Sexual establishment policy

Contents

Introduction

This document sets out Bassetlaw District Council’s Policy regarding the licensing and regulation of Sex Establishments. Applications for such premises can raise significant concerns within the community and locality where the premises are, or are intended to be, located.

The Council aims to strengthen community cohesion and pride in every neighbourhood in the district whilst seeking to lower crime and fear of crime and reducing anti-social behaviour.

This Policy is intended to guide the Council in balancing the sometimes conflicting needs and interests of businesses, patrons, employees, residents and communities when considering applications for Sex Establishment Licences and informs applicants and objectors of the parameters under which the Council will make licence decisions.

Whilst the Council has not set a maximum number of establishments, it will consider new applications and locations robustly before granting any licences. Each application will be considered on its merits however it should be noted that application fees are non-returnable.
Further permissions may be required under separate legislation to enable the provision of other licensable activities for which the relevant fees and charges will be levied. In such cases, there should be no presumption assumed from the result of one application against that of a related application.

Definitions

In this Policy the following phrases bear the following meanings:

The Act - The Local Government (Miscellaneous Provisions) Act 1982 (as amended).

The Council - Bassetlaw District Council

Display of nudity - This means:

  • in the case of a woman: exposure of her nipples, pubic area, genitals or anus; and
  • in the case of a man: exposure of his pubic area, genitals or anus.

The Licensed Premises - The premises, vessel, vehicle or stall licensed by the Council as a Sex Establishment.

The Licensing Act - The Licensing Act 2003

The Licensing Officer - The Council’s licensing officer located at Queens Building, Potter Street, Worksop, S80 2AH

The Organiser - Any person who is responsible for the organisation or management of the Relevant Entertainment or the Licensed Premises.

Permitted Hours - These are the hours of activity and operation that have been authorised under a Sex Establishment Licence.

The Policy - This document.

Relevant Entertainment - Entertainment as defined by Paragraph 2A of Schedule 3 of the Act

Relevant Locality - The locality where premises are situated or where the vehicle, vessel or stall is going to be used. The locality and the area that this covers is a matter for the Council to decide and will be determined on a case by case basis for the purpose of decision-making.

Sex Article - A sex article as defined by Paragraph 4 of Schedule 3 of the Act.

Sex Cinema - A sex cinema as defined by Paragraph 4 of Schedule 3 of the Act.

Sex Establishment - A sex establishment as defined by Paragraph 4 of Schedule 3 of the Act.

Sex Shop - A sex shop as defined by Paragraph 4 of schedule 3 of the Act.

Sexual Entertainment Venue (SEV) - A SEV as defined by paragraph 2A of Schedule 3 of the Act.

Background

Origins of the legislation

In 1982 the Local Government (Miscellaneous Provisions) Act introduced a discretionary licensing regime for Sex Shops and Sex Cinemas.

In 2005 the Licensing Act 2003 introduced a new licensing regime which amalgamated several pieces of old legislation under the heading of “Regulated Entertainment”. Entertainment of an adult nature such as lap dancing, pole dancing and striptease etc. fell under this heading. However, the power for the community to object to such applications was restricted as any objection needed to relate to the four specified licensing objectives. This made it difficult for local communities to have any control on the number and/or location of these types of venues.

In order to address these concerns the Policing and Crime Act 2009 introduced provisions creating a new category of Sex Establishment known as a Sexual Entertainment Venue (SEV) to enable local authorities to require venues such as lap dancing establishments to be licensed as Sex Establishments. These provisions are also discretionary, but the Council adopted them with effect from 1 February 2011.

Sex establishments

The definitions contained within the Act are complex defining three types of sex establishments licensable by this Council:

  • Sex Shop,
  • Sex Cinema,
  • SEV

In general

A Sex Shop is any premises, vehicle, vessel or stall used to a significant degree for hiring, selling, exchanging, lending, displaying or demonstrating Sex Articles and/or other things intended for use in connection with, or for the purpose of stimulating, or encouraging sexual activity and/or acts of force or restraint associated with sexual activity. This includes adult films and magazines.

