Bushell & Ors, R (on the application of) v Newcastle Upon Tyne Licensing Justices & Ors [2004] EWHC 446 (Admin)

Case No CO/6473/2003

[2004] EWHC 446 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15 March 2004

Before

THE HONOURABLE MR JUSTICE LIGHTMAN

Between

THE QUEENClaimants

On the application of RON BUSHELL (and others)Claimant

(1)THE NEWCASTLE UPON TYNE LICENSING JUSTICESDefendants

(2) ULTIMATE LEISURE GROUP PLCDefendant

NEWCASTLE CITY COUNCILInterested Parties

RINDBERG HOLDING COMPANY LIMITEDInterested Party

PEEL HOTELS LIMITEDInterested Party

PETER BURKE & GAIL REVELLInterested Party

Mr John Steel QC, Mr Gerald Gouriet and Mr Robert Walton (instructed by Eversheds LLP, Central Square South, Orchard Street, Newcastle-Upon-Tyne NE1 3XX) for Claimants

Mr Ian Dove QC and Mr Charles Holland (instructed by Mincoffs, Kensington House, 4-6 Osborne Road, Newcastle-Upon-Tyne, Tyne & Wear NE2 2AA) for Second Defendant

Mr James Rankin (instructed by Eversheds LLP, Central Square South, Orchard Street, Newcastle-Upon-Tyne NE1 3XX) for Second and Third Interested Parties

Hearing Hearing dates : 6 th& 9th February & 4th March 2004

JUDGMENT

I. INTRODUCTION

[1]I have before me an application by Mr Ron Bushell and four others (“the Claimants”) supported by five interested parties (“the Interested Parties”) for permission to apply for an order quashing the decision dated the 1st December 2003 (“the Decision”) of the first defendant Newcastle Licensing Justices (“the Justices”) granting the application for special removal of an old on-licence (“the Licence”) from Mims Bar (“Mims”) to The Gresham Hotel (“the Gresham”), and, if such permission is granted, an application for the order itself. For the reasons which will subsequently appear, I think that the Claimants have a properly arguable case and that permission should be given, and I accordingly determine the substantive application.

[2]The successful application to the Justices for the special removal had been made by the second defendant Ultimate Leisure Plc (“Ultimate”). The application to the Justices had been opposed by the Claimants, who live variously adjacent to and in the vicinity of the Gresham and are representative of many hundreds of local people who have objected to the licensing of the Gresham as a public house with music, and by the Interested Parties. Of the Interested Parties only Rindberg Holding Company Limited (“Rindberg”) and Peel Hotels Limited (“Peel”) were represented before me. They are trade objectors who operate bars similar in size and style to that proposed by Ultimate. Rindberg has recently underwritten the legal costs of the Claimants who until April 2003 were unrepresented. Mr Burk and Ms Revell also opposed the application to the Justices. They are tenants of 94 Osborne Road (“the Home”), a residential care home immediately adjacent to the Gresham sharing a party wall and managed by St Cuthberts Care. Six of the bedrooms of the Home share a party wall with the Gresham and three of the bedrooms share a party wall with the proposed licensed bars. Newcastle City Council (“the Council”) has submitted a letter in which it gives detailed reasons for supporting the Claimants’ application.

[3]The application to this court raises the issues whether the statutory conditions for the grant of removal were satisfied and whether the Justices’ reasoning for the grant is open to legal challenge. The issues involve questions of construction of the provisions of the Licensing Act 1964 (“the Act”) relating to special removal of old on-licenses which are anachronistic and unfair to members of the public living near the premises to which the licence is proposed to be removed, for the grounds of objection to the removal available to them are strictly and artificially limited and do not allow for proper consideration of the impact of the removal upon them. The grounds are more restricted than those available in respect of any other grant of a licence. Statutory provision for special removal dates back to the Licensing Act 1828. Fortunately the Licensing Act 2003 (“the 2003 Act”) repeals these provisions and, when that legislation comes into force, full and proper protection will be provided for persons in the position of the Claimants and the Interested Parties. But unfortunately no commencement order has been made naming an appointed day and accordingly the 2003 Act has not yet come into force and is only likely to come into force at some time in 2005. In the meantime the special removal provisions of the Act continue in force and Ultimate is fully entitled to pray in aid those provisions and cannot be criticised for doing so.

