Premises licence — Variation — Late representations — Licensing Act 2003 — Application to vary licence to increase permitted activities — Licensing authority’s practice to notify residents in immediate vicinity of applications — Authority using computer programme to calculate area for notification — Residents of block of flats close to application premises excluded owing to operation of computer programme — Section 35 of 2003 Act — Whether authority having discretion to impose conditions by reference to residents’ late representations — Whether entitled to pass representations to other responsible authority — Whether in breach of legitimate expectation if no relevant representations received
The defendant licensing authority received an application, under section 34 of the Licensing Act 2003, to vary the premises licence for the Royal Albert Hall, London SW7. The intention was to add boxing and wrestling to the list of permitted activities and to extend the opening hours and the time for serving light refreshments. The claimants comprised the residents’ association, the management company, the freeholder and four individual residents of a block of residential flats situated in the vicinity of the hall. They had previously been notified of licensing applications relating to the hall, pursuant to the defendants’ practice of notifying residents in the immediate vicinity; that practice, although not required by statute, was expressly permitted under government guidance to which the defendants were required to have regard.
The applicant advertised the application, as required by the Act, and the defendants sent letters to residents in the immediate vicinity of the hall. However, neither the claimants nor any other residents of the block were notified even though parts of the building were only 15m from the hall. This was because the defendants had changed the computer programme used to identify recipients.
A number of residents in the claimants’ block made late representations, after the expiry of the statutory deadline, raising concerns over the application. The defendants considered that they were obliged to disregard the representations because they were excluded from the definition of “relevant representations” in section 35(6) and it was mandatory to allow an application for variation in the absence of relevant representations.
The claimants applied for judicial review of the defendants’ decision. They contended that: (i) the defendants had a discretion, in accordance with their general duties under section 4 of the Act, either to pass the late representations to another “responsible authority” that had made relevant representations or to take them into account in imposing conditions on the licence; and (ii) the defendants had breached the claimants’ legitimate expectation by failing to notify them in accordance with established practice.
Held: The claim was allowed. (1) The 2003 Act sets out a clear statutory procedure with time limits for the making of an application, and of objections to it, and for the resolution of objections. A licensing authority’s power to reject an application to vary a licence, or to attach conditions, is triggered only in the event of a hearing to consider relevant representations made in time: see section 35(4). Unless relevant representations are received in accordance with the statutory procedure, the application for variation must be granted. Section 35 does not give the power to impose conditions independently of that procedure. Nor can such a power be derived from the authority’s overriding duties under section 4; that section dictates how the licensing authority should carry out their statutory functions and does not amplify those functions where they are clearly circumscribed by other provisions of the Act. Accordingly, a licensing authority have no discretion to impose conditions on a licence by reference to representations received outside the statutory time limit. Likewise, there is no residual discretion to pass on late representations to other responsible bodies. The statutory machinery should not be undermined by letting in late applications through a backdoor that is not provided for by the Act. (2) Where the defendants had decided, having proper regard to the statutory guidance under the 2003 Act, that it was necessary to seek to notify residents in the immediate vicinity of premises that were the subject of a licensing application, and where the residents of the claimants’ block had relied on that process in the past, the notification was carried out not as a mere courtesy but for the proper discharge of the defendants’ functions under the Act. Although the notification exercise was not a legal requirement, once the decision to notify had been made it had to be carried out properly. The defendants had allowed their computer programme to dictate the notification process even though it was apparent that it would fail to notify those living in the immediate vicinity. The notification exercise would not have failed if it omitted some residents, but its failure to catch entire residential buildings as substantial as the claimants’ block was so serious as to be irrational and therefore unlawful. Accordingly, the decision to vary the premises licence was quashed.
The following cases are referred to in this report.
Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19; [2007] 1 WLR 1420; [2007] 3 All ER 1007
British Beer & Pub Association v Canterbury City Council; sub nom R (on the application of British Beer & Pub Association) v Canterbury City Council [2005] EWHC 1318 (Admin); (2005) 169 JP 521
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 1 WLR 1174; [1984] 3 All ER 935, HL
R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin)
R (on the application of Niazi) v Secretary of State for the Home Department; R (on the application of Bhatt Murphy (a firm)) v Independent Assessor [2008] EWCA Civ 755
R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213; [2000] 2 WLR 622; [2000] 3 All ER 850, CA |page:66|
This was the hearing of a claim by the claimants, Albert Court Residents’ Association, Albert Court (Westminster) Management Co Ltd, Albert Court (Westminster) Freeholds Co Ltd, and Mr Kerry Rubie (four residents), for judicial review of a decision by the defendants, Westminster City Council, allowing an application to vary the terms of a premises licence under the Licensing Act 2003.
