Developing Retail Ltd, R (on the application of) v East Hampshire Magistrates' Court

On an appeal under the Licensing Act 2003, magistrates must consider the licensing authority’s decision and reasons, but may decide on the merits whether it was wrong in light of the evidence. Licensing conditions must be clear, precise and enforceable. A condition requiring noise to be inaudible outside any noise-sensitive premises was too vague without identifying the protected premises, location and measurable noise standard. The matter was therefore remitted for reconsideration. Conditions may regulate different parts of the premises, including areas excluded from the licensable area. Conditions may also be preventative and need not duplicate or await enforcement under other statutory noise regimes, provided they are necessary and proportionate and tailored to the premises.

The claimant sought judicial review of an East Hampshire Magistrates’ Court decision on an appeal from Portsmouth City Council’s licensing sub-committee. The magistrates had added two conditions to a provisional statement under the Licensing Act 2003: vacation of an external balcony by 11 pm and inaudibility of regulated entertainment one metre outside any noise-sensitive premises.

The interested parties sought to strike out the claim, obtain security for costs or adjourn it. The court also considered standing following the alleged rescission of the claimant’s interest in the premises. The substantive issues were whether the noise condition was enforceable, whether the magistrates had jurisdiction to regulate the balcony, and whether the conditions were necessary, proportionate and consistent with the licensing authority’s decision.

1. Preliminary applications. The claimant retained sufficient public-law interest to challenge an error materially affecting the value of the provisional statement, even if its proprietary interest had become contingent. Strike-out after permission was granted was reserved for truly exceptional cases and was inappropriate here. Applications for security for costs and an adjournment were refused.
2. Appeal approach. Applying Hope and Glory Public House Limited v City of Westminster Magistrates’ Court and Others [2010] EWCA (Civ) 707, the magistrates had to give careful attention to the licensing authority’s reasons. Their task was nevertheless a fresh evidential hearing on whether the decision was wrong, rather than judicial review on Wednesbury grounds. Where a statutory discretion to impose conditions had been exercised, they should ordinarily assess whether that discretion was wrong in light of the reasons and the proposed conditions.
3. Noise condition. A licensing condition must state clearly what is required because breach may attract criminal sanctions. Following the principle stated in Crawley Borough Council v Attenborough [2006] 1 70 JPR 593, the noise condition was unenforceably vague. It did not identify the relevant noise-sensitive premises or location and gave no sufficiently precise meaning to inaudibility. The condition was quashed, but the issue was remitted so that a lawful condition could be considered, potentially by identifying particular residential locations and a specified decibel level measured at a specified place and time.
4. Balcony condition. The definition of premises and section 19(10) permitted different conditions for different parts of the premises. The balcony formed part of the premises even though it was outside the marked licensable area. The magistrates were therefore entitled to require its vacation after 11 pm.
5. Necessity and proportionality. The balcony condition was preventative, tailored to the premises and directed at late-night open-air noise. Other statutory regimes did not prevent additional licensing conditions where supplementary preventive measures were necessary. The magistrates were entitled to regard the exclusion of the balcony from the council’s condition as anomalous and unreasonable. The challenge to that condition was dismissed.

This was a first-instance judicial review claim. Permission was granted on 29 July 2010 by His Honour Judge Cooke QC. The claim challenged the decision of the East Hampshire Magistrates’ Court dated 8 June 2009, which had varied Portsmouth City Council’s provisional statement conditions.