Agenda item

Report of the Cabinet Member Development and Safety

The Cabinet Member Development and Safety, Councillor McKinlay, introduced the report which had been circulated with the agenda.  The report explained that Sexual Entertainment Venues (SEVs) are regulated under Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982 as amended by Section 27 of the Policing and Crime Act 2009. The amended provisions were adopted by Council on 11 October 2010 and the current policy statement was adopted by the Licensing Committee on 4 February 2011. On 16 September 2014, Cabinet had considered the consultation feedback and approved amendments to the current policy as outlined in section 7 of this report. Cabinet had taken the view that it was reasonable to set a nil limit for SEVs in predominately residential areas but to retain the existing policy in the town centre. He reminded Members that the authority was obliged to make a differentiation between locations which would not be the case if it applied a nil limit for SEVs across the whole borough. He highlighted that Cabinet had defined the town centre as the town centre shopping area, shaded blue in the map in appendix 3.

The Cabinet recommendations were now being forwarded to Council for their approval. He advised that if Council should not approve the recommendations today then technically they should go back to Cabinet for a final decision. However he indicated that Cabinet would accept Council’s decision today on the policy as the final one to be adopted by the authority.

In making these recommendations he did not consider the council was opening the floodgates and the Licensing Committee would still make an informed decision on each individual application.  His personal view was that it was much better to legalise and regulate these types of establishments rather than saying no outright and running the risk of them going underground or finding alternative ways to operate their businesses. It could also proliferate the use of Temporary Event Notices (TENS) during periods such as race week.

The Mayor invited Members to ask questions on the report and the following responses were given by the Cabinet Member assisted by the Business Support and Licensing Team Leader, Louis Krog

• If the amended policy was passed by Council, the SEV situated in Bath Road would fall outside the defined town centre area and therefore what would happen when its licence came up for renewal?
  • This would be a material consideration for the Licensing Committee when considering any renewal application and the applicant would have to give evidence as to why an exception should be made in their case to renew their licence.
• Would it be more sensible to redraw the map to include the other side of Bath Road (where the current SEV was situated) in the town centre area?
  • This could be done but there would be little point in doing this as an existing establishment would always have an argument that it is an existing business whatever area it fell into.
• Could the Cabinet Member clarify the conditions in 5.and 6 at appendix 1
  • The distinction was made because the authority only had jurisdiction over activity within the borough and they could not stop flyers or similar promotional material being handed out in other areas outside Cheltenham.
• Does the amended policy take into account the Council's duties under Equality Legislation? The authority has a duty to ensure that women are safe and is that requirement not very pertinent to this policy?
  • The officer confirmed that the Council has a duty to promote equality however the policy does not prescribe the sex of the participants and therefore there is no inconsistency with equality legislation as the council is licensing a lawful activity. The Borough Solicitor added that clearly the Equality Act was relevant to everything the council does but currently there was no suggestion from the police or any other complainant to suggest that the council had not complied with its duties or any suggestion that there had been a breach of the Act in relation to this policy.

Councillor Clucas proposed the following amendment which was seconded by Councillor Sudbury:

Amendment to 11.3 of the draft policy so that the recommendations would read as follows:

1. Note the consultation feedback together with the petition submitted;
2. Note the Cabinet recommendation to adopt the draft amended policy; and note the Council's duties in law including the Gender Equality Duty(2007) and the Equality Duty  (2010);
3. Note that there is an implied power in Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982 ("1982 Act") as amended by Section 27 of the Policing and Crime Act 2009 ("2009 Act") for the Council to set a limit on the number of licensed SEVs permitted in the relevant locality, of which zero is appropriate and that a number of local authorities have already taken that decision in light of evidence of the harm and violence against women that such venues can provoke.
   
   Council believes there is no place within the Town of Cheltenham which it could be said that it was situated in a locality in which it would be appropriate to licence a sexual entertainment venue.
   
   Therefore Council resolves to adopt a nil limit for the whole of Cheltenham Borough, implemented through smaller relevant localities. The relevant localities would be each of the 20 wards in the Borough, to ensure that the characteristic(s) of the relevant localities are taken into account.

In proposing this amendment, Councillor Clucas said that the best way to regulate SEV's was to say no to them in the first place. She disputed the Cabinet Member's suggestion that this could cause the activity to go underground or be operated illegally.  In her view it was the job of enforcement teams and the police to stop that happening. She also suggested that new Statutory Instruments were being laid down in the House of Commons which would potentially tighten up the use of TENs as an alternative option. She fully supported the policy as laid out in paragraph 11.2 which proposed that the appropriate number of SEVs outside of the adopted Central Shopping Area should be nil. However with no nil limit inside this area there would also be no upper limit and little defence if an application for an SEV was turned down by the Licensing Committee and subsequently challenged in court. She highlighted the potential harm that such establishments could do and this had been confirmed in reports to the UK government in 2003/4 and 2007. There was evidence that customers who frequent such establishments were more likely to seek exposure to more extreme forms of ‘live’ pornography or access pornographic material on the Internet. She was also concerned for the women in the town and argued that violence against women was more likely to occur if such establishments were permitted. She urged the council to ensure that girls could walk safely through the town without requiring an escort and she was not prepared to see young men and women being harmed or the town brought into disrepute through the adoption of this policy.  In her view the council also had duties under The Equality Act which would not be satisfied.