John Steel QC and Andrew Sharland (instructed by Russell Cooke LLP) appeared for the claimants; Simon Walsh (instructed by the legal department of Westminster City Council) represented the defendants.
Giving judgment, McCombe J said:
(A) Introduction
[1] This is an application for judicial review brought by the residents’ association, the management company, the freeholder and four individual residents of residential flat premises situate at and known as Albert Court, Prince Consort Road, London SW7 (Albert Court). The defendants are Westminster City Council (the council). The application is brought in respect of a decision of the council made on 25 May 2009, as licensing authority for the purposes of the Licensing Act 2003 (the Act), to vary the licence governing the use of the Albert Hall in London (the hall), principally to add boxing and wrestling to the list of permitted activities, to extend opening hours and to extend the time for serving light refreshments. The occupier and operator of the hall, the Corporation of the Hall of Arts and Sciences is joined as an interested party and is called in this judgment “the IP”.
[2] The relative locations of the hall, Albert Court and other premises that will be mentioned in this judgment are shown on a plan, taken from the council’s evidence, that is annexed, as annex B, to this judgment [not reproduced here]. The large circle appearing on the plan will assist in an understanding of the problem that has arisen in this case. It will be seen that Albert Court is situated in close proximity to the hall to the south-east. Its point closest to the hall’s perimeter is at a distance of around 15m.
[3] On 22 December 2008, the IP applied to the council for a variation of its premises licence under the Act. The variations sought were essentially as follows, to:
(a) vary the hours that late-night refreshment may be provided from 11pm-1am to 11pm-1.30am;
(b) add boxing and wrestling to the permitted licensable activities;
(c) vary the plans;
(d) vary the start time for licensable events from 11am to 9am;
(e) vary the opening time from 11am to 8am; and
(f) vary the closing time from 1am to 1.30am.
[4] On 6 January 2009, the council sent around 100 letters to residents of premises within the circle shown on the plan. As will be appreciated, no such letters were sent to any of the claimants or other residents of Albert Court, whereas a substantial number were sent to residents of Albert Hall Mansions, to the north-east of the hall. Although the extreme south-eastern edge of the circle touches Albert Court, this was not sufficient to trigger notification to residents because the circle did not “hit” the small black square within the building that causes the computer software to react. This is explained more fully below: see [22]. The letters that were sent were dispatched pursuant to a practice of the council to notify businesses and residents, in the “immediate vicinity” of subject premises, of licensing applications in respect of such premises. This practice is published in a council leaflet (Licensing in Westminster) and on the council’s website. The council have an internal guideline for the assessment of “immediate vicinity” for these purposes, which guideline, at the relevant time, was set at 30m.
[5] The IP advertised its application, as required by the Act, in a local newspaper, the Paddington, Marylebone & Pimlico Mercury, and by placing notices outside the hall. There is no statutory requirement on the council to provide any other information to local residents; their practice so to do is purely “extra-statutory”, although expressly permitted under guidance published by the relevant minister, to which a licensing authority must have regard, under section 4(3) of the Act.
[6] As will be dealt with more fully hereafter, no resident of Albert Court made representations to the council concerning the IP’s application until after 19 January 2009, the required cut-off date under the Act, although a number of them did so thereafter. Those representations addressed many matters, including perceived problems of anti-social behaviour, public safety, noise and disturbance and degradation of the surrounding area. The council declined to consider those late representations or to act on them in any way, taking the view that the Act required them to take that stance. On 25 May 2009, the IP’s application was granted.
[7] The claimants contend that the decision to grant the licence was unlawful for two reasons: first, because the council were wrong in law to conclude that it was prohibited from considering late representations against the application; and, second, because having promised to notify residents in the immediate vicinity, they had failed adequately to do so, so frustrating a “legitimate expectation”.
(B) Statutory framework
[8] The provisions of the Act annexed to this judgment as annex A [not reproduced here] are relevant to the construction of the Act for present purposes.
[9] In summary, the Act and regulations require the applicant to advertise the application in a local newspaper and by a notice or notices affixed to the premises. The notices have to summarise the application made, how the application can be inspected and the date by which representations may be made to the licensing authority, here the council. By regulation 22 of the Licensing Regulations 2005, in the circumstances of this case representations had to be made to the council within a period of 28 days, starting on the day after the day on which the application was given to the authority by the applicant. The last date for representations in this case was therefore 19 January 2009.
