Court grants music licence with strict noise conditions despite character objection due to insufficient evidence of breach.

THE DISTRICT COURT AN CHUIRT DUICHE

DUBLIN METROPOLITAN DISTRICT

Neutral Citation: [2023] IEDC 1

BETWEEN:

ALEXANDER BRUGGENER & ANDREAS BRUGGENER

and

WONDERVALE LIMITED t/a THE LAMPLIGHTER

Decision 23rd March 2023.

This case comes before the Court as an objection by Alexander and Andreas Bruggener of 2 Brabazon Street, The Coombe, Dublin 8 to the Grant of a Public Music and Singing Licence to Wondervale Limited, the Holders and operators of a 7 day Publicans licence for the premises known as The Lamplighter situate at a corner site 79, The Coombe Road /I , Brabazon Street , Dublin 8.

The Lamplighter is a longestablished public house situate in the historic area of Dublin 8 which adjoins the residential property at 2, Brabazon Street which was purchased by Alexander Bruggener in 2014. At the time of this purchase the Lamplighter was a public house and a Public Music and Singing Licence was in existence for 3 nights each week Fridays, Saturdays and Sundays. This evidence was given by Mr Declan Brady the then operator of the Lamplighter public house who in fact sold the premises in 2017.

The Public Music and Singing Licence currently sought is for Music and Singing to be licensed 3 evenings each week as follows;

Fridays 8.30pm to 12.30 am

Saturdays 8.30pm to 12.30am

Sundays 8.30pm to 11pm or if a Bank Holiday weekend 8.30pm to 12.30am.

The Objection lodged to the renewal of this Music and Singing Licence is on the grounds which can be summarised;

That the Applicant is unfit on the grounds of character on the basis of misconduct on the basis that the current Applicant is for all intents and purposes the same as the previous corporate structure, Weavers Taverns Limited with the same persons, The Trears family in situ in reality and that the past conduct of Weavers Taverns Limited has been to breach noise levels that had been agreed between Weavers Taverns Limited and the Bruggeners And

The manner in which the premises has been run in the past renders the current Applicant unfit to hold a Music and Singing Licence in view of the continued and excessive noise levels and breaches of the agreement already entered in to. The Issue to be determined by this Court is whether the Licence should issue at all or if the Licence is to issue whether conditions should be attached to same and if so what conditions are necessary and proportionate.

The Law

In considering an Application for a Music and Singing Licence this Court by Law Must have regard to the matters listed at section 2(2) of the Public Dance Halls Act 1935 as amended by section 2 of the Licensing (Combating Drug Abuse) Act 1997 “in addition to any other matter which may appear to be relevant”.

Any member of the Garda Siochana and any interested person may appear and be heard in opposition to the application and may adduce evidence in support of such opposition as set out by section 2(3) of the Public Dance Halls Act 1935 as applied by the Courts (Supplemental Provisions) Act 1961 section 33(2)(d).

The Notice parties set down by Law to the Application are an Garda Siochana and do not include the Local Authority in this case Dublin City Council Planning and Environmental Health Sections.

The matters that Must be considered by the Court listed in section 2(2) of the 1935 Act as amended are

(a) The character and the financial and other circumstances of the applicant for such a Licence

(b) The suitability of the place to which the application relates

(c) The facilities for public music, or singing, or other public entertainment, as the case may be, existing in the neighbourhood of such place at the time of such application.

(d) The accommodation for the parking of vehicles in the neighbourhood of such place

(e) The probable age of the persons who would be likely to make use of such place for public music, or singing, or other public entertainment of the like kind, as the case may be

(f) Whether the situation is or is not such as to render difficult the supervision by the Garda Siochana of the management of and proceedings in such place

(g) The hours during which the applicant proposes that Music, or singing, or public entertainment of the like kind, as the case may be, should be permitted in such place

(h) The arrangements, where appropriate, that have been made to ensure that persons entering or making use of such place are not in possession of any controlled drug and that the place is not used for sale, supply or distribution of any such controlled drug.

