R (Hope & Glory Public House Ltd) v City of Westminster Magistrates Court
| Jurisdiction | England & Wales |
| Judge | Sir Mark Waller |
| Judgment Date | 26 January 2011 |
| Neutral Citation | [2011] EWCA Civ 31,[2010] EWCA Civ 707 |
| Docket Number | Case No: C1/2009/1736 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 January 2011 |
The Queen on the Application of
[2010] EWCA Civ 707
(Mr Justice Blair)
Before: Sir Mark Waller
Case No: C1/2009/1736
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Glen QC (instructed by Messrs Jeffrey Green Russell) appeared on behalf of the Appellant.
Mr Mathias QC (instructed by Westminster City Council Legal Services) appeared on behalf of the Respondent.
(As Approved)
Sir Mark Waller
This is a renewed application for permission to appeal and Mr Glen, who argues the application on behalf of Hope and Glory Public House Limited, wants to take three points identified in his skeleton to the Court of Appeal.
The case concerns the licensing of a public house. Complaints were received about the fact that patrons of the public house were assembling on the streets outside, and there was a hearing before the Licensing Committee which considered whether some restrictions should be put on the license.
They put certain restrictions on the license in order to, as they concluded, alleviate the nuisance that they had found to be occurring as a result of noise.
The public house appealed that decision and the matter came before the magistrate. The magistrate directed himself in a preliminary ruling that he (a) would not lightly reverse their decision and (b) only reverse the decision if he was satisfied it was wrong. He then heard the evidence over a period of some five days. Thus there was a fresh calling of evidence, and some evidence that had not been before the Licensing Committee was called before the magistrate.
The three points which Mr Glen wished to argue in the Court of Appeal were (1) that the direction that the District Judge gave himself only to reverse the decision if he was satisfied it was wrong was not a lawful direction; (2) he wanted to challenge the definition of public nuisance; (3) he wanted to attack the proportionality of certain of the restrictions imposed.
Taking those in the reverse order, he did not strongly pursue the proportionality of the restrictions when he commenced his oral submissions before me, although ultimately having regard to something I put to him he revised his position a little. I am satisfied that the proportionality point is not arguable.
So far as public nuisance is concerned, I am also satisfied that there is no reasonable prospect of success.
So far as the direction is concerned, the position may well be covered by the authority Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614, but it seems to me that the question of whether it is an appropriate direction and the question of whether that is the right way in which a magistrate should approach an appeal in which he is hearing all the evidence de novo is a matter of some importance. We can spend a great deal of time arguing about the arguability of the point and it is better to have a decision which clarifies the position, which at present there is not.
For that reason I am going to grant permission to appeal on that limited point.
Order: Application allowed in part
[2011] EWCA Civ 31
Mr Justice Burton
Before: The President of the Family Division
Lord Justice Laws
and
Lord Justice Toulson
Case No: C1/2009/1736
CO/5324/2009
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
Mr Ian Glen QC and Mr Gordon Bishop (instructed by Jeffrey Green Russell) for the Claimant/Appellant
Mr David Matthias QC and Ms Emma Dring (instructed by Westminster City Council) for the Interested Party/ Respondents
The Defendant being neither present nor represented
Hearing date: 9 November 2010
Lord Justice Toulson delivered the judgment of the Court:
Introduction
This appeal raises a question about how a magistrates' court hearing an appeal from a decision of a licensing authority under the Licensing Act 2003 ("the Act") should approach the decision.
Background
The appellant owns the Endurance public house in Berwick Street, Soho. The premises are licensed for the sale and supply of alcohol and for the provision of entertainment and late night refreshment. The licence was granted on 12 March 2007 by Westminster City Council ("the council") as the local licensing authority.
On 15 April 2008 the council's Environmental Health Consultation Service ("EHCS") applied under s51(1) of the Act for a review of the licence after complaints were made by residents about the level of noise caused by customers taking their drinks out of the pub and congregating on the street during the evenings.
The hearing of the review took place before the council's Licensing Sub-Committee on 26 and 27 June 2008. The sub-committee heard submissions and evidence lasting about 5 hours. It decided to attach a number of conditions to the licence, the main condition being that no customer should be permitted to take drink from the premises in an open container after 6 pm. The decision and the sub-committee's reasons were notified to the appellant's solicitors by a letter dated 4 July 2008. The sub-committee stated:
"We have no policy to ban outside drinking, and we have accordingly not approached the case on that basis. We were not referred to the Council's statement of licensing policy by any party. We have had regard, as we must, to the policy,…but we have reached our decision based on the evidence that has been put before us in relation to these premises, and not on any policy ground.
The application was made on the grounds of public nuisance, and we first consider whether it was established that a public nuisance for the purposes of the Act exists. The evidence we heard was that large numbers of customers of the Endurance congregate on a daily basis outside the public house in Kemps Court in the evening, the numbers involved ranging from very few (5–10) to very many (180 or more). Those customers drinking and talking outside the premises make a noise. The noise is amplified by the configuration of buildings in the area. The noise causes public nuisance to surrounding residents, including, in particular residents directly opposite the public house.
The licensee argued that the noise was not so bad as to constitute a nuisance and that the complaints…were exaggerated. He called expert evidence in support of that proposition. We are completely satisfied that the noise is indeed a serious nuisance…
A number of local residents and other customers of the premises gave evidence about the way in which the premises were run, and we accept that the premises are valued by its customers and that a number of people enjoy being able to drink outside. We reject however the argument that a licensee has a fundamental right to, in effect, appropriate a part of the public realm for his own commercial purposes, if the effect of doing so is to cause serious public nuisance to his neighbours. Accordingly, we are persuaded that it is appropriate to take steps to prevent that public nuisance from continuing.
We recognise that steps should only be taken where they are necessary and that it cannot be necessary to take disproportionate steps…"
The sub-committee then considered the conditions proposed by EHCS and additional conditions proposed by the police. It concluded that most of the proposed conditions were required.
The appellant appealed against the decision to the City of Westminster Magistrates Court under s181 and schedule 5 of the Act.
At a preliminary hearing on 7 May 2009 District Judge Snow heard argument about how he should approach the decision of the sub-committee on the hearing of the appeal. He held that he was bound by the decision of the Court of Appeal in Sagnata Investments Limited v Norwich Corporation [1971] 2 QB 614, in the light of which he ruled:
"I will therefore
(1) Note the decision of the licensing sub-committee.
(2) Not lightly reverse their decision.
(3) Only reverse the decision if I am satisfied it is wrong.
(4) I will hear evidence.
(5) The correct approach is to consider the promotion of the Licensing Objectives. To look at the Licensing Act 2003, the Guidance made under section 182 LA03, Westminster's Statement of Licensing Policy and any legal authorities.
(6) I am not concerned with the way in which the Licensing Sub-Committee approached their decision or the process by which it was made. The correct appeal against such issues lies by way of Judicial Review."
The district judge heard the appeal over 5 days between 11 and 25 June 2009, during which he heard 4 days of evidence, considered 1797 pages of statements and exhibits and visited the site. On 30 June 2009 he delivered a 22 page written judgment. His conclusions in summary were:
"I find, on the balance of probabilities, that given the number of Residents, Students and Teachers affected, and given the geographical spread, that the nuisance clearly is a public nuisance.
…
The evidence is clear, that the public nuisance arises between 6 pm and 11 pm. The...
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