II. STATUTORY SCHEME UNDER THE ACT

[4]References in this judgment to sections are to sections of the Act.

[5]In the ordinary way a discontinuance of a licence holder’s business on the compulsory acquisition of the premises results in the expiration of the licence. The Act however provides that the licence may be protected by obtaining a certificate of suspension and by removal of the licence to other premises.

(a) Suspension

[6]Section 141 authorises the Commissioners of Customs and Excise (“the CCE”) to grant a certificate of suspension of a licence which keeps the licence alive where “the business is temporarily discontinued by reason of the compulsory acquisition, or the proposed compulsory acquisition, of licensed premises in which the business was carried on”. It is to be noted that(1) the suspension of the licence is apposite only where the discontinuance of the business is temporary and

(2) for the purposes of section 1441 it is sufficient that the compulsory acquisition of the premises is merely proposed.

(b) Removal

[7]Section 3(2) provides that a Justices’ licence may be granted by way of “removal”.

(b) provides:

“Removing a justices licence means taking it from the premises for which it was granted and granting it for other premises.”

[8]Removal may be ordinary or special. Section 5 provides that the Justices may grant an ordinary removal of a licence to premises in their licensing district on the application of the person wishing to hold the licence after the removal. An ordinary removal may be granted to ensure continuity of business in advance of any final decision e.g. whether the existing premises should be knocked down or compulsorily acquired or voluntarily sold to a local authority.

[9]By way of contrast section 15(1) provides that in narrowly confined circumstances the Justices may grant a special removal after a final decision has been made to pull down or occupy for a public purpose. Section 15(1) states that, where application is made for the special removal of an old on-licence (i.e. a licence in force on the 15th August 1904) on the ground– “that the premises for which the licence was granted are or are about to be pulled down or occupied under any Act for the improvement of highways or for any other public purpose…”, then (by incorporation of section 12 of the Act) the Justices may only refuse the application on the grounds that:

“(a) the applicant is not a fit and proper person to hold the licence; or (b) the licensed premises have been ill-conducted or that the premises to be licensed are structurally deficient or structurally unsuitable.”

[10]In respect of the foregoing provisions, it should be noted that:(1) the existence of the right to removal (and where available) to special removal on compulsory acquisition of the licensed premises may obviate or mitigate the loss to the licensee arising from the compulsory acquisition and may be reflected in the compensation payable: see Northwood v. LCC

[1926] 2 KB 411

at 416;

(2) the compulsory acquisition (let alone a proposed compulsory acquisition) of licensed premises for a public purpose is not of itself sufficient to trigger the operation of section 15(1). The premises have to be pulled down or occupied or about to be pulled down or occupied for the public purpose;

(3) “the premises to be licensed” means the building and not any outside areas; and

(4) the words “structurally deficient or structurally unsuitable” are not to be read as deficient or unsuitable “by reason of locality”: as to (4) see Owen J in his judgment of the 31st July 2003 at an earlier stage of these proceedings.

[11]The Justices’ discretionary power under section 15(1) to refuse to grant the special removal where the statutory conditions for the removal are satisfied is closely circumscribed. One of the statutory grounds have to be established. The establishment of a ground empowers, but does not oblige, Justices to refuse to grant. The Justices have a discretion. Unlike other regulators (such as planning authorities, the Environment Agency and the Financial Services Agency) the Justices do not have their own investigative and enforcement infrastructure. This is recognised by the Justices’ Clerks Society’s Good Practice Guide (“the Guide”) which emphasises the desirability of licensing justices liaising with local authorities and, when exercising their discretion, of not trespassing into areas for which the local authority is statutorily responsible e.g. in matters of planning, environment, sanitation and nuisance from unacceptable levels of noise: see Paterson’s Licensing Acts 112th ed (2004) paragraph 2.5583 paragraph 3.13.

