QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF UTTLESFORD DISTRICT COUNCIL||(CLAIMANT)|
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED
Crown Copyright ©
"Amplified sound from the premises shall not be clearly audible at the boundary of any noise sensitive premises."
"The District Environmental Health Officer therefore strongly recommended the imposition of a condition to prevent public nuisance that amplified sound not be clearly audible at the boundary of any noise sensitive premises. Such a condition did not need equipment to assess the noise, nor would be it be affected by weather conditions. Alternatively she suggested limits on the hours when amplified music could be played outdoors, the number of events per annum, the duration of each event and the decibel level of the music above background. She listed the relative disadvantages of this alternative and pointed out that English Heritage might well be able to contain noise within its site by appropriate siting and layout of the amplifiers."
"...that it would be done with a noise measuring device. One of these had been bought but training was necessary about its use. He had advised the Applicant that readings should be taken regularly and a record kept as a defence tactic in the case of any complaints or reviews of the licence.
In answer to a question the District Environmental Health Officer confirmed that no decibel limits would need to be specified if the licence contained the suggested condition that sound from the licensed premises should not be clearly audible at the boundary of any noise sensitive premises."
Mr Graham went on that he had considered the condition recommended by the District Environmental Health Officer and had taken the view that it was not in accordance:
"... with public guidelines and questioned how anyone could prove what would be audible at the edge of the Estate. Mr Graham added that guidelines could be registered by the Applicant once the noise survey had been carried out."
Thus, at the licensing meeting English Heritage proposed no specific maximum and conceded that, if consideration was to be given to a measured noise maximum, then a noise survey would be required first.
"... we found that the term 'clearly audible' was not a sufficiently precise condition because it was not a scientific measurement and left too much open to interpretation. It was important that any conditions, as stated in the DCM Guidance, should be expressed in unequivocal and unambiguous terms; clarity and simplicity are required- see paragraph 7.15 of the Guidance.
We varied condition 2(b) to read
"Music levels should not exceed LA eq 52 dB over any 15 minute period at a distance of 1 metre from any residential premises."
A consequential variation to condition 2(c) was made in the following terms:
"'The licence holder or representative shall conduct regular assessments of the noise coming from all premises on every occasion the premises are used for regulated entertainment and shall take steps to ensure that the level of noise does not exceed LA eq 52 dB over any 15 minute period at a distance of 1 metre from any residential premises. A written record shall be made of those checks in a log and made available to the Licensing Authority.'"
"c. The costs application had to be considered with reference to section 181 of the Licensing Act 2003.
d. Costs had been incurred by English Heritage. Solicitors acting on behalf of English Heritage had tried to resolve the issue prior to the hearing and there was authority for a condition being imposed in the terms requested as shown by the licence granted at Walmer Castle. Some of the letters from residents living near to Audley End asked for the sound to be monitored by reference to measuring of decibel levels.
e. There was opportunity for Uttlesford District Council to resolve the appeal prior to the hearing; it was in the interest of the Respondents and the local residents that the condition was expressed in terms which were specifically measurable. There was clear authority for the imposition of such a condition as shown by the licence granted at Walmer Castle.
f. English Heritage is a publicly funded organisation. We had to balance the interests of English Heritage as an organisation funded by the public and Uttlesford District Council. Taking into account the above considerations and balancing the interests of the parties, we were of the opinion that the costs of English Heritage should be paid by Uttlesford District Council."
[The court may]
"(2)(b) substitute for the decision appealed against any other decision which could have been made by the licensing authority ... and may make such order as to costs as it thinks fit."
"Was the decision of the Justices to award costs one which reasonable justices properly advised could have come to?"
It is submitted on behalf of the appellant that the justices erred in the exercise of their discretion which, it is averred and conceded, is very wide; see, for example, Crawley Borough Council v Attenborough  All ER(D) 104. In exercising that discretion, the Justices should bear in mind that the costs do not necessarily follow the event, particularly where the local authority has acted reasonably and in good faith in the discharge of its public function. I shall come back to that description of principle in a moment.
"2. What the court will think just and reasonable will depend on all the relevant facts and circumstances of the case before the court. The court may think it just and reasonable that costs should follow the event, but need not think so in all cases covered by the subsection.
3. Where a complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not made in his favour; and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged."
"Although as a matter of strict law the power of the court in such circumstances to award costs is not confined to cases where the Local Authority acted unreasonably and in bad faith, the fact that the Local Authority has acted reasonably and in good faith in the discharge of its public function is plainly a most important factor."