Night and Day Café back in court with Manchester City Council as noise row continues

A senior council officer has been accused of adopting a ‘my way or the highway’ attitude based on her ‘personal opinion’ in the Night and Day noise row. 

The venue is currently in court with Manchester City Council over a noise abatement notice served on the Northern Quarter bar in November 2021. The two parties have previously been in court three times since the notice was served, with the most recent hearings taking place last March and resulting in a deal to conduct more acoustic testing in an attempt to resolve the dispute out-of-court. 

That testing proved fruitless in terms of being the basis for a solution, but was the source of legal arguments in the packed courtroom 15 at Manchester Magistrates Court. During the occasionally ill-tempered proceedings, Night and Day’s barrister accused a senior council officer of having an inflexible approach to bringing the saga to an end.

“We very, very rarely prosecute people and we rarely serve noise abatement notices but we do where we can because it’s our duty to do so,” said Angela Whitehead, the council’s strategic lead for compliance and enforcement, under cross-examination.

She continued: “The operators are quite clear it’s the council’s fault or the residents’ fault and they do not need to change.”

“That’s wrong and bordering on dishonest,” barrister Sarah Clover replied. “The efforts to find a solution [in this case] have bordered on Herculean.”

“It’s not dishonest,” Mrs Whitehead countered. “There’s a difference between us trying to abate the nuisance and them saying they want to operate at [a given noise level]. The two are very far apart, but the operator does not want to keep to that [abatement level].”

Ms Clover interjected: “Which is the same thing as saying ‘it’s my way or the highway’.”

Mrs Whitehead denied that was the case, insisting it was the council’s ‘duty to serve a noise abatement notice and find a solution’. Later during the tense cross-examination, Ms Clover repeatedly asked the witness what she was ‘asking the court to do’. The officer replied: “We are asking them to vary the noise abatement notice to a level agreed.”

When asked who would be involved in agreeing to that level, given the years of out-of-court testing and negotiations, Mrs Whitehead answered that it could be ‘imposed’ by the authority as her team ‘just wanted to set a level to abate the nuisance’.

Pressed again on how the court case would assist in that and what the level is, Mrs Whitehead said: “It’s either test four and we either go back in there with a sound level meter or we go back in with a limiter with those levels.

“When you set a noise level you do not usually stand in [the venue] with an acoustician. You rely on a number that you are happy with.”

She went on: “I found the ‘holy grail’ in December because we found a level that was abated.

“We did not measure it because we were not there to assess it and the sound meter was no longer there. I found a level I believe the venue can operate at.”

Ms Clover then said: “So you are asking the court to disregard Night and Day’s evidence, the evidence of [Night and Day-appointed expert] Peter Rogers, and to go with your personal opinion on a commercially viable level based on what you think it reasonable at 10am on a December morning?”

“It’s my professional opinion,” Mrs Whitehead replied. “It’s what we do when we make an assessment.”

However, Leo Charalambides, representing the council, said that the acceptable ‘noise profile’ should be stored in the Night and Day mixing desk’s computer. Owners Ben and Jennifer Smithson denied this was the case. 

The hearing also heard evidence from Peter Rogers, who suggested the issue could be mitigated by reconfiguring the flat, as noise levels in the bedroom are 37dbA — a level barely perceptible above the guideline of 35dbA — but they are just 27dbA in the living room. His suggestion was met with a counter-proposal from Mr Charalambides that Night and Day specialise in the DJ music selected, as only mid-range frequency noises are penetrating the party wall into the flat. 

Ultimately, the three-day hearing is set to have the final say on the noise abatement notice, with judge Margaret McCormack beginning proceedings by saying: “It’s very disappointing that we are here again. We have been able to get a resolution on this matter so it’s going to be decided by the court.”

The case resumes on Tuesday.