[10] Section 35 of the Act then provides for the determination of applications where the authority are satisfied that the applicant has complied with the advertising requirements. That section provides as follows:
35 Determination of application under section 34
(1) This section applies where the relevant licensing authority
(a) receives an application, made in accordance with section 34, to vary a premises licence, and
(b) is satisfied that the applicant has complied with any requirement imposed on him by virtue of subsection (5) of that section. [that is, advertisement my addition]
(2) Subject to subsection (3) and section 36(6), the authority must grant the application. [Emphasis added.]
(3) Where relevant representations are made, the authority must
(a) hold a hearing to consider them, unless the authority, the applicant and each person who has made such representations agree that a hearing is unnecessary, and
(b) having regard to the representations, take such of the steps mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives.
(4) The steps are
(a) to modify the conditions of the licence;
(b) to reject the whole or part of the application;
and for this purpose the conditions of the licence are modified if any of them is altered or omitted or any new condition is added.
(5) In this section “relevant representations” means representations which
(a) are about the likely effect of the grant of the application on the promotion of the licensing objectives, and
(b) meet the requirements of subsection (6).
(6) The requirements are
(a) that the representations are made by an interested party or responsible authority within the period prescribed under section 17(5)(c) by virtue of section 34(5), [Emphases added.] [that is, within the prescribed 28-day period]
(b) that they have not been withdrawn, and
(c) in the case of representations made by an interested party (who is not also a responsible authority), that they are not, in the opinion of the relevant licensing authority, frivolous or vexatious.
(7) Subsections (2) and (3) are subject to sections 19, 20 and 21 (which require certain conditions to be included in premises licences).
(Emphasis added in each case.) |page:67|
[11] It will be seen that, pursuant to section 35(2), subject to there being “relevant representations” (that is, representations made within the specified time limit) and subject to section 36(6) (which does not apply in this case), “the authority must grant the application”. It was this provision that led to the council taking the view that they were prohibited from taking into account the late representations made in the present case.
(C) Additional background facts
[12] It is clear from the evidence that boxing has a long history at the hall, dating back at least to the 1920s, and research has disclosed incidents of disturbance and unrest surrounding these events on various occasions over the years. Residents are clearly sensitive to crowds leaving the hall late at night and to the coaches, cars and other vehicles that assemble there, whatever the nature of the entertainment that has drawn them. The claimants fear worse results from boxing/wrestling events and later crowd dispersals than under the unamended licence. The claimants do not deny that the statutory notices were affixed to the building, as required by the Act, but they say that they did not achieve prominence to passers-by, perhaps because of their required size (A4) in respect of other advertising at the hall.
[13] It seems that the application made by the IP was triggered by a failure on the part of a firm of solicitors to make the required applications to continue the full range of the previous licensable activities, including boxing and wrestling, conducted at the hall. Boxing and wrestling were among the omitted activities. For this reason, a variation application had to be made.
[14] The evidence discloses that some 107 notification letters from the council were received by residents of Albert Hall Mansions. This is a residential block consisting of three buildings, two of which have a boundary within the 30m of the hall perimeter. Another letter was sent to a “Bus stop opposite 1 Kensington Gore” and another was dispatched to certain premises in Brixton. In contrast, Albert Court is a block having its nearest perimeter within 15m of the hall. No resident of that building received a letter.
[15] Mr Kerry Rubie, one of the individual claimants, who is chairman of Albert Court Residents’ Association and also chairman of the corporate claimants, states that Albert Court residents have in the past been able to expect that they would receive information letters from the council relating to licensing and planning matters and have relied on the council’s practice in this regard in the past. He expresses the view that had the residents of Albert Court been notified in time, a number of them would have submitted representations. After 19 January 2009, the deadline date, 128 individual representations were received by the council from residents in the vicinity of the hall, including some residents of Albert Court.
[16] On 14 January 2009, within the relevant time limit, a representation was made by the council’s environmental health officer (EHO), who is “a responsible authority” entitled to make “relevant representations” under the Act: see sections 35(5) and (6) and 13(4)(e). The making of that representation, if maintained, would have required the council to determine the IP’s application at a hearing held to consider the representations made: see section 35(3). The EHO withdrew the representation on or around 16 March 2009, without a hearing becoming necessary. Within this period, but after the deadline date under the Act, two Albert Court residents were in correspondence with the EHO’s department concerning the application. The EHO responded to the effect that representations made out of time were invalid and could not be considered. Also, on 10 March 2009, the claimants’ solicitor wrote a letter to the council expressing concerns over the application but was informed by letter of 23 March that, in the council’s view, they had no discretion to entertain representations made after the statutory date.