In the case of the Application of Michael Quinn 1974 I.R. 19 the Supreme Court stated that “in addition to the matters specified in paragraphs (a) to (g) a District Court Judge is bound to have regard to “any other matter which may appear to be relevant”

The Court has jurisdiction to refuse the licence, grant the licence or grant the Licence with conditions but is not entitled to grant a reviewable Licence . Authority for the latter point is the case of Sheehan v Reilly 1992 1I.R. 368.

If terms and conditions are attached the Licence, the Licence may be revoked for a breach of any of the terms and/or conditions. If a licensee contravenes any condition(s) attached to the Licence they may be prosecuted as this constitutes an offence and on any such prosecution the Court could also revoke the Licence for a period.

The Holder of any such Licence must put up a Notice in large letters in a conspicuous place stating “Licensed in pursuance of an Act of the Oireachtas for Public Music and Singing “ The affixing and keeping up of such a notice is a condition of every licence as set out Public Health Acts Amendment Act 1890, Section 51(6).

Entertainment during drinking-up time after ordinary permitted hours and after the expiry of any special exemption is not permitted as set out in Intoxicating Liquor Act 1962 section 7 as amended by the Intoxication Liquor Act 2003 section 12.

The above are the legal parameters set down by the legislator and interpreted by the Superior Courts, applicable to the decision to be made by this Court.

The Hearing/Evidence/Submissions/Analysis.

This case proceeded over five days at times available for the hearing and evidence was heard from

-Two tenants currently in situ at the property of the Bruggeners at 2 Brabazon Street namely Lillian Woodall and Conor Feeney

-Inspector Ian Lambe of the Garda Siochana.

-Alexander and Andreas Bruggener

-Kevin Trears

- Damien Brosnan noise expert engaged by the Bruggeners

-Diarmuid Keaney noise expert engaged by Wondervale Limited

- Declan Brady the previous owner

-Mr Scully of Fusion P.A and Lighting Systems Limited.

Written legal submissions have been lodged by both sides and oral submissions have been made by both sides. Documents have been agreed to be admitted to the Court by both sides including particulars of a Circuit Court Action that has taken place between the parties and Reports of Dalton Acoustics Limited, Noise Experts previously engaged and who had made reports on the matter. Also submitted by agreement were all the reports that have been compiled by the 2 noise experts, Denis Brosnan and Damien Keaney.

All the evidence and submissions and agreed material to be admitted has been considered before reaching a decision and any reference in this ruling to any particular matter is not to be taken as an implication that all matters and evidence was not considered by the Court before reaching a

conclusion.

The Garda Siochana, the only necessary Notice party, have no objection to the grant of the Licence that is sought by Wondervale Limited.

Inspector Ian Lambe, the Inspector responsible for the Garda management of licensed premises in the area, gave evidence that in fact the premises is conducted in a safe and peaceable manner and no other local residents are objecting to this licence and the Garda Siochana have no objection to the Licence sought.

When the property at 2 Brabazon Street was purchased by the Bruggeners in 2014 the adjoining public House The Lamplighter was managed by Declan Brady. A Music and Singing and other like Entertainment Licence existed and was operating 3 nights each week on Fridays, Saturdays and Sundays. Mr Declan Brady gave evidence to the Court that he had managed the pub for twenty years until he sold it in 2017 and that the Bruggeners had bought the next -door adjoining property in 2014. Mr Brady gave evidence that the Bruggeners had complained about the music the loudness and the times . He agreed closing times with the Bruggeners but no agreement was made about noise levels and he and the Bruggeners co-existed.

Evidence was given by Alexander Bruggener who is the son of Andreas. He lived in the house from the time of the purchase in 2014 up to February 2018.He had moved to Dublin from the family home in Kerry to commence studies in Trinity College. His evidence was that new owners purchased the pub in 2017 and after that there was Music 5 nights a week Friday to Tuesdays and he could not sleep or study from that time in 2017.

It is noteworthy that the First Objection by the Bruggeners to a Licence was made in August/September 2017.

The entire property at 79, The CoombeRoad/1 ,Brabazon Street had been purchased by the company called Creative Real Estate Ltd in 2017.The secretary to this company was Mary Trears and the director was Brendan Trears. On 13 November 2019 a lease of the bar on the ground floor was made to Wondervale limited. Wondervale limited was incorporated on 17 December 2018. The director was Kevin Trears and the secretary was Mary Trears. Previously in 2017 the bar had been leased to Weavers Taverns limited and the secretary of the latter company was Brendan Trears.

