Westminster and Royal Albert Hall win licensing appeal over boxing and wrestling

Westminster City Council and the organisation that manages the Royal Albert Hall have won a licensing appeal that could see boxing and wrestling return to the iconic venue for the first time in more than a decade.

In March 2010 Mr Justice McCombe quashed the council’s decision to grant an application by the Corporation of the Hall of Arts and Sciences, which runs the Royal Albert Hall, to vary its premises licence under the Licensing Act 2003, and quashed the variation of that licence.

The Corporation wanted to add boxing and wrestling to the list of permitted activities, vary the hours when late night refreshment could be provided and extend its opening hours.

The action had been brought by residents of a nearby residential block, Albert Court. They feared that the variation would lead to problems with anti-social behaviour, public safety, noise and disturbance, and degradation of the surrounding area.

Westminster had sent notification letters to residents within a 100-metre circle around the Hall at the time of the application. Although Albert Court was touched in part by the circle, the council’s software did not react and so the residents there received no notification. Their representations were therefore made after the cut-off date required by the 2003 Act.

Mr Justice McCombe held that Westminster’s decision to refuse to consider late representations was lawful, but that its decision to grant the variation was unlawful because it had failed to fulfil the legitimate expectation of the residents of Albert Court that it would send them notification of the application.

In Corporation of the Hall of Arts and Sciences v The Albert Court Residents’ Association [2011] EWCA Civ 430, the Court of Appeal has now overturned that ruling.

Giving the judgment of the court, Lord Justice Burnton said that neither the 2003 Act nor the Licensing Act (Hearings) Regulations 2005 impose any duty on a licensing authority to advertise such an application or to take any steps to notify anyone affected by it that it has been made.

He continued:

• the sole duty to advertise and to give notice of the application is placed on the person making the application (in this case the Albert Hall)
• it was accepted before the High Court judge that the Albert Hall had complied with that duty, and, more relevantly, it was not contended that Westminster had not reasonably been "satisfied that the applicant has complied with any requirement imposed on him by virtue of" section 34(5): see section 35(1)(b).
• It was now accepted that Westminster did not receive any "relevant representations" as defined in section 35(5), because the residents' representations were received after the deadline imposed by the Regulations and therefore did not fulfil the requirements of subsection (6)
• It was common ground that the duty of the authority under subsection (3) to hold a hearing arises only if a relevant representation is received.

“It follows that Westminster was under the duty imposed by section 35(2) to grant the application, and the Albert Hall had a right, enforceable at public law, to the grant of the application,” Lord Justice Stanley Burnton said.

“This Court cannot grant any relief that would have the effect of preventing Westminster from complying with its statutory duty or deprive the Albert Hall of its public law right to the grant of the variation of its licence for which it had made a valid application. Any failure by an authority to act in relation to its extra-statutory notifications cannot give rise to any right to interfere with the performance of its statutory duties.”

The judge said that the residents’ case was not assisted by reference to section 4 of the Act. “When exercising any discretion or power of decision under the Act, a licensing authority must do so ‘with a view to promoting the licensing objectives’ as there defined. However, once the authority is under an unqualified duty to carry out an act specified by the statute there is no room for section 4 to apply. The authority simply has no choice but to perform its statutory duty.”

Lord Justice Stanley Burnton said this did not mean that a decision by an authority to refrain from notifying persons affected by a licensing application could not be challenged.

“In theory, if it was thought that an authority was acting irrationally or otherwise unlawfully, an order could be sought requiring it to reconsider its decision, and if made sufficiently promptly the Court might grant relief, if it would have any practical value,” he said. “Thus in an appropriate case the Court might require the authority to notify residents in the immediate vicinity, if the notification could lead to representations being made within the statutory time limit. But that is the limit of the relief the Court could grant. The Court cannot subvert the statutory scheme.”

Lord Justice Stanley Burnton said that once the conditions set out in section 35(1) were satisfied, in the absence of any relevant representation, the Albert Hall “was, as the judge said, entitled to the grant of its application, and to paraphrase his words, it would be contrary to that entitlement for it to be undermined by a failure of the licensing authority to carry out a notification process (and therefore a “back door”) not provided for by the Act”.

The Court of Appeal judge said it did not follow that the residents had no possible remedy. “If their fears are realised, and the result of the variation in the licence is public disorder and public nuisance, they may apply for a review of the licence under section 51,” he said.

If they did so, Westminster would be under a duty to hold a hearing to consider their representations and “it will then be required by section 52(3) to take such steps specified in in subsection (4), if any, as it considers necessary to promote the licensing objectives listed in subsection 4.” These steps could include modification or even revocation of the licence.

Philip Hoult