The Mayor invited Members to debate the amendment. 

A Member was concerned about the decision that the Licensing Committee had made in approving the SEV licence for the premises in Bath Road. They considered that the committee could have refused the licence on a number of grounds including the fact that it was in a residential area and was frequented by children and churchgoers. There was a concern that this could open the door to more applications of this type and sully the good name of the town which was renowned for its art, culture and tourism.  Another Member supported the view that the Licensing Committee would not have approved the licence had it studied its own policy more carefully. Several Members highlighted that whatever policy was agreed, the Licensing Committee would still have to consider every new application on its merits and Council must trust the committee to do this. It was important that in doing this the committee took full account of points raised during the consultation and any evidence they had received regarding any application. It was very clear from the public response that they did not support this type of activity and several Members felt the committee should take this into account. Another Member highlighted that the Licensing Committee could not take any moral view when considering whether to licence an establishment and must only base their decision on the policy itself.

Other Members raised concerns about the types of activity taking place in the clubs where men were sexually aroused and alcohol fuelled and the subsequent risks that this could cause to public safety outside the club. One Member suggested she had an example where a female resident walking past the club with a male companion had been harassed by door staff encouraging him to enter the club. It was also important to protect the welfare of all workers in the club. Other Members were concerned about the safety of shift workers walking back through the town in the early hours. It was also highlighted that drunkenness was not limited to SEVs and was also a problem for other types of establishments.

Other Members were concerned that such clubs would change the nature of the town centre which had recently been highlighted in the media as one of the top 20 towns in the UK to bring up children. The council had tried to bring life into the town centre by encouraging people to live there and they questioned whether this type of activity would positively discourage residents from living there.  They also questioned the value that the town would get from these clubs as the profits would go to the businesses and they would do little to benefit other businesses in the town compared with events such as the festivals.

Other Members highlighted Cheltenham’s success in dealing with the night-time economy in the town centre. The town centre was also well policed so this was an argument for permitting licences in that area where they could be well regulated and monitored. There was also CCTV to help regulate conditions outside the club. A Member made the point that since the SEV licence had been granted to the premises in Bath Road, the police had recorded no problems. Other Members cited the Blue Room as a similar establishment which had been granted a licence where there had been no trouble and had commercially faded away. Even during race week there had been successful enforcement by inspectors which ensured everything went smoothly in the town.

Regarding equalites, a Member highlighted that it was important to treat potential violence or sexual exploitation against men or women equally. From a personal point of view they did not have a problem with permitting SEVs provided there was no violence and they were safe. Whilst acknowledging that the probability of some risks could increase it was the role of the local authority to reduce or mitigate those risks and then allow the Licensing Committee to grant licences where appropriate. They felt the policy should have stronger criteria and that there may even be locations outside the town centre where such an establishment might be appropriate.

Another Member highlighted the importance of freedom of choice for businesses wishing to operate in the town. They challenged the argument that children or churchgoers may be at risk as they would be unlikely to be walking past those premises late at night or early in the morning. They also referred to an earlier suggestion that lap dancers working in the club were somehow victims and suggested that they were much more likely to be educated possibly to degree level, or students and statistics showed that 80% of them said they felt safe at work. There was no proven causal link between violence and lap dancing, only anecdotal evidence, so prohibition was not a preferable option.

At the invitation of the Mayor, the Chief Executive advised Council that it may be appropriate for them to consider a short adjournment at this point, in order for Legal officers to give advice on the amendment which they had not seen prior to the meeting. This would ensure that if the amendment was passed there was no legal impediment to its subsequent implementation.

This was agreed by Council and the meeting adjourned at 4.40 and reconvened at 5.00 pm.

The Borough Solicitor advised Members that in order for the  policy  to set a zero limit for a relevant locality, it was obliged under legislation to define the characteristics of that locality . She advised that the amendment, as drafted, suggested that each ward would be defined as a relevant locality for the purpose of applying the policy.  If this approach was to be adopted, then the characteristics of each ward would need to be considered and determined.  The Cabinet had already addressed the characteristics of the area outside of the Central Shopping area as set out in the report at paragraph 7.1 and 7.2 and reflected at 11.2 of the draft Policy.  Therefore, a way forward would be  for the amendment to accept the Cabinet recommendation as far as 11.2 of the Policy is concerned and to address the characteristics of the Central Shopping Area as another relevant locality in order to support  a zero limit in that locality. 

