Getting it absolutely right
A recent case has highlighted the importance of absolute compliance with procedural requirements by the applicant for a review and the licensing authority that processes it upon receipt. Sarah Clover and Poppleston Allen set out why.
On 30 October 2012 in the Highbury Magistrates’ Court, District Judge Staveley gave a ruling in Tinseltown NW3 Ltd v London Borough of Camden relation to the status of a review application that did not comply with the statutory regulations regarding the application procedure.
The review application was made against Tinseltown, a burger and milkshake bar in Hampstead.
The review application, made by two councillors (both of whom were at the time members of the licensing committee), was submitted to the London Borough of Camden Licensing Authority, and accepted as valid on 1 May 2012.
The application form was incorrectly completed by the applicants in several particulars. The name of the second applicant was omitted on the first page, and the address of the second applicant was omitted on the third page. Although the box on the application was ticked, asserting that copies had been sent to the responsible authorities and the premises licence holder, this had not, in fact, been done, and furthermore, the councillors failed to tick the box on the same page confirming that they understood that if they did not comply with the requirements, the application would be rejected.
On receipt of the application, the council sent a copy to the premises licence holder, which they were not required to do – that being the responsibility of the applicant – a week later on 8 May, and there is no evidence that they sent copies to anyone else – again this was the responsibility of the applicant.
Finally, the notice required to be displayed on the premises was not displayed until 4 May, 2012 which was two days late.
The council maintained that these irregularities did not matter; no prejudice had been caused as all parties were aware, and they proceeded with the review application as if it had been validly made.
The licensee appealed the decision of the sub-committee, but took, as a preliminary legal point in the Magistrates’ Court, the stance that the entire review hearing was null and void because the application was invalid and did not properly trigger a hearing in the first place.
Section 51 of the Licensing Act 2003 states:
Application for review of premises licence
(1) Where a premises licence has effect, [a responsible authority or any other person] may apply to the relevant licensing authority for a review of the licence.
(2) Subsection (1) is subject to regulations under section 54 (form etc of applications etc).
(3) The Secretary of State must by regulations under this section—
(a) require the applicant to give a notice containing details of the application to the holder of the premises licence and each responsible authority within such period as may be prescribed;
(b) require the authority to advertise the application and invite representations about it to be made to the authority by [responsible authorities and other persons];
(c) prescribe the period during which representations may be made by the holder of the premises licence, any responsible authority or any [other person];
(d) require any notice under paragraph (a) or advertisement under paragraph (b) to specify that period.
By virtue of section 51(3), it is a mandatory requirement under the primary legislation that the applicant for the review of the licence give notice containing details of the application to the premises licence holder and to each responsible authority within the prescribed period.
By virtue of section 51(3)(b), it is a mandatory requirement under the primary legislation that the licensing authority advertise the review and invite representations about it within a prescribed period.
The regulations specified under section 51 have been implemented by the Secretary of State and comprise the Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005, SI 2005/42 .
Those regulations state:
Review of premises licences
16. An application for a review of a premises licence under section 51 shall be in the form and shall contain the information set out in Schedule 8
(Now Schedule 2 of 2012 No 955 by virtue of changes made by Licensing Act 2003 (Premises licences and club premises certificates) (Amendment) Regulations 2012).
The language of the Act and the Regulations is mandatory.
The consequence of procedural defects
Section 52 of the Licensing Act 2003 ( so far as is relevant) states:
52. Determination of application for review
(1) This section applies where—
(a) the relevant licensing authority receives an application made in accordance with section 51,
(b) the applicant has complied with any requirement imposed on him under subsection (3)(a) or (d) of that section, and
(c) the authority has complied with any requirement imposed on it under subsection (3)(b) or (d) of that section.
(2) Before determining the application, the authority must hold a hearing to consider it and any relevant representations.
Therefore, determination of the review application may only take place, in accordance with section 52, where those mandatory requirements have been satisfied. The clear language of section 52 is that the section only applies in those circumstances.
