court puts a stop to late representations

It has been decided by the Administrative Court that Licensing Authorities do not have the power to consider nor to act upon late representations about licensing applications.  Whilst we have yet to see the full judgment, it has been reported that in the case of R (on the application of the Albert Court Residents Association & Others) v Westminster City Council, the Court held Westminster City Council was not obliged to consider late representations made by the residents of Albert Court to an application to vary the Premises Licence for the Royal Albert Hall.

This appears to be in direct contrast to the decision made by the Court of Appeal in Miss Behavin’ Limited v Belfast City Council (a sex establishment case).  Miss Behavin’ was considered by the Court in the Albert Court case.

The Court further decided the Licensing Authority was not required to notify any relevant authority (e.g. the police or EHO) of the late representations.

This is a welcome clarification of the opposition applicants can expect at any licensing hearing.  Only those representations received within the specified period may be considered.  It also avoids late representations being let in by the back door, as they cannot be passed to a relevant authority to simply be voiced by them.

Westminster City Council had decided it was necessary for the proper discharge of its functions as a Licensing Authority, and in the interests of good administration, to routinely try to notify local residents in the vicinity of licensed premises of any application which the premises had made.

Albert Court residents had relied on this notification in the past.  In the Albert Court case, notification was not made, and the residents representations were late.

The Court further held that failure to follow the Licensing Authority’s own policy to notify the residents of the application was so bad as to be irrational, and therefore unlawful.  Therefore, the lesson for Licensing Authorities appears to be not to do anything beyond that which is required by the Licensing Act 2003, because failure to do it once someone relies upon it may be held to be unlawful.

Despite the Court’s decision that failure to notify residents of the application was unlawful, the residents late representation were not allowed to be considered.  Further, because part of the process in granting the Albert Hall’s licence variation was unlawful, the variation had to be quashed.  It will be interesting to see if the Court of Appeal considers the issue of late representations again in the future and what will happen if the Albert Hall reapplies for its variation.

Rob Westwood-Payne

Associate Solicitor

Maitland Walker Solicitors

3 March 2010