This month in summary
The West Dunbartonshire Licensing Board is undertaking a review of its policy statement. The consultation can be accessed here.
The consultation will close on 14 August 2018 and covers general policy matters and in particular overprovision.
South Lanarkshire Licensing Division Number 1 (Clydesdale Area) are consulting on its draft Statement of Licensing Policy which includes its overprovision statement.
The consultation will run from 22 June until 14 September 2018 and comments can be sent to email@example.com
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 standards 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?
It is 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:
The Licensing (Scotland) Act 2005 contains a number of offences, ranging from trading without a licence to permitting 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 the police or licensing standards officers from reviewing your premises licence. Training staff, retaining records of this and implementing best practice 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 best practice and a commitment to promoting the licensing objectives is the best means of running a defence of due diligence.
At its June meeting the Glasgow Licensing and Regulatory Committee heard details of the numbers of private hire licences in its jurisdiction. It has responded to calls from, in particular the taxi trade, to implement an overprovision policy and declare a cap on the numbers of private hire licences by agreeing to undertake an independent review.
Despite statements to the contrary from ministers, it appears that the coming into effect of the new maximum £2 stake for FOBT's 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 MP's sitting on the All Party Parliamentary Group on FOBT's 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.
The licensing team have been busy across Scotland this month. This has included successful appearances at East Lothian, Highland, Argyll and Bute, Aberdeenshire Central, Falkirk, Glasgow, Edinburgh, Renfrewshire, West Dunbartonshire and Inverclyde Licensing Boards.
TLT were also proud to sponsor the Responsible Retailer of the Year Award at the recent SLR Rewards and attend with clients to support the event
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.