Festiva Ltd, R (on the application of) v Highbury Corner Magistrates Court & Anor

On an application for permission to seek judicial review of a licensing appeal, the court must apply the judicial-review threshold of arguability rather than decide the merits. Licensing hours must be considered as a whole, so permission should not ordinarily be confined to one part of the weekly schedule. Where a licensing authority reduces hours after evidence of nuisance on some days, a challenge may remain arguable if the appellate decision gives no adequate separate reasoning for restrictions on other days, particularly where the available evidence indicates no nuisance on those days.

Festiva Ltd sought permission to apply for judicial review of a decision by District Judge McPhee, sitting at Highbury Corner Magistrates’ Court, which dismissed its appeal against a Licensing Sub-Committee’s reduction of the permitted hours at the Parker Macmillan nightclub.

The District Judge found significant weekend noise nuisance and poor management, but accepted that the available evidence showed no nuisance from Sunday to Thursday. He nevertheless declined to interfere with the reduced hours on those days. The central issues were whether that reasoning was arguable and whether permission could properly be limited to particular days.

1. Permission granted. The claimant’s grounds were reasonably arguable. The court was required at this stage to apply the judicial-review test and not determine whether the District Judge’s decision was ultimately lawful.
2. The Court of Appeal’s decision in Hope and Glory Public House Ltd v The City of Westminster Magistrates Court, [2009] EWHC 1996 (Admin), was relevant background. On an appeal from a Licensing Sub-Committee, the Magistrates’ Court had to address whether the committee’s decision was wrong in light of the evidence before it, rather than ignore the decision or merely pay regard to it.
3. The District Judge had given detailed consideration to the weekend position and accepted findings of significant disturbance, inadequate control of dispersal noise and poor management.
4. There was, however, a striking contrast between that reasoning and the single-paragraph treatment of Sunday to Thursday. The District Judge expressly accepted that the available evidence showed that the premises did not cause nuisance on those days, while the Sub-Committee had given no separate reason for restricting them. It was reasonably arguable that the District Judge had failed to form his own conclusion as to whether the restriction was necessary to promote the licensing objectives, or had reached an irrational conclusion.
5. It was neither practicable nor appropriate to grant permission only in relation to Sunday-to-Thursday hours. Licensing hours had to be considered as a whole. Permission was therefore granted on all grounds.
6. The stay on the reduction of hours was continued because of the claimant’s serious financial exposure and the apparent concentration of historic complaints on noise after 3.00 am. The claimant undertook not to permit licensable activities after the permitted hours or after 2.00 am on Saturday and Sunday mornings, whether by Temporary Event Notice or otherwise. The Council or a resident who had given evidence could apply on 48 hours’ notice to lift or vary the stay. The hearing was directed to be expedited.

The judgment itself describes the underlying licensing appeal:

• Licensing Sub-Committee: reduced the claimant’s permitted licensing hours on 12 July 2010.
• Highbury Corner Magistrates’ Court: District Judge McPhee dismissed the claimant’s appeal on 25 November 2010.
• High Court (Administrative Court): granted permission to apply for judicial review on all grounds and continued the stay subject to further undertakings.