Law, sex and the city: regulating sexual entertainment venues in England and Wales

Creating an object of regulation: defining the sexual entertainment venue

Striptease entertainment has long existed in England and Wales, mainly in inner city public houses catering for a male, working class clientele (Sanders and Hardy, 2012). However, this characterization began to break down in the 1990s as “USA style” striptease clubs emerged. These clubs, dedicated to offering sexual entertainment, quickly became known as “lap dance” clubs because they were (erroneously) thought to specialize in the forms of close-contact “straddle dancing”. By 2003, there were estimated to be as many as 350 such clubs in England and Wales (Jones et al., 2003), many highly visible, well-advertised clubs located in town or city centres. Objections to the new crop of striptease clubs came thick and fast from predictable sources – religious organizations and anti-pornography feminists in particular (Patiniotis and Standing, 2012) – coalescing with those of residents, businesses and local councillors to precipitate what often appeared co-ordinated NIMBY (“Not in My Back Yard”) style protests. In such protests, stereotypes of both striptease artistes and their clientele were deployed to construct the club as a potential source of nuisance, the former depicted as vulnerable and exploited women, and the latter as anti-social men (Hubbard, 2009). Such discourses entwined to position such clubs as offering entertainment that was lawful, but thought to attract criminal elements.

The evidence base to support claims that striptease clubs are associated with more criminality than other venues in the nighttime economy remains thin. Recent evidence from England and Wales (Hubbard and Colosi, 2015) mirrors US studies suggesting any association between the presence of striptease clubs and high neighbourhood rates of criminality can be explained through generally higher rates of crime in the areas they are located, with anti-social behaviour, noise and littering around lap dance clubs generally lower than around pubs, clubs and late night takeaways (Enriquez et al., 2006; Seaman and Linz, 2014). Likewise, in a notable Australian study, it was reported that most residents experience little nuisance from sex premises, with objectors constituting a minority usually rejecting such venues on grounds of morality and taste, not nuisance (Prior and Crofts, 2012; Hubbard et al., 2013). Nevertheless, the force of opposition in England and Wales was such that some MPs joined campaigns designed to prevent new club openings, and began to argue for new regulatory powers. Here, the seeming inability of local authorities to prevent the opening of lap dance clubs under the Licensing Act 2003 provoked a Ten Minute Rule Bill in June 2008 – the Sex Encounter Establishments (Licensing) Bill – sponsored by Durham MP Roberta Blackman-Woods. This ultimately led to the inclusion of clauses in the Policing and Crime Act 2009 allowing local authorities to license striptease venues as SEVs, subjecting them to the same determination criteria by which sex cinemas and sex shops had been judged since the introduction of the Local Government (Miscellaneous Provisions) Act in 1982[5].

The consequence of this – exhaustively catalogued by Kolvin (2011) – is that any venue offering “relevant entertainment”[6] more than once a month requires an SEV licence in addition to a licence for the sale of alcohol. Significantly, the new licensing powers allow a local authority to refuse a licence application if the applicant is not a “fit and proper person” to run such establishment, or if:

[…] the number of sex establishments, or of sex establishments of a particular kind, in the relevant locality at the time the application is determined is equal to or exceeds the number which the authority consider is appropriate for that locality [or] that the grant or renewal of the licence would be inappropriate, having regard (i) to the character of the relevant locality (ii) to the use to which any premises in the vicinity are put; or (iii) to the layout, character or condition of the premises, vehicle, vessel or stall in respect of which the application is made (Home Office, 2010, p. 10).

Given a locality can be defined by the local authority “on the facts of the individual application”[7], Kolvin (2011, p. 65) concludes this gives authorities “a high degree of control, even amounting to an embargo, on licences for particular types of sex establishment within particular localities”, noting that “the width of the discretion is consolidated by the absence of any appeal against a refusal on this ground”[8].

Regulation in practice: determining the appropriateness of lap dance venues

As described above, the government’s reaction to the furore surrounding lap dance clubs was to allow local authorities to bring such premises under the aegis of a separate licensing regime. The logic underpinning this decision appears clear: “arm’s length” regulation via the delegation of day-to-day responsibility of premise to non-technical and non-expert personnel (i.e. venue managers and door-staff) appears both adequate and proportionate, given striptease is lawful, but regarded as more problematic than some other licensable activities. Yet, this delegation of regulatory responsibility should not distract from the fact it is a committee of elected councillors who ultimately determine which businesses are appropriate in which spaces. These councillors are reliant on licensing officers informing them as to the merits of the case, and presenting a succinct set of options which are defendable when faced by the legal teams that can be drafted in by applicants. This said, councillors are empowered to act on behalf of the local communities, and may claim to instinctively “know” what is appropriate in specific geographical locales. The implication here is that there is room for subjectivity – and even individual morality – to influence the processing of applications. In this sense, the gender, age, class and party affiliation of the councillors who sit on licensing committees can be significant in colouring their opinion of sexual entertainment, and disposing them for, or against, such venues[9].

