Licensing authority – Notification – Late representations – Interested party applying to vary premises licence to increase permitted activities – Defendant authority notifying residents in immediate vicinity – Claimants not receiving notification and submitting late representations — Defendants failing to consider late representations – Claimants seeking judicial review of decision to permit variation — Whether defendants having discretion to consider late representations – Whether defendants entitled to pass representations to other relevant authority – Whether defendants properly notifying residents in immediate vicinity – Application granted
The claimants were the residents’ association, the management company, the freeholder and four individual residents of residential flat premises (Albert Court) situated in the vicinity of the Royal Albert Hall, London SW7. The defendants were the licensing authority for the purposes of the Licensing Act 2003. The interested party 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 opening hours and the time for serving light refreshments.
On 6 January 2009, the defendants sent in the region of 100 letters to residents in the “immediate vicinity” of the hall giving notice of the application. However, the claimants did not receive the letter despite their proximity to the hall since the defendants’ computer system, which had selected recipients, had not identified their building as being premises affected by the proposed extensions. However, the interested party had advertised its application in the local newspaper and by placing notices outside the hall. The deadline for representations expired on 19 January 2009. The defendants 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 defendants declined to consider those representations or to act on them, and granted the interested party’s application.
The claimants sought judicial review of that decision, contending that the defendants had a discretion to consider late representations and could take them into account in the exercise of their general duties under section 4 of the 2003 Act. Alternatively, the defendants could pass such representations to any other responsible authority, including their environmental health officer (EHO), that had made relevant representations. Furthermore, the defendants had failed to carry out their own notification procedure, on which the claimants had previously relied, so that a legitimate expectation had been frustrated.
Held: The application was granted.
It was common ground that a licensing authority could not accept late representations as “relevant representations” under the 2003 Act. If representations were received in time, they would trigger a hearing to consider them. The 2003 Act contained adequate procedures for parties interested to make representations and provided for regard to be had to guidance issued by the secretary of state which made it clear that it was open to an authority to notify residents living in the vicinity of premises of any licensing application. The defendants had acted on that guidance. An authority could take steps to impose conditions or to reject the application, having regard to the duties imposed by section 4 of the Act. Absent relevant representations, the grant of the licence would follow automatically. Similar arrangements were in place under section 35. The representations procedure enabled 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. British Beer & Pub Association v Canterbury City Council [2005] EWHC 1318 (Admin); [2006] BLGR 596 applied.
The 2003 Act contained a clear statutory procedure, with clear time limits for the making of an application, receiving objections to it and for resolving such objections. In exercising their functions under the 2003 Act, the defendants were entitled to deal with representations made to them strictly under that procedure. Subject to such representations, the claimants were entitled to the grant of their application under section 35. It would be contrary to that entitlement for the procedure to be undermined by letting in late applications through a backdoor that is not provided for by the Act.
The defendants, having proper regard to the statutory guidance under the Act, had decided that it was necessary for the proper discharge of their functions and in the interests of good administration to notify residents in the relevant immediate vicinity of subject premises of any licensing applications that were made. That was the context in which the exercise in this case was carried out. There was uncontested evidence that some of the claimants had previously relied on that process. In the circumstances, therefore, the notification was not carried out as a mere courtesy but for the proper discharge of the defendants’ functions under the 2003 Act.
The notification exercise decided on by the defendants was not a legal requirement. However, once the decision to notify had been made it had to be carried out properly, especially where the practice had been adopted in the light of statutory guidance to which the defendants, as the licensing authority, had to have regard. The notification exercise would not necessarily fail if some residents were missed, but it would fail if the exercise did not catch entire residential buildings, as in the instant case. The failure to notify residents of Albert Court was so serious as to be irrational and therefore unlawful. Accordingly, the decision to vary the premises licence had to be quashed.
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) appeared for the defendants.
Eileen O’Grady, barrister
