England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		24th February 2009

1. THE DEPUTY JUDGE: This is a claim for judicial review of decisions of the Bristol Magistrates' Court brought by Bristol City Council. Permission to make this claim was granted by Mr Neil Garnham QC sitting as a Deputy High Court Judge.
2. The City Council are the licensing authority for their area for the purpose of Part III of the Licensing Act 2003. In that capacity they are responsible for the grant of licences to use premises for the sale of alcohol and provision of late night refreshment.
3. On July 5th 2007 the interested party, Somerfield Stores Limited, to whom I shall refer as "Somerfield", applied to the Council for such a premises licence for their store at High Street, Shirehampton in Bristol, where Somerfield also operate a petrol filling station, to permit it to sell alcohol for consumption off the premises, 24 hours a day, seven days a week and to permit it to provide late night refreshment indoors and outdoors between 1.00 pm and 5.00 am seven days a week.
4. As relevant representations were received, the Council's licensing sub-committee held a hearing into the application and decided on August 29th 2007 to impose a number of conditions on the premises licence which they granted.
5. Somerfield appealed to the Magistrates' Court. The Magistrates' Court has power to consider any such appeal on its merits and, if they so decide, to substitute for the decision of the licensing authority any other decision which it could have taken. On May 19th 2008 the Magistrates' Court allowed Somerfield's appeal in relation to five of the conditions imposed and decided that Somerfield should be granted a licence without those conditions. It subsequently awarded Somerfield part of its costs. The City Council impugn those decisions of the Magistrates' Court.
6. The conditions removed by the Magistrates' Court were as follows:

"(i) Noise from ventilation, refrigeration or air conditioning plant or equipment shall not cause nuisance to the occupants of any properties in the vicinity.

(ii) All gangways, passages, staircases and exit ways shall at all times be kept entirely free from chairs or any other obstructions and from any article or substance which may cause a person to slip, trip or fall.

(iii) Floor coverings shall be secured so as not to ruck up or cause obstruction. Mats more than 1 cm thick shall be sunk to floor level unless of rubber with wide bevelled edges.

(iv) The floors of all gangways, lobbies, corridors, passages and other exit routes and the tread of all steps and stairways shall be non-slippery and flat. The nosings of the treads with steps, changes of level and stairways shall be of a contrasting colour to the remainder of the tread. The nosings shall show up clearly under emergency lighting conditions.

(v) No accumulation of combustible rubbish, dirt, surplus material or stored goods shall be permitted to remain in any part of the premises except in an appropriate place and of such quantities so as not to cause nuisance."

7. The basic ground upon which the Magistrates' Court allowed Somerfield's appeal was that they did not consider that the five conditions were necessary to promote the licensing objectives as the matters covered were adequately dealt with by other existing legislation.
8. The Council contends that the operating schedule submitted with Somerfield's application was deficient and that the Magistrates' Court failed to recognise that conditions had to be imposed to deal with that deficiency; that the Magistrates' Court erred in considering that it could not lawfully strengthen other legislation governing the operation of the premises without specific reasons relating to the premises in question; and that the Council made more specific errors when dealing with the specific conditions in issue.
9. Any application for a premises licence must be accompanied, amongst other things, by an operating schedule. That is a document which, in accordance with section 17(4) of the Licensing Act 2003, must be in a prescribed form and it must include a statement about certain prescribed matters. Those matters include, by virtue of section 17(4)(g), a statement of the steps which is proposed to take to promote the licensing objectives.
10. When an application has been made in accordance with the requirements specified in section 17, and advertised in accordance with that section, the licensing authority must determine it in accordance with section 18. That section provides so far as relevant as follows:

"(2) Subject to subsection (3), the authority must grant the licence in accordance with the application subject only to—

(a) such conditions as are consistent with the operating schedule accompanying the application, and

(b) any conditions which must under section 19, 20 or 21 be included in the licence.

(3) Where relevant representations are made, the authority must—

(a) hold a hearing to consider them, unless the authority, the applicant and each person who has made such representations agree that a hearing is unnecessary, and

(b) having regard to the representations, take such of the steps mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives.

(4) The steps are—

(a) to grant the licence subject to—

(i) the conditions mentioned in subsection (2)(a) modified to such extent as the authority considers necessary for the promotion of the licensing objectives, and

(ii) any condition which must under section 19, 20 or 21 be included in the licence;

(b) to exclude from the scope of the licence any of the licensable activities to which the application relates;

(c) to refuse to specify a person in the licence as the premises supervisor;

(d) to reject the application.

(5) For the purposes of subsection (4)(a)(i) the conditions mentioned in subsection (2)(a) are modified if any of them is altered or omitted or any new condition is added."

