England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE MCCOMBE
[2010] EWHC 393 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/04/2011

Lord Justice Stanley Burnton :

Introduction

1. This is an appeal against the order made by McCombe J dated 2 March 2010 quashing the decision of Westminster City Council (to which I shall refer as "Westminster") dated 25 May 2009 granting the application of the Corporation of the Hall of Arts and Sciences, which manages the Royal Albert Hall, for the variation of its premises licence under the Licensing Act 2003 ("the Act"), and similarly quashing the variation of that licence. For convenience, I shall refer to the Corporation of the Hall of Arts and Sciences as "the Albert Hall" and to the Respondents, who were the Claimants in the judicial review proceedings heard by the judge, as "the Residents".

The facts in outline

2. I can take the facts from the judgment of McCombe J.
3. On 22 December 2008 the Albert Hall applied to Westminster for a variation of its premises licence under the Act. It sought:

(a) to vary the hours when late night refreshment may be provided from 11pm-1am to 11pm-1.30am;

(b) to add boxing and wrestling to the permitted licensable activities;

(c) to vary the plans;

(d) to vary the start time for licensable events from 11am to 9am; and

(e) to vary the opening time from 11am to 8am.

(f) to vary the closing time from 1am to 1.30am.

4. The Albert Hall advertised its application, as required by the Act, in a local newspaper, the Paddington, Marylebone & Pimlico Mercury, and by placing notices outside the Hall.
5. On 6 January 2009 Westminster sent about 100 letters to residents of neighbouring premises. Albert Court is very close to the Albert Hall, and parts of it are within 30 metres from it, but no such letters were sent to any of the residents of Albert Court, whereas a substantial number were sent to residents of Albert Hall Mansions, which are to the north-east of the Hall and a similar distance from it.
6. The letters which were sent were dispatched pursuant to a practice of Westminster to notify businesses and residents, in the "immediate vicinity" of subject premises, of licensing applications in respect of such premises. This practice is referred to in a Westminster leaflet ("Licensing in Westminster") and on the Westminster's website. Westminster has an internal guideline for the assessment of "immediate vicinity" for these purposes which at the relevant time was 30 metres from the application site.
7. As at 19 January 2009, the required cut-off date under the Act (as to which see below), Westminster had received only one representation about the likely effect of the variation of the licence; that single representation was from its own Environmental Health Officer, but it was withdrawn in March 2009 without a hearing having been held in relation to it. A number of residents of Albert Court made representations to Westminster after 19 January 2009. Those representations addressed many matters, including apprehended problems of anti-social behaviour, public safety, noise and disturbance and degradation of the surrounding area. Westminster declined to consider those late representations or to act upon them in any way, taking the view that the Act required them to take that stance.
8. On 25 May 2009, Westminster granted the Albert Hall's application.
9. Before the judge, the Residents contended that the decision to grant the licence was unlawful for two reasons: first, because Westminster was wrong in law to conclude that it was prohibited from considering late representations against the application; and secondly, because having promised to notify Residents in the immediate vicinity, it failed adequately to do so, so frustrating a "legitimate expectation".
10. The judge held that Westminster's decision to refuse to consider late representations was lawful, but that its decision to grant the variation of the licence was unlawful because it had failed to fulfil the legitimate expectation of the Residents of Albert Court that it would send them notification of the application. He therefore made the order referred to above.

The contentions of the parties before the judge

11. In their claim, the Residents sought relief on the grounds:

(1) That Westminster had "failed to comply with its policy/practice to consult residents within 30 metres of the licence premises for which the variation is being sought".

(2) That Westminster had misdirected itself as to its discretion to consider and take into account representations made out of time or to hold a hearing to consider the licence variation sought.

12. The Albert Hall had been served with the proceedings as an Interested Party. It had filed and served detailed grounds for contesting the Residents' claim. It summarised its grounds as follows:

"(a) The 2003 Act requires that applications must be granted if there are no representations made within the statutory period (or, if made, have been withdrawn). It follows by necessary implication, and also under the Licensing Act (Hearings) Regulations 2005, that there is no power to hold a hearing to consider an application if there are no extant representations in relation to it.

