One of the key issues for anyone either applying for a new licence or applying to vary an existing licence is certainty: the ability to predict how an application will proceed. As a result of a recent judicial review case, the degree of certainty available has at the same time both increased and decreased.
Under the Licensing Act 2003 there are two types of people or organisations who can make representations about applications to a Licensing Authority – “Responsible Authorities” (eg the police or trading standards departments) and “Interested Parties” (eg people who live in the vicinity of the relevant premises). Each has 28 days in which to put in representations (for Responsible Authorities, 28 days from the date that they were served with a copy of the application, in the case of Interested Parties 28 days from the date of publication of the statutory notice). If representations are made to the Licensing Authority, then normally there will be a hearing to consider the application; if not, then normally the Licensing Authority must grant the licence or variation sought.
The effect of these provisions of the Licensing Act 2003 has recently been considered in the High Court. The case arose out of an application by the operators of the Albert Hall to vary its licence, principally so as to be able to add boxing and wrestling to the entertainment on offer. During the 28 day periods, only one set of representations – from the local Environmental Health Officer - had been made and those were subsequently withdrawn, with the result that the licence was varied without a hearing. However, after the 28 day notice period, representations were received from a number of residents of Albert Court, a block of flats near the Albert Hall and it was they who brought the proceedings to challenge the licence variation.
There were two parts to the claim. The first, which was both technical and, I think it is fair to say, ambitious, was that even though the residents’ representations had been delivered late, the Licensing Authority could still, directly or indirectly, take them into account. The judge dismissed this, holding that the Licensing Act 2003 was clear and allowed for no exceptions. If representations are late, whether one month, one week or one day, they have to be disregarded. For someone applying for a licence this brings a very welcome certainty to the process. However the second part of the claim – in which the residents were successful – introduces an uncertainty.
When it received the Albert Hall’s application, Westminster City Council (‘the Council’), in accordance with its normal practice, tried to write to all the businesses and residents in the “immediate vicinity” of the licensed premises, to tell them about the application. This was not something that the Council was required to do under either the Licensing Act or under the statutory guidance issued in relation to the Act – it was simply something that it had a practice of doing, in its own words “as a matter of courtesy”. Unfortunately for the Council, and the Albert Hall, it did not do a very good job in sending out the letters. A combination of the local geography and an overreliance on a computer programme led to some odd results – one letter was sent to an address in Brixton, another addressed to “Bus stop opposite 1 Kensington Gore”. More importantly, letters were not sent to the residents of Albert Court even though it was clearly in the immediate vicinity of the Albert Hall – its point closest to the perimeter of the Albert Hall is only about 15 metres away.
On the back of this the Albert Court residents argued that the Council’s notification process had been so substandard that it was unfair and unreasonable to allow the licence variation to stand. The judge agreed.
The uncertainty that this introduces for licence applicants is that a potentially key part of the process is taken out of their control - applicants have to depend on licensing authorities to carry out properly any notification process it has set for itself. Steps that can be taken to try and limit that uncertainty are:
- check whether the licensing authority has a notification policy or practice – most if not all will, for example Islington’s policy is to notify all residents living within 50 metres of the premises that is subject to the application;
- if there is a policy/practice, ask the licensing authority to confirm that it has actually notified all relevant residents; and
- consider whether there is anything about the location of the licensed premises that might mean that the licensing authority should take special care in deciding who to notify – and if so, tell the licensing authority.