Hope and Glory Public House Ltd, R (on the application of) v City of Westminster Magistrates' Court

An appeal from a licensing committee to the magistrates’ court is a complete rehearing on fresh evidence, but the appellate judge must reverse the earlier decision only if satisfied that it was wrong. This is distinct from judicial review and does not require the appellate judge to ignore the earlier decision.

Whether noise constitutes a public nuisance is principally a question of fact. The nuisance need not affect the whole community. It is enough that its impact is sufficiently widespread or indiscriminate to be more than a private nuisance. Licensing conditions must also be necessary and proportionate to promote the licensing objectives.

The claimant operated a public house in Soho. Following complaints about noise from customers drinking outside, the Licensing Committee reviewed the premises licence under the Licensing Act 2003 and imposed conditions, including a restriction on open-container drinking after 6 pm.

The claimant appealed to Westminster Magistrates’ Court. The District Judge treated the appeal as a rehearing, admitted fresh evidence, and held that he could reverse the committee only if satisfied that its decision was wrong. He upheld the conditions and found a public nuisance. The claimant sought judicial review of the preliminary ruling and the substantive decision.

The central issues were the correct approach to the rehearing, the meaning of public nuisance, the relevance of ambient noise and comparable premises, and the proportionality of the conditions.

1. The applications for permission to apply for judicial review were dismissed. The application for a stay therefore did not arise and was also dismissed. An interim costs order of £10,500 was made, with the balance to be assessed if not agreed.

2. The appeal before the District Judge was a complete rehearing de novo. Fresh evidence could be called, and the hearing was not a judicial review of the Licensing Committee’s decision. However, under Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614, approving Stepney Borough Council v Joffe [1949] 1 AER 256, the District Judge had to decide whether the committee’s decision was wrong. He was not required merely to ask whether he preferred the evidence before him, or to ignore the committee’s decision.

3. The word “wrong” did not mean Wednesbury unreasonable. It required the District Judge, having considered the evidence before him, including fresh evidence, to decide whether he disagreed with the earlier decision to the extent that it was wrong. The claimant accordingly bore the practical onus of showing that the committee’s decision was wrong, and it was permissible for the claimant to begin.

4. The guidance issued under section 182 of the Licensing Act 2003 was not unlawful. Public nuisance need not be very widespread or wholly indiscriminate. Following Attorney-General v P.Y.A. Quarries Ltd, the question was whether the nuisance sufficiently affected a class or section of the public. The District Judge was entitled to find a public nuisance on evidence of noise affecting residents, students and teachers across the relevant area.

5. The District Judge was entitled to consider the character of the neighbourhood. The fact that Soho was noisy did not prevent a further and substantial noise from constituting a nuisance. The evidence showed that the premises generated a significant increase over ambient noise, and the District Judge had addressed that issue.

6. The District Judge had considered proportionality, alternatives and the economic consequences for the claimant. The restriction covering 6 pm to 11 pm corresponded to the period when the evidence showed that the noise nuisance was greatest and was therefore not arguably excessive.

• Westminster Magistrates’ Court: the District Judge reheard the licensing appeal, admitted fresh evidence, upheld the Licensing Committee’s conditions and found a public nuisance.
• High Court (Administrative Court): permission to apply for judicial review was refused and the stay application was dismissed.