(b) A comprehensive process of consultation is prescribed by the 2003 Act. This was adhered to ... Westminster's notification by additional means, of some selected residents (who were already included within the wider statutory consultation) does not create a parallel consultation which itself needs to be comprehensive."

However, the Albert Hall did not appear at the hearing of the claim for judicial review.

13. Westminster similarly served detailed grounds of opposition. It contended:

(1) It had no discretion to consider objections outside the statutory period.

(2) It had no power to consider or to hold a hearing to consider the grant of the variation to a licence where no representations had been received during the statutory period.

(3) It was bound to grant the variation applied for.

(4) While it had an informal practice to send out letters notifying residents in the immediate vicinity of licensed premises of a licensing application, there was no legitimate expectation that any particular residents would receive such notification.

(5) It had not acted irrationally in deciding to whom to give notification of the Albert Hall's application.

14. Westminster's detailed grounds in relation to (3) included the contention:

"Section 35(2) of the Act requires a licensing authority to grant a licence where there are no relevant representations. The grant must be in the terms sought. …"

McCombe J's judgment

15. The judge accepted Westminster's submission that it could not take late representations into account. However, he held that the Residents 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, Westminster had acted irrationally and unlawfully, and he therefore made the order under appeal.
16. Despite the reference to the duty of a licensing authority under section 35(2) of the Act in Westminster's grounds, no submission was made to the judge on its behalf that the provisions of the Act precluded the grant of the relief claimed by the Residents on the grounds asserted by them.

The contentions of the parties on the appeal

17. The contentions of the parties on this appeal have differed substantially from those advanced before the judge.
18. For the Albert Hall, Mr Coppel QC's principal submission was that the judge had been wrong to find that the Residents had any legitimate expectation that they would be notified of the application for a variation of the licence. He also contended that the relief proposed by the Residents was inconsistent with the provisions of the Act and the regulations made under it.
19. For Westminster, Mr Matthias QC, who did not appear before the judge, did not dispute the judge's finding as to legitimate expectation and its breach; but he submitted that any failure of Westminster to satisfy any such legitimate expectation could not affect Westminster's duty to grant the application for the variation of the licence.
20. It was because the order made by the judge arguably prevented Westminster from complying with its statutory duty, and arguably deprived the Albert Hall of the variation of its licence to which it was entitled, and because this is a pure point of law that does not depend on any evidence, let alone any disputed evidence, that the Court allowed Westminster to argue this point, even though it had not clearly been argued before the judge. Moreover, in my view the point was in Westminster's detailed grounds, and is obvious (as to which, see the discussion in Miskovic and Blazej v Secretary of State for Works and Pensions [2011] EWCA Civ 16).
21. The Residents also sought to raise an issue that had not been before the judge as to the Albert Hall's advertising of its application, namely whether the Albert Hall had duly advertised its application, and whether Westminster had reasonably been satisfied (as required by section 35) that it had done so. The Court refused to allow this issue to be argued. The Residents had known of this issue at the hearing before the judge, and had decided not to advance it. Furthermore, its determination would involve additional evidence, from all three parties. It followed that in this respect the appeal proceeded on the same basis as before the judge, namely that Westminster had been properly satisfied that the Albert Hall had complied with the statutory requirements, as required by section 35(1)(b).
22. On this basis, Mr Steel QC, for the Residents, pointed out that they alleged both that Westminster had failed to comply with the legitimate expectation found by the judge, but also that, irrespective of any legitimate expectation, Westminster's decision as to whom to notify of the licensing application was irrational. It was therefore unlawful and should be quashed. Westminster had failed to take into account the considerations to which it was required to have regard by section 4 of the Act. The judge had been right to grant the relief he did. Furthermore, the Court should make an order substituting a later date upon which the application for variation of the licence should be taken to have been given to Westminster, thereby enabling the late representations, or further representations, to be effective. Westminster would then be required to hold a hearing to consider the representations and to decide whether to grant any variation of the premises licence.

