QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HOPE AND GLORY PUBLIC HOUSE LTD||Claimant|
|CITY OF WESTMINSTER MAGISTRATES' COURT||Defendant|
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Mr David Matthias QC (instructed by Legal Department, Westminster City Council) appeared on behalf of the Defendant
Crown Copyright ©
"The application was made on the grounds of public nuisance, and we first considered 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 Kemp Court in the evening, the numbers involved ranging from very few, (5 to 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 in particular of Ms Schmidt were exaggerated. He called expert evidence in support of that proposition. We are completely satisfied that the noise is indeed a serious nuisance. We take into account in the light of that conclusion the evidence of Mr Cradock, Ms Schmidt, Mr Bradshaw, complaints made by other local residents and, in particular, the evidence of Mr Ken Agnew."
Mr Bradshaw and Mr Agnew - I interpose - are sound experts.
"[Mr Agnew] had visited Ms Schmidt's flat at relevant times. His evidence was that the noise was intrusive, intolerable and prevented the normal use of the property for residential purposes. Some of the evidence called on behalf of the licensee, in particular that of Mr Rigby, only confirmed that a nuisance existed. For those reasons we reject the conclusions of the licensee's noise expert.
It was also argued by the licensee that, even if a noise nuisance existed, outside drinking was a "fundamental civil liberty" that has gone on in Soho for many years and that the commercial effect of preventing outside drinking would be extremely serious. 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 causes serious and public nuisance to his neighbours."
"Public nuisance is given a statutory meaning in many pieces of legislation. It is however not narrowly defined in the 2003 Act and retains its broad common law meaning. It is important to remember that the prevention of public nuisance could therefore include low-level risk perhaps affecting a few people living locally as well as major disturbance affecting a whole community. It may also include in appropriate circumstances the reduction of the living and working community and environment, interested parties ... in the vicinity of licensed premises."
"The question before me is to determine what is the correct approach to take in hearing this appeal."
(1) note the decision of the Licensing Sub-committee;
(2) not lightly reverse their decision;
(3) only reverse the decision if he were satisfied it is wrong;
(4) … hear evidence;
(5) [conclude that] the correct approach is to consider the promotion of the Licensing Objectives, to look at the Licensing Act 2003, the Guidance made under s182 ..... Westminster's Statement of Licensing Policy and any legal authorities;
(6) … not [be] concerned with the way in which the Licensing Sub-committee approached their decision or the process by which it was made. The correct appeal of such issues lies by way of judicial review.
"Under the licensing law in force before the 2003 Act came into effect it had always been accepted that appeals from local authority committees to the magistrates' court (typically in cases concerning public entertainment licenses) and those from the licensing justices to the Crown Court were not merely reviews of the decision reached at first instance but were rehearings de novo."
There is reference to a number of cases, Sagnata, and the decision of the Divisional Court in R (Chief Constable of Lancashire) v Preston CC;  EWHC Admin 928 per Laws LJ and to the Licensing Guidance. The editors of Paterson conclude:
"If this is meant to suggest that the appeal is by way of review rather than rehearing then we believe that to be wrong."
'Is the hearing to be treated as a new trial to be determined on evidence de novo, without being influenced by what the local authority has done? Or is the hearing to be treated as an appeal proper in which the local authority's decision is to be regarded as of considerable weight and is not to be reversed unless their decision is technically wrong?'"
Edmund Davies LJ continued:
"With profound respect, however, I do not think that this is the proper antithesis, and I shall seek to show that there is a half-way house between these two approaches."
"That does not mean to say that the court of appeal [in this case the District Judge] ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter and ought not lightly, of course, to reverse their opinion."
I interpose to say that if Goddard CJ, and consequently Edmund Davies LJ, had ended there, that would have supported, indeed constituted, the submission of Mr Glen before me, namely that the approach should be that due respect should be paid to the decision below.
"It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its power when it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right."
"On 7 May 2009 I set out that I would only interfere with the decision of the sub-committee if I was satisfied that it was wrong. In fact I am satisfied that it was right."
Indeed in addressing the conditions, he concluded:
"The conditions imposed by the Licensing Sub-committee are necessary and proportionate to ensure the promotion of the Licensing Objectives."
It would in my judgment, given the detailed reasons with which he accompanied the judgment, have made no difference whatever if he had instead said, "The conditions proposed by the Westminster Council are necessary and proportionate to ensure the promotion of the Licensing Objectives".
He then turns to whether the nuisance amounts to a public nuisance:
"I have already found that noise nuisance was caused, by the patrons of The Endurance gathered in Kemps Court to Miss Schmidt, at 17b Berwick Street, and to Miss Rhys-Jenkins Bailey and her students at Westminster College on Hopkins Street. In addition, I note that although they have not given evidence before me, complaints were made about noise caused by the customers of Kemps Court by Tamara Berton of 17 Berwick Street, Mr Estranero of Ingestre Court and at least one other person who has not been identified had made complaint. In addition Walter Rigby had made a complaint.
I find, on the balance of probabilities, that given the number of residents, students and teachers affected and given the geographical spread, the nuisance clearly is a public nuisance."
"I do not propose to attempt a more precise definition of public nuisance than those which emerge from the textbooks and authorities to which I have referred. It is, however, clear, in my opinion, that any nuisance is "public" which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. The sphere of the nuisance may be described generally as "the neighbourhood"; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show the representative cross-section of the class has been so affected for an injunction to be issued."
"a public nuisance affects Her Majesty's subjects generally, whereas a private nuisance only affects particular individuals. But this does not help much. The question, "When do a number of individuals become Her Majesty's subjects generally?" is as difficult to answer as the question "When does a group of people become a crowd?" Everyone has his own views. Even the answer "Two's company, three's a crowd" will not command the assent of those present unless they first agree on "which two". So here I decline to answer the question how many people are necessary to make up Her Majesty's subjects generally. I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large."
"I therefore doubt whether, in a criminal context at least, it is of much help to follow Denning LJ in the civil case of Attorney General v P.Y.A. Quarries Ltd ... and to seek to identify a public nuisance by asking whether the nuisance is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it."
He concluded that there were various ways to define the scope of public nuisance, and plainly did not think that Denning LJ's attempt was one of them.
"What might be a nuisance in Belgrave Square would not be a nuisance in Bermondsey."
"But whatever the standard of comfort in a particular district may be, I think the addition of a fresh noise caused by the defendant's works may be so substantial as to create a legal nuisance. It does not follow that because I live, say, in the manufacturing part of Sheffield I cannot complain if a steam-hammer is introduced next door, and so worked as to render sleep at night almost impossible, although previously to its introduction my house was a reasonably comfortable abode, having regard to the local standard; and it would be no answer to say that the steam-hammer is of the most modern approved pattern and is reasonably worked. In short, if a substantial addition is found as a fact in any particular case, it is no answer to say that the neighbourhood is noisy, and the defendant's machinery is of first-class character."
That must make sense.
"The issue that I have to consider in this appeal is whether the decision of the Sub-Committee was wrong, in that it fails to promote the Licensing Objectives in relation to these premises. The question of equity in relation to other premises cannot form part, in my judgment, of my deliberations. I am solely concerned with the Licensing Objectives in relation to these premises. The Licensing Objectives take into account policy, guidance and case law. So I am afraid whether the other premises are badly run or well run cannot affect the decision that I have to take, and I am not prepared to hear evidence in relation to other premises except so far as is relevant to this appeal and I can see it may be relevant in relation to whether or not the noise complaint emanates from other premises. That is my decision."