A Sex Cinema is any premises, vehicle, vessel or stall used to a significant degree for the exhibition of moving pictures concerned primarily with the portrayal of or which stimulates or encourages sexual activity, acts of force or restraint associated with sexual activity, genital organs, or urinary or excretory functions (e.g. pornographic movies). However, dwelling houses and cinemas showing films covered by the Licensing Act (e.g. a film rated by British Board of Film Classification) are excluded from this definition.

A SEV is any premises which allows the live display of nudity, or, any live performance, before a live audience directly or indirectly for the financial gain of the organiser or entertainer. Such entertainment must be of a nature that can reasonably be assumed to be provided solely or principally for the purpose of sexually stimulating any member of the audience (verbally or otherwise). Nudity is not a necessary element of such a performance and an audience can comprise one person. The term SEV is therefore likely to cover lap dancing, pole dancing, table dancing, strip shows, peep shows, live sex shows and potentially burlesque.

This Policy applies to all forms of Sex Establishments unless otherwise stated. Whilst the Act allows applicants to apply to the Council for the requirement for a licence to be waived, the presumption is that such applications will be refused. Waivers will only be granted where applicants can establish that exceptional circumstances exist making it unreasonable or inappropriate for the premises to be licensed as a Sex Establishment.

Making an application

All applications relating to Sex Establishments must:

  • be made on the Council’s prescribed form (which is available from the Licensing Officer), and
  • where the application is for a new premises licence the application must be accompanied by a clearly legible layout plan. Further guidance is available from the Licensing Officer
  • where the application is for a variation of a licence and the applicant is seeking to amend the layout of the premises, the application must be accompanied by an updated scale plan of the premises, which indicates the locations and areas in which regulated activities will be carried on. Further guidance is available from the Licensing Officer
  • where the application relates to a grant of a licence please include a scale plan of the premises or a site plan of the location at which the vehicle/vessel/stall will be located
  • where the application is for a variation of a licence and the applicant is seeking to amend the location at which the vehicle/vessel/stall will be located the application needs to be accompanied by an updated a site plan of the location at which the vehicle/vessel/stall will be located
  • where the application is for the transfer of a licence please include a signed consent to transfer from the current licence holder
  • be accompanied by the relevant fee.

Applicants must:

  • A copy of the application must be sent to the Chief Officer of Police for Nottinghamshire not later than 7 days after the date of the application.
  • Give the public notice of the application in the form prescribed by the Council. A copy of this form is available from the Licensing Section. Notice of the application must be given by publishing an advertisement in the Worksop Guardian or Retford Times ( please speak to the Licensing Department to ascertain which publication is appropriate) not later than 7 days after the date of the application.
  • Where the application relates to a premises, display a copy of the notice for 21 days beginning with the date of the application, on or near the premises and in a place where the notice can be conveniently read by the public. Notices shall clearly identify the premises, vehicle, vessel or stall.
  • Every notice shall state that any person wishing to object to the application shall give notice in writing to the Licensing Department of Bassetlaw District Council stating the general terms of the objection not later than 28 days after the date of the application.
  • Provide a copy of the notice, the relevant page of the newspaper containing the advertisement, and a certificate confirming that the application has been publicised and served in compliance with the legislation to the Licensing Officer.

Any failure to comply with these requirements may result in the application being deemed invalid and being rejected.

Whilst applicants for variation are not legally obliged to advertise their applications and serve a copy on the police, it is the Council’s policy that they should comply with 'Applicants must'.

Once an application has been received the Licensing Officer may consult other relevant officers of the Council, local Councillors, and other relevant partners and stakeholders so as to gather appropriate information before making their decision. If objections are received the information will be placed in the report to the Committee including the character of the relevant locality, the use to which any premises in the vicinity are put, and as to the layout, character, and condition of the premises.

