R (Khaled) v Foreign & Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Lord Justice Wilson,Lord Justice Lloyd |
| Judgment Date | 13 April 2011 |
| Neutral Citation | [2011] EWCA Civ 430 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 April 2011 |
| Docket Number | Case No: C1/2010/0687 & C1/2010/1083 |
[2011] EWCA Civ 430
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE MCCOMBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
Lord Justice Wilson
Lord Justice Stanley Burnton
Case No: C1/2010/0687 & C1/2010/1083
and others
and
and others
and
Philip Coppel QC and Saima Hanif (instructed by Jeffrey Green Russell) for the Corporation of the Hall of Arts And Sciences
David Matthias QC (instructed by Westminster City Council) for the Council
John Steel QC and Andrew Sharland (instructed by Russell-Cooke) for the Respondents in both appeals
Hearing dates: 22 & 23 March 2011
Introduction
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
I can take the facts from the judgment of McCombe J.
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.
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.
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.
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.
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.
On 25 May 2009, Westminster granted the Albert Hall's application.
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".
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
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.
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.
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.
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
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.
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
The contentions of the parties on this appeal have differed substantially from those advanced before the judge.
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.
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.
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...
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