All three companies, Creative Real Estate Limited, Weavers Taverns Limited and Wondervale Limited have persons from the Trear’s family involved.

Wondervale Ltd, the current applicant obtained an ad interim transfer of the pub licence in 2021 from Weavers Taverns Limited,which transfer was confirmed at the annual licensing court on 8 September 2021.

Kevin Trears is an agent of the current applicant, Wondervale Ltd, as he is the manager currently responsible for the management of the licensed premises. Kevin Trears was also manager engaged by Weavers Taverns limited, the previous owner and operator of the Lamplighter premises.

The three companies are separate and distinct legal entities and must be treated as such by Law. However the agent of the current applicant namely Kevin Trears was also manager of Weavers Taverns limited and in assessing the character of the current applicant Wondervale limited this court can take into consideration the actions conduct and character of the agent of Wondervale Ltd,namely Kevin Trears, in regards to his current and previous conduct and behaviour in relation to the running of a licensed premises including his conduct when managing the licensed premises on behalf of Weavers Taverns limited.

As part of this case the parties opened to the court particulars of dealings between the objectors and Weavers Taverns limited. Three agreements had been entered into between the Bruggener’s and Weavers Taverns limited . These agreements were dated 22 November 2017, 20 December 2017 and 26 July 2018.

Circuit court injunction proceedings had occurred between the Bruggeners and Weavers Taverns Limited that were compromised by the agreement dated 26 July 2018.

Part of this agreement included an agreement not to emit amplified music or other amplified sound at levels which would cause a 3 dB increase in ambient noise levels present at the premises of the Bruggeners and on this basis it was agreed that there would be no objections to the licence. A sound limiter and a sound equaliser were to be used to set the limits that had been set out in the previous agreement of 20 December 2017 in regard to the property of the Bruggeners ie audible amplified music was not to exceed 25 dB LAeq.. The sound limiter and the sound equaliser were to be placed in a locked cabinet in a tamperproof manner so that set limits could not be altered and sound – was to be documented and archived and available for inspection on reasonable notice. Loudspeakers were to be set directionally away from the Bruggener’s property and loudspeaker mounts were to be fixed with isolation grommets.

Further evidence was heard by the court about the applications for planning permission that were made by Creative Real Estate Ltd for retention of what was stated to be an exempt development namely a smoking area in a backyard of the property. The Bruggeners objected to this application and Dublin City Council held that the development was an exempt development. However on an appeal to An Bord Pleanala it was held that the development was not an exempt development and the Appeal was successful. The appeal had been lodged by the Bruggeners.

In addition there was contained in the evidence before this court details of complaints pending before the Data Commissioner made by Creative Real Estate Ltd against the Bruggeners about the stated deployment of CCTV/ a camera set up by the Bruggeners directed at the property and occupants of Creative Real Estate Ltd premises without the knowledge or consent of Creative Real Estate Ltd and /or the occupants of their property. It is understood these matters are still ongoing. These events also involved a trespass alleged by the Bruggeners to have occurred when Kevin Trears and another member of the Trears family placed boarding over the window of the Bruggener property through which the camera/CCTV was stated to be operating.

There is a strained relationship evident in the history of the dealings between the Bruggeners and Creative Real Estates Ltd the owners of the property and the landlords to originally Weavers Taverns limited and now Wondervale Ltd and there is a commonality as to the persons involved in these companies namely the Trears family and Kevin Trears in particular as a manager of the pub premises and who was an agent of Weavers Taverns limited and an agent of the current applicant Wonder Vale Ltd.

As a fact the Court is satisfied that it has been established to the civil standard of proof that there is a difficult and acrimonious relation between the parties and that both sides have had a role and a responsibility in this state of events.

Evidence was heard from two noise consultants namely Denis Brosnan engaged by the Bruggeners and Damien Keaney engaged by wonder Vale Ltd. In addition, reports were agreed to be admitted from both of these individuals and joint sound testing had occurred in the context of these proceedings. Reports of the previous noise consultants engaged, Dalton Acoustics limited were also agreed to be admitted.