These new adoptive powers accordingly grant considerable discretion to licensing committee members, allowing them to respond to local objections to new lap dance clubs according to their interpretation of the “facts of the case”. Though most local authorities suggest they will consider each application on its merits, in some cases, local policies approved by licensing committees have stated a presumption against the award of licences, stating there are no localities where sexual entertainment premises are suitable (a “nil limit”)[10]. In many other cases, local authorities state they will pay particular attention to the proximity of schools, religious facilities, shopping districts, “family” housing and any facilities which might routinely be used by children. This resulted in 35 refusals of SEV licences between 2011 and 2013, with all bar two justified with reference to the unsuitability of the locality or the presence of “sensitive” land uses in the vicinity[11]. While guidelines suggest that while “the moral case against such establishments cannot be used as a ground for refusal” (Home Office, 2010, p. 5), the fact that objection letters rarely restrict their comments to the environmental impacts of lap dance clubs means that these judgements may be coloured by general assertions that the presence of a club would “lower the tone” of a given locality or attract “unsavoury” characters (Hubbard and Colosi, 2015). Even when a local authority grants a licence, licensing conditions can severely limit the hours of opening and general operation of the club[12]. Combined, this produces a restrictive operating environment for SEVs in many local authorities.

However, there are other municipal laws which can be brought to bear on SEVs. Development control, for example, also provides a basis for preventing the opening of a lap dance club despite not being mentioned in any parliamentary debates concerning the introduction of new licensing powers. This use of planning powers was perhaps unacknowledged because, unlike other jurisdictions where the sex industry is recognised as a distinct category of land use (e.g. see Prior, 2008 and Prior and Crofts, 2012, on Sydney), sex establishments are not defined in the Use Classes Order[13] in England and Wales. This means that while a change of use from residential use to a business use involving sexual commerce would require planning permission (as shown when residential properties have been used for the purposes of prostitution[14]), permission for the conversion of a nightclub (which is sui generis within the Use Classes Order) to a lap dance club has seemingly been waived by some local authorities on the basis that this does not constitute a material change of use. This has been challenged in some recent cases which have suggested that the conversion of a nightclub to a SEV – itself a sui generis category – always constitutes a change of use. For example, in 2010, the planning inspector upheld the decision of Bristol City Council to refuse the conversion of residential flats to Use Class A3/A4 use by day and sui generis lap dance club by night, noting the lap dancing club could have a “materially detrimental effect on schemes for continuing regeneration in the area and stimulating the vitality and viability” of the street on which it was located[15].

Like licensing, planning is manifestly not concerned with morality, and is concerned only with valid material considerations (i.e. the visual appearance of a development, its impact on the setting and potential environmental nuisance). This was underlined in Sidhu v Birmingham City Council (2013) when an applicant argued that refusal of planning permission for conversion of an inner city pub to an SEV was a moral judgement, and not grounded in the facts of the application. In this case, the Planning Inspector concluded:

Several local organizations and people have commented on the acceptability of this type of use in this district centre, raising moral considerations. Some of the nearby community, cultural and religious uses are sometimes open at night, and some members of the local community might not see this type of use as a compatible activity. However, I have considered this proposal purely in terms of valid land-use and planning considerations […]. I conclude that the proposed change of use would be detrimental to the character and function of the [area], with the risk of crime and unsocial behaviour. These are sound and clear-cut reasons to refuse planning permission, and the appeal should therefore be dismissed[16].

This stance has been echoed elsewhere. For example, in Leeds there was a vocal campaign against the proliferation of lap dancing clubs in the city centre, with the discovery that one club lacked planning permission triggering objections to its (retrospective) change of use. In this case, chief planning officer suggested that:

The courts are the arbiters of what constitutes a material consideration and have held that public opposition per se is not. In cases where fears or concerns are genuinely held by members of the public, these may constitute a material consideration but case law suggests that such fears would have to be shown to relate to material considerations, or be objectively justified or have land use consequences in their own right. Moral objections to developments, such as those involving gambling, drinking or sex, are given little weight in decision making unless there is some tangible land use or amenity impact deriving from such activities which can be shown[17].

In this case, approval was thus granted despite opposition, with the judgement suggesting that “the use would be likely to have less of a direct impact on the amenities of the locality than the use of the building primarily as a drinking establishment”[18]. Likewise, in reversing refusal of retrospective planning permission for a lap dance club by Portsmouth City Council, the planning inspector suggested the council had taken account of representations made with regard to gender equality, child safeguarding and moral issues, all of which are not admissible when dealing with a proposal solely on its planning merits[19].