11. The reference to the "licensing objectives" is a reference back to section 4 of the Act, which provides as follows:

"(1) A licensing authority must carry out its functions under this Act ('licensing functions') with a view to promoting the licensing objectives.

(2) The licensing objectives are—

(a) the prevention of crime and disorder;

(b) public safety;

(c) the prevention of public nuisance; and

(d) the protection of children from harm."

Section 4(3) also provides that:

"(3) In carrying out its licensing functions, a licensing authority must also have regard to—

(a) its licensing statement published under section 5, and

(b) any guidance issued by the Secretary of State under section 182."

The licensing statement, which a local authority must publish, is a statement in which of its policy with respect to the exercise of its licensing functions. The Secretary of State's guidance under section 182 is guidance to the licensing authorities on the discharge of their functions under this Act. A draft of any guidance issue by the Secretary of State under section 182 has to be laid before and approved by each house of Parliament before the Secretary of State issues it.

The Operating Schedule

12. On behalf of the Council, Mr Wadsley submitted that a licensing authority is under a duty to impose conditions consistent with an operating schedule under section 18(2)(a), regardless of whether they will be required to promote the licensing objectives, and under section 18(4)(a), albeit in such a case with modifications for that purpose. Accordingly, so he submitted, the statement of the steps to promote the licensing objectives which an operating schedule has to contain must be expressed in language capable of being enforced as a condition.
13. Mr Wadsley submitted that the operating schedule in the case of this application did not comply with that requirement as the statement of the steps proposed to be taken was in general vague or in unclear terms. In addition, he submitted it was deficient in its content. Accordingly, so he submitted, conditions such as those which were the subject of the appeal were required whether or not they were necessary to promote the licensing objectives.
14. He further submitted that when reliance is to be placed on other statutory provisions to achieve licensing objectives, an applicant must state he is relying on those provisions and how those provisions will regulate his operation of the premises if licenced.
15. In my judgment, there are two separate questions raised by the Council's contentions. The first concerns the validity of an application for a premises licence. The second concerns how a valid application is to be dealt with.
16. The first question is whether any application for a premises licence has been made in accordance with section 17. If it has not been so made, then the licensing authority has no power to grant any licence (see section 17(1)(a)). To be made in accordance with section 17, an application has to be in the prescribed form and be accompanied by an operating schedule in a prescribed form, which includes, among other matters, a statement of the steps which is proposed to take to promote the licensing objectives.
17. In this case, the application was made in the prescribed form, containing (in section P) a description of the steps which Somerfield intended to take to promote the four licensing objectives. Notwithstanding Mr Wadsley's submissions the Council accepted that Somerfield's application had been made in accordance with section 17 and determined it. In my judgment, they were plainly right to do so.
18. Mr Wadsley submitted that to be valid the steps proposed must be expressed in language which makes them capable of being enforced as a condition. That is because, so he submitted, the operating schedule becomes part of any licence granted under section 18(2)(a) or 18(4)(a)(i). In my judgment, this argument is based on a false premise. The operating schedule is not included as such automatically in any premises licence which is granted. It is a criminal offence to fail to comply with whatever the operating schedule contains only if, and to the extent that, what is in the schedule is included in the premises licence ultimately granted, for example, by way of condition.
19. There is no statutory provision which incorporates the operating schedule submitted into any premises licence automatically. The prescribed form does not require the premises licence to be granted in accordance with the operating schedule. Nor does section 18(2) require the schedule to be incorporated. That provision gives a licensing authority a power to impose conditions consistent with the schedule. It does not impose a duty to impose conditions that reproduce the effect of the operating schedule.
20. In my judgment, therefore, it is the premises licence and any condition which the licensing authority may impose on a premises licence, rather than the operating schedule itself, which is required to be sufficiently certain to be enforceable. Thus, the prescribed form does not require an applicant to state what conditions he is proposing should be attached to any premises licence. As the Secretary of State's guidance indicates in a number of places, for example in paragraph 9.2, it is for the authority to:

"translate the proposals contained in the operating schedule to promote the licence objectives into clear and understandable conditions."

21. Plainly it is desirable that an operating schedule should describe any steps proposed as clearly as possible, so that those considering the application are clear as to what it may involve and whether any other steps are required to promote the licensing objectives. But, if the steps are proposed in language which is general or opaque, the licensing authority may impose a condition describing more specifically and concretely what is proposed if that is necessary to promote the licensing objectives. Such a condition would be consistent with the operating schedule, it would just be more specific.
22. The other type of complaint which the Council makes concerns an operating schedule which does not specify steps to deal with matters which the licensing authority itself considers should be addressed, or which does not do so in their view in sufficient detail.
23. Whilst the possibility cannot be excluded that an application may be so deficient in information that it cannot be said to comply with the requirements of section 17, the fact that it does not address all the matters which a licensing authority considers it should do to promote the full licensing objectives, or that it does not do so in sufficient detail, does not invalidate the application. The operating schedule is only required to include a statement of such steps as the applicant proposes to take to promote the licensing objectives, not those which the authority thinks he should take.
24. As Richards J (as he then was) stated in R (On the application of British Beer and Pub Association & Ors v Canterbury City Council [2005] EWHC 1318 (Admin) at paragraph 85:

"The scheme of the legislation is to leave it to applicants to determine what to include in their applications, subject to the requirements of section 17 and the Regulations as to the prescribed form and the inclusion of ... specified matters in the operating schedule."