[12]It is open to an applicant for special removal to give an undertaking calculated to secure compliance with the conditions relating to the conduct of the premises and the state of the premises. Such an undertaking is not legally binding, but may be taken into account by the Justices in deciding how to exercise their discretion whether to grant the removal: see R v. Windsor Licensing Justices ex p Hodes

[1983] 1 WLR 685

at 697. Further any failure to comply with such undertaking may found an application to refuse a renewal of the licence (see section 12(4)) or indeed an application by any person at any time to revoke the licence (see section 20A(1)). Likewise on an application for renewal of a specially removed old on-licence the Justices may ask for a further undertaking or further undertakings (see section 12(5)). For an undertaking to be capable of being relied on by justices and of being relied on by objectors, its terms must be sufficiently certain to enable an informed decision to be made whether it is being complied with.

III. CHRONOLOGY

[13]On the 3rd July 2000 a subsidiary of Ultimate purchased an option to buy the Gresham. The Gresham has substantial open outside areas both in the front and at the rear. On the 22nd September 2000 Ultimate applied for planning permission to extend the Gresham. On the 3rd October 2000, an associate company of Ultimate bought premises known as Mims which had an old on-licence. Also in October 2000 Ultimate applied for a new provisional licence for the Gresham. On the 2nd July 2001 Ultimate acquired from its subsidiary the option to purchase the Gresham and immediately completed the purchase. In July 2001 Ultimate acquired Mims from its associate company. On the 7th September 2001 the Council refused Ultimate’s application for planning permission on the grounds (among others) of harm to local residents. In January 2002 Ultimate withdrew the application it had made in October 2000 for a new on-licence. On the 20th March 2002 the Council cabinet approved the making of a compulsory purchase order of property including Mims. On the 31st July 2002 the CCE granted a certificate of suspension and on the 5th August 2002 Mims’ on-licence was suspended and it closed for business. On the 1st August 2002 the Council made the compulsory purchase order and notice of the order was given to Ultimate by letter dated the 2nd August 2002 and was received on the 5th August 2002.

[14]On the 8th October 2002 Ultimate applied to revoke the Gresham’s existing restaurant licence which it had held since 1996 and applied for a new on-licence. Refurbishment work began the following week. On the 6th November 2002 Ultimate made its first application for special removal of Mims’ old on-licence to the Gresham. This occasioned objections from local residents and the Council. In November 2002 Ultimate made its second application for a new on-licence, which again occasioned objections, but Ultimate and the Police could not reach agreement as to the appropriate conditions. On the 15th November 2000 exercising its powers under section 120 of the Local Government Act 1972 the Council acquired Mims by voluntary agreement with Ultimate prior to confirmation of the CPO for the public purpose of furthering the CPO. On the 10th December 2002 Ultimate, because of the failure to reach agreement with the Police, withdrew its second application for a new on-licence.

[15]In January and February 2003 the public inquiry into the compulsory purchase order took place. On the 23rd January 2003 the Justices in a reasoned decision refused the first application for special removal. In February 2003 Ultimate appealed to the Crown Court but subsequently withdrew the appeal.

[16]On the 12th February 2003 Ultimate made its second application for special removal, again occasioning objections from residents and the police. Hearings took place on the 11th March and 7th April 2003 when they were adjourned to enable an application to be made by the Claimants for judicial review in respect of the Justices’ rulings on three preliminary issues.

[17]On the 19th May 2003 Owen J gave permission to apply for judicial review, but on the 31st July 2003 dismissed the substantive application and Sedley LJ refused permission to appeal on the 29th August 2003. Meanwhile on the 5th June 2003 the Secretary of State confirmed the compulsory purchase order.

[18]The renewed hearing of the removal application took place between the 26th and 28th November 2003. On the 1st December 2003 the Justices granted the application for the special removal and the Gresham opened for business. The claim form in the present application was lodged on the 3rd December 2003. The hearing before me began on the began on the 6th and 9th February 2004 when it was adjourned until the 4th March 2004 when I reserved judgment.