It is common case that this court is the trier and finder of Facts. The role of experts ( which has recently been the subject of detailed explanation in the Court of Appeal decision of 7 November 2022 record number 2021 – 63 in the case of Duffy v McGee) is to assist the court in understanding the science of a particular area in this case noise and its evaluation . Expertise in same not being commonly available and are understood by nonexperts in the field.

The main activity of the experts and inspections were focused on the Lamplighter venue and the bedroom on the first floor of the Bruggener household which was the main source of complaint by the Bruggener’s and which bedroom shares a party wall with the Lamplighter public house. All experts seem to agree that the World Health Organisation guidelines of April 1999 for community noise set 30 dB as the optimum for sleep in a bedroom during night-time hours for continuous noise during the night-time hours which was stated in the W.H.O. Guideline Document to be an eight - hour period from 11 pm to 7 am. These are Guidelines and do not constitute Law. A detailed reading of the Guidelines, which Guidelines were opened to the court during the course of the hearing , make clear that this recommendation for bedroom noise is based on a continuous nighttime period of eight hours and that events measuring up to 45 dB occurring during this night-time period can occur and not impact on the average person.

Examples of noise policies were identified in the World Health Organisation guideline document and in relation to Europe in 1999 it was stated that “noise legislation is not generally enforced. As a result environmental noise levels are often higher than the legislated noise level limits. Moreover, there is a gap between long-term political goals and what represents a good acoustic environment one reason for this gap is that noise pollution is most commonly regulated only for new land-use or for the development of transportation systems whereas enlargements at existing localities may be approved even though noise limits and guideline values are already surpassed.”

A comprehensive overview of the noise situation in Europe is given in the European Union green paper (EU 1996B) which was thought necessary to give noise abatement a higher priority in policymaking. Since this time the EU has implemented Directive 2002 – 49 – EC which seeks to establish a common basis for addressing noise problems across the EU. Member states are required to appoint competent authorities to draw up ‘” strategic noise maps”. Competent authorities are then to draw up action plans to reduce noise where necessary and to maintain environmental noise quality where it is good. Therefore, the E.U. attempts to establish an overall noise policy is still work in progress.

There is no relevant law that sets down dB levels appropriate in similar or like situations at EU agreed level or in Irish law save for the Safety Health and Welfare at work general application regulations of 2007 statutory instrument number 299/ 2007 which transposed directive 2003 – 10 – EC of the European Parliament and the minimum health and safety requirements regarding the exposure of employees to the risks arising from physical agents such as noise. This law sets out that workers must be informed if the noise level is likely to exceed 85 dB of the potential risk of damage to hearing. They should also be informed about the measurements taken of the noise levels and an explanation of the significance of the results and about what has been done to reduce the noise levels. Furthermore individual hearing protectors should be available to workers.

It is also noteworthy in the High Court case of Smyth v the Railway Procurement Agency and Veolia Transport Dublin light Rail Ltd 2010 I.R.. HC290 when the World Health Organisation guidelines were argued in front of Ms Justice Laffoy of the High Court she held that these were guidelines only and did not constitute law.

Some European jurisdictions have defined in law obligations of bars and discotheques who regularly broadcast amplified sound . The French environmental code articles R. 571 – 25 to R. 571 – 30 set out that with regard to noise levels music venues including bars must limit the average noise level inside the establishment to 105 dB and when these establishments are adjacent to residential premises they must isolate the noise level so the maximum emergence values do not exceed 3 dB above ambient levels in the residential premises at night and night time is defined as 11 pm to 7 am.

In the European Court of human rights judgement in the case of Moreno Gomez v Spain where judgement was given in Strasbourg on 16 February 2005 it was noted that the byelaws in the city council area of Valencia in Spain on 20 June 1986 set down permitted maximum reception levels for night-time noise in a multiple family residence as 45 dB and night -time was defined from 10 pm to 8 am. In the context of the evidence given by the two noise experts in this case both also referred to the UK Institute of Acoustics attempts to set guideline levels for noise emissions. However the reality transpired that no agreement could be reached at that forum and even guidelines were not completed therefore these particular guidelines were an attempt at guidelines and nothing more and the Court cannot place any reliance on same whatsoever at this time.