Councillor Sudbury speaking as the seconder of the amendment highlighted many of the points that had already been made in support of the amendment. She stressed that the public consultation had been very clear on the issue and she thought the Council should now take that on board and adopt a zero limit across the town. She welcomed the revised boundary proposed by Cabinet for the town centre and noted the legal advice regarding relevant localities for the purposes of the policy. She considered the incident she had highlighted earlier demonstrated that the regulations did not work in protecting people within the vicinity. The regulatory activity may make it safer for the workers inside but offered little protection to the residents outside.

In her summing up, Councillor Clucas welcomed the debate that had taken place and stressed that her arguments in support of the amendment were based on evidence and not morality. She also referred to the corporate and community plan implications in the summary section of the report where it said that “communities should feel safe and are safe and residents enjoy a strong sense of community and are involved in resolving the local issues”. She went on to list a wide range of support groups who had been in favour of a zero limit across the town. She believed a zero limit was deliverable and commercial organisations would have no hesitation in seeking out towns with a no zero policy to set up these types of businesses. Finally she listed a series of characteristics of the town centre and suggested that these could be incorporated in the policy should the amendment be passed. These factors included:

Location and residential density of housing in Cheltenham;  Location of facilities for children including schools, playgroups and children's centres throughout the town; Location of places of worship; Location of premises attracting vulnerable people such as GP surgeries, health centres, hospitals, dentists; Areas and premises attracting families such as leisure and sport facilities, play spaces, parks and open spaces including tourist attractions; Location of areas associated with commerce, retail and commercial use as shown; Promotion of gender equality, particularly in relation to reducing the fear of crime among women and community attitudes to sex establishments; The Local Plan.

She concluded that given the various factors set out above, there was no place within the Town of Cheltenham where it could be said that it was situated in a locality in which it would be appropriate to licence a sexual entertainment venue.

In accordance with the legal advice the final paragraph of the amendment was slightly amended as follows:-

Paragraph 11.3 of the proposed policy should be amended to read “It is the Council’s policy that it would not be appropriate inside the central shopping area to license a SEV. Accordingly the appropriate number of SEVs inside the central shopping area is nil.

In responding to the amendment, the Cabinet Member reflected that it had been a thoughtful debate but he was still inclined to resist the amendment. In the debate much reference was made to the safety of men and women but there was no evidence to support that SEVs had or would cause a lack of safety in the town. Indeed the policy had been in place some years and had not caused any problems or issues. He considered the amended policy circulated with the report was a sensible compromise which allowed officers to direct potential applicants to appropriate areas of the town and gave the Licensing Committee the ability to judge and consider every application based on the government guidance provided.

Upon 7 Members standing in their seats, a recorded vote was requested and agreed.

Upon a vote the amendment was LOST.
For; 18 – Councillors Barnes, Baker, Clucas, Fisher, Fletcher, Harman, Holliday, Lansley, Mason, McCloskey, Nelson, Payne, Rawson, Regan, Ryder, Smith, Sudbury and Whyborn.

Against; 19;- Councillors Babbage, Britter, Chard, Coleman, Flynn, Colin Hay, Rowena Hay, Jeffries, Jordan, Lillywhite, McKinlay, Murch, Reid, Seacome, Stennett, Walklett, Wheeler, Wilkinson and Williams.

Abstentions; 0

The debate moved on to the substantive motion.

A Member expressed their disappointment that the amendment had been lost and emphasised that the residents in the College Ward had made it very clear that they did not want a lap dancing club in their area. The Member felt that accepting the amended policy would send a message to the public that the Council does not take account of the results of public consultation or the views of local councillors. Another Member disagreed saying that Council had demonstrated today that they had had a balanced debate on the issue and all Members had had time to consider all views and reach their conclusions. 

Another Member highlighted that if the recommendations were not passed, then the alternative would be to continue with the existing policy with no zero limit anywhere in the Borough. For that reason they would be supporting the recommendations.

Another Member suggested that the policy should be taken back to Cabinet and re-worked to make it more robust as clearly the public were not confident in it as it stands.

In his summing up the Cabinet Member stressed that the proposed policy followed the guidelines set by government. The policy had been dramatically tightened up and 90% of Cheltenham would now be in an area designated for a zero limit. This should provide the Licensing Committee with the scope required for refusing an application that they deemed unsuitable.  He too cared about equalities but he took a different view on how they should be addressed. Finally he urged Members to support the recommendations as the alternative would be to retain the existing policy.

Upon a vote it was

RESOLVED that after noting the consultation feedback and the Cabinet recommendation to adopt the draft amended policy; the amendments to the policy as outlined in the draft policy attached at appendix 4 be adopted

Voting: For 25, Against 9 with 3 abstentions