Mr Justice McCombe:
(A) Introduction
- 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 defendant is 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".
- 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, which is annexed as Annex B to this judgment. 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 about 15 metres.
- 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:
a) to vary the hours 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;
e) to vary the opening time from 11.00am to 8am;
f) to vary the closing time from 1am to 1.30am.
- On 6 January 2009 the Council sent about 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 which causes the computer software to react. This is explained more fully below – see paragraph 22. The letters which 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 has an internal guideline for the assessment of "immediate vicinity" for these purposes which guideline, at the relevant time, was set at 30 metres.
- 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 upon the Council to provide any other information to local residents; its 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.
- As will be dealt with more fully hereafter, no resident of Albert Court made representations to the Council about 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 upon 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.
- The Claimants contend that the decision to grant the licence was unlawful for two reasons: first, because the Council 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".
(B) The statutory framework
- The provisions of the Act annexed to this judgment (as Annex A) are relevant to the construction of the Act for present purposes.
- 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.
- Section 35 of the Act then provides for the determination of applications where the authority is 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. [i.e. 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) [i.e .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)
- It will be seen that, pursuant to section 35(2), subject to there being "relevant representations" (i.e. representations made inside 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 it was prohibited from taking into account the late representations made in the present case.
(C) Additional background facts
- 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 relation to other advertising at the Hall.
- 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.
- 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 30 metres 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 15 metres of the Hall. No resident of that building received a letter.
- Mr. Kerry Rubie, one of the individual Claimants, who is chairman of the 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.
- 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 ss. 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 s. 35(3). The EHO withdrew the representation on or about 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 about 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' solicitors wrote a letter to the Council expressing concerns about the application but were informed by letter of 23 March that, in the Council's view, it had no discretion to entertain representations made after the statutory date.
- On 2 April 2009 the Claimants' solicitors 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 this letter the Council gave its 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 mater 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" (see paragraphs 3-4 on page 2 of the letter) [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.
- 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. While 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 has its guideline of 30 metres 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 itself simply with notifying what it regarded as a sufficient number of residents without proper regard to what was the true "vicinity" of the Hall.)
- About 10 years ago the Council introduced a property data base known as "Uniform" which 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.
- 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 paragraph 15 of Miss Bamborough's witness statement).
- 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 only permits a circular buffer zone to be created. "It does not permit a database user to manipulate the area just to incorporate specific premises. [T]the 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 paragraph 16 of the statement). "If the normal 30 metre radius does not bring up any properties to write to, the officer should use their [sic] judgment to expand the circle to achieve a reasonable number of addresses to be used" (emphasis added) (see paragraph 18 of the statement).
- In the present case, as can be seen from the annexed plan, the centre of the circle was fixed as a dot near one of the entrances/exits of the Hall to its north and was expanded from 30, to 50 to 80 and finally to 100 metres. The "affected premises" are then those whose data centre, depicted by a black square on the map (which Mr 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 100 metre circle but not its centroid shown by the small black square within its limits on the plan.
- The process employed in this case is described by Miss Bamborough as follows (in paragraph 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 (i.e. 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 seem to have steered the exercise in the end.
- 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 seemed 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) The Issues and Arguments
(1) Late representations
- 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 has a discretion to consider the late representations. It can then take them into account in exercise of its general duties under s. 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) which has made "relevant representations" to enable that authority to make use of it in the licensing process as it sees fit.
- The Council, through Mr. Walsh of counsel, contends 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 argues.
- The Claimants submit that it is open to the authority to exercise a discretion with regard to late representations in three ways- see paragraph 46 of their written argument: i) it could consider the representations and reject them; ii) it could pass them to a "responsible body", e.g. the EHO, or iii) it could consider the representations and, as a result act, in accordance with its 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).
- The Claimants contend that the Council is trying to say that the authority can only grant the application subject only to conditions proposed by the applicant (see paragraph 52 of the Claimants' written argument) and that such a reading of the Act inserts words into it which 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.
- The Claimants further advance three hypothetical cases which, they suggest, show that the discretion to act upon late representations must exist. The first such case is that of an applicant who 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. Secondly, 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 which reveals a serious risk of crime or 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.
- The Council's reply to these examples, through Mr. Walsh, is as follows. In the first case, it is 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 s. 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.
- 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, e.g. 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.
- In the third case, the Council submits that a representation is "late" and, therefore, not "relevant" whether it is one day, one week or a 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 submits, the Act provides for a review procedure (under section 51) which, in appropriate cases, can be expedited.
- 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' Limited [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 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 this:
"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 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 points 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.
- Mr. Walsh in turn relies upon a dictum from the judgment of Richards J (as he then was) in The British Beer and Pub Association & ors v Canterbury City Council [2005] EWHC 1318 (Admin) where the judge said this:
"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 legaslative 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.
- 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 (paragraph 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, it 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 its functions under the Act; it merely allows it to exercise them in the context of the representation and hearing procedure.
- 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 upon by the taking of the required "steps" under section 35(4), including (if appropriate) by rejecting the application.
- 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. The Miss Behavin' case 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 claimant's argument on this first issue must fail.
- Further, in my judgment, section 4 can only apply 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 which, 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".
- 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.
- 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 was in the course of making a relevant representation under the Act, as the EHO was in this case.
- Mr. Steel submitted that, even if the time had passed for the Council to entertain representations as licensing authority, it still remained a responsible local authority in the broadest sense and should not, therefore, be precluded of taking cogniscence of representations received and, if it saw, fit passing it on to other authorities including those that may have live representations under the Act.
- 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 which 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 has already made a representation but has then withdrawn it? Does the authority have to pass on representations to authorities outside its own doors, e.g. 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?