The statutory framework

23. Sections 4, 34 and 35 of the Act are, so far as relevant, as follows:

4 General duties of licensing authorities

(1) A licensing authority must carry out its functions under this Act ("licensing functions") with a view to promoting the licensing objectives.

(2) The licensing objectives are—

(a) the prevention of crime and disorder;

(b) public safety;

(c) the prevention of public nuisance; and

(d) the protection of children from harm.

(3) In carrying out its licensing functions, a licensing authority must also have regard to—

(a) its licensing statement published under section 5, and

(b) any guidance issued by the Secretary of State under section 182.

34 Application to vary premises licence

(1) The holder of a premises licence may apply to the relevant licensing authority for variation of the licence.

(2) Subsection (1) is subject to regulations under—

(a) section 54 (form etc. of applications etc.);

(b) section 55 (fees to accompany applications etc.).

…

(5) The duty to make regulations imposed on the Secretary of State by subsection (5) of section 17 (advertisement etc. of application) applies in relation to applications under this section as it applies in relation to applications under that section.

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.

(2) Subject to subsection (3) and section 36(6), the authority must grant the application.

(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),

(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.

24. Section 17(5) is as follows:

(5) The Secretary of State must by regulations—

(a) require an applicant to advertise his application within the prescribed period—

(i) in the prescribed form, and

(ii) in a manner which is prescribed and is likely to bring the application to the attention of the interested parties likely to be affected by it;

(b) require an applicant to give notice of his application to each responsible authority, and such other persons as may be prescribed, within the prescribed period;

(c) prescribe the period during which interested parties and responsible authorities may make representations to the relevant licensing authority about the application.

25. Sections 51 to 53 make provision for review by a licensing authority of a licence. If it receives an effective application for the review of a licence, section 52(2) requires it to hold a hearing to consider any relevant representations it receives, and section 52(3) imposes on the authority a duty:

having regard to the application and any relevant representations, [to] take such of the steps mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives.

26. Section 52(4) specifies:

(4) The steps are—

(a) to modify the conditions of the licence;

(b) to exclude a licensable activity from the scope of the licence;

(c) to remove the designated premises supervisor;

(d) to suspend the licence for a period not exceeding three months;

(e) to revoke the licence;

….

27. In the exercise of the powers conferred on him by the Act, the Secretary of State has made the Licensing Act 2003 (Premises Licences and Club Premises Certificates) Regulations 2005. They include the following provisions:

3. These Regulations apply to applications, notices, representations and reviews.

4. A person applying for a premises licence, a provisional statement, a variation of a premises licence, a review of a premises licence or a transfer of a premises licence or giving an interim authority notice shall comply with the appropriate provisions of Parts 2 and 4.

5. A club applying for a club premises certificate or a variation of a club premises certificate or a person applying for a review of a club premises certificate shall comply with the appropriate provisions of Parts 3 and 4.

6. The relevant licensing authority in relation to an application, notice, representations or a review shall comply with the appropriate provisions of Parts 4 and 5.

28. Parts 4 and 5 of the Regulations do not impose any obligation on a licensing authority to advertise or to give notification of an application to vary a premises licence.
29. Regulation 22 provides:

(1) An interested party or a responsible authority making representations to a relevant licensing authority, may make those representations -

(a) in the case of a review of a premises licence following a closure order, at any time up to and including seven days starting on the day after the day on which the authority received the notice under section 165(4) in relation to the closure order and any extension to it;

(b) in any other case, at any time during a period of 28 consecutive days starting on the day after the day on which the application to which it relates was given to the authority by the applicant.

30. The advertisement of applications is the subject of regulations 25 and 26:

25. In the case of an application for a premises licence under section 17, … to vary a premises licence under section 34 [(except where the only variation sought is the inclusion of the alternative licence condition)] … , the person making the application shall advertise the application, in both cases containing the appropriate information set out in regulation 26 -

 (a) for a period of no less than 28 consecutive days starting on the day after the day on which the application was given to the relevant licensing authority, by displaying a notice,

(i) which is -

 (aa) of a size equal or larger than A4,

(bb) of a pale blue colour,

(cc) printed legibly in black ink or typed in black in a font of a size equal to or larger than 16;

(ii) in all cases, prominently at or on the premises to which the application relates where it can be conveniently read from the exterior of the premises and in the case of a premises covering an area of more than 50 metres square, a further notice in the same form and subject to the same requirements every fifty metres along the external perimeter of the premises abutting any highway; and

(b) by publishing a notice -

 (i) in a local newspaper or, if there is none, in a local newsletter, circular or similar document, circulating in the vicinity of the premises;

(ii) on at least one occasion during the period of 10 working days starting on the day after the day on which the application was given to the relevant licensing authority.

