A fair fight

The recent Court of Appeal case involving the return of boxing to the Albert Hall is a significant one for public as well as licensing lawyers, write Philip Coppel QC and Saima Hanif.

The Court of Appeal handed down judgment on 13 April 2011 in Corporation of the Hall of Arts and Sciences v The Albert Court Residents Association and ors [2011] EWCA Civ 430. For both public lawyers and licensing lawyers the judgment is of practical and legal significance. For the first time the Court of Appeal considered the extent to which a legitimate expectation that a resident would be notified by the Council of an application to vary a licence could be relied upon so as to override the statutory machinery set out in the Licensing Act 2003 (“the Act”).

The facts

On 22 December 2009 the Albert Hall, the licenses premises holder, applied for a variation to its premises licence to enable it to, inter alia, add boxing and wrestling to the permitted licensable activities. The Albert Hall advertised its application in accordance with the requirements in the Act.

On 6 January 2009, pursuant to its practice of notifying businesses and residents in the “immediate vicinity” of the subject premises, Westminster City Council (“the Council”) distributed some letters to residents in the neighbouring premises, informing them about the application. This practice was referred to in a Council leaflet and on the Council’s website. The Residents did not receive any such letters.

The cut-off date for making representations was 19 January 2009. The Residents made representations after this date. On 25 May 2009, there being no relevant representations, the Council granted the variation.

The Residents sought to challenge this by way of judicial review, arguing that (1) the refusal by the Council to consider the late representations was unlawful and (2) the decision to grant the variation was unlawful because it failed to fulfil the legitimate expectation of the Residents that they would be notified of the application by the Council.

The statutory regime

Applications to vary a licence are made pursuant to section 34 of the Act. Section 35 prescribes the manner in which the application must be dealt with, and in particular, if no relevant representations are made, there is no requirement to hold a hearing and in accordance with section 35(2), the application is granted automatically.

The Licensing Act 2003 (Premises licenses and club premises certificates) Regulations 2005 SI 2005/42 (as amended by SI 2009/1809), made under the Act, set out detailed requirements as to the form in which an application to vary a licence must be made, the manner in which that application must be advertised by the applicant, and clear time limits for the making of the application, objections to it and for the resolution of such objections.

The judgment of the Court of Appeal

The High Court found that the Act contained a clear statutory time procedure, with clear time limits for making representations, and hence the Council acted lawfully in refusing to accept the late representations as to do otherwise, would undermine the machinery of the Act. Surprisingly, the Court then went onto conclude that the Residents could however rely on a legitimate expectation.

The Albert Hall appealed to the Court of Appeal, on the principal ground that a legitimate expectation could not be relied upon by an aggrieved party to subvert the detailed provisions of the statutory regime; in short, the Albert Hall had a right, enforceable at law, to a grant of the variation application, and this could not be defeated by the extra-statutory actions of the Council.

The argument of the Albert Hall that the statutory scheme could not be frustrated by a legitimate expectation was accepted in full by the Court, who described this as an “inevitable conclusion” (see paragraph 42 of the judgment). In reaching this conclusion, the Court was also persuaded by the submission of the Albert Hall that to grant the relief sought by the Residents would create a number of practical problems. Finally, the Court also expressed its doubt as to whether the Residents did in fact have a legitimate expectation of notification.

In those circumstances, in accordance with s35 (2) of the Act, there being no relevant representations, the variation application was automatically granted.

Significance of the judgment

The decision recognises the supremacy of procedures which are contained in legislation: where Parliament has prescribed a process that results in an outcome, that process must be followed, notwithstanding the existence of an otherwise legitimate expectation that there be other steps in the process. Or put another way, the Courts will not enforce a legitimate expectation where to do so would introduce additional procedural requirements beyond those spelled out in statute.

The case also serves as a cautionary tale for local authorities to think carefully when undertaking extra-statutory consultation, as in so doing, they could potentially be jeopardising the rights guaranteed to third parties under the statute.

The decision of the Court of Appeal is correct both as a matter of principle and practice. In protecting the rights of third parties affected by the legislation, this creates valuable certainty for parties in the position of the Albert Hall, who can be assured that as long as they comply with their duties under the statutory process, any benefits conferred by the statute will be upheld by the Courts.

Philip Coppel QC and Saima Hanif, of 4-5 Gray’s Inn Square, represented the successful appellants. The authors specialise in public law and licensing law.

John Steel QC and Andrew Sharland, of 4-5 Gray’s Inn Square appeared for the Respondents in both appeals.