Nuisance and the curious case of SEVs

In considering the scope of municipal law in the regulation of lap dance clubs, it becomes apparent that two overlapping techniques of governance are in play in England and Wales: licensing and planning. While distinct in principle[20], both techniques sidestep questions of decency, obscenity or manners to focus instead on what is seen as the rightful provenance of municipal law: the production of orderly and liveable cities via the reduction of nuisance. Here, nuisance can be conceived as any interference with an occupier’s use and enjoyment of their land (Cooper, 2002). In general terms, town and country planning in England and Wales has aimed to prevent any development which could produce demonstrable nuisance, such as unwanted forms of noise, vapour or vibration across a property boundary. Licensing also has the reduction of nuisance as one of its main objectives, with this understood to encompass “all the concerns likely to arise from the operation of any premises conducting licensable activities in terms of the impact of nuisance on people living or doing business nearby”[21]. In the absence of such municipal control, the traditional recourse for property owners experiencing nuisance would be through the common law of torts. Municipal law – as a subset of environmental law (Wightman, 1998) – accordingly relegates tort-law to what some commentators describe as a “back-stop” role (Latham et al., 2011), the state acting in the public interest to prevent private litigation.

Here, it is worth considering two distinct forms of nuisance: amenity nuisance and stigma nuisance. The former has been well explored in case law, understood as a harmful or noxious emission (i.e. what geographers term a negative externality) impinging on another’s use or enjoyment of land through contamination. Tort law here shows us that physical contamination of this type (e.g. the impact of noise, vibration, smoke and air pollution) can entitle a landowner to compensation or the serving of an injunction to prevent future contamination of land. However, cases also suggest that where one land use causes a decline in the value of another property, but there is no physical damage or noxious effect measurable, then the possibility of recompense is more distant[22]. This suggests that tort law’s ability to deal with what we might term stigma nuisance is somewhat limited. Yet, in the case of SEVs, this appears to be precisely what is at stake: opponents of lap dance venues may allege nuisances such as parking, noise and littering, but these are unlikely to be any more pronounced than for a pub or club that operates in the night-time economy (Hubbard and Colosi, 2015). This means that when a nightclub or pub converts to a lap dance club, opponents are, in essence, not objecting to the environmental nuisances that will be associated with the venue but the idea that it will lower the “tone” of the area via association. This appears a classic case of stigma nuisance whereby the presence of an activity regarded as “immoral” is accused of lowering the reputation of an area and, hence, its property values (Nagle, 2001)[23]. Though such stigma nuisance can theoretically be dealt with through common law[24], the difficulties in determining questions of compensation means that municipal law has generally been deployed to head off such claims. As histories of sex establishments show, there is a general association between sex industry premises and lower value areas (Papayanis, 2000), and it is extremely difficult to assemble evidence that a sex premise is more of a “noxious neighbour” than any number of other premises which might lower property prices through association (e.g. homeless shelters, drug injection centres, alcoholic treatment facilities and so on) (Hubbard et al., 2013).

Accordingly, one of the key roles of municipal law in England and Wales is arguably to prevent the need for complex deliberations on the nature of stigma nuisance through actions foreclosing the possibility of private actions being pursued through common law. Here, it is worth reflecting on the chronopolitics[25] of different forms of municipal law. Planning, in effect, seeks to minimize reliance on tort by regulating land markets through an appeal to particular notions of spatial justice. In broad terms, it does this by assessing the potential nuisance a development might cause, and refusing development rights where the nuisance caused will outweigh the social benefits of development. Of course, the nuisances that might be caused by a development cannot be determined with any degree of accuracy ex ante, so committees need to make determinations as to the likely consequences of a development. Here, a precautionary logic must prevail, meaning that the mere possibility of nuisance arising might become a basis for refusal. In this sense, planning and licensing officers make an assessment of lap dancing clubs that determines whether they are appropriate in given localities on the basis of nuisances that might occur, not ones that have occurred, presenting this for determination by the relevant committee. Once permission has been granted, it is difficult for any local resident or business to seek redress through private injunctions or nuisance tort: Coventry v Lawrence (2012)[26] shows that if the granting of planning permission changes the character of an area, then it is difficult for a claimant to later suggest that this change caused them nuisance for which they deserve redress. Planning, therefore, seeks to project forward to a city-yet-to-come, an ordered city where land uses are distributed so there is no possibility of conflict and everything is “in its place”. Licensing similarly seeks to pre-empt conflicts of use, but is both remedial and preventative, as any failure of licensing conditions to prevent nuisance can be reacted to via annual licence renewal.

