Licensing authority – Notification – Late representations – Application to vary premises licence to increase permitted activities – Licensing authority notifying residents in immediate vicinity but not notifying respondents – Licensing authority failing to consider late representations from respondents – High Court quashing decision to vary licence – Whether respondents having legitimate expectation to be notified of application for variation of premises licence – Whether licensing authority fulfilling statutory duty – Appeal allowed
The respondents comprised the residents’ association, the management company, the freeholder and four residents of flats (Albert Court) situated in the vicinity of the Royal Albert Hall, London SW7. The second appellants were the licensing authority for the purposes of the Licensing Act 2003. The first appellant applied, under section 34 of the Act, to vary the licence governing the use of the hall to add boxing and wrestling to the list of permitted activities and to extend the hall’s opening hours and the times for serving light refreshments.
The second appellants sent approximately 100 letters to residents in the “immediate vicinity” of the hall, giving notice of the application. The respondents did not receive the letter despite Albert Court’s proximity to the hall because the second appellants’ computer system, which had selected recipients, had not identified their building as being affected by the proposed extensions. However, the first appellant had advertised its application in the local newspaper and by placing notices outside the hall. After the deadline for representations had expired, the second appellants received 128 late representations, including some from the residents of Albert Court. The representations raised concerns over perceived problems of anti-social behaviour, public safety, noise and disturbance and the degradation of the surrounding area. The second appellants declined to consider those representations or to act on them and granted the first appellant’s application.
The High Court quashed that decision on the ground that the respondents had a legitimate expectation that they would be notified of a licensing application relating to the Albert Hall and that, in failing to comply with that expectation and in deciding on a process of notification of the licensing application that did not include Albert Court, the second appellants had acted irrationally and unlawfully: see [2010] EWHC 393 (Admin); [2010] 2 EGLR 65; [2010] 20 EG 146.
The appellants appealed. The first appellant contended, inter alia, that the judge had been wrong to find that the respondents had a legitimate expectation that they would be notified of the application. The second appellants did not dispute the judge’s finding as to legitimate expectation and its breach but submitted that any failure on their part to satisfy any such legitimate expectation could not affect their duty to grant the application to vary the licence.
Held: The appeal was allowed.
It was doubtful whether the respondents had any legitimate expectation to be notified of any application to vary the hall’s premises licence. However, even assuming that the second appellants’ decision to send circulars to local residents but not those of Albert Court was irrational and therefore breached the second appellants’ public law duties, the respondents were not entitled to have the licence variation quashed.
Neither the 2003 Act nor the Licensing Act 2003 (Premises Licences and Club Premises Certificates) Regulations 2005 obliged a licensing authority to advertise such an application or to notify anyone affected by it that it had been made. The sole duty to advertise and to give notice of the application fell to the party making the application, in this case the first appellant.
It was accepted that the first appellant had complied with that duty and there was no suggestion that the second appellants had not been reasonably satisfied of that matter pursuant to section 34(5) of the Act. The second appellants had not received any relevant representations as defined in section 35(5) because the respondents’ representations had been received after the deadline imposed by the 2005 Regulations and therefore did not fulfil the requirements of section 35(6).
The second appellants’ duty to hold a hearing to consider relevant representations under section 35(3) arose only if a relevant representation were received. It followed that they were under the duty imposed by section 35(2) to allow the application and that the first appellant had a right, enforceable at public law, to the grant of the application. The court could not grant any relief that would prevent the second appellants from complying with their statutory duty or deprive the first appellant of its public law right to the variation of its licence for which it had made a valid application. Any failure by authorities to act in respect of their extra-statutory notification could not give rise to any right to interfere with the performance of their statutory duties: R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115, R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 and R (on the application of Bhatt Murphy (a firm)) v Independent Assessor [2008] EWCA Civ 755 considered.
Philip Coppel QC and Saima Hanif (instructed by Jeffrey Green Russell) appeared for the first appellant; David Matthias QC (instructed by the legal department of Westminster City Council) appeared for the second appellants; John Steel QC and Andrew Sharland (instructed by Russell-Cooke LLP) appeared for the respondents.
Eileen O’Grady, barrister
