Licensing committees and procedural defects

A recent High Court decision is a timely reminder of the principle that procedural requirements are there to further the interests of justice, writes Gerald Gouriet QC.

Wrotham Parish Council (“WPC”) had made written representations to the licensing of a large music festival to be held on land known as “Wings of the Morning Fields” in Wrotham. Some thirty local residents had also put in objections. WPC objected on a wide range of grounds, including that the applicant had failed to comply with Regulation 25(a)(ii) of The Licensing Act 2003 (Premises Licences and Club Premises Certificates) Regulations 2005, which requires an applicant to place notices of an application for a premises licence every 50 metres along the external perimeter of the site in question. On the face of it, the failure complained about was an egregious one: compliance would have meant that the applicant had to place thirty notices of the application around the site perimeter. He had placed three.

At a hearing on 28 July 2021, the licensing sub-committee of Tonbridge and Malling Borough Council (“the Council”) was referred to the well-known judgment of Lord Woolf MR in R v Secretary of State for the Home Department, ex p Jeyeanthan [2000] 1 WLR 345. The applicant invited the sub-committee to focus on Lord Woolf’s observations: “It must be remembered that procedural requirements are designed to further the interests of justice” and “[the] tribunal’s task will be to seek to do what is just in all the circumstances.” The sub-committee decided that it was just in all the circumstances to let the application proceed, notwithstanding the procedural defect. Material factors informing the decision of the sub-committee were:

1. The application had been widely publicised and the subject of considerable local interest. The sub-committee heard that in addition to three notices placed at the main entrances to the site, the application was advertised in the Sevenoaks Chronicle (a weekly newspaper circulating in the vicinity of the application site).
2. Once the application was received, it was placed on the Council’s ‘premises licence application tracker’, which appears on the Council’s website, and which is sent to all borough councillors and parish councils within the area and is published on a weekly basis.
3. There were thirty-five written responses on the application. The postcodes of the thirty local residents who made representations were spread over an area of some 150 square miles.
4. Prior to the application being received by the Council, its licensing officers had contacted the ward councillors for the wards likely to be affected, as well as those for wards immediately adjacent, to advise them that an application was expected for this event.
5. Copies of the application were sent to each of the ward councillors mentioned above, to each of the parish councils (within and adjacent to the borough) considered to be affected by the application, to Sevenoaks District Council and to the Kent County Council.

In its application to judicially review the sub-committee’s decision to hear the application, WPC pleaded prejudice. Its grounds asserted: “The failure of the Interested party to advertise the application Notice may have meant that it did not come to the attention of all possible interested parties.” The Council’s response was that the alleged prejudice was hypothetical, and in the circumstances wholly unrealistic. The claimant had failed to identify a single person who did not know about the application.

Perhaps more importantly, the claimant had failed to identify any issue that was not comprehensively canvassed by the thirty-five representations received, which amongst them covered the full range of possible objections to this type of event – from familiar concerns about the potential for noise and social behaviour, crime and disorder, litter, traffic congestion, and insufficient provision for parking, to the less-often encountered “lights should be in the red/yellow spectrum only (to minimise the effect on nocturnal wildlife)”, and attendees might climb on the nearby BBC mast or fall onto the M20 from pedestrian bridges. No conceivable stone, said the defendant Council, had been left unturned – or unthrown.

Permission to judicially review the sub-committee’s decision to hear the application was refused, the single judge saying that “the grounds of review are unarguable.”

Gerald Gouriet QC is a barrister at Francis Taylor Building. He acted for Tonbridge and Malling Borough Council.

James Rankin, also from FTB, acted for the applicant (BJP Productions Limited).