[17] On 2 April 2009, the claimants’ solicitor wrote a pre-action protocol letter to the council contesting the legality of what had happened, and this was responded to by the council on 9 April. In paras 3 and 4, at p2 of this letter, the council gave their response to the issue of the distribution of the notification letters in the following terms:
On 6th January 2009, the consultation letters were sent out to residents who live within 30 metres from the licensed premises. Depending on the size of some premises this often means that some residents in a building are written to while others may not. This process is not a statutory requirement and is one that the Council caries out as a matter of courtesy to its residents.
Even if it is accepted that Albert Court falls within 30 metres from the licensed premises, (it currently is not) then the fact that those residents were not written to is not intentional. It may simply mean that the point of reference from where the 30 metres is measured may be different. It is the Council’s usual practice to measure the 30 metre distance from the centre of such large premises [Vol 2/453].
It is necessary to compare this statement with what was in fact done as deposed to by Ms Sharon Bamborough, of the council, in her witness statement of 21 August 2009. What appears to have happened is as follows.
[18] Ms Bamborough states that the council “tries to write to all businesses and residents in the immediate vicinity of premises subject to a licensing application…”. It is not suggested that the practice is only to notify a numerical sample of such businesses and residents. This practice is published in leaflets and on the website. She correctly states that there is no statutory obligation to do this. Equally correctly, she says that although the term “vicinity” is used in the Act, it is not defined. Although there are lists maintained by the council for electoral purposes, there are legal limitations as to how they can be used, and the lists maintained are inevitably subject to imperfections. The list of premises to be notified is therefore bound to have some errors, however carefully it is compiled. It is clear that some residents will inevitably be missed, for example owing to fluctuations in occupancy, changes in configuaration of premises and similar factors. The council have their guideline of 30m for the assessment of “immediate vicinity”, which remains internal to it; it is not published anywhere. This radius is the standard, but it is altered from time to time “most notably when this is necessary to incorporate a reasonable number of premises in any notification exercise” (emphasis added). (The claimants allege that the council contented themselves simply with notifying what they regarded as a sufficient number of residents without proper regard to what was the true “vicinity” of the hall.)
[19] Around 10 years ago, the council introduced a property database, known as “Uniform”, that attributed to every known property in the city a unique property reference number (UPRN). The database is used for many purposes, including planning, housing and licensing applications. Bus stops and advertising hoardings are caught by the database because they are “rateable hereditaments”. This clearly explains the notification given to the bus stop in Kensington Gore, but not that given to the Brixton premises.
[20] When initially used, subject premises were identified by the database by a “dot” on a map. For small regular-shaped buildings, this dot would tend to be at the building’s centre or at its main entrance. For larger buildings, the relevant radius might not reach beyond the building itself, and the system allowed the affected zone to be “dragged” outwards, into an irregular shape, to catch additional affected properties that were in fact immediately adjacent. The area would be expanded in this way where drawing the usual buffer zone “would not capture any or any reasonably large number of properties to notify of the licence application” (emphasis again added): see para 15 of Ms Bamborough’s witness statement.
[21] Unfortunately for this case, the mapping system has changed, in that it no longer allows the edge of the buffer zone to be “pulled out” in this way. It permits only a circular buffer zone to be created. “It does not permit a database user to manipulate the area just to incorporate specific premises. [T]he most that can be achieved is to make the identified area larger in all directions at once. In other words, the buffer zone is now always a perfect circle it is only the radius of the circle that can change”: see para 16 of the statement. “If the normal 30 metre radius does not bring up any properties to write to, the officer should use their |page:68| [sic] judgment to expand the circle to achieve a reasonable number of addresses to be used” (emphasis added): see para 18 of the statement.
[22] In the present case, as can be seen from the annexed plan, the centre of the circle was fixed as a dot near to one of the entrances/exits of the hall to its north and was expanded from 30 to 50 to 80 and finally to 100m. The “affected premises” are then those whose data centre, depicted by a black square on the map (which Mr John Steel QC, for the claimants, called a “centroid”), falls within the circle as drawn. Accordingly, Albert Hall Mansions and the Royal Colleges of Art and Organists (to the west of the hall) were caught but not Albert Court. In Albert Court’s case, part of the building was in the 100m circle but not its centroid shown by the small black square within its limits on the plan.
[23] The process employed in this case is described by Ms Bamborough as follows, in para 24 of the statement:
in retrieving the property information in order to send out these letters of notification to premises in the immediate vicinity, the processing officer used the starting point of 30 metres from the red dot on the map. With a radius of this size, they were unable to retrieve any property information (ie no list of addresses to send correspondence). Expanding to 50 metres had the same result. Expanding to an 80 metre radius finally drew a small list of properties (29). As the list was considered to be unreasonably small, the radius was expanded again to 100 metres. This now created a longer list of some 90 properties.