26. - …

(3) In the case of an application to vary a premises licence or a club premises certificate, the notices referred to in regulation 25 shall briefly describe the proposed variation.

(4) In all cases, the notices referred to in regulation 25 shall state -

 (a) the name of the applicant or club;

(b) the postal address of the premises or club premises, if any, or if there is no postal address for the premises a description of those premises sufficient to enable the location and extent of the premises or club premises to be identified;

(c) the postal address and, where applicable, the worldwide web address where the register of the relevant licensing authority is kept and where and when the record of the application may be inspected;

(d) the date by which an interested party or responsible authority may make representations to the relevant licensing authority;

(e) that representations shall be made in writing; …

31. Although, as mentioned above, Part 4 of the Regulations does not impose any obligation on a licensing authority to advertise or to notify any application it receives for the variation of a premises licence, regulation 38 in Part 5 does impose a duty on it to advertise an application for the review of a premises licence under section 51.
32. The Secretary of State has issued guidance under section 182 of the Act. In large part, it is a paraphrase of the statutory provisions. For present purposes, only the following paragraph is relevant:

It is open to licensing authorities to notify residents living in the vicinity of premises by circular of premises making an application, but this is not a statutory requirement.

Discussion

33. I have real doubts as to whether the Residents did have any legitimate expectation as to their being notified of any application for the variation of the premises licence relating to the Albert Hall. However, for the purposes of this appeal, I am prepared to assume that, either for that reason or otherwise, as argued by Mr Steel (see paragraph 22 above), Westminster's decision to send circulars about the Albert Hall's application to residents in the neighbourhood but not to send such a circular to any resident of Albert Court was irrational and therefore in breach of Westminster's public law duties.
34. Neither the Act nor the Regulations impose any duty on a licensing authority to advertise such an application or to take any steps to notify anyone affected by it that it has been made. As has been seen, the sole duty to advertise and to give notice of the application is placed on the person making the application, in this case the Albert Hall. Before the judge, it was accepted that the Albert Hall had complied with that duty, and, more relevantly, it was not contended that Westminster had not reasonably been "satisfied that the applicant has complied with any requirement imposed on him by virtue of" section 34(5): see section 35(1)(b). It is now accepted that Westminster did not receive any "relevant representations" as defined in section 35(5), because the Residents' representations were received after the deadline imposed by the Regulations and therefore did not fulfil the requirements of subsection (6). The duty of the authority under subsection (3) to hold a hearing arises only if a relevant representation is received: this too is common ground. It follows that Westminster was under the duty imposed by section 35(2) to grant the application, and the Albert Hall had a right, enforceable at public law, to the grant of the application. This Court cannot grant any relief that would have the effect of preventing Westminster from complying with its statutory duty or deprive the Albert Hall of its public law right to the grant of the variation of its licence for which it had made a valid application. Any failure by an authority to act in relation to its extra-statutory notifications cannot give rise to any right to interfere with the performance of its statutory duties.
35. If authority is required for the proposition that an otherwise legitimate expectation cannot require a public authority to act contrary to statute, it is to be found in the seminal judgment of this Court, given by Lord Woolf MR as he then was, in R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 at paragraph 86 and the judgment in R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755 at paragraph 46, stating that the claim in R v Department of Education and Employment, ex p Begbie [2000] 1 WLR 1115 failed "principally because to enforce the expectation would have required the Secretary of State to act contrary to statute". The judgment of Laws LJ in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 includes an illuminating exposition of the principle of legitimate expectation that was approved by the Supreme Court in Walumba Lumba v Secretary of State for the Home Department [2011] UKSC 12. Laws LJ said, at paragraph 69:

