establishment- the effect being that nil is the starting position.  The Committee recognise the force of this position.  In addition the Committee specifically looked at 7.9, Portsmouth's Local Strategic Partnership vision for the city. 

 

o    Whilst the above was a stated position in 2012 the Committee are also aware that no policy will ever be considered as an absolute and there may be occasions where the Licensing Committee may depart from the policy having regard to the unique characteristics of any one particular application. The Committee are therefore engaged in considering whether the facts warrant an exception to the policy.       

 

o   It is clear that that since the applicant began trading he has essentially run the only two remaining currently active SEV premises within Portsmouth and that the numerical number of licences have for the last 7 years remained as 2 in number. The Committee are of the view that the effect of the current application is such that it can at least consider the application as being one that is unique in that it amounts to the same operator moving the licence to an alternative premise, with no overall increase in numbers of establishments.

 

o   Whilst the above is stated, the majority of the Committee were not satisfied that there were any unique circumstances to justify rebutting a preliminary position of refusal.  The fact that the applicant and current owner seeks to move his operation from one premises to another within a geographical perimeter of one half a mile of itself is not unique, it is merely the exercise of a business consideration as against the desire to operate on a more efficient and potentially profitable basis.

 

o   Whilst it could be said that the grant to the applicant with his concomitant surrender of Granada Road premises amounts to no overall increase in the number of sex establishments, the Committee again fall back to the policy which is clearly drafted on the basis that the preliminary position for the grant of a new SEV premises would start with a presumption of refusal.

 

o   Further the Committee were mindful at paragraph 7.10a of its policy that the basis upon which the presumption to refuse would not apply were specifically prescribed to renewals, transfers or variations of existing licences.  The Committee had it in mind therefore that as the current application did not fall within that remit the correct starting point was 7.10. The Committee do not accept the submissions by leading counsel for the applicant that this is a case about maintaining the status quo, quite the contrary, the policy as drawn clearly considers two distinct positions at the time it was promulgated, the first position being the existence of SEVs at that point in time and the second being the position with respect to future applications.   The Committee were of the view that the numerical starting point is that Portsmouth's written policy is not to have any SEVs and that the inclusion of 7.10a was for the purpose of managing the limited number of clubs in existence at the point in time when the policy was adopted. 

 

o   The Committee were further of the view, having particular regard to para 2.2 and 2.3 of the policy, that the basic starting point is that this is a fresh application and the particulars are not unique as stated above.

 

o   The Committee further considered the planning inspector's decision dated 29 November 2016 and accept at paragraph 11 the findings of the inspector that the grant of a change of use would have a limited effect and would be unlikely to sufficiently affect the viability and vitality of the district centre as a whole.  This stated the Committee again fall back to considering its own policy and in particular matters pertaining to character and relevant locality, having taken into account the nature and content of the representations by deponents and the consistency and relevancy of all comments made.  Whilst considering and giving great weight to the Planning Inspector's decision, the Committee felt able to use their own experience and knowledge of the area to look at the application in the context of reality, which is the current application is for the grant of a new SEV. 

 

·         Character of the relevant locality- (looking at 7.11 of the policy  in that the Committee will take into account the relevant factors and such other factors as may be considered relevant in the individual circumstances of the case).

 

o   The Committee heard very articulate representations made by a number of interested persons.  What can be gathered from those representations is that whilst the proposed location is within an area of night time economy, there is a heavy existence of family residential premises including but not limited to persons living above their own business premises who are clearly engaged within being part of a local community in the wider sense.  The Committee were of the view that in allowing the application there would be an impact upon the general character of the area to the extent that to disregard the representations would not be logical.    Additionally it is clear that there are within the premises area local schools, educational facilities and premises that would be affected in an impactful sense should the grant be permitted.  

 

o   The Committee also took the view that the current applicant has a maintained premises (Elegance, Granada Road) that is such as to be a sufficient provider for this form of activity within the PO4 locality.  The fact that the applicant's particular business model meant it would be preferable to him to relocate to the Albert Road premises was not something that impressed the Committee.

 

o   Additionally whilst gender equality issues were considered, it was not such that the Committee are of the view that women would be deterred from using the area comfortably or at all.  Additionally they do not accept that the existence of the club would of itself give rise to fear of crime.   This was a conclusion reached upon considering the current existence over a number of years of the Elegance establishment at the end of Granada Road.  In addition the Committee having considered all the deputations cannot reasonably ascribe a link to either the existing Elegance establishment or proposed Elegance establishment as to issues pertaining to gender equality and/or crime as stated above.  The evidence that was led was anecdotal and not based upon direct testament. 

 

o   Additionally the Committee are not swayed by any references to the usage of the premises from a morality point of view, the Committee accepting that the applicant is a highly competent and credible business operator who has run premises successfully over a number of years. 