At this point, the processing officer would have used their judgment and decided that 90 addresses as a suitable, sufficient and reasonable number of properties to send notification letters to. There are no specific instructions sent to the processing officer in any case and this case is no different.
Again, number rather than location of properties seems to have steered the exercise in the end.
[24] No one seems to have considered the simple exercise of common sense and discretion by looking at the map or going to take a look on site, even in respect of this hall, which must be one of the largest entertainment venues in the land. It seems to me that the process was simply dictated mindlessly by the database, even though its results could be seen to be bizarre on the briefest glance at the plan itself. The question remains, however, whether that bizarre result has produced an unlawful outcome, which is the second issue to be decided here.
(D) Issues and arguments
(1) Late representations
[25] It is common ground that a licensing authority cannot accept late representations as “relevant representations” under the Act. The dispute is as to whether it is prohibited from considering them at all and taking them into account before determining the licence application. The claimants submit that the licensing authority have a discretion to consider the late representations. They can then take them into account in the exercise of their general duties under section 4 of the Act. Alternatively, it is submitted that it is open to the authority to pass such representations to any other “responsible authority”, in particular any such authority (such as the EHO here) that has made “relevant representations” to enable that authority to make use of it in the licensing process as they see fit.
[26] The council, through Mr Simon Walsh of counsel, contend that the words of section 35(2) of the Act are clear and mandatory. In the absence of relevant representations, “the authority must grant the application”. The words are clear and brook no alternative interpretation, he argued.
[27] The claimants submit that it is open to the authority to exercise a discretion with regard to late representations in three ways (see para 46 of their written argument), namely they could: (i) consider the representations and reject them; (ii) pass them to a “responsible body”, for example the EHO; or (iii) consider the representations and, as a result, act in accordance with their overriding statutory duty under section 4 of the Act, “including” the imposition of conditions on the licence. It seems that the claimants shy away from suggesting that the authority might go so far as to reject the application entirely. No doubt, this is because such a contention would be contrary to the express words of section 35(2).
[28] The claimants contend that the council are trying to say that the authority can grant the application subject only to conditions proposed by the applicant (see para 52 of the claimants’ written argument) and that such a reading of the Act inserts words into it that are not there. It seems to me, however, that if the scheme of the Act was as the claimants submit, it would surely include an outright power to reject the application, which it does not.
[29] The claimants further advance three hypothetical cases that, they suggest, show that the discretion to act on late representations must exist. The first such case is that of an applicant that proposes a variation subject to vague or unenforceable conditions. In the absence of relevant representations, the authority must grant the application and the conditions will not be enforceable. Second, the claimants postulate an application wholly contrary to licensing policy. In the absence of relevant representations, the application must be granted, even if serious breaches of law and order are apprehended. The third hypothetical case is that of a representation a day out of time that reveals a serious risk of crime or a risk to public safety. It is to be noted that the claimants still do not seem to suggest that a variation application can be rejected outright, contrary to section 35(2), in any of these cases.
[30] The council’s reply to these examples, through Mr Walsh, is as follows. In the first case, it was submitted that when an application for a variation is made, the applicant cannot propose conditions. In part P of the application, the applicant may describe additional steps proposed to promote licensing objectives, but (in contrast to initial applications under section 18) these cannot be translated into conditions except in the context of a pending hearing to consider relevant representations. There will therefore be no question of the imposition and attempted enforcement of vague or unworkable conditions.
[31] In the second case, the council argue, there should always be representations by a responsible authority, and it is inconceivable that in a serious case there would not be. There are several such authorities, for example, the planning officer, the EHO, the child protection officer, chief police officers and the fire and rescue authorities. It is recognised, however, that if the serious flaw is missed by all these authorities and by everyone else properly notified, the application must be granted.
[32] In the third case, the council submit that a representation is “late” and therefore not “relevant” whether it is one day, one week or one month out of time. In the first place, serious problems ought again to be picked up by responsible authorities or residents within the appropriate time and, moreover the council submit, the Act provides for a review procedure (under section 51) that, in appropriate cases, can be expedited.
[33] Each party submits that indirect guidance on the present problem can be found in the cases. The claimants point to the decision of the House of Lords in Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19*, a case concerning the statutory scheme in Northern Ireland for the licensing of “sex shops” in which the following is to be found in the speech of Lord Hoffmann, in [8]:
In my opinion, paragraph 10(15) [of the relevant order] is concerned only with the position of the objector. If he does not comply with the deadline, he cannot complain that the Council did not take his objection into account. But paragraph 10(15) does not prohibit the council from taking all relevant matters into account, whether they have been communicated by objectors or others, early or late, or in any other way. It would be very strange if such a provision, designed to allow the Council to carry on its business in an orderly and expiditious manner, had the effect of requiring it to shut its eyes to the facts which it considered relevant to its decision.