IV. THE EVIDENCE

[19]The evidence given at the hearing in respect of the compulsory purchase of Mims was limited to the following facts: i) the purchase of Mims by Ultimate on 3 October 2000; ii) the operation of Mims by Ultimate from November 2000; iii) the decision on 20 March 2002 by the Council’s Cabinet to approve a compulsory purchase order (“CPO”) for land that included the site of Mims for regeneration and redevelopment; iv) the Statement of Reaons for the CPO which set out its purpose as follows: “PURPOSE IN SEEKING TO ACQUIRE THE LAND The Council is seeking confirmation of the Order under Section 226(1)(a) of the Town and Country Planning Act 1990 in order to secure the assembly of land which is ‘suitable for and required in order to secure the carrying out of development, redevelopment or improvement’. The purpose of acquiring the Order Land compulsorily is to secure the regeneration and re-use of this development site through development, re-development and improvement consistently with the policies and proposals of the City Council’s approved Unitary Development Plan and within the timescale, investment and regeneration objectives of the Grainger Town Regeneration Strategy. The City Council, working with the Grainger Town Partnership, proposes to facilitate a comprehensive high quality development scheme which will positively contribute not only to the physical appearance but also to the vitality and viability of this part of the City Centre. The Order is needed to achieve the successful redevelopment for the following reasons: The site contains many buildings in fragmented ownership with outworn fabric which detract from the area. To secure regeneration disparate ownerships need to be brought together to allow for more intensive development as part of a comprehensive proposal appropriate to the site’s location as a landmark site on St James Boulevard, a major City Centre highway. It is essential that financial and development agreements are made to ensure that a comprehensive approach is adopted for redevelopment of the site to achieve a high quality landmark scheme. Access, parking and servicing arrangements and the central amenity space must all be integrated to achieve an efficient development surrounding a large public space. In practice, these agreements can only be secured by means of the Council acquiring the land. Funds are currently available to support the regeneration scheme through the Grainger Town Partnership. The opportunity exists until March 2005. It is therefore imperative that land is brought into public ownership quickly to ensure that the scheme can be completed and the Grainger Town funding can be claimed by March 2005.”; The Order is needed to achieve the successful redevelopment for the following reasons: v) the placing in suspense of the licence relating to Mims by virtue of a certificate of the CCE dated the 31st July 2002; vi) the making on 1 August 2002 by the Council of the CPO pursuant to their powers under s.226(1)(a) Town and Country Planning Act 1990, which entitled it to acquire land in the public interest for the proper planning of the area; vii) the service of notice of the CPO on Ultimate by letter dated 2 August 2002; viii) the sale of Mims to the City Council on 15 November 2002; ix) the commencement of a Public Inquiry into the CPO in January/February 2003; x) the confirmation of the CPO on 5 June 2003 following the Public Inquiry (the schedule to which did not refer to Mims because the Council had already acquired those premises).

The Order is needed to achieve the successful redevelopment for the following reasons:

[20]This evidence was adduced: i) orally by Robert Senior on behalf of Ultimate, who confirmed the background facts read out to the Justices at the opening of Ultimate’s case; ii) in documentary form by Ultimate’s bundle of documents; iii) by agreement of facts between Ultimate’s and the Council’s representatives, which were then read out to the Justices.

[21]None of the evidence summarised in paragraph 19 above was challenged at the hearing.

[22]Ultimate by its Managing Director Mr Robert Fraser Senior gave to the Justices an undertaking in the following terms: “1. To allow access to the premises (Gresham Hotel) by the Environmental Health Officer and or any of his authorised staff of Newcastle City Council at any time without notice needing to be given. 2. Not to interfere with the sound limiter levels as set and sealed from time to time by the Environmental Health Officer or his authorised staff at any time. 3. To allow the Environmental Health Officer or his authorised staff to adjust the sound limiter levels as currently set to whatever levels he considers to be reasonably appropriate. 4. Not to take any steps to override or alter the effects of the sound limitation equipment, including not to: i. Alter loud speaker positions or directions. ii. Add any loud speakers. iii. Replace any loud speakers save with similar loud speakers of no greater power where replacement is a necessary repair. iv. Add any electronic device to the existing systems without the prior knowledge of the Environmental Health Officer. v. Play any independent music systems in addition to the existing systems. 5. Not to permit live music or performances by Disk Jockeys to take place at the premises.” i. Alter loud speaker positions or directions. ii. Add any loud speakers. iii. Replace any loud speakers save with similar loud speakers of no greater power where replacement is a necessary repair. iv. Add any electronic device to the existing systems without the prior knowledge of the Environmental Health Officer. v. Play any independent music systems in addition to the existing systems.