 

o   The Committee did consider the general locality of the premises in Albert Road, accepting that a number of traders and businesses have actively participated in regenerating the area, so that the grant of the application for a premises seeking to provide SEV facilities would not be consistent with the promotion of para 7.11 of the policy. 

 

 

o   Additionally the Committee were not convinced that there was a level of genuine demand given that demand had been satisfied by the Granada Road premises and could still be should its current owner seek to invest in that premises.  The alternative position is such that if the Granada Road premises is unable to trade the current sufficiency of need within the location has obviously lessened to the point where it could reasonably be construed as being nil.  The clear position is that this is a fresh application made by a perfectly competent owner/manager for a grant which must be looked at within the context of the existing policy. 

 

o   As stated, the Committee were of the view that the current application, a fresh application, is not a transfer, it is a stand-alone application to be looked upon in terms of its own circumstances and facts and that to conflate it with the fictional idea of a transfer is not logical or consistent with the policy as currently framed. 

 

·         Use of premises in the vicinity/layout character or condition looking at 7.12 to 7.17 of the policy

 

o   In relation to these grounds the key considerations are detailed above but that said the Committee were of the view that the normal position was refusal given that the premises is located within the vicinity of a number of schools and places of worship all within the PO4 area together with facilities used by the young, elderly and disadvantaged.  It was not unreasonable for the Committee to consider those facts when balancing consideration of the application. 

 

o   The Committee considered the expert evidence of the applicant's expert, Mr Studd, whose qualifications could not be in any way criticised.  Whilst it is clear that Mr Studd has visited a premises (Surrey Street) and that he can give good evidence as to the applicant's ability to run a premises, the Committee could not find that his evidence was supportive beyond the applicant's competency of the establishment of an SEV in the Albert Road location.  Indeed, Mr Studd in his own evidence at paragraph 9 eludes to the fact that within a short proximity to the proposed location there is a junior school, a Methodist church, a Salvation Army hall and St Swithun's church.  Whilst he does not directly say, it is clear from his report that Albert Road is a highly diversified area in terms of activity, usage and premises occupancy and whilst he can say that an SEV within his experience can often co-locate and co-exist within these areas, in the context of the current PCC policy when balanced with the level and consistency of objectors, his evidence does not persuade the Committee that there would be a limited impact should the licence be granted.  

 

o   The Committee was drawn to the paragraphs 7.11 to particularly 7.14 of the policy in that it is clear from the evidence that the Committee heard that there are many sensitive issues applicable to a potential relocation of the premises to an Albert Road location.  The Committee were particularly impressed by the number of individual members of the public making representations who occupied premises within a very short distance of the proposed premises and the fact that the general Albert Road area does have a palpable sense of "community" that is an individual circumstance of this case. 

 

o   The Committee has also weighed into the mix the fact that the applicant has attempted to provide extensive conditions to assuage concern and that they are also aware that none of the responsible authorities have made representations.  The Committee felt that maintaining the current policy was justified and that as set out above the application is not unique in characteristic. 

 

 

o   The Committee were also of the view that they were not prepared to set aside their policy irrespective of the conditions offered by the applicant and the fact that the license is renewable on a 12 month basis or that a shorter period of licensable activity would be appropriate.

 

o   In essence the Committee were of the view that in terms of the current application for the grant of a new licence they were entitled to maintain their own policy at paragraph 7.10 in that there is no place within the city of Portsmouth of which it could be said that it was situated in a locality in which it would be appropriate to licence a sex establishment.   The Committee distinguished between licences that existed pre-policy and the intention post-promulgation of the policy which is to presume that future applications would be refused.    

  

The Committee is reminded that the Human Rights Act applies to this application ( Art 10 - Right to freedom of expression is engaged along with Art 1 Protocol 1 - protection of property).The Committee has been advised that the Act ( LGMP as amended by the Policing and Crime Act 2009) is subject to Human Rights Act compatibility. 

Given the comments made by a number of the deponents, the Committee have attempted to consider equality issues and the applicant's human rights as part of this decision making process and has balanced the rights of the applicant as against those of the community as a whole. 

The Committee have further addressed their minds to the Public Sector Equality Duty contained within the Equality Act 2010 and note that this does not impose a positive duty to eliminate unlawful discrimination, harassment and victimisation but rather requires that decisions which may have a negative impact on equality are taken after due consideration of any such negative impact and the ways in which such impact may be mitigated.

Whilst the Committee have considered all the evidence and objections they are of the view that given the above comments and consideration of the policy and all other relevant matters that the objections and policy considerations, when balanced as against the positives of the application, are such as to justify the refusal of the application. 

 

By majority decision, the Committee will accordingly refuse to grant the application.

 

 

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