Any person wishing to object to an application must do so in writing within 28 days of the date of the application stating the general terms of the objection. Objections received after this date may only be considered at the discretion of the Council if it feels that they are relevant. In determining whether to exercise the discretion to take late representations into account, the Council will have regard to the following:

  • How late the objection is.
  • Whether there is a good reason for the objection being late or whether the lateness was intentional.
  • Whether it introduces new grounds of objection or information or whether it merely repeats other objections which were made in time.
  • Whether consideration of the late objection would result in unfairness to the applicant or disrupt the Committee’s procedures.

Applicants will be given notice of any objections that are received including the names and addresses of the objectors to enable the applicant to contact them in order to discuss the concerns raised.

With the exception of uncontested applications, all applications relating to Sex Establishments will be heard by a meeting of the Council’s Licensing Committee and both applicants and objectors will be invited to attend.

Determination of applications

Each application will be determined on its own merits. However applications may only be refused on certain defined mandatory or discretionary grounds.

Mandatory grounds

The Council must refuse an application if:

  • The applicant is under 18 years of age; or
  • The applicant has been disqualified from holding a licence under Schedule 3 paragraph (17)(3) of the Act following revocation of a previous licence; or
  • The person applying is not a resident of the UK, or was not resident during the six-month period preceding the date of the application; or
  • Where a company is the applicant it is not incorporated in the United Kingdom; or
  • The applicant has been refused a licence for the same premises within the preceding 12 months unless the refusal has been reversed on appeal.

Discretionary grounds

Application for Grant or Renewal of a Licence.

The Council may refuse an application for the grant or renewal of a licence if:

  • The applicant is unsuitable to hold the licence by reason of conviction of an offence or for any other reason: or
  • The business would be managed or carried on for the benefit of a person other than the applicant who would be refused the licence if they made the application themselves: or
  • The number of sex establishments, or sex establishments of a particular type, in the relevant locality at the time the application is made is equal to or exceeds the number which the Council considers appropriate for that locality: or
  • The grant or renewal of the licence would be inappropriate, having regard to:
    • the character of the relevant locality, or
    • the use to which any premises in the vicinity are put, or
    • to the layout, character or condition of the premises to which the application applies.

Application For Variation Or Transfer Or A Licence

The Council may refuse an application for the grant or renewal of a licence if:

  • The applicant is unsuitable to hold the licence by reason of conviction of an offence or for any other reason: or
  • The business would be managed or carried on for the benefit of a person other than the applicant who would be refused the licence if they made the application themselves

Suitability Of The Applicant

The applicant will be required to demonstrate that he/she is a suitable person to hold a licence. In determining suitability, the Council will normally take into account:

  • previous knowledge and experience of the applicant;
  • information relating to the operation of any existing/previous licence held by the applicant, including any licence held in any other local authority area;
  • information about the applicant and their management of the premises received from objectors, Council Officers or the Police including any known criminal convictions or cautions the applicant, or officers of any corporate applicants may have;
  • any other relevant information.

The above factors are not an exhaustive list of considerations but are merely indicative of the types of factors which may be considered in dealing with an application. Similar considerations may also apply to persons whom it is alleged would benefit from the grant of the application but would be unsuitable to hold the licence themselves. In such cases the Council will also have regard to any evidence to show that the business would in fact be carried on for their benefit.

Character of the Relevant Locality and use of other premises in the vicinity

The Council will not grant, renew or vary a licence for a Sex Establishment if, in the Council’s opinion, it would be inappropriate to do so with regard to the character of the Relevant Locality or if the appropriate number of  Sex  Establishments,  (or  of a particular type of Sex Establishment), in that Locality would be exceeded. Whilst not intended to be an exclusive list, the Council will have particular regard to the following matters:-

  • The proximity of residential premises, including any sheltered housing and accommodation for vulnerable people;
  • The proximity of educational establishments;
  • The proximity of places of worship;
  • Access routes to and from schools, play areas, nurseries, children’s centres or similar premises in proximity to the premises;
  • The proximity to shopping centres;
  • The proximity to health facilities, community facilities/halls and public buildings such as swimming pools, leisure centres, public parks, youth centres/clubs, etc;
  • Any planned or proposed regeneration of the area.
  • Any relevant planning considerations such as whether the premises are in a Conservation

Area or areas designated as primarily residential or prime retail frontage;

  • Any complaints or reports of nuisance, disturbance, crime and /or disorder caused by or associated with the premises;
  • The proximity of other Sex Establishments;

Many of these issues will also be relevant when considering the uses to which other premises within the vicinity are put.