In regard to the evidence of the 2 noise experts , all their evidence to the Court has been considered and all their reports have been considered and reference to any particular part of their evidence and /or part of a report is not to be taken by implication that all of their evidence was not considered.

Denis Brosnan noise expert for the Bruggener’s in appendix 4 to his report agreed to be admitted which was dated May 2018 very helpfully set out a plain English guide to the terminology used in relation to noise including the following;

‘ Decibel (dB ) is a unit of noise measurement scale. Based on logarithmic scale so cannot be simply added or subtracted. At 3 dB difference is the smallest change perceptible to the human ear. 10 dB difference is perceived as doubling or halving of sound level. Examples of dB levels are as follows;

20 dB very quiet room

30 to 35 dB night-time rural environment

55 to 65 dB conversation

80 dB busy pub

100 dB nightclub “

Denis Bronsan’s contention to the court of the standard to be applied by the court in assessing what is acceptable on noise emissions , I summarise as, the subjective audibility test. He premised to the court that if music and noise levels are such that they are subjectively audible in this case in the property of the Bruggener’s then that noise level is unacceptable and the licence for music singing and other like type entertainment should be refused by this court.

I do not accept this contention and premise as the correct approach to be adopted by this court. The Bruggeners purchased and chose to purchase a property in an inner-city area in an industrial city in Dublin. The property was actually adjoining a public house premises to which was attached an existing music singing and other like type entertainment licence at that time.

The decision of Gannon J in Hanrahan v Merck Sharp and Dohme Ireland Ltd 1988 ILR M629 even though it is a case dealing with an allegation of nuisance under Tort law ( which is a matter that is not before this court ) is useful in examining the importance of context in assessing any allegation as regards noise/ nuisance

‘ nuisance alleged consists of interference with the ordinary comfort and enjoyment of property.. Evidence must show sensible personal discomfort, including injurious affection of the nerves and senses of such a nature as would materially diminish the comfort and enjoyment of, or cause annoyance to, a reasonable man accustomed to living in the same locality. “

It is not enough to demonstrate or allege subjective annoyance. Actual Annoyance must be proven to the standard of a reasonable man in the context of the locality in question.

In the fourth edition law of tort’s by McMahon and Binchy the writers opined

“the court is involved in a balancing process between rightsinjury to the plaintiff must be out of the ordinary rather than part and parcel of urban life” and in the case of new Imperial and Windsor hotel company v Johnson Barton J said

“one of the necessary incidents of the social life of an industrial city is a certain amount of recreation and innocent amusement taking the form of social gatherings of the respectable young men and women who do a large proportion of the daily work of the city”

This Court accepts that context and location are a relevant consideration and a reality which must be considered by this court in determining the matters at issue including concerns about noise emissions.

The expert engaged by Wondervale Ltd, the applicants for the licence ,namely Mr Damian Keaney in his report made reference, inter-alia, to his particular experience and knowledge of noise levels applicable in certain environments. In his report dated 27 May 2022.

At page three of his Report he refers to sample noise environments contrasted against those measured at the lamp lighter

“patron noise in the Lamplighter at the end of the night, after the entertainer had finished with the music off 83 decibels (A)

noise in the Lamplighter with the entertainer in progress 86 – 88 dB (A)

noise in a bar with a live band 95 to 99 dB (A)

noise in a nightclub off dancefloor 97 dB(A)

noise in a nightclub on dancefloor 101 to 103 dB(A) “

In his evidence,He also made reference to the fact that it was not clear that the vent in the nominated room of the Bruggener property i.e. the bedroom nominated had been unblocked since this particular fact was not allowed to be investigated by him by Mr Bruggener and in those circumstances the ambient noise level of the Room in question ie the normal noise wear and tear in that room before music in the Lamplighter and or singing and other like entertainment commences is not clearly accessible factual information.

On the evidence before me I accept this point. Due to the lack of clarity about whether the vent in the nominated bedroom was blocked or unblocked at the Time of Joint Inspections the ambient noise level of this room which should have contained noise levels consistent with its urban location could not be assessed clearly to a standard of probability and a balance of probabilities to establish facts on which this court could place any reliance.

