Licensing - Local government - Irrationality - Legitimate expectation

Corporation of the Hall of Arts and Sciences (Appellant) v Albert Court Residents Association and Ors (Respondents) and Westminster City Council (Additional Party): Westminster City Council (Appellant) v Albert Court Residents Association and Ors (Respondents) and Corporation of the Hall of Arts and Sciences (Additional Party): CA (Civ Div) (Lord Justices Lloyd, Wilson, Stanley Burnton): 13 April 2011

The appellants (Y and W) appealed against the quashing ([2010] EWHC 393 (Admin)) of a decision to vary a premises licence.

Y was the licence owner and W was the licensing authority.

The respondents (X) were residents living very close to Y’s premises. W had sent circulars to local inhabitants inviting representations on Y’s application for variation.

It had excluded X, who nevertheless submitted representations, but late. W refused to consider them and granted the variation.

In judicial review proceedings brought by X, the judge’s reason for quashing the variation was that although W’s refusal to consider late representations was lawful, the variation was unlawful because it had failed to fulfil X’s legitimate expectation that they would be notified of Y’s application.

Y submitted that the judge had been wrong to find that X had a legitimate expectation of being notified.

W submitted that its failure to satisfy any such legitimate expectation could not affect its duty to grant the variation.

Held: (1) As W had not received any ‘relevant representations’, within the meaning of section 35(5) of the Licensing Act 2003, by the due date, it had been under a duty to grant the variation and Y had had an enforceable public law right to the grant.

Once the conditions set out in section 35(1) were satisfied, it would go against Y’s entitlement for the variation to be undermined by W’s failure to carry out a proper notification process.

An otherwise legitimate expectation could not require a public authority to act contrary to statute, R v North and East Devon HA Ex p Coughlan [2001] QB 213 CA (Civ Div), R (on the application of Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755, Times, 21 July 2008 and R (on the application of Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, Times, 14 December 2005 applied.

It was significant that the words ‘as it considers necessary for the promotion of the licensing objectives’ in section 35(3)(b) of the act were not present in section 35(2) (see paragraphs 34-38, 42 of judgment).

W’s decision to exclude X from its distribution of circulars was irrational.

There was a remedy for that type of complaint, but it was limited to an application for reconsideration under section 51.

The court could not subvert the statutory scheme by, for example, postponing Y’s application to give X an opportunity to make timely representations (paragraphs 40, 43).

Appeal allowed.

Philip Coppel QC, Saima Hanif (instructed by Jeffrey Green Russell) for the first appellant; David Matthias QC for the second appellant; John Steel QC, Andrew Sharland (instructed by Russell-Cooke) for the respondents.