V. JURISDICTION TO APPLY SPECIAL REMOVAL PROCEDURE

[23]On this appeal the first issue is whether the Justices had the jurisdiction to apply the special removal procedure.

[24]It is accepted that Justices only had jurisdiction to grant an application for special removal if the criteria in section 15(1) were met.

[25]It is further accepted that here the only relevant criteria were those set out in section 15(1)(a), namely:

“that the premises for which the licence was granted are or are about to be pulled down or occupied under any Act for the improvement of highways, or for any other public purpose…”

[26]The Justices held that the criteria specified in section 15(1) were met. “It is accepted that it is an old on-licence and capable of being specially removed. However, it is submitted that the application was made before the issue of a Compulsory Purchase Order by the City Council. There is an Action Plan for various parts of the city issued by the Council. That in itself is not sufficient, in our view, to give rise to a special removal situation. Mims bar in Waterloo Street is included in the Action Plan for redevelopment. Having identified an area or part of an area, the next steps appears to be for the city council to propose Compulsory Purchase Orders and to arrange finance and other matters to acquire affected premises for redevelopment. Even at this stage there are proposals rather than actual commitments and again, in our view, not sufficient to create a special removal situation. Although sections 12 and 15 of the Licensing Act 1964 are silent on the point, the decision to issue a Compulsory Purchase Order appears to us to be the point at which application for special removal can be made. From the sequence of events submitted by the applicant it was after this stage that application was made to this committee. We are supported in our views by the fact that the licence was placed in suspense, on the application of Ultimate Leisure plc. The criteria for issuing a Certificate of Discontinuance, under S141 of the Licensing Act 1964 are very similar to the criteria for granting a special removal. The Commissioners of Customs and Excise who issue certificates are of course a responsible central government body. From the fact that they issued a Certificate, it follows that they must have been satisfied as to the relevant criteria. We are entitled to accept, in fact we must accept, the certificate on its face. We are satisfied therefore that an application for special removal is appropriate in this case.” We are satisfied therefore that an application for special removal is appropriate in this case.”

[27]I think that this holding is clearly wrong. The formula “about to be” as a matter of language goes beyond allowing or requiring the Justices to take account of likely future events and connotes both practical certainty and imminence of outcome. This accords with the views expressed in Bentzen v. Taylor

[1893] 2 QB 247

at 278 per Lord Esher MR (where the words appeared in a contract) and R v. Goodwin

[1944] 1 KB 518

at 523 per Humphreys J (where they appeared in a statute). The words must of course be construed in their context, but the statutory context of the Act and a comparison with the language used (e.g. in section 141) confirms that the natural meaning of the words should be adopted. At the stage of the making by the Council of the CPO, that degree of certainty and imminence was not present. The CPO required confirmation by the Secretary of State and this in turn meant that there would be a period of delay whilst a public inquiry took place and the Secretary of State made and formulated his decision. The successful outcome may have been probable: it was in nowise certain or imminent. The Justices in the Decision gave no, or no sufficient, consideration to the meaning of these words or their application on the facts of this case. They merely adopted the mechanical test that the criteria should be treated as satisfied once the Council had made the CPO. The error on their part in this respect is highlighted in the support which they found for this conclusion in the “very similar” criteria laid down in section 141 for the grant of a certificate of suspension. The criteria are not similar, let alone very similar. As I have already said, the existence of a proposed CPO is sufficient to trigger section 141: it is far from sufficient under section 15. I therefore consider that the Justices misdirected themselves as to the relevant criteria under section 15. Accordingly the Decision cannot stand.

[28]Ultimate however submits that, even if the grounds stated by the Justices for the Decision are open to challenge, nonetheless I should not exercise my discretion to grant judicial review because the Justices could only have reached the same decision if properly directed on this question of construction. For, it is submitted, at the date of the hearing the Council must have been in occupation or its occupation for the required statutory purpose must have been certain and imminent and the pulling down of Mims must have been certain and imminent. I have been referred to Wheat v. Lacon

[1966] AC 552

at 578 and Harris v. Birkenhead Corporation

[1976] 1 WLR 279

: see also Megarry & Wade 6th ed. paragraph 6-053 and cases cited on the meaning of “actual occupation” for the purposes of the Land Registration Act 1925.

