Licensing — Conditions – Appeal – Local licensing authority attaching conditions to appellant’s premises licence after receiving complaints from local residents about noises – Decision upheld on appeal to magistrates’ court under section 181 of Licensing Act 2003 – Correct approach on such appeal – Whether burden lying with appellant to persuade court that decision of licensing authority wrong – Permission for judicial review refused – Appeal dismissed
The appellant owned a public house that operated under a licence for the sale and supply of alcohol and for the provision of entertainment and late-night refreshment. The local council, as the licensing authority, reviewed the licence following complaints from residents about the level of noise in the evenings resulting from customers congregating on the street outside the premises. The council’s licensing subcommittee attached conditions to the licence in an attempt to stop the public nuisance caused by the noise. The main condition provided that, after 6pm, no customer should be permitted to take drink from the premises in an open container.
The appellant appealed to the magistrates’ court under section 181 of, and Schedule 5 to, the Licensing Act 2003. The district judge considered the correct approach on such an appeal and directed himself that the decision of the licensing subcommittee should be overturned only if he was satisfied that it was wrong. Dismissing the appeal, he concluded that there was clear evidence of public nuisance and that the conditions imposed by the subcommittee were necessary and proportionate to ensure the promotion of the licensing objectives.
The appellant applied for a judicial review of that decision; permission was refused and it appealed, contending that the district judge had erred in law in placing on it the burden of disproving that the noise caused by customers amounted to a nuisance. It submitted that: (i) the appeal before the district judge was a fresh hearing, where the burden lay with the licensing authority to prove their allegations of public nuisance and that the modifications to the licence were necessary and proportionate; and (ii) to start with a presumption in favour of the licensing authority both undermined that process and contravened the appellant’s right, under Article 6 of the European Convention on Human Rights, to a fair hearing in the determination of its civil rights.
Held: The appeal was dismissed.
The decision of the licensing authority was a relevant matter for the district judge to take into consideration. The licensing authority were performing an administrative function in discharging their licensing functions, and although they had a duty to behave fairly in the decision-making procedure, the decision was not a judicial or quasi-judicial act but the exercise of a power delegated by the public to decide what the public interest required. The magistrates’ court had to pay careful attention to the licensing authority’s reasons for reaching the decision under appeal, bearing in mind that parliament had chosen to place responsibility for making such decisions on local authorities. The weight that the magistrates should attach to those reasons was a matter for their judgment, taking into account the fullness and clarity of the reasons, the nature of the issues and the nature and quality of the evidence submitted on appeal.
In order to overturn a decision of a licensing authority, the magistrates’ court on appeal would have to be satisfied, on the evidence before it, including any fresh evidence, that the judgment below was wrong, even if it had not been wrong at the time it was made. The onus lay on the appellant to persuade the court that the decision under appeal should be reversed. It was usual for appellants to have the responsibility on appeal, and the Magistrates’ Courts Rules 1981 envisaged that it should be so in the case of statutory appeals to magistrates’ courts from decisions of local authorities. There was no indication that parliament had intended to create an exception in the case of appeals under the 2003 Act. Where the licensing subcommittee had exercised what amounted to a statutory discretion to attach conditions to the licence, it made sense to require the licensee to persuade the magistrates’ court that the subcommittee should not have exercised its discretion in that way, rather than requiring the court to exercise the discretion anew on the hearing of the appeal. That approach was not limited to cases where the decision under appeal was based on considerations of general policy. It was not possible to place all decisions into one of two groups, namely one for where the decision was based on policy considerations and another where it was not: Stepney Borough Council v Joffe [1949] 1 KB 599 and Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 applied.
Further, the form of appeal provided by section 182 of, and Schedule 5 to, the 2003 Act satisfied the requirements of Article 6. There was no general principle in either domestic or European case law that it was incompatible with Article 6 for a party aggrieved by an administrative decision to bear the responsibility of establishing its complaint.
Ian Glen QC and Gordon Bishop (instructed by Jeffrey Green Russell Solicitors) appeared for the appellant; the respondent did not appear and was not represented; David Matthias QC and Emma Dring (instructed by the legal department of Westminster City Council) appeared for the interested party.
Sally Dobson, barrister