Layout, Character and Condition

The Council will not grant or renew a licence for a Sex Establishment if, in the Council’s opinion it would be inappropriate having regard to the layout, character and condition of the proposed Sex Establishment. Whilst not intended to be an exclusive list, the Council will have particular regard to the following:-

  • The type of activity to which the application relates;
  • The days and hours of operation of the Activity;
  • The layout and condition of the premises with particular concern for public safety, health and safety and the prevention of crime and disorder

Disability Access

Applicants are reminded of their duties under the Equality Act 2010 and should provide such facilities so as to enable the admission of disabled people.

Hearings

With the exception of uncontested applications, all applications relating to Sex Establishments will be heard by sub-committee of the Councils Licensing Committee. It will be the general practice of the Council to invite the Police and/or others who have lodged objections to appear and be heard at any hearings in addition to the applicant. However, the Council has a discretion and can as a result decide not to invite the Police and/or other objectors to hearings; in deciding whether to exercise the discretion the Council will consider the facts surrounding each particular application, and will aim to act fairly at all times.

Officers will notify the applicant, police and objectors of the date and time of the hearing; these parties shall give notice to the Council stating:

  • whether they will attend the hearing; and
  • the names and addresses of any witnesses that they intend to call; and
  • a time estimate for their representations to the Committee.

An Agenda will be circulated prior to the hearing. This will include a copy of the application, a copy of any representations made by the Police, and a summary in general terms of any objections received. The identity of the objector/s will be made known and information as to the general vicinity in which the objector/s live may be included.

Whilst additional material in support of the application or representation may be taken into account at the hearing, such material should be provided to the Council as soon as possible and at least five working days before the hearing.

Where additional material is produced at the hearing, this will only be admitted at the discretion of the Committee. This will usually be allowed only in exceptional circumstances and if the late production does not prejudice any other party in being able to respond fully.

Late objections/representations will be dealt with in accordance with the 'Making an application' section of the policy.

Where a party does not attend the hearing and is not represented the Council may either adjourn the hearing, or may continue with the hearing in the party’s absence. If the latter option is followed the Committee will still consider any application, representation or notice submitted by the absent party in so far as it is

The hearing will concentrate on matters which are relevant to one or more of the grounds upon which a licence may be refused under schedule 3 of the Act. 

The hearing will be inquisitorial and not adversarial. The procedure outlined in Appendix 1 will normally be

Appeals

Appeals against decisions of the Council are generally made to the Magistrates’ Court and appeals against decisions of the Magistrates may be made to the Crown Court. However, not all decisions carry a right of appeal.

The only persons entitled to appeal are:

  • An applicant for the grant, renewal, transfer of a licence whose application has been refused;
  • An applicant for the variation of the terms, conditions or restrictions of a licence whose application for variation has been refused;
  • A holder of a licence who is aggrieved by any terms, conditions or restriction on that licence;
  • A holder of a licence whose licence is revoked.

However, even these persons do not have a right of appeal in every case.

There is no right of appeal for the following:-

  • Objectors:
    • An applicant who has been refused the grant/ renewal or transfer of a licence on any one of the mandatory grounds unless he seeks to show that the ground for refusal do not apply to him.
    • An applicant who is refused a licence on the grounds:
      • That there are sufficient sex establishments in the locality, or
      • That to grant the licence would be inappropriate having regard to the relevant locality, use to which premises in the vicinity are put, or the layout, character, or condition of the establishment.

The only means of challenge available for such persons is by way of Judicial Review.

Any application for an appeal must be lodged within 21 days from the date that the applicant was notified in writing of the decision against which he is appealing. A fee will be payable, and the relevant Court will advise as to the amount.

Other terms & conditions

Enforcement

All decisions, determinations, inspections and enforcement action taken by the Council will have regard to the relevant provisions of the Act.