[29]The court should be slow effectively to validate an invalid decision by refusing relief on the ground that the decision-maker should have taken a particular view of the facts when the decision-maker has not addressed his mind to those facts. In a word the exercise of the jurisdiction should be confined to clear and obvious cases. I cannot possibly conclude that, if properly directed, the Justices would have reached this conclusion. If any party or the Justices had thought that the evidence before the Justices established that the Council was in occupation of Mims for the purposes of the proposed redevelopment or that the occupation by the Council was certain and imminent, that would have afforded a short-cut to establishing jurisdiction. Neither Ultimate nor the Justices evidently thought that this was the case. The whole matter proceeded on the single issue whether the making of the compulsory purchase order by the Council was sufficient. The necessary up to date evidence was not before the court that the Council had the physical presence or degree of control necessary to establish occupation or that the Council’s occupation or the demolition was imminent and certain, and accordingly the Justices could not have held that the statutory conditions for exercise of the special removal jurisdiction were satisfied. The evidence may well have been available and may be available now, but the position is not sufficiently clear or obvious to justify a refusal of relief.

VI. DISCRETIONARY GROUNDS TO REFUSE SPECIAL REMOVAL

[30]In view of my decision on the issue of jurisdiction, it is unnecessary to go into the questions raised regarding the refusal by the Justices to exercise the power to refuse special removal. But at the request of the parties, in order to assist on the possible (perhaps the likely) renewed application for special removal, I shall express my views.

[31]Section 15, as I have already said, gave a discretionary power to the Justices to refuse the removal if the Gresham was either structurally deficient or structurally unsuitable. Neither deficiency nor unsuitability barred the grant of removal. They were merely factors which the Justices were required to consider when deciding whether to grant the special removal. The Decision was to the effect that the Gresham was neither structurally deficient nor structurally unsuitable, and that accordingly the discretionary power to refuse the removal was not exercisable: the Justices were obliged to grant the special removal. I have to consider whether that holding is open to objection on the grounds put forward by the Claimants. (a). Escape of Noise and Special Characteristics of Occupants of the Home

[32]The escape of noise was the reason why the first application for special removal failed. In its decision of the 23rd January 2003 the Justices stated:

“The main issue in this case is the suitability and non- deficiency of the premises:”

[33]In its later decision under challenge in this case the Justices said: “We are dealing with a repeat application for the Special Removal of an Old On Licence (currently in suspense) from [Mims] to the Gresham…. In making our decision today we have read and taken into account and indeed adopt, all that was said on the previous occasion with the exception of the final paragraphs which dealt with the reason for refusing the application. The grounds for refusing the application were that the committee were not satisfied that the premises were not structurally suitable and were structurally deficient, due largely to the lack of evidence to show that noise attenuation measures were sufficient to avoid unnecessary disturbance to neighbours, particularly those in adjoining premises at 94 Osborne Road. We will return to this matter shortly, after we have considered a preliminary matter raised by counsel for Rindberg & Peel Holdings. The question raised is whether this is a special removal situation. … Returning to the main issue in the case, following the previous decision, one problem was the lack of evidence to show that the party wall was an effective barrier to noise transfer into the adjoining property. It appears that measurements had been taken but not submitted at the previous hearing. Since the earlier decision there has been substantial remedial work carried out on the party wall, there have been further sound tests and noise control measures have been introduced – specifically with regard to the volume, over a range of frequencies. We have heard a great deal of evidence regarding the measurement of noise and the implications of such measurement. It was submitted that the wall needed to be structurally efficient and that an operating plan could not render it acceptable. An extreme example was giving of testing Rolls Royce RB 2-11 jet engines which produces a great volume of noise over a wide range of frequencies. Such an exercise requires a custom built facility, with high specification construction and noise reduction techniques to render such an operation acceptable to anyone in the vicinity. We are not equating this to the Gresham Hotel but it does serve to demonstrate that the suitability of premises depends on a number of factors. In our view the relevant factors here are(1) The noise attenuation work has resulted in the wall being the equivalent of a 3 feet thick masonry wall

