“Nil limit” decision on Edinburgh sex venues annulled
A determination by a local authority of the appropriate number of sex entertainment venues (“SEVs”) for its area under sched 2 to the Civic Government (Scotland) Act 1982, as modified in 2015, was binding as to the number of applications it could grant and did not leave a discretion to exceed that number, a Court of Session judge has held.
Lord Richardson gave the ruling in granting a petition by Kaagobot Ltd and two other operators of SEVs in Edinburgh, and an employee of Kaagobot, for judicial review of a decision by the City of Edinburgh Council that the appropriate number of SEVs within its area should be nil. The United Sex Workers trade union was given leave to enter the proceedings as an additional party.
The petitioners argued that the nil determination had the effect of constituting a ban on SEVs in the council’s area. The council’s Regulatory Committee, in deciding on the limit, had been advised that it only created a rebuttable presumption against the grant of an application, and that individual applications could still be granted as a matter of discretion.
Lord Richardson agreed with the petitioners on this point. That conclusion was “compelled” by the 1982 Act, sched 2, para 9(4), (5)(c) and (5A). If the number of SEVs in a council’s area was equal to or greater than the number it had determined under para 9(5A), it had to refuse the application. It was also consistent with the stated rationale for the 2015 amendments introducing a licensing scheme for SEVs, which expressly recognised that a council might choose zero SEVs as the appropriate number for its area; and with the authorities dealing with other licensing regimes.
The council’s officials therefore erred in the advice they gave to the Regulatory Committee. No good reason had been put forward why a decision based on such an error should not be quashed. The committee had been split and it was far from obvious what the result would have been had it been correctly advised.
Other grounds of challenge were either simply consequential on the principal argument (including no adequate reasons), or not well founded (including adequacy of information before the committee, interference with peaceful enjoyment of possessions, indirect discrimination and breach of the public sector equality duty).
The judge also considered that the union was not itself a “victim” in terms of the Human Rights Convention, nor did it have standing to make a representative claim on behalf of its members.
The council’s decision was reduced.