The Queen (Claimants) on the Application of and Others Westminster City Council (Defendant) Corporation of the Hall of Arts &Sciences (interested Party)

Hearing dates: 28–29 January 2010

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...