(2) The sound reduction measures which have been introduced and the controls that have been introduced, and particularly,

(3) The operating company. Ultimate Leisure have co-operated with the city council in setting levels of music noise. The control unit has been sealed with council seals and the actual settings photographed. On behalf of Ultimate Leisure an extensive undertaking has been given by Mr Senior, which will allow access to the council to check and adjust sound levels, should problems arise. We also take into account that Ultimate Leisure, under the control of Mr Senior, have in the past reacted immediately to problems of the nature anticipated, and have remedied them forthwith, with the co-operation and guidance of the local authority…. Taking all these matters and all other submissions made to us, and considering the criteria in Sections 12 and 15 of the Licensing Act 1964, we are unable to find that the premises are structurally unsuitable or structurally deficient and are obliged therefore, to grant this special removal.” (1) The noise attenuation work has resulted in the wall being the equivalent of a 3 feet thick masonry wall (2) The sound reduction measures which have been introduced and the controls that have been introduced, and particularly, (3) The operating company. Ultimate Leisure have co-operated with the city council in setting levels of music noise.

[34]The Claimants seek to challenge the Decision on the ground that the Justices failed to have regard to the special sensitivities to noise of the occupants of the Home. There is a dispute between the parties whether before the Justices counsel for the 4th Interested Party disclaimed reliance on, or discounted the relevance, of such sensitivities. I cannot resolve that issue on the material before me. On a renewal of the application, the Claimants’ position should be made clear. It is sufficient in my judgment to say that there was no obligation on the Justices to take account of or procure respect by Ultimate for those sensitivities. It is a matter for the Justices to decide whether any and, if so, what weight is given to them.

[35]The passage in the Decision on the escape and transmission of noise is in my view quite inadequate in explaining the decision reached and the reasons for it. But before going into that issue I should express grave concern how the hearing proceeded before the Justices. At the commencement of the hearing the Justices were faced for the first time with three expert reports and a fourth expert gave oral evidence without any prior written report. The challenge posed by this course to an experienced professional judge would be serious and his task onerous. It is for this reason under the procedure rules in force in civil proceedings today this course can no longer be followed. The practice has developed that in all cases before any decision is made whether to call an expert the party having in mind to do so notifies his opponent of the propositions of fact which he intends to establish by such evidence. This practice enables the opponent to agree some or all of the propositions and thereby obviate the need for expert evidence on those propositions. The practice also enables the opponent to direct his expert evidence to the propositions in issue. The procedure rules render it obligatory that, after the parties have prepared their reports, they exchange reports and prepare a joint report setting out the matters agreed, the matters in dispute and the respective contentions of the experts on the matters in dispute. The judge is provided with the reports (and most particularly the joint report) before the hearing to enable him to follow the case fully. The procedure adopted in this case must have been a nightmare for the Justices, for the reports are lengthy, technical, complicated and in conflict with each other. In the circumstances it is not surprising that the Justices’ decision and reasoning is open to objection. At any new renewed hearing, to avoid recurrence of this state of affairs, a procedure along the lines which I have outlined should be adopted.

[36]The Decision on the main issue is objectionable on a number of grounds which include the following: i) the Decision does not explain how it resolved and on what grounds it resolved the conflicting expert evidence of the various experts, and in particular:(a) which (if any) of the proposed tests of inaudibility was being adopted, namely 10dB or 5dB below the background noise and whether this included crowd noise within the Gresham;

(b) whether the tests carried out properly took account of crowd/patron noise within the Gresham;

