Corporation of the Hall of Arts and Sciences v The Albert Court Residents' Association

Where a licensing authority is satisfied that a valid application to vary a premises licence has been made and no timely relevant representations remain, it must grant the application under section 35(2) of the Licensing Act 2003. The applicant has a corresponding public-law right to the grant.

An authority's unlawful or irrational failure to provide extra-statutory notification cannot justify relief that prevents performance of that mandatory duty. Legitimate expectation, irrationality and the licensing objectives do not override an unqualified statutory obligation. The objectives in section 4 govern the exercise of a discretion; they do not create discretion where the statute requires a particular result.

The Royal Albert Hall applied to Westminster City Council to vary its premises licence. The Council advertised the application through the statutory process and also sent circulars to some neighbouring residents, but not to residents of Albert Court. Their objections were made after the prescribed period and were not considered.

McCombe J held that the Council had no power to consider late representations, but quashed its decision to grant the variation because its failure to notify Albert Court frustrated a legitimate expectation: [2010] EWHC 393 (Admin). The Hall and the Council appealed. The central issue was whether an unlawful failure in the Council's voluntary notification process could prevent the mandatory grant of a valid licence-variation application where no relevant representations had been made.

1. Appeals allowed unanimously. Lord Justice Stanley Burnton, with whom Lord Justice Wilson and Lord Justice Lloyd agreed, set aside the order quashing the variation of the premises licence.

2. The court was prepared to assume that the Council's omission to notify Albert Court was irrational or breached a legitimate expectation. That assumption could not affect the result. The statutory duty to advertise and notify lay upon the applicant, not the licensing authority. The Hall had complied with that duty, and the Council was properly satisfied under section 35(1) of the Licensing Act 2003.

3. The Residents' objections were out of time and so were not relevant representations. No hearing duty arose under section 35(3). Section 35(2) therefore imposed an unqualified duty to grant the application, subject to provisions which did not apply. The Hall had an enforceable public-law right to that grant.

4. A legitimate expectation cannot require a public authority to act contrary to statute. The court applied the principle stated in R v North and East Devon Health Authority, ex p Coughlan, [2001] QB 213, and the related authorities. The same limit applies to relief based on irrationality or another common-law ground, as an incident of legislative supremacy. Extra-statutory notification cannot provide a route to defeat the statutory scheme.

5. Section 4 did not assist the Residents. It regulates how a licensing authority exercises a discretion, but it has no operation once the authority has no choice except to perform a mandatory statutory duty. The court also lacked power to postpone the application date so as to make later objections timely.

6. A prompt challenge to an unlawful notification decision might, before the time limit expires, produce useful prospective relief. If adverse effects later materialise, affected residents may seek a review under sections 51 and 52 of the Act.

• Court of Appeal (Civil Division): allowed the Hall's and Westminster City Council's appeals and set aside the order quashing the licence variation: [2011] EWCA Civ 430.

• High Court, Queen's Bench Division, Administrative Court: McCombe J held that late representations could not be considered, but quashed the variation on the basis of a legitimate expectation arising from the Council's notification practice: [2010] EWHC 393 (Admin).