25. More specifically the Council contend that, where reliance is to be placed on other statutory provisions to achieve the licensing objectives, an applicant must state that he is relying on such provisions and how those provisions will regulate his operation of the premises if licenced.
26. Plainly, an applicant may intend to promote the licensing objectives by complying with other legislation. As the Secretary of State states, in paragraph 8.32 of the statutory guidance:

"For some premises, it is entirely possible that no measures will be needed to promote one or more of the licensing objectives, for example, because they are adequately dealt with by other existing legislation."

27. The question remains whether an applicant needs to say so specifically in the operating schedule. The Department for Culture, Media and Sport have issued non statutory guidance to the applicants for a premises licence. This states:

"Don't forget that you should already be abiding by relevant legislation in other areas. Your starting point should be compliance with these requirements. If you feel there is nothing more you need to do, then you might wish to write 'N/A' or something like 'nothing beyond existing Health and Safety/Fire Safety etc requirements'. This shows you have considered the objectives and come to a decision that you have nothing additional to do and not that you have forgotten to write anything in this section."

28. The assumption underlying this guidance is that it is only necessary to refer in the operating schedule to the steps which an applicant intends to take to promote the licensing objectives which are additional to whatever is required to comply with other legislation.
29. In my judgment, this is not an issue which it is necessary to resolve on this claim for judicial review. The Council in this case accepted that the application was valid given what it did state. The omission to state a step which an applicant may intend to take promote the licensing objectives does not invalidate his application, he has simply not proposed it as a step in the operating schedule.
30. In my judgment, the Magistrates' Court was entitled to conclude that the application was made in accordance with section 17. It is irrelevant to its validity whether the application is made in accordance with any guidance from the Secretary of State or the licensing statement. It should be noted that both of those documents are intended to guide the licensing authority in the discharge of its functions. They are not directed, as such, to provide guidance to applicants.
31. The second question, given that an application has been made in accordance with section 17, is what is then required. The Council contends that conditions consistent with the operating schedule must be imposed by a licensing authority under section 18(2)(a) or 18(4)(a)(i) and that the licensing authority:

"Must render what the applicant says into enforceable conditions. That is what the Council did. The magistrates' decision fails to recognise that conditions to deal with the operating schedule had to be imposed. The issue was not simply whether the conditions were duplicated by other legislation

... but whether what was done had to be done as a result of sections 18(2)(a) and 18(4)(a)(i) ie produce conditions consistent with the operating schedule ...' The magistrates did not grapple with this issue although it was raised by the Council in their submissions and hence an important issue has not been dealt with. If it had been it would have been decided in favour of the Council.'"

32. In my judgment, this submission assumes that the conditions which were the subject of the appeal were imposed as being conditions of the type mentioned in section 18(2)(a), namely that they were such conditions as are consistent with the operating schedule. That was not in fact the case. Following the prescribed form, the premises licence in this case has three annexes. The first dealing with mandatory conditions, the second with conditions consistent with the operating schedule, and third, with conditions attached after a hearing by the licensing authority. The conditions which are the subject of this claim were imposed in Annex 3. They were not imposed as being conditions consistent with the operating schedule. They are imposed pursuant to the powers conferred by section 18(3) and subsection (4)(a). Accordingly they were imposed as the authority thought them necessary for the promotion of the licensing objectives.
33. But, in my judgment, this submission is misconceived in law whether the conditions being imposed under section 18(2)(a) or 18(4)(a)(i). Apart from the mandatory conditions which must be included under sections 19, 20 or 21 of the 2003 Act, there is no obligation imposed by section 18(2) or 18(4) to impose any condition. The licensing authority have power to impose conditions under those provisions, a power which they must exercise, in accordance with the general duty imposed by section 4 subsection (1), with a view to promoting the licensing objectives. In my judgment there is no legal obligation to impose a condition, in order to promote the licensing objectives, to give effect to anything contained in the operating schedule if, for example, the authority considers that compliance with other legislation is sufficient for that purpose.
34. Thus, the Secretary of State in statutory guidance states:

"10.12 It is perfectly possible that in certain cases, because the test is one of necessity, where there are other legislative provisions which are relevant and must be observed by the applicant, no additional conditions at all are needed to promote the licensing objectives...