Mr Keaney’s proposition is that music noise levels inside the Lamplighter bar are limited to a point that they are only 3 to 4 dB higher than collective conversational noise on a busy night at the bar that is 86 to 88 dB and that the context of the nominated bed room in the Bruggener house measuring at most 37 dbs and taking into account it’s urban environment that that is the best that can be done or expected or enjoyed by both parties. While not seeking in any way to denigrate this expert’s experience, it is to be noted that there was no agreement between the 2 experts who gave evidence to the court that Mr Keaneys view on expected normal ranges for decibel levels was in any way agreed between the experts. I do not accept therefore what I summarise as , within expected experienced normal ranges for decibel levels, can be applied as the standard which this court should accept in evaluating these matters,in circumstances where there is not agreement between the 2 experts who gave evidence to the Court as to these suggested norms. As part of the agreed documents to be submitted to the Court was a report from Dalton Acoustics Ltd dated 11th October 2017 which at paragraph 5.1.2 explained the W.H.O.Guidelines and in a report dated 6th December 2017 specified that the Regulations on Noise at Work 2005 already referred to assess LAeq (T) 85 dbs as the maximum level to occur in a premises that is a workplace without requiring an owner to take steps to advise staff and in some instances provide safety equipment.

Taking into account all the evidence submitted, the expert views proffered, the existing Guidelines which are not law and the applicable law limited to a workplace as regards noise I have come to the

conclusion that the maximum decibel noise level to be permitted in the Lamplighter premises when entertainment is occurring pursuant to any Music, Singing or other like entertainment Licence should be set to limit at 85 decibels emissions from the Music, Singing or other like entertainment.

On the evidence in this case I cannot make a determination and finding of fact on the ambient noise level existing in the nominated room of the Bruggener property for the purpose of making any determination as to whether and by how many/ much decibels any such ambient noise level can and or could be exceeded.

On the joint inspections it would appear that noise levels in the nominated room during inspections did not in the main ,with some exceptions, exceed the night time expected noise level in a night - time rural environment as set out on the report of Mr Brosnan namely 30-35 decibels .

I am also not satisfied on the evidence adduced to me, at this time , that it has been established on the balance of probabilities as more likely than not that the character and conduct of the Applicant is such that the applicant is not fit to hold the licence sought and/or that it would be proportionate to refuse the licence sought at this time .

Orders.

In all the circumstances I am granting the Licence sought for Music, Singing or other like entertainment

For the specified times

Friday 8.30pm to 12.30am

Saturdays 8.30pm to 12.30am

Sundays 8.30pm to 11pm and if a Bank Holiday to 12.30am

But

In balancing the rights and responsibilities of both parties in the context applicable and applying the Law to the facts found, I am attaching Conditions to the licence which I believe respond proportionately to the circumstances that exist as follows;

1.A Sound limiter be put in place and all music and singing and other like entertainment conducted under this licence be transmitted only and solely through the limiter

2. The Noise decibel level to be set at 85 decibels limit on sound emissions from the Music and Singing Licence. 3.The limiter to be in a tamperproof surround with a defined list of persons who can access same maintained by the licence holder and on clear instructions the noise limiter cannot be altered.

4. The Noise limiter to be serviced including check and verification of the setting and record of service in writing maintained by licence holder annually.ie once a year

5.All speakers in the Lamplighter premises to be set directionally away from the Bruggener property.

6.In relation to Sub woofers fire compliant rubber mats ( to be verified by the Fire Officer) as advised by Mr Scully of Fusion PA and lighting systems ltd to be installed to defray any possible structural transmission of music beats.

7. Speakers to be fixed on mounts with isolation grommets with any other fire compliant rubber seals( to be verified by the Fire Officer )and or hooks to be advised by Mr Scully of Fusion PA and Lighting Systems Ltd.

8. Times to be strictly adhered to as set out in the licence.

The compliance with the above conditions to be verified by Mr Scully to the parties in writing within a time frame to be agreed by the parties and Wondervale limited to defray the costs of Mr Scully in this regard.

As regards any application for costs. I decree that both sides bear their own costs.

Marie Quirke

Dublin Metropolitan District Court

23rd March 2023.