… Of course there will be cases where the public body in question justifiably concludes that its statutory duty (it will be statutory in nearly every case) requires it to override an expectation of substantive benefit which it has itself generated. So also there will be cases where a procedural benefit may justifiably be overridden. The difference between the two is not a difference of principle. Statutory duty may perhaps more often dictate the frustration of a substantive expectation. …

36. Precisely the same limitation must apply to judicial review sought on the ground of irrationality or any other common law ground. It is no more than an incident of the principle of legislative supremacy.
37. The Residents' case is not assisted by reference to section 4 of the Act. When exercising any discretion or power of decision under the Act, a licensing authority must do so "with a view to promoting the licensing objectives" as there defined. However, once the authority is under an unqualified duty to carry out an act specified by the statute there is no room for section 4 to apply. The authority simply has no choice but to perform its statutory duty.
38. If relevant representations (by definition, representations submitted in time) have been received by the authority and have not been withdrawn, section 35(3)(b) expressly requires it to "take such of the steps mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives". It is significant that the italicised words do not appear in the immediately preceding subsection (2). In effect, the Residents seek to reword that subsection by substituting "may grant the application" for "must grant the application" and in addition by inserting the words to the effect of those I have italicised. That is an impossible exercise in interpretation.
39. My conclusion does not mean that a decision by an authority to refrain from notifying persons affected by a licensing application cannot be challenged. In theory, if it was thought that an authority was acting irrationally or otherwise unlawfully, an order could be sought requiring it to reconsider its decision, and if made sufficiently promptly the Court might grant relief, if it would have any practical value. Thus in an appropriate case the Court might require the authority to notify residents in the immediate vicinity, if the notification could lead to representations being made within the statutory time limit. But that is the limit of the relief the Court could grant. The Court cannot subvert the statutory scheme.
40. Mr Steel submitted that in the present case the Court could make orders having the effect of postponing the date of the Albert Hall's application, thereby enabling timely representations to be made by the Residents. Neither the Act nor the Regulations confer any statutory power on the Court to grant such relief, and it has no common law power to grant it. Furthermore, as was pointed out by Mr Coppel, such relief would conflict with the provisions of the Act and the Regulations and create practical problems, which it is unnecessary to set out.
41. In paragraph 43 of his judgment, McCombe J summarised his reasons for his now unchallenged decision that a licensing authority has no power to take into account late representations:

43. All these considerations, [counsel for Westminster] submitted, militated against the existence of the implicit residual obligation/discretion of the Council to consider late representations, initially directed to it as 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 its functions under this Act, the Council is entitled to deal with representations made to it as licensing authority strictly as such. Subject to such representations, as Richards J said [in The British Beer and Pub Association & ors v Canterbury City Council [2005] EWHC 1318 (Admin)], 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."

42. Unfortunately, doubtless because the point had not clearly been made to him, the judge did not draw the to my mind inevitable conclusion from his analysis. Once the conditions set out in section 35(1) were satisfied, in the absence of any relevant representation, the Albert Hall was, as the judge said, entitled to the grant of its application, and to paraphrase his words, it would be contrary to that entitlement for it to be undermined by a failure of the licensing authority to carry out a notification process (and therefore a "back door") not provided for by the Act.
43. It does not follow that the Residents have no possible remedy. If their fears are realised, and the result of the variation in the licence is public disorder and public nuisance, they may apply for a review of the licence under section 51, to which I have referred. If they do so, then subject to the provisions of section 51, Westminster will be under a duty to hold a hearing to consider their representations, and it will then be required by section 52(3) to take such of the steps specified in subsection (4), if any, as it considers necessary to promote the licensing objectives listed in subsection 4. Those steps include the modification of the conditions of the licence (subsection (4)(a)) or even the revocation of the licence (subsection (4)(e)).
44. For these reasons, I would allow this appeal and set aside the order made by the judge quashing the variation of the premises licence.

Lord Justice Wilson:

45. I agree.

Lord Justice Lloyd:

46. I also agree.