10.15. Licencing authorities should only impose conditions which are necessary and proportionate for the promotion for licensing objectives. If other existing law already places certain statutory responsibilities on an employer or operator of premises, it cannot be necessary to impose the same or similar duties...

10.18 However, these general duties will not always adequately address specific issues that arise on the premises in connection with, for example, certain types of entertainment. It is only where additional and supplementary measures are necessary to promote the licensing objectives that conditions will need to be attached to the licence."

35. In my judgment, even under section 18(2), there is no obligation to impose a condition to give effect to the operating schedule if that condition is not necessary to promote the licensing objectives. Indeed, if the operating schedule contained matters which would in fact harm the achievement of the licensing objectives, it is hard to conceive that Parliament would have required a licensing authority to impose such a condition.
36. Mr Wadsley made a number of further submissions on what a licensing authority should do if the description of the steps to be taken is deficient in scope or detail in its view under section 18(2) or 18(4)(a). In the circumstances it is unnecessary, in my judgment, for me to express any concluded view on those submissions in order to deal with this claim and accordingly I do not propose to do so.

Other Legislation: the alleged misdirection

37. Mr Wadsley submitted that the Magistrates' Court erred in law in considering that it could not lawfully strengthen other legislation governing the operation of the premises without specific reasons relating to the premises in question. What the Magistrates' Court said was this:

"We agree with the City Council's desire to control licensed premises and prevent them disturbing the communities in which they trade. We do not however consider that they can lawfully strengthen Parliament's clearly stated statutory provision without specific reasons which relate to the premises in question. Whilst it was stated that these were not generic conditions but ones imposed for these specific premises we could not find any evidence that these conditions were specific to these premises and necessary. We find that disappointing as the imposition of appropriate conditions is a necessary within the licensing sector and we encourage their use.

Whilst the operating schedule deals with the issues generically we find that it is sufficient for the premises in question and complies with both the law and guidance. We do not find that conditions such as the ones considered are necessary to promote the licensing objectives as they are adequately dealt with by existing legislation and accordingly do not need to be specifically dealt with in the operating schedule."

38. In my judgment, the statement by the Magistrates' Court in the first of these two paragraphs, that they did not consider that a licensing authority can lawfully strengthen Parliament's clearly stated statutory provisions without specific reasons which relate to the premises in question, may go too far. A licensing authority has power to impose conditions that are necessary to promote the licensing objectives. Such a condition may be unnecessary if the relevant objective is sufficiently secured by the application of other legislation. That may involve a judgment about what is necessary to promote the licensing objectives in a particular case and what any other relevant legislation provides. Such other legislation may be relevant, but insufficient generally to achieve what is necessary to promote the licensing objectives. Alternatively it may be generally sufficient but, for some reason it may be insufficient in a particular case. It may be the case, therefore, that it is unnecessary to show that there are specific reasons relating to the particular premises why any other relevant legislation is insufficient. In my judgment, however, the view which the Magistrates' Court expressed was not necessary for its decision. In my judgment the basis for their decision is to be found in the last sentence of the second paragraph to which I have referred. The Magistrates' Court did not consider that the conditions in issue were ones which were necessary to promote the licensing objectives as the matters in question were, in that courts's view, adequately dealt with by existing legislation, a matter which becomes plain when their reasoning on the individual conditions is examined.
39. The substantive question, in my judgment, is therefore whether that was a conclusion to which they were entitled to come in the case of each condition.

Noise

40. The Council point out that the premises are in a residential area and have long opening hours; that there was evidence of noise nuisance and that the operating schedule contained no steps to deal with any public nuisance from noise.
41. It may well be said that the description in the operating schedule was uninformative of itself. Dealing with all licensing objectives effectively Somerfield stated that their existing operating procedures and policies would be applied.
42. The Magistrates' decision on this point was as follows: they firstly referred to the condition (which I have referred to as "Condition (i)") that:

"Noise from any ventilation, refrigeration or air conditioning plant or equipment shall not cause nuisance to the occupants of any properties in the vicinity."