In the same case, Lord Neuberger of Abbotsbury said, in [71]:
If an objection which revealed to a council for the first time certain highly relevant information was received one day late, it would be a little short of absurd if it could not be taken into account. It might reveal, for instance, that a family with a large number of small children had moved into the flat above the subject property, or that the applicant had a string of relevant convictions. In such cases, it would be contrary to the purpose of the 1985 Order, and to the |page:69| public interest generally, if the council was obliged to ignore the information. Furthermore, it would be the duty of council officers to open and read any letter received; such an officer would be placed in an impossible situation if she or he had read a late letter of objection, with new and important information, but was effectively precluded from communicating this information to Council members.
However, as Mr Walsh pointed out, the relevant statute did not include mandatory wording as to the grant of applications such as are found in section 35(2) of this Act.
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* Editor’s note: Reported at [2007] 1 WLR 1420
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[34] Mr Walsh in turn relied on a dictum from the judgment of Richards J (as he then was) in British Beer & Pub Association v Canterbury City Council [2005] EWHC 1318 (Admin)*, where the judge said, in [85]:
I accept the claimant’s contention that a statement of licensing policy is unlawful if and in so far as it has those features. The scheme of the legislation is to leave it to applicants to determine what to include in their applications, subject to the requirements of section 17 and the Regulations as to the prescribed form and the inclusion of a statement of specified matters in the operating schedule. An applicant who makes the right judgment, so that the application gives rise to no relevant representations, is entitled to the grant of a licence without the imposition of conditions beyond those consistent with the content of the operating schedule and any mandatory conditions. The licensing authority has no power at all to lay down the contents of an application and has no power to assess an application, or to exercise substantive discretionary powers in relation to it, unless there are relevant representations and the decision-making function under section 18(3) is engaged. If a policy creates a different impression, and in particular if it misleads an applicant into believing that he must meet certain requirements in relation to his application and that he lacks the freedom accorded to him by the Act and Regulations, the policy is contrary to the legislative scheme and is unlawful on Padfield grounds (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997).
That, to my mind, is important guidance as to the essentially mandatory features of this Act, albeit in that case relating to section 18 rather than to section 35.
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* Editor’s note: Reported at (2005) 169 JP 521
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[35] In my judgment, the words of the Act speak for themselves. The wording of subsections 18(2) and 35(2) are different, but designedly so. Section 18 deals with initial applications for a licence. The Act provides for the initial application to be accompanied by an “operating schedule” and, subject to the receipt of relevant representations, the authority must grant the application subject to conditions consistent with the operating schedule and mandatory conditions under sections 19 to 21, which relate to alcohol, door supervision and the showing of films. If representations are received in time, they will trigger a hearing to consider them. The Act contains machinery that seemed adequate to parliament for those interested to make representations. The Act also provides for authorities to have regard to guidance issued by the Secretary of State: as we saw at the hearing, the relevant guidance makes it clear that it is open to an authority to notify residents living in the vicinity of premises of any licensing application (para 8.52) and this authority has acted on that guidance. Then, the authority can take steps to impose conditions or even to reject the application. In doing so, they will no doubt have regard to the duties imposed by section 4 of the Act. Absent relevant representations, the grant of the licence will follow automatically, but that is not to deny to the authority their functions under the Act; it merely allows them to exercise them in the context of the representation and hearing procedure.
[36] Similar arrangements are in place under section 35. The fact that an application for a variation does not involve the provision of an operating schedule, and that there is no power under that section for the imposition of conditions independently of steps taken after a hearing held to consider relevant representations, does not amount to a flaw in the Act. Again, the representations procedure enables objections to be made, considered at a hearing and, if necessary, acted on by the taking of the required “steps” under section 35(4), including (if appropriate) by rejecting the application.
[37] In my judgment, the Act is clear. The view that I take of it is in accord with the view taken by Richards J on the parallel provisions of the Act. Belfast City Council did not involve a statute with a provision such as is to be found in sections 18(2) and 35(2) of this Act. Accordingly, the first aspect of the claimants’ argument on this first issue must fail.
[38] Further, in my judgment, section 4 can apply only in the context of the other provisions of the Act. It dictates how the licensing authority must “carry out its functions under this Act”. It does not amplify those functions that, if clear, are circumscribed by the other provisions of the Act, such as sections 18(2) and 35(2). Section 111 of the Local Government Act 1972 does not assist the claimants either. The powers conferred by that section are expressly stated to be “subject to… any other enactment passed before or after this Act”.
