Festiva Ltd, R (on the application of) v Highbury Corner Magistrates Court & Anor

This is an oral application for permission to apply for judicial review of the decision of District Judge McPhee sitting in the Highbury Corner Magistrates’ Court on 25 November 2010 by which he dismissed the Claimant’s appeal against the reduction of its hours of permitted licensed activities at the premises known as the "Parker Macmillan".

The premises in question are in Chiswell Street, London EC1. It is a nightclub with a capacity of about 300 people. At the time of the review before the Licensing Sub-Committee, the opening hours of the club were as follows:

On 12 July 2010, after hearing evidence both for and against the review and having considered the submitted documents, the Licensing Sub-Committee reduced the hours to the following:

The application for permission was made on paper to His Honour Judge Thornton QC who decided to adjourn the application to be listed for an oral hearing as soon as possible after 10 January 2011. The principal reason for this decision was the outstanding appeal to the Court of Appeal in the case of the Hope and Glory Public House Ltd v The City of Westminster Magistrates Court [ 2009] EWHC 1996 (Admin), a decision of Burton J sitting in the Administrative Court.

The Court of Appeal handed down its judgment in that case on 26 January 2011. It upheld the judgment of Burton J and, in particular, agreed with the way in which Burton J described the approach that a Magistrates’ Court must adopt on the hearing of an appeal from a Licensing Sub-Committee.

At paragraphs 43 and 45 of his judgment, Burton J said this:

“43.

I conclude that the words of Lord Goddard approved by Edmund Davies LJ are very carefully chosen. What the appellate court will have to do is to be satisfied that the judgment below "is wrong", that is to reach its conclusion on the basis of the evidence before it and then to conclude that the judgment below is wrong, even if it was not wrong at the time.”

And,

“45.

At the end of the day, the decision before the District Judge is whether the decision of the Licensing Committee is wrong. Mr Glen has submitted that the word "wrong" is difficult to understand or, at any rate, insufficiently clarified. What does it mean? It is plainly not "Wednesbury unreasonable" because this is not a question of judicial review. It means that the task for the District Judge - having heard the evidence which is now before him, and specifically addressing the decision of the court below - is to give a decision on whether, because he disagrees with the decision below in the light of the evidence before him, it is therefore wrong. What he is not doing is either, on the one hand, ignoring the decision below, or, on the other hand, simply paying regard to it. He is addressing whether it is wrong. I do not see any difficulty, nor did the District Judge, in following this course."

Mr Stephen Walsh QC, who appeared for the Claimant, submitted that the District Judge did not adopt this approach or, alternatively, if he did, that his decision was Wednesbury unreasonable. He accepts that I have to apply the test appropriate for judicial review.

Section 4 of the Licensing Act 2003 provides that a licensing authority must carry out its functions under the Act with a view to promoting the licensing objectives. One of the licensing objectives is the prevention of public nuisance. Where there is an application for a review of a licence, section 52(3) of the Act provides that the authority must, having regard to the application and any relevant representation, take such steps as are mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives (my emphasis).

In his Decision, which was at some length, the District Judge first considered the evidence in relation to the position at week-ends, which he considered over several pages. In agreement with the Sub-Committee he found that there had been a poor management at the club and that the Claimant had been slow to react to clear and obvious concerns and genuine complaints. He found that since the extension of the operating hours granted in November 2009 there had been a significant increase in disturbance to local residents between 3 and 4.30 am “which has significantly affected their quality of life” and had caused them to suffer "the dramatic impact of being woken” between these hours.

The District Judge concluded that the "noise caused by dispersal from these premises is still insufficiently controlled and still impacts disproportionately and unreasonably on some local residents".

In addition, he noted that the Sub-Committee was not satisfied that the Claimant could take proper steps to comply with the licensing object of preventing public nuisance, by which was meant noise nuisance on dispersal.

So, for these reasons, and having said that he paid significant regard to the decision of the Sub-Committee, in relation to the situation at week-ends the District Judge concluded that he could not be satisfied that their decision was wrong or disproportionate.

