UK: A hard left to the chin for Westminster City Council: boxing and legitimate expectations under the Licensing Act 2003

Introduction

A licensing decision by Westminster City Council to allow boxing and wrestling in the Albert Hall was recently successfully challenged in judicial review proceedings in the English High Court.

While this is a decision about legislation which applies in England and Wales, the principles of the High Court decision are also of relevance in Scotland - this is both in the context of licensing and, more generally, in ensuring that all public bodies comply with the public's legitimate expectations of them. The judgement also contains a warning about the use of modern technology in fulfilling duties to the public.

Facts and background

The case arose following an application for a variation of the licence governing the use of the Albert Hall. The variation was sought because a firm of solicitors had failed to make the necessary applications to continue the full range of previous licensable activities in the Hall, including boxing and wrestling.

Westminster City Council sent more than 100 notification letters in respect of the variation application but did not notify the residents of Albert Court, a nearby block. Some of these residents subsequently made representations about the application but this was after the prescribed deadline. The application was granted and some of the residents, together with the residents' association, management company and freeholder, raised an action for judicial review.

Grounds for judicial review: Licensing Act 2003 ("2003 Act")

The residents argued that the Council had discretion to take the late representations into account. This was rejected by the Court on the basis that section 35(2) of the 2003 Act makes clear that where there are no "relevant representations" (or in other words, representations which are made in time), the grant of a variation will follow automatically.

Grounds for judicial review: legitimate expectations

The residents had much greater success in relation to their other ground for judicial review. This was that the Council had failed to meet their legitimate expectation that they would have been notified of the application.

This legitimate expectation was based on the Council's own published notification practice, upon which the residents of Albert Court had relied in the past, that residents and businesses in the "immediate vicinity" would be notified of licensing applications such as this one.

In finding in favour of the residents, the Court noted that the Council had used a computer programme to identify properties within a 100 metre radius of the Albert Hall. Although part of Albert Court was within this radius, this was not sufficient to trigger a reaction by the software.

The Court found that, while the notification practice which the Council had decided upon was not a legal requirement, once embarked upon it required to be carried out properly. The judge stated that the process had been "mindlessly" dictated by the database and had produced a bizarre result which could have been rectified if the Council had simply taken a brief glance at the plan. Accordingly, the process had been unlawful because it was "inherently unreasonable" or "so bad as to be irrational".

Clear procedures and common sense

Licensing authorities have a general duty to carry out functions under the 2003 Act with a view to promoting certain "licensing objectives". These objectives include prevention of public nuisance - an objective which is also contained within the Licensing (Scotland) Act 2005. The judgement makes clear that the general duty under the 2003 Act does not add to the way in which functions should be exercised where these are clearly circumscribed by the Act. As such, a licensing authority is not required to (and indeed, cannot) take extra steps to allow representations to be taken into account where these are out of time. Instead, the clear procedure set out in section 35 of the 2003 Act must simply be followed.

The decision also makes clear, however, that if a licensing authority - or other public body - has put in place a particular policy in respect of the implementation of legislation, this must be adhered to. In this case, the Court set aside the Council's decision and the variation of the licence because of the unlawful way in which the notification process had been carried out. As such, a further application will require to be made and, presumably, a new notification exercise will need to be carried out.

As indicated by the Honourable Mr Justice McCombe, this does not mean that a process necessarily requires to be perfect. In this case, the Court said that notification would not necessarily have failed simply because some residents had been missed. It did, however, fail because it did not catch a substantial residential building. Another example of obvious failure would have been if the Council had known of a relevant resident but simply decided not to notify him.

It is therefore hugely important for public bodies to exercise common sense in implementing policies - especially where computer software is being used to manage a process.

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