They then stated this:

"It is clear that section 79 of the Environmental Protection Act 1990 (EPA) provides noise omitted from premises so as to be prejudicial to health or a nuisance is a statutory nuisance. Section 80 of that Act provides enforcement procedures. We have listened to the arguments of both parties. The Respondents suggest that this condition does not duplicate as statutory nuisance does not include low level nuisance. We are not convinced that it is necessary to impose a condition to prevent any nuisance which is not of a sufficient level to be caught by the EPA. The Respondent also says that the EPA requires them to be 'satisfied' that there is a statutory nuisance. They say that this is a high threshold and requires evidence. We do not see how any breach of licence can be proved without evidence so do not find this argument persuasive. The Respondents pointed out that the EPA provides a statutory defence of Best Practical Means. They say that this means the condition is not duplicate as it provides a preventative rather than curative remedy. We note the guidance at paragraph 10.15 of the Secretary of State's Guidance. The Guidance is clear that where other statutory provisions are in place it cannot be necessary to impose the same or similar duties. Paragraph 10.18 [of] the guidance further states that 'the general duties will not always adequately address specific issues that arise on the premises in connection with, for example, certain types of entertainment. It is only where additional and supplement measures are necessary to promote the licensing objectives that conditions will need to be attached to the licence.

Whilst we can see the attraction of this condition to the Licensing Authority we do not feel it is necessary and proportionate. If the fact that a licensing condition is preventative and a statutory provision reactive were sufficient to prevent the condition being considered duplicate then the Secretary of State's Guidance at paragraph 10.15 would be without meaning as the conditions it seeks to prevent would never be found to offend the guidance. The other statutory responsibilities seem perfectly adequate and we have heard no evidence to suggest that these premises have any specific issues which justify additional measures to those which parliament have passed to cover these as well as other types of premises."

43. Mr Wadsley submits that the provisions of the Environment Protection Act 1990 dealing with statutory nuisances were inadequate as they involved a requirement to serve an abatement notice, which may be the subject of an appeal during which its requirements are suspended, and that there is a defence to any failure to comply with the requirements of notice that best practical means have been adopted. This he characterises as a reactive rather than the sort of preventative measure which is required to promote the licensing objectives in accordance with the guidance of the Secretary of State and resubmits the defence is wider than is desirable. In the case of a failure to comply with conditions of a licence under the Licensing Act 2003 the relevant defence is one of due diligence (see section 139).
44. If Mr Wadsley is correct in such submissions, then reliance on such provisions in the Environmental Protection Act 1990 dealing with statutory nuisances would never be sufficient. But that is not what this Secretary of State's guidance suggests. At paragraph 2.35 it is stated that:

"As with all conditions, it will be clear that conditions relating to noise nuisance may not be necessary in certain circumstances where the provisions of the Environmental Protection Act 1990, the Noise Act 1996, or the Clean Neighbourhoods and Environment Act 2005 adequately protect those living in the vicinity of the premises. But as stated earlier in this Guidance, the approach of licensing authorities and responsible authorities should be one of prevention and when their powers are engaged, licensing authorities should be aware of the fact that other legislation may not adequately cover concerns raised in relevant representations and additional conditions may be necessary."

45. In my judgment, whether reliance on the provisions relating to statutory nuisance in the Environmental Protection Act 1990 is sufficient, so that no more is necessary to promote the licensing objectives, is a matter of judgment in any particular case. The Magistrates' Court were plainly familiar with the relevant statutory scheme in the 1990 Act and their conclusion that those other provisions seem perfectly adequate and that they had heard no evidence to justify additional measures was a conclusion which, in my judgment, they were entitled to reach.
46. Mr Wadsley suggested that the objective of the prevention of public nuisance was not limited to a public nuisance as a matter of tort or criminal law, whereas the provisions of the Environmental Protection Act 1990 apply only to nuisances, whether the public or private, which are actionable in tort. Whether or not that is so does not matter, in my judgment, for present purposes. The magistrates came to the conclusion that they did not consider that it was necessary to impose a condition to prevent any nuisance which is not of a sufficient level to be caught by the Environmental Protection Act 1990 and, in my judgment, that was a conclusion they were entitled to reach.

Tipping and Slipping

47. Mr Wadsley further contended that the Magistrates' Court erred in its approach to the three conditions concerned with tripping and slipping, which I have numbered (ii), (iii) and (iv). What the Magistrates' Court said about these conditions was as follows. In respect of condition (ii) that:

"All gangways, passages, staircases and exit ways shall at all times be kept entirely free from chairs or any other obstructions and from any article or substance which may cause a person to slip, trip or fall..."

they made these observations:

We do not find that this condition is necessary for similar reasons [and interpolate for those similar to those relating to noise]. We are satisfied that the Health and Safety at Work Act 1974 and Management of Health and Safety at Work Regulations 1999 make this condition duplicitous.

Regulation 12(3) [I interpolate they were there referring to the work case (Health Safetly and Welfare Regulation 1992)] states 'So far as is reasonably practical every floor in a workplace and the surface of ever traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall.' We do not find that this conditions imposes an additional duty nor that it is necessary."