The District Judge then went on to consider the position in respect of Sundays to Thursdays. He dealt with this in one paragraph. He made this important finding: "I accept that the available evidence is that the operation of the premises on those days did not cause nuisance". Earlier in his decision he recorded that he had heard evidence from a Ms Bancroft, who was employed by the Interested Party (“the Council”) as a noise officer. He said that it became clear during her evidence that there were discrepancies over figures which she had provided in her filed evidence, notably entries taken from a database, with the result that the the Council did not seek to rely any further upon her evidence. Since the District Judge referred to her "filed evidence",it is a reasonably safe assumption that this written evidence had been put before the Sub-Committee.

I was told during the application by Mr Walsh that the discrepancies in these figures related to complaints about noise that were shown as having been made on weekdays that in fact related to week-ends. For the purposes of this application, I will take this statement to be accurate.

The District Judge then went on to say:

Mr Walsh makes several complaints about this paragraph. First, he says that the District Judge did not form his own conclusion as to whether or not it was necessary to reduce the hours on Sundays to Thursdays in order to prevent a public nuisance as the first passage cited above from Hope and Glory requires. Second, he submits that if the District Judge did do this, then his conclusion was one that no reasonable Judge in his position could have reached. He submits that in the face of a clear finding that the operation of the premises did not cause a nuisance on Sundays to Thursdays, no steps could have been necessary in order to reduce it. He submits that the District Judge overlooked the fact that the evidence presented to the Licensing Sub-Committee in relation to complaints during the week had proved to be inaccurate so that it was no longer relied on by the Council. Third, he relies, although perhaps rather less strongly, on the inaccurate reference to the "general licensing hours", which of course no longer exist. He contended also that the District Judge’s conclusion in relation to the week-end hours was unreasonable, although I detected less enthusiasm for this limb of the application.

Mr Philip Kolvin QC, who appeared for the Council, submitted that there was nothing irrational about reducing the hours on Sundays to Thursdays if there was to be a reduction on the hours at the week-ends. He submitted that the District Judge was quite justified in his concern that this might shift the problem onto the weekdays. In any event, he submitted, licensing hours are invariably longer at week-ends than during the week, so there was nothing unreasonable about following the usual pattern in this case. He submitted that the Sub-Committee had to look forward and decide what was necessary to prevent a nuisance in future. He submitted that Mr Walsh's points had no merit and that this application was not reasonably arguable.

There is a striking contrast in the length at which the District Judge considered the position at the week-ends and the very brief consideration of the position in relation to Sundays to Thursdays. For the purpose of this application, it is sufficient for me to say that I do not consider that the points raised by Mr Walsh can be dismissed as being not reasonably arguable.

Further, in my view it is neither practicable nor appropriate to give permission in relation to the decision to reduce the licensing hours on Sundays to Thursdays only. It seems to me that the licensing hours have to be considered as a whole. Accordingly I give permission to apply for judicial review on all grounds.

At the conclusion of the hearing Mr Kolvin invited me to remove the stay on the reduction of hours by the District Judge that was currently in force. That stay is subject to an undertaking that the Claimant will cease licensable activities at the premises at 02:00 hours on Saturday and Sunday mornings. Mr Kolvin told me that there was a potential problem with the undertaking because the Claimant could get round it by the expedient of applying for Temporary Event Notices for particular evenings. Mr Walsh told me that he had advised his client, and his client had accepted, that to use the device of a Temporary Event Notice in order to operate beyond the hours as limited by the undertaking would amount to a breach of the undertaking.

In the light of the very serious financial repercussions for the Claimant if the order of the District Judge is not stayed, and the fact that the historic complaints by the residents appear to have been confined to noise after 03:00 hours in the morning, I am prepared to continue the stay on the same terms subject to a further undertaking by the Claimant that it will not, whether by the means of a Temporary Event Notice or otherwise, permit licensable activities to take place at the premises after the permitted hours or after 02:00 hours on Saturday and Sunday mornings. However, the Council and any resident who gave evidence before the District Judge may apply on 48 hours notice to the Claimant and to the court for the stay to be lifted or its terms varied. I will direct also that the hearing of this application is to be expedited.

These terms, if acceptable to the Claimant, are to be incorporated into the order that is to be made on this application. If the Claimant does not confirm within 7 days of the handing down of this judgment that these terms are acceptable, then the stay will thereafter be lifted without further order.