[39] The imposition of a statutory “cut off” date for the making of representations is not, in my view, fatal to the objects of the Act as the claimants contend. It provides for a clear statutory procedure in the course of which objections can be made and considered; if the procedure is not properly invoked in accordance with the Act, parliament has decided that the grant of the application should follow. It has also provided for a review procedure.
[40] I turn now to the second aspect of this first part of the case. This is the claimants’ contention that the council retained a discretion to “pass on” late representations to other relevant authorities, in particular to any such authority that were in the course of making a relevant representation under the Act, as the EHO was in this case.
[41] Mr Steel submitted that even if the time had passed for the council to entertain representations as licensing authority, they still remained a responsible local authority in the broadest sense and should not therefore be precluded from taking cogniscence of representations received and, if they saw fit, passing it on to other authorities, including those that may have live representations under the Act.
[42] Mr Walsh submitted that such an approach was unrealistic, given the clear statutory procedure. He submitted that the discretion contended for by the claimants led to all sorts of unanswered questions that hindered the working of the Act’s provisions. To which authorities should representations received in time be passed? Should these be passed on too? If not, why were they different from those received late? What happens to such representations if a relevant authority have already made a representation but has then withdrawn it? Do the authority have to pass on representations to authorities outside their own doors, for example to the police, fire authorities or others? How long must the door stay open? What steps should be taken to inform the applicant of the representations made?
[43] All these considerations, Mr Walsh submitted, militated against the existence of the implicit residual obligation/discretion of the council to consider late representations, initially directed to them as the licensing authority. I agree with that submission. In my judgment, for reasons already advanced, this Act contains a clear statutory procedure, with clear time limits for the making of an application, objections to it and for the resolution of such objections. It provides in clear terms that, subject to such representations, the grant of the application is to follow. Given this clear machinery, I consider that, in exercising their functions under this Act, the council are entitled to deal with representations made to them as the licensing authority strictly as such. Subject to such representations, as Richards J said, the applicant is entitled to the grant of his application. It would be contrary to that entitlement for the machinery to be undermined by letting in late applications through a back door not provided for by the Act itself.
(2) Notification procedure
[44] As already indicated above, the claimants’ case here is that the council failed properly to carry out their own published notification practice, on which residents of Albert Court had relied on in the past, and that, therefore, their decision-making process was unfair and flawed. The council accept that “the real question… is whether what the Defendant did was so substandard as to be irrational and/or unlawful”. If this is indeed the test, little need be said about the law; it is necessary |page:70| to ask only that question and to judge the council’s actions accordingly. However, I think that it is only right to set out a brief resumé of the law as I understand it to be.
[45] The claimants’ case at this stage is founded on the doctrine of legitimate expectation, derived from the decision of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. The argument is that the council published a practice by which, in respect of licensing applications such as this, they would notify residents living in the “immediate vicinity” of the subject premises. The evidence shows that residents had relied on this practice in the past. It was therefore unfair and unlawful to proceed without effecting such notification, it being clear that the residents of Albert Court are indeed in the “immediate vicinity” of the hall.
[46] The council submit that this was not a case of a consultation, statutory or otherwise. It was merely a “courtesy” extended to certain residents, but not a practice giving rise to any form of legitimate expectation of the type alleged by the claimants. They accept, however, as I have said, an obligation not to act in a manner that is “so substandard as to be irrational and/or unlawful”.
[47] Refining the argument, Mr Steel, for the claimants, relied on a passage in the judgment of Laws LJ in R (on the application of Niazi) v Secretary of State for the Home Department; R (on the application of Bhatt Murphy (a firm)) v Independent Assessor [2008] EWCA Civ 7551*, in [42], as follows:
the court will (subject to the overriding public interest) insist on such a requirement, and enforce such an obligation, where the decision-maker’s proposed action would otherwise be so unfair as to amount to an abuse of power, by reason of the way in which it has earlier conducted itself. In the paradigm case of procedural expectations it will generally be unfair and abusive for the decision-maker to break its express promise or established practice of notice or consultation. In such a case the decision-maker’s right and duty to formulate and re-formulate policy for itself and by its chosen procedures is not affronted, for it must itself have concluded that that interest is consistent with its proffered promise or practice. In other situations the two kinds of legitimate expectation we are now considering something no less concrete must be found. The cases demonstrate as much. What is fair or unfair is of course notoriously sensitive to factual nuance. In applying the discipline of authority, therefore, it is as well to bear in mind the observation of Sir Thomas Bingham MR as he then was in Ex p Unilever at 690f, that “[t]he categories of unfairness are not closed, and precedent should act as a guide not a cage”.