In respect of the third condition that:

"Floor coverings shall be secured so as not to ruck up or cause obstruction. Mats more than 1 cm thick shall be sunk to floor level unless of rubber with wide bevelled edges."

the Magistrates' Court stated as follows:

"We do not find this condition necessary as again the mischief is adequately dealt with by the Health and Safety at Work Act 1974, the Management of Health and Safety at Work Regulations 1999 and the Workplace (Health, Safety and Welfare Regulations 1992). We again have heard no evidence that these premises have any specific issue which would justify inclusion of this additional condition."

Finally in relation to condition (iv) that:

"The floors of all gangways, lobbies, corridors, passages and other exit routes and the tread of all steps and stairways shall be non-slippery and flat. The nosings of the treads of steps, changes of level and stairways shall be of a contrasting colour to the remainder of the tread. The nosings shall show up clearly under emergency lighting conditions."

the Magistrates' Court made the following observations:

"For similar reason we are not satisfied that this condition is necessary. The Health and Safety at Work Act 1974, the management of Health and Safety at Work Regulations 1999 and the Workplace (Health, Safety and Welfare Regulations 1992) all seem to cover the issues to which this condition is addressed. This condition does not appear to relate to any specific issue at the premises and seems to be almost entirely superfluous. The City Council were unable to present any evidence that the premises had any change in level and therefore the majority of this condition appears to be wholly generic and unspecific."

48. It is plain, therefore, that the Magistrates' Court thought that these conditions were generally unnecessary as the matters were adequately dealt with by other legislation. In my judgment, that was a conclusion they were entitled to reach.
49. Mr Wadsley submitted, however, that the 1992 and the 1999 Regulations apply only to impose duties to protect employees rather than members of the public. That I do not accept. Taking the 1999 regulations by way of example, regulation 3(1) of those regulations provides that:

"Every employer shall make a suitable and sufficient assessment of-

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b) the risk to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking, for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precaution (Workplace) Regulation 1997".

The reference to the relevant statutory provisions include a reference to all the provisions of Part I of the Health and Safety at Work Act 1974 (see section 53(1) of that Act). Those provisions include the duty imposed by section 3(1) of that Act on every employer:

"To conduct his undertaking in such a way as to ensure, so far as reasonably practicable that persons not in his employment, who may be affected thereby are not thereby exposed to risks to their health and safety."

Similarly regulation 4 of the 1999 regulations provides:

"Where an employer implements any preventative and protective measures he shall do so on the basis of the principles specified in Schedule 1 of the Regulations."

The reference to "any preventative and protective measures" is a reference to the measures which have been identified by the employer in consequence of the assessment of the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.

50. Although the Health and Safety at Work legislation is concerned with the workplace and with protecting employees, it is also concerned with imposing a duty on employers, so far as reasonably practicable, to protect members of the public. Furthermore, it is an offence to fail to comply with either set of regulations (see section 33(1)(c) of the 1974 Act). The regulations are not expressed, so far as relevant, that an offence is only committed when an employee suffers through a failure to comply with them.
51. Moreover, as Mr Gouriet QC, who appeared on behalf of Somerfield pointed out, there is no reason to believe that compliance with the duties relied upon by the Magistrates' Court will in any event be insufficient to protect members of the public from tripping and slipping.

Accumulations of Rubbish

52. Finally, Mr Wadsley impugned what the Magistrates' Court had to say about the fifth condition, which relates to the accumulation of rubbish. That condition provided:

"No accumulation of combustible rubbish, dirt, surplus material or stored goods shall be permitted to remain in any part of the premises except in an appropriate place and of such quantities so as not to cause nuisance."

The Magistrates' Court said of that condition:

"We find that the terms of this condition are adequately dealt with by the Environmental Protection Act 1990 and that there are no specific issues at these premises which justify its conclusion."

It may be noted that that conclusion was reached against the background of the appeal against two other conditions which were not in issue, requiring provision of sufficient receptacles for depositing of waste and the adaptation of adequate measures to remove litter or waste.

53. The question therefore for the magistrates was whether an additional condition was necessary or desirable to promote the licensing objectives. In my judgment, the Magistrates' Court was entitled to conclude it was not for the reason it gave. Although Mr Wadsley drew my attention to the provisions with litter to found in Part IV of the Environmental Protection Act 1990, in my view the provisions of the legislation which Magistrates' Court plainly had in mind when dealing with the condition which is directed to what results in a nuisance were those in Part III of that Act, dealing with a statutory nuisance. One such statutory nuisance is any accumulation or deposit which is prejudicial to health or a nuisance (see section 79(1)(e)). Accordingly, in my judgment, this claim in so far as it impugns the decision of the Magistrates' Court on Somerfield's appeal must be dismissed.

