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Licensing news England and Wales - June 2018

This month in summary

Licensing News

Hot weather sees spike in resident complaints

The unusually hot spring and early summer has seen a surge in resident complaints about the use of pub gardens. What can be done to prevent this?

One of summer's lingering tensions is between pub garden use and the enjoyment of their own gardens by residents in close proximity. The hot start to the summer, along with increased custom due to the World Cup has been responsible for a larger number of complaints from residents than in recent years who feel that the balance has tipped too far against their rights.

There are, as always, two conflicting points of view: Publicans and customers will say 'if you live next to a pub, what do you expect'; and residents counter this by complaining that they cannot enjoy their property without being disturbed. A lot of where the line falls comes down to the interpretation of licensing and EHO enforcement officers who are tasked with determining what a nuisance is. So, here are a few tips to help ensure that the interpretation is not skewed unfairly towards the residents.

What is reasonable?

This is the $64,000 question. The answer, unfortunately, is: Who knows? To undermine the licensing objectives, there has to be a 'public nuisance', rather than a private nuisance. However, the test under the Environmental Protection Act relates to whether an officer deems a noise to constitute a statutory nuisance. If they deem noise from a garden is a nuisance in someone's home, they must serve a noise abatement notice. So, to begin with, we have two slightly different interpretations to contend with.

It is worth remembering however, that not all noise is a nuisance and that as a business operator, you too have rights. Noise that is reasonable and in the public interest is much less likely to be deemed a nuisance. However, to demonstrate that you are not being unreasonable, you might want to consider the following:

  • Put in place a garden management plan and ensure that staff monitor the garden regularly.
  • Consider signage in the garden asking customers to respect local residents rights to enjoy their property and keep noise to a respectful level.
  • Look at garden closing times- noise late at night is more likely to be deemed a disturbance.
  • Consider whether there are particularly noise sensitive areas near residents and close them earlier.
  • Prevent children from playing ball games near neighbours fences- especially prohibit balls being kicked against resident fences.
  • Ensure that any smoking area is away from resident houses (if possible).
  • Place barbeques and other outdoor equipment (bouncy castles, for instance) in a place that is unlikely to cause unnecessary disturbance (remember barbeque smoke could itself be a nuisance if it's constant).
  • Notify residents who live nearby of any upcoming events in gardens (such as beer festivals, charity events etc). If you are hosting events outside, make sure that there are fallow weekends after to give residents respite from particularly noisy events.
  • Invite residents to meet with you and discuss any concerns and look to work together if possible.  

Casual dining and restaurant sector see further signs of downturn: Are licences partly to blame?

The announcement that Sir Terrence Conran's restaurant group has gone into administration adds to the malaise that has been hitting the sector this year. Why has the bubble burst?

Closures of significant numbers of sites in the Jamie's Italian, Prezzo and Carluccio's estates, alongside Byron, Square Pie and others has been blamed on unsustainable rents and rising costs such as rates and wages. However, for some facing closure, another factor may also be at play: restrictive conditions on premises licences strangling a business just as it needs to adapt.

Go to any leisure industry event and you will hear about customers chasing 'experiences'. No longer do customers deem it enough to go to a restaurant for supper and then move onto a bar or club. They want venues that can provide everything under one roof. Unfortunately, licensing authorities can be very slow to react to trends and rely on the old paradigms when granting licences. Many restaurants therefore have conditions put on their licences restricting them from being anything other than an old-fashioned restaurant. 

For some, especially larger chains relying on a set business model, it is less likely that such conditions would affect them as they tend not to be able to adapt to the changing market as quickly; but for independent operators and smaller brands, these restrictions can be the difference between survival and insolvency. Often, police forces and licensing officers see these conditions as protecting businesses and upholding the licensing objectives and are therefore reluctant to allow premises to vary them. But the reality is very different. Instead of ensuring premises promote the objectives by stopping them from becoming bars, for instance, the actual effect is to hold the premises back, restrict adaptation and frustrate innovation- often without any real understanding of the effect this will have in the real world.

For those operators looking to the future and wondering how they will adapt, ensuring your licence is flexible and adaptable would be a sensible and potentially business saving investment.

Top Licensing Tip: The due diligence defence

The Licensing Act 2003 contains a number of offences, ranging from trading without a licence to making underage sales of alcohol. However, it is very rare for an offence under this legislation to be absolute and therefore without a defence. In many circumstances, demonstrating that you took all reasonable precautions to prevent an offence from taking place and being able to evidence this would be a defence against prosecution and may even deter officers from reviewing your premises licence. Training staff and implementing best practice processes and policies all go to demonstrate that you did what you could to prevent the offence form occurring. Humans make mistakes. The licensing legislation recognises this, and therefore evidencing good practice and a commitment to promoting the licensing objectives is the best means of running a defence of due diligence.

Gambling News

FOBTs: Reduction in stake from £100 to £2 unlikely to be until 2020

Despite statements to the contrary from ministers, it appears that the new maximum £2 stake for FOBTs is likely to be delayed until into 2020. The announcement appears to follow from treasury statements that time needs to be given to plan for how to make up the revenue shortfall brought about by the changes.

DCMS and MPs sitting on the All Party Parliamentary Group on FOBTs have expressed frustration at the likely delay but it would appear at the moment that the industry has been given a short respite and time to plan for the imminent change.

Out and about

We have been busy attending events in London and elsewhere, as well as taking on the usual hearings and meetings for clients in various parts of London, Newport, Bristol and other places. Of particular interest, unsurprisingly, is the effect that the World Cup will have on premises and the attitude taken by enforcement authorities. Some authorities have been sending out robust advice, requiring premises to undertake certain measures or face the risk of review if there are issues.

Others have embraced the World Cup and the important role it plays for attracting customers to premises. Remember; just because an officer demands certain actions, does not make it a legal requirement. Serious consideration should be given to any advice received by officers, but also you should be able to use your own judgement. If any proposal is likely to be too expensive and unlikely to actually promote the licensing objectives, engage with the officers and let them know your opinion and why you feel they are missing the goal.   

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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