- 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 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, 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 backdoor not provided for by the Act itself.
(2) The Notification procedure
- As already indicated above, the Claimants' case here is that the Council failed properly to carry out its own published notification practice, upon which residents of Albert Court had relied on in the past, and that therefore its decision making process was unfair and flawed. The Council accepts 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 by said about the law; it is only necessary to ask that question and to judge the Council's actions accordingly. However, I think that it is only right to set out a brief resume of the law as I understand it to be.
- The Claimants' case at this stage is founded upon the doctrine of "legitimate expectation", derived from the decision of the House of Lords in CCSU v Minister for the Civil Service [1985] AC 374. The argument is that the Council published a practice that, in relation to licensing applications such as this, it would notify residents living in the "immediate vicinity" of the subject premises. The evidence shows that residents had relied upon 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.
- The Council submits that this was not a case of a consultation, statutory or otherwise. It 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. It accepts, however, as I have said, an obligation not to act in a manner that was "so substandard as to be irrational and/or unlawful".
- Refining the argument, Mr. Steel for the Claimants relied upon a passage in the judgment of Laws LJ in R (Bhatt Murphy) v The Independent Assessor; R (Niazi and ors) v SSHD [2008] EWCA Civ 755 [1], at paragraph 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 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"."
- 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. At paragraph 50 of the judgment, the learned Lord Justice said this:
"A 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."
- 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 this:
"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.
- It seems to me that the Council, having proper regard to the statutory guidance under the Act, has decided that it is necessary for the proper discharge of its functions, and no doubt in the interests of good administration, for it 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 puts it, "so bad as to be irrational…".
- I bear in mind also the cautionary words of Sullivan J (as he then was) in R (Greenpeace Ltd.) v Secretary of State for Trade [2007] EWHC 311 (Admin) at paragraphs 62 and 63 as follows:
"The consultation exercise which is flawed in one or a number of respects is not necessarily so procedurally unfair as to be unlawful. With the benefit of hindsight it would 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 the 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. In reality, the conclusion of the consultation exercise was unlawful on the ground of unfairness would be based upon the finding by the court that not merely something went wrong, but that something went clearly and radically wrong."
- In my judgment, what happened here must fail any one or more of those tests outlined in the last sentence of paragraph 50. My reasons for taking that view have essentially been stated already in paragraph 24 above. The Council allowed its 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.
- The Council realised that this was a very unusual building; this led it to expand its buffer zone to 100 metres, but it must have been obvious that this was still not going to meet its published objective. Instead, the Council abandoned that objective when the system had thrown up what it 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.
- In the language of Coughlan's case, the notification decided upon by the Council here was not a legal requirement, but once embarked upon 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 licensing authority has to have regard. This is not to say that the notification exercise will fail because some residents have been missed, but it will fail if it obviously will not catch whole 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.
- In the end, I take the view that what happened here was indeed so bad as to be irrational and, therefore, unlawful.
(E) Conclusion
- 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.
Annex A
Provisions of the Licensing Act 2003
"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.
....
5 Statement of licensing policy
(1) Each licensing authority must in respect of each three year period—
(a) determine its policy with respect to the exercise of its licensing functions, and
(b) publish a statement of that policy (a "licensing statement") before the beginning of the period.
(2) In this section "three year period" means—
(a) the period of three years beginning with such day as the Secretary of State may by order appoint, and
(b) each subsequent period of three years.
(3) Before determining its policy for a three year period, a licensing authority must consult—
(a) the chief officer of police for the licensing authority's area,
(b) the fire authority for that area,
(c) such persons as the licensing authority considers to be representative of holders of premises licences issued by that authority,
(d) such persons as the licensing authority considers to be representative of holders of club premises certificates issued by that authority,
(e) such persons as the licensing authority considers to be representative of holders of personal licences issued by that authority, and
(f) such other persons as the licensing authority considers to be representative of businesses and residents in its area.
(4) During each three year period, a licensing authority must keep its policy under review and make such revisions to it, at such times, as it considers appropriate.
(5) Subsection (3) applies in relation to any revision of an authority's policy as it applies in relation to the original determination of that policy.
(6) Where revisions are made, the licensing authority must publish a statement of the revisions or the revised licensing statement.
(7) Regulations may make provision about the determination and revision of policies, and the preparation and publication of licensing statements, under this section.
....
17 Applications for premises licences
…
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.
18 Determination of application for premises licence
(1) This section applies where the relevant licensing authority—
(a) receives an application for a premises licence made in accordance with section 17, and
(b) is satisfied that the applicant has complied with any requirement imposed on him under subsection (5) of that section.
(2) Subject to subsection (3), the authority must grant the licence in accordance with the application subject only to—
(a) such conditions as are consistent with the operating schedule accompanying the application, and
(b) any conditions which must under section 19, 20 or 21 be included in the licence.
(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 grant the licence subject to—
(i) the conditions mentioned in subsection (2)(a) modified to such extent as the authority considers necessary for the promotion of the licensing objectives, and
(ii) any condition which must under section 19, 20 or 21 be included in the licence;
(b) to exclude from the scope of the licence any of the licensable activities to which the application relates;
(c) to refuse to specify a person in the licence as the premises supervisor;
(d) to reject the application.
....
....
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.).
(3) An application under this section must also be accompanied by the premises licence (or the appropriate part of that licence) or, if that is not practicable, by a statement of the reasons for the failure to provide the licence (or part).
(4) This section does not apply to an application within section 37(1) (application to vary licence to specify individual as premises supervisor).
(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.
(7) Subsections (2) and (3) are subject to sections 19, 20 and 21 (which require certain conditions to be included in premises licences)."
Annex B
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