Costs

54. The Magistrates' Court awarded Somerfield 65 per cent of its costs. In the City of Bradford Metropolitan District Council v Booth (May 10th 2000, CO/319/99) Lord Bingham of Cornhill, giving the judgment of the Divisional Court, said at paragraphs 24 to 26 the following:

"24. 1. Section 64(1) confers a discretion upon a magistrates' court to make such order as to costs as it thinks just and reasonable. That provision applies both to the quantum of the costs (if any) to be paid, but also as to the party (if any) which should pay them.

25. 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.

26. 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."

That guidance was expressed to relate to section 64 of the Magistrates' Court Act 1980.

55. In Crawley Borough Council v Attenborough [2006] EWHC 1278 (Admin) Scott Baker LJ, giving the judgment of the Divisional Court considered that the same approach should apply in respect of an award of costs under section 181 of the Licensing Act 2000 and, in Cambridge County Council v Alex Nestling Ltd [2006] EWHC 1374 Admin, Richards LJ stated at paragraph 11:

"It is clear that Lord Bingham's guidance did not depend on considerations specific to the licensing of vehicles, but is equally applicable in comparable cases where there is a statutory appeal from a decision of the Local Authority and the court has a broad discretion as to costs. 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."

56. The Council contends that in making the order for costs in this case the Magistrates' Court failed to apply correctly the guidance in Booth or to give any adequate reasons for their decision. There is unfortunately a difficulty about what the reasons for the decision of the Magistrates' Court may have been. Those reasons were given orally and not reduced to writing by the Magistrates' Court. A solicitor in the employment of the Council, who was present at all stages during the proceedings, Mr Naseem Aziz, has stated that what is stated in paragraphs 40 - 42 on the grounds on which relief in this case was sought occurred. It is there stated:

"40. There was no dispute that this was an administrative decision made by the Council, in the circumstances referred to [in the passage from Lord Bingham's judgment]

41. Somerfield accepted that the Booth case applied to their application. It was accepted by Somerfield that they had not suffered any particular financial loss as a result of the proceedings. Somerfield did not allege any impropriety by the Council in resisting the appeal or any unreasonableness. They said the Council had got it wrong.

42. The magistrates said they had considered the Booth case and in ruling that the Council should pay 65 per cent of Somerfield's costs said within their opinion the Council did have a chance to reconsider their position after the second hearing and made the decision to continue. They gave no other reasons."

57. Mr Phillip Crier, a partner in Blake Lapthorn Solicitors acting for Somerfield, says that he addressed the Magistrates' Court on the question of loss. He points out that the appeal to the court was on the basis that the Council's decision was unreasonable and that when drawing the court's attention to the decision in Booth, he did not suggest that the position taken by the Council was reasonable. He does not suggest that the court stated that the position taken by the Council was unreasonable.
58. The Magistrates' Court has filed an acknowledgement of service supported by a statement of truth. This states that:

"The Court did not consider that Bristol City Council's decision to impose the disputed condition had been reasonable or apparently sound. Accordingly a costs order was made in favour of the Appellant for 65% of his cost."

In addition the Chairman of the Magistrates' Court has written a letter, dated February 17th 2009, to the court which states as follows:

"I write at the request of the interested party. In the Claimant's Grounds of Claim... the Claimants state 'the Council cannot understand the reference to the second hearing only. The conditions were imposed and Somerfield then appealed. There was one hearing only. I have been asked to clarify what I meant when I referred to a second hearing. It is a pity that my statement was not queried at the time or in the period between the hearing in May 2008 and now. Having reviewed notes taken at the hearing I have reminded myself of the arguments relating to the costs application. The main issue we considered was whether Bristol City Council had acted reasonably. We had already found that the conditions imposed were not necessary. The appellants had informed us that the same legal arguments made to us had been made to the Bristol City Council Licensing Committee. Despite these arguments the conditions were imposed. Somerfield then appealed against that decision to the Bristol Magistrates' Court. Following the appeal the Bristol City Council held a review of the licence. At this hearing the Bristol City Council were afforded the opportunity to reconsider the legal position and alter the licence conditions should they feel it necessary. The review hearing is the one I referred to as the second hearing when I stated 'We are of the opinion that the Bristol City Council did have the chance to reconsider the conditions at review.' I hope that this clarifies the position."