This perspective suggests that licensing offers something of a back-up to planning, so that even if the material use of land is approved of, and the right to development bequeathed, conditions can be applied to negate the risk of nuisance. As noted above, this can cause problems for premise owners who can obtain planning permission for a lap dance club and then find their SEV licence application is refused. This precautionary logic is doubly galling when both planning permission and a licence have already been granted, yet at the annual point of renewal, a licence is refused despite a lack of any evidence of nuisance having occurred. This has occurred several times, with some licensing committees deciding that the use of a premise as a SEV is no longer appropriate, given changes in the nature of a locality. For instance, Platinum Lounge in Chester opened in 2005 and obtained an SEV licence in 2012, but this licence was revoked by Cheshire West & Chester’s licensing committee in 2013 on the grounds that the area had become more residential since the initial granting of a licence[27]. In this case, there was no evidence that noise and littering around the venue had changed or increased, merely that the change in the nature of the locality was making nuisance more likely to be experienced by local residents.

A related case underlines the distinctive scope that municipal law has to determine the present with reference to the (imagined) future. This concerned Oxford City Council’s refusal to renew an SEV licence for a lap-dancing club on the Oxpens Road, Oxford. These premises had operated without incident since November 2011, though in September 2012, the authority refused to renew the SEV licence having regard to “the character of the relevant locality or use to which premises in the vicinity were put” noting that future development of student accommodation in the vicinity would make the premise inappropriate because of increased use of the locality by “young and possibly vulnerable students”[28]. The decision letter acknowledged this was a departure from its decision to initially grant an SEV licence in July 2011, but suggested that with the benefit of evidence concerning the operation of the premises over the previous year, it was entitled to reach a different conclusion. The claimant issued judicial review proceedings challenging the lawfulness of this decision, citing a previous decision where a local authority had refused a licence for a sex shop on the basis of change in the character of the relevant locality, but where the courts concluded there was insufficient evidence of change[29]. However, the judge in this case held that as matter of law, licensing decision-makers are entitled to take into account both the present and future character of an area, stating there is no reason to limit the reference to character to the present. In his view:

“Prospective licenses required a prospective view […]. The fact that an area is developing and in a continued state of change is a relevant consideration to why renewal might be inappropriate”[30].

This was underlined in Bridgerow Ltd, R (on the application of) v Cheshire West and Chester Borough Council [2014], where it was concluded that licensing committees are empowered to take a “fresh look” at the nature of the locality at point of renewal, and reach different conclusions about the present and future suitability of the locality than in a previous licensing hearing[31].

These cases show that municipal law can be prospective in its attempt to mitigate future nuisances. While this is entirely logical in terms of municipal law’s desire to produce an orderly, liveable city, it shows that space, time and jurisdiction can intersect to produce outcomes that might be viewed as unjust with reference to other “higher” laws. In the instance cited above, a landowner acquired a property, sought the right to develop it as a lap dance club through planning consent, and then acquired a licence that permitted striptease to occur. However, one year later, and despite no legal infraction having occurred, the club’s licence renewal was refused. In this case, the applicant had invested in the development and marketing of the club, but their right to run a business was removed on the basis of a development that was yet to occur. The fact that one local land use (university accommodation) was privileged over another (a lap dance club) confirms Blandy and Fang’s view that:

[…] successful actors can usually ensure that legal and administrative discretion is exercised in their favour through exerting influence to shape “policy” law, and emerge victorious from “facilitative” law disputes by use of authority (2013, p. 201).

In SEV cases, it is evident that corporate lap dance chains able to afford good licensing solicitors are more likely to obtain licenses than independent operators, with powerful local interests generally able to overwhelm the latter, especially in inner city areas discoursed as undergoing regeneration.

This serves to underline the wider point that while municipal law was borne out of a desire to tackle urban disorder and improve the living conditions of all urban dwellers, contemporary processes of planning and licensing favour the powerful, entrenching established inequalities (Valverde, 2012). Read through the lens of neo-Marxist scholarship on “neoliberal urbanism” (e.g. Brenner and Theodore, 2002), we might then conclude that the legislation introduced to allow local authorities to more tightly regulate the SEVs has allowed them to enact a deliberate “purification of space” that supports corporate gentrification and regeneration through the displacement of “sexual minorities” from particular localities (see also Hubbard, 2004). However, as Blomley (2010) notes in the case of the regulation of pedestrianism in North America[32], municipal law rarely utilises a language of purification, censorship or “Otherness”, as it focuses on more narrow concerns with urbanity that are indifferent to, or ignorant of, debates concerning human rights. In that sense, it appears that SEVs are being removed from particular localities simply because they are “out of place”, not because the local authority is opposed to sexual entertainment per se. Indeed, scant reference is made in planning and licensing documents to the rights of those who produce and consume sexual entertainment, as the focus is squarely on the suitability of the venue in given localities, not the wider principle of whether sexual entertainment is morally acceptable or not.