(d) the possible effect of an increase in power on volume of noise; ii) the crux of the undertaking provided by Ultimate was the provision that the Environmental Protection Officer should be enabled to adjust the sound limiter levels to whatever level he considered reasonably appropriate. It is apparent that the whole basis on which the levels were set and the undertaking was given was that the music level should be below the music level to be expected at other like institutions and should be below the level of what would constitute a statutory nuisance under section 79(1)(g) of the Environment Protection Act 1990 but no standard or level was set. The Council has made it plain that it does not consider that the undertaking provides adequate protection and has not agreed to give an undertaking that the Environmental Protection Officer will monitor the noise levels as contemplated by the undertaking. All that can be expected of him is that he will monitor and take action in respect of statutory nuisances and perform his duties under the Control of Pollution Act 1974 and the Environmental Protection Act 1990. The Justices appear to have taken the view that the undertaking made the Gresham free from taint of structural deficiency or insufficiency. They have failed to have taken any account of the patent gaps in the protection it can provide. In view of these gaps plainly the Justices were not bound, as they thought themselves bound, to grant the special removal.

[37]I should make it clear that it is open to the Justices to grant a special removal even if the structure of the Gresham is deficient and insufficient, whatever the deficiencies of any undertaking offered and even if the escape of noise is such as to create a statutory nuisance (though this would no doubt be exceptional). But if they are going to do so, they must say so and adequately explain their reasons for doing so.

(b) Toilet Facilities

[38]It has at all times been common ground that the adequacy of toilet facilities goes to the question whether the Gresham is structurally deficient or unsuitable.

[39]The Justices dealt with the issue of toilet facilities in their decision as follows:

“Submissions were made with regard to toilet facilities and the potential number of users of the premises. As far as we are aware other [premises], both here in Osborne Road and elsewhere, have such facilities determined by reference to the maximum occupancy of the premises, on criteria issued by both the local authority and the Fire Brigade. We are concerned here with the structure i.e. the building, and can see no reason for applying a different standard to the Gresham Hotel. The maximum occupancy of the areas in question, the bars, is set at 420 persons, for which the toilet accommodation is adequate. It is suggested that the maximum occupancy of the site could be far higher than this – with an extra 100 or so on the forecourt, and up to 1200 in the rear car park. Considering the plans, in our view, and in our experience, the bar facilities would be wholly inadequate to service 1700 or 1800 patrons. In busy bars these days people have to be patient and expect to wait 5-10 minutes to be served. The limited bar facilities at the Gresham Hotel would almost certainly lead to waiting times 2 or 3 times longer.”

[40]The Claimants’ complaint is twofold. The first is that the references to the criteria or standard applied in respect of other premises and to the adequacy of the bar facilities at the Gresham and its effect on number of customers and waiting times were in no way based on any evidence, but were conclusions reached without evidence or any prior intimation to the parties before inclusion in the Decision. In my judgment this objection is well founded. The Claimants should at the very least have been given the opportunity to address the Justices (and indeed adduce evidence) on these matters before the Justices decided the application against them on these grounds. The Justices cannot at their own instance for the first time in their decision without prior intimation to the parties invoke standards applied “so far as they are aware” elsewhere or adopt their own method of calculating the time taken to serve customers and on this basis the number of likely customers. Secondly the adequacy of the toilets must take account of those using the bar facilities whether drinking within the building or outside. It is open to the Justices to grant a renewal though the toilet facilities are insufficient, (surprising and exceptional as this may be), but again, if they do so, they should say so and give their reasons.

(c) Suffiency of Reasons

[41]The Justices are required in the Decision to make clear the reasons for their decision so that the parties may know why they have won or lost and that any court on a challenge to their decision can determine their correctness and sufficiency. The reasons need not be elaborate or lengthy, but should tell the parties in broad terms why the decision was reached. In an application such as the present which turns on expert evidence as to the escape of noise and where the experts are in conflict with each other, the Justices should make clear which expert view they prefer and (at least in brief) why they do so. As I have already said, the Justices failed to do so. On any renewed application, if the procedure is adopted regarding expert evidence which I have suggested, the burden of this task on the Justices should be immeasurably eased.

CONCLUSION

[42]I therefore hold that the Decision should be quashed and the application for the grant of the special removal should be remitted for re-consideration in the light of guidance in this judgment. In view of the history of the case and the criticisms in the earlier judgment of Owen J as well as this judgment, to ensure that justice is seen to be done, I direct that it be heard by a differently constituted panel of Justices advised by a different clerk. I record my gratitude to all Counsel for their valuable assistance throughout the hearing of this matter.