59. In my judgment this is not a satisfactory method of eliciting the reasons why the Magistrates' Court made the order that it did.
60. It is clear however that the Magistrates' Court were aware of the principles they were to follow. They had Booth drawn to their attention and there was no issue about the approach which they should adopt. I am prepared therefore to infer what is said in acknowledgement of service is correct. Even if it was not said orally, if it was not correct, the Magistrates' Court would have been acting in disregard of what they appeared to have accepted was the law. The fact that they came to the conclusion that the Council had not acted reasonably prompts the question why they did so.
61. Here there is an unfortunate difference between what the Chairman has said in his letter he said and meant and what the other evidence is that he said. The second hearing to which reference was made appears to have been the review of the licence granted held (as a result of the representations that the Council had received) after the appeal in this case had been made but before the hearing in front of the Magistrates' Court. What the Chairman says is that the Council had the opportunity to reconsider the matter at that hearing. What Mr Aziz says the court said when reasons were given was that the Council had the opportunity of doing so after that hearing.
62. Mr Wadsley submits that the Council had no general power to review the conditions which were the subject of the appeal to the Magistrates' Court to ascertain whether they were unnecessary (as Somerfield contended) at the review and did not in fact do so. A licensing authority has no power to initiate a review, only if an interested party or a responsible authority apply for such a review can one be heard. Section 52(3) of the 2003 Act provides:

"The authority must, having regard to the application and any relevant representations, take such of the steps mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives."

That envisages, so Mr Wadsley submits, steps only being taken in response to the application and the relevant representations. It does not, so he submits, entitle the authority to review the licence granted in response to any grounds of appeal against a previous decision which the licensing authority may have taken.

63. Mr Gouriet did not dissent from that approach and, in my judgment, it is correct. Moreover, the conditions in this case were not the subject raised or discussed or reviewed at the review hearing. In these circumstances it would appear that the Magistrates' Court misdirected itself in law if what the Chairman now says that he says is correct.
64. Mr Gouriet suggested that an officer of the authority could have initiated a review. No doubt that may be the case. But that is not the point which the Chairman of the Magistrates' Court was making. The point he was making is that there was a specific opportunity to review the conditions at the review hearing which was actually heard.
65. If what Mr Aziz says the court said is correct then there is no such misdirection. Obviously the Council could have reviewed the position after the review hearing. Equally, it could have reviewed the position before the review hearing. In effect, therefore, this would amount simply to a statement that the Council decided to resist the appeal having seen Somerfield's grounds for appeal. But, if that is so, the reference to the review hearing is unnecessary if what was intended to be conveyed was that the Council acted unreasonably in resisting the appeal having seen the grounds to the appeal. It may be that that is what the Magistrates' Court thought but it is not what it said. In my judgment, the reference to reconsideration after the second hearing leaves unexplained what the significance of the second hearing was.
66. This court will be very slow, in my judgment, to interfere with any judgment made by a Magistrates' Court that a licensing authority has not acted reasonably in resisting an appeal. Having heard the case themselves, that court is in a far better position to judge the reasonableness or otherwise of a Licensing authority's approach. In this case, however, such reasons as the Chairman and the court gave appear to contain a misdirection in law about what the Council could have done on the review hearing, or what in fact it did, or the reference to the second hearing is one which is inexplicable.
67. In these circumstances, in my judgment, the Magistrates' Court had regard to an irrelevant consideration and their decision on costs falls to be quashed.
68. MR GOURIET: We have substantially succeeded before your Lordship, and therefore I ask for the costs to follow the event to be assessed if not agreed, this having been a two day hearing.
69. MR WADSLEY: My Lord, so far as that is concerned, let me say at once that it is a mixed blessing for my learned friend because he has won in part and lost in part plainly. Additionally on 19th February, we, that is to say the City Council, wrote to those instructing my learned friend, pointing out what the Chairman of the magistrates had said, indicating that in the Council's view that was a misdirection on the law in respect of what had happened and that they might want to take instructions and consider, in respect of the costs order, whether they would concede that part of the claim in order to save more time and costs. I mean, I paraphrase, but I am very happy to hand the letter in.
70. My Lord, in those circumstances time has been taken. Your Lordship could, of course, make a split order as to costs. That is done from time to time but I know the costs judges do not like that particularly, it causes them problems. My respectful submission would be that in these circumstances there simply should be no order as to costs.
71. MR GOURIET: Very briefly in reply. If one did bother to do a count one would find something like .5 per cent of the paper involved in this case relates to the issue of costs. Overwhelmingly the time that has been spent and the costs that need not have been incurred by Somerfield have been in relation to the substantive claim. I do not think I can make that argument any better by using other words.
72. THE DEPUTY JUDGE: In this case Somerfield have successfully resisted the Council's case in respect of the Magistrates' decision on the substantive appeal but the Council has succeeded in its claim for judicial review in respect of costs.
73. In my judgment, the appropriate order to make is that Somerfield shall have 75 per cent of its costs, for resisting this claim. The relative amount of time and preparation devoted to the claim, in so far as it related to the substantive appeal, was plainly far greater than that relating to costs. In my judgment, doing the best I can, making an order in those terms will do justice in this case.
74. MR GOURIET: Your Lordship to say to be assessed if not agreed?
75. THE DEPUTY JUDGE: It will be an order that the Council to pay 75 per cent of Somerfield's costs on a standard basis to be assessed if not agreed.