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* Mr Steel relied by analogy on R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, per Lord Woolf MR “whether or not consultation of interested parties is a legal requirement, it must be carried out properly”.
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[48] To put that passage in its context, it is appropriate to quote also Laws LJ’s summary of the general principle of law that he had been discussing in the passage cited above. In [50] of the judgment, the learned lord justice said:
A very broad summary of the place of legitimate expectations in public law might be expressed as follows. The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes). A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority. If it has distinctly promised to consult those affected or potentially affected, then ordinarily it must consult (the paradigm case of procedural expectation). If it has distinctly promised to preserve existing policy for a specific person or group who would be substantially affected by the change, then ordinarily it must keep its promise (substantive expectation). If, without any promise, it has established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it must consult before effecting any change (the secondary case of procedural expectation). To do otherwise, in any of these instances, would be to act so unfairly as to perpetrate an abuse of power.
[49] It is to be noted that, in that paragraph, Laws LJ speaks of the constraint on public authorities by the legal duty of fairness when changing a policy. Here, of course, we are not concerned with a proposed change of a policy, but rather with a practice of a public authority adopted for the purpose of discharging statutory functions. However, in the following paragraph, Laws LJ said:
I would only draw from Nadarajah the idea that the underlying principle of good administration which requires public bodies to deal straightforwardly and consistently with the public, and by that token commends the doctrine of legitimate expectation, should be treated as a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. Any departure from it must therefore be justified by reference among other things to the requirement of proportionality (see Ex p Nadarajah, paragraph 68).
This passage indicates to me that “the underlying principle” of straightforward and consistent dealing must apply in this type of case also.
[50] It seems to me that the council, having proper regard to the statutory guidance under the Act, have decided that it is necessary, for the proper discharge of their functions and no doubt in the interests of good administration, for them to try to notify residents in the relevant immediate vicinity of subject premises of any licensing applications made. That is the context in which the exercise in this case was carried out. There is uncontested evidence that residents of Albert Court have relied on this process in the past. In the circumstances, therefore, the notification is not carried out as a mere courtesy it is carried out for the proper discharge of the council’s functions under the Act. Whether one looks at this issue as one of the “reasonable expectations” of residents or as a matter of Wednesbury reasonableness, the exercise (whatever its inevitable imperfections) should not be inherently unreasonable or, as Mr Walsh put it, “so bad as to be irrational…”.
[51] I bear in mind also the cautionary words of Sullivan J (as he then was) in R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin), in [62] and [63] as follows:
A consultation exercise which is flawed in one, or even in a number of respects, is not necessarily so procedurally unfair as to be unlawful. With the benefit of hindsight it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test. It must also be recognised that a decision-maker will usually have a broad discretion as to how a consultation exercise should be carried out. This applies with particular force to a consultation with the whole of the adult population of the United Kingdom. The defendant had a very broad discretion as to how best to carry out such a far reaching consultation exercise.
63. In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went “clearly and radically” wrong.
[52] In my judgment, what happened here must fail any one or more of those tests outlined in the last sentence of [50]. My reasons for taking that view have essentially been stated already in [24] above. The council allowed their computer programme to dictate the notification process, even when a brief glance at the plan produced by that programme must have shown clearly that the stated wish of notifying those living in the immediate vicinity would not be achieved.
[53] The council realised that this was a very unusual building; this led them to expand their buffer zone to 100m, but it must have been obvious that this would still not meet its published objective. Instead, the council abandoned that objective when the system had thrown up what they thought was a sufficient number of potential recipients of the notice, irrespective of whether or not there might be other local residents living in the immediate vicinity who were clearly within the ambit of its normal notification practice. As noted, Ms Bamborough states that the objective is to notify all relevant businesses and residents, not simply a sample of them. The objective is not a futile one, even if some omissions are inevitable.
[54] In the language of Coughlan, the notification decided on by the council here was not a legal requirement, but once embarked on it had to be carried out properly. This is all the more so in a case where the practice is clearly adopted in the light of statutory guidance to which the council, as the licensing authority, have to have regard. This is not to say that the notification exercise will fail because some residents |page:71| have been missed, but it will fail if it obviously will not catch entire residential buildings as substantial as the one in issue here. It would fail similarly if the council knew of a relevant resident, but simply decided not to notify him.
[55] In the end, I take the view that what happened here was indeed so bad as to be irrational and therefore unlawful.
(E) Conclusion
[56] For the reasons given above, this claim for judicial review succeeds and, as was accepted by Mr Walsh at the hearing, the result must be that the decision under challenge must be quashed and with it the variation to the IP’s premises licence in respect of the hall.
Application granted.