Monitoring & Review Of This Policy

All decisions, determinations, inspections and enforcement action taken by the Council will have regard to the relevant provisions of the Act.

Equality & Diversity

  • Delivery of this licensing regime will be in accordance with the Councils Equality and Diversity
  • Advice and guidance will be made available in English which is the most common language of customers and stakeholders. The Council will also signpost customers to other providers of guidance and information relevant to the regime but are not responsible for the accuracy of such information. However, it is recognised that local communities will normally have access to alternative translation and advice services.

Further information is available from our licensing department:

Email: licensing@bassetlaw.gov.uk

Address: Bassetlaw District Council, Queens Building, Potter Street, Worksop, S80 2AH

Appendix

Hearings Procedure

The following procedure will ordinarily be followed at the Committee hearing:

The Sub-Committee of Bassetlaw District Council’s Licensing Committee will be made up 3 current members of the Licensing Committee.

The Sub-Committee has delegated authority from the Licensing Committee to hear the matter. This power was delegated to the Sub-Committee at a meeting of Bassetlaw District Council’s Licensing Committee on 16 September 2015.

At the hearing the Chair will introduce him/herself, the other members and officers attending. The applicant, then the Police and objector/s (if invited and present) will introduce themselves and their witnesses. The Chair will outline the procedure to be followed and explain any time limits imposed on representations.

The applicant will present his case and ask his witnesses to give their evidence. The applicant and each witness, after giving their evidence, may at the discretion of the Chair, be asked questions by the Police, the objector/s, the Committee members, and the Legal adviser.

The Police and objector/s (if invited and present), in turn, will then be asked to make their representations following which they will be asked questions by the applicant, the Committee and legal adviser.

Once all parties have given their evidence and all questions have been asked, each party will be asked to sum up their case. The order of summing up will be the Police and the objector/s (if present), and the applicant last.

Hearings will normally be conducted in public, however, the Committee does have powers of exclusion (which cover the public, the press, and even applicants, objectors and their representatives) in appropriate circumstances.

  1. Whilst it will only hear representations which are relevant, the Committee is not restricted to considering any objections    In  coming  to a decision it will consider all relevant information, including observations by Council Officers, the Police and objectors (whether or not these parties are invited to speak at the hearing), representations by the parties at the hearing, as well as the local knowledge of the Members of the Committee.
  2. Due to time constraints, applications for adjournments will only be granted when absolutely necessary, taking into account the following:
    • Once a hearing date has been set it is for the parties to ensure that they can attend or are represented. Hearings may proceed in the absence of a party and their representations will be taken into account.
    • If it is not possible for a party or their witnesses to attend the hearing then the Council’s preference will be for the hearing to proceed and the representation to be given by way of written evidence.
    • Any party who wishes to make an application for an adjournment should seek the consent of all other parties to the application and notify the Council as soon as possible that an adjournment is being sought. If all parties agree the matter may be adjourned administratively.
    • If an adjournment is not agreed administratively prior to the hearing, then the matter will remain listed and the application for the adjournment will be heard and the Committee will decide whether to allow the adjournment or to proceed on written evidence.
    • The Council may adjourn proceedings of its own motion where it considers it necessary for its consideration of any application or objection.
    • Where an adjournment is granted all parties will be notified soon as possible and notified of the new hearing date.
    • In coming to a decision the Committee will have regard to any rights the applicant may have under the European Convention on Human Rights, Article 10 (right of freedom of expression) and Article 1 Protocol 1 (protection of property), as qualified, and will weigh them in the balance.
    • At the end of the hearing the Committee will retire to make their decision. In all cases the Committee will try to make their decision and to communicate this, with reasons, within a reasonable time of retiring. Where this is not possible the committee may:
    • announce their decision on the day with reasons to follow; or
    • delay their decision and reasons for a set period.

However the decision is delivered it will always be followed up with written notification of the decision to all parties, including full reasons, and information, where relevant, about the appeals process.


Last Updated on Wednesday, August 2, 2023