The council argued before the (Deputy) District Judge that a failure to comply with a procedural requirement need not prove fatal to legal proceedings and cited R v Secretary of State for the Home Department ex p Jeyeanthan [ 2000] 1 WLR 354.
Jeyeanthan is authority for the proposition that the distinction between “mandatory” and “discretionary” language is not the real consideration, and that the important point is whether there is any prejudice resulting from non-compliance with regulations, and whether Parliament can have intended invalidity to result from a technical non-compliance. In the Tinseltown case, there was no prejudice to any party.
Sarah Clover for the licensee cited another case, however:
R v Clarke and Another [2008] UKHL 8
In this case, Lord Bingham found that there was a distinction to be made between non-compliance with a procedural technicality in the course of proper proceedings, and, on the other hand, non-compliance with a technicality which robbed the decision making tribunal of its jurisdictional power entirely. The Tinseltown case, it was argued, was an example of the latter, not the former.
Lord Bingham (at paragraph 4) said: “whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ('a procedural failure'), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid.”
Section 52 of the Licensing Act 2003 states:
“ (1) This section applies where –
(a) the relevant licensing authority receives an application made in accordance with section 51;
(b) the applicant has complied with any requirement imposed on him under sub-section (3)(a), or (d) of that section and
(c) the authority has complied with any requirement imposed on it under subsection (3)(b) or (d) of that section.” [ Emphasis added]
Section 52 goes on thereafter to endow the licensing authority with its power to hold a hearing and take steps in relation to the premises licence. The section, by clear interpretation, does not apply if the review application has not been made in accordance with s. 51, and the applicant has not complied with the requirements of service of the review application, and the licensing authority has not complied with the requirements of advertising and inviting representations. There is no other reasonable interpretation.
The alternative interpretation would have to be:
“(1) This section applies where –
(a) the relevant licensing authority receives an application made in accordance with section 51;
(b) the applicant has complied with any requirement imposed on him under sub-section (3)(a), or (d) of that section and
(c) the authority has complied with any requirement imposed on it under subsection (3)(b) or (d) of that section.”
And this section also applies where those matters at (a) to (c) have not been complied with. [Emphasis added].
This is nonsensical, and robs the first words at (1) of all sensible meaning. It makes the words in sub-section (1) entirely otiose.
The council argued that “We remain of the view that it was not Parliament’s intention that breaches of the Regulations, however small, would render the proceedings invalid" and "This cannot have been the intention of Parliament when devising a procedure whereby members of the public could bring review applications before a council’s licensing sub-committee even if the premises licence was ultimately at stake through that process.”
The learned Deputy District Judge disagreed. Section 52, as Deputy District Judge Staveley observed, provides an important protection for licensees. She was clear that it was mandatory, and that any issue of prejudice was irrelevant.
The council’s contention that “this cannot have been the intention of Parliament” when devising a procedure to be used by members of the public did not bear scrutiny. The regulatory requirements are not onerous or difficult for a lay person to understand.
Furthermore, and more importantly, it is not necessary for a lay person to have any knowledge or understanding about the Regulations. It is the responsibility of the licensing authority, in receiving an application to be diligent in confirming that the regulatory requirements have been complied with. This is particularly so in relation to the regulatory requirements that the licensing authority themselves must comply with, as opposed to those that applicants must comply with.
There is no excuse for the failure of a licensing authority to conform to the regulations. Any failure of procedure can be notified to a lay applicant, and any non-compliance can be rectified, and the review application submitted again. This is not prejudicial or onerous to an applicant.
The consequence of the failure to comply with the regulations is, therefore, that the review application is invalid; no hearing should be convened, and any purported determination made upon the application is null and void. This was the (Deputy) District Judge’s finding, and she awarded costs against the council.
Sarah Clover is a barrister at Kings Chambers in Birmingham. She can be contacted on 0121 200 3570 or byThis email address is being protected from spambots. You need JavaScript enabled to view it.. Instructed by law firm Poppleston Allen, she appeared for Tinseltown in this case.
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