Posted: Wednesday, 29 January 2014 @ 10:16
Two recent news items caught my attention. The first one was about a Kent pub where they are no longer allowed to use their patio due to noise issues. The second the police drive in London to make all pubs and venues open after 12 midnight use plastic glasses.
In each case the issue relates to one of the 4 licensing objectives, which are the prevention of crime and disorder, public safety, the prevention of public nuisance, and the protection of children from harm.
The first case involved the prevention of public nuisance, the second public safety. Anyone who carries out a licensing activity must do so in way which does not undermine the licensing objectives. In a similar way all licensing authorities must carry out their duties with a view to promoting the licensing objectives.
The Kent publican complained that he had been using the patio for many years. That is not the point. If its use is disturbing neighbours then there was always the risk that unless he did something about it the licensing authority would on a review application impose a condition restricting its use. The problems have increased since the smoking ban, but they can be addressed by limiting the hours of use and/or setting a noise limit with a requirement to steward the areas and take noise readings. It is also possible that the local environmental health officers will become involved, and they are required to investigate complaints between 11 pm and 7 am and can issue written warnings or fixed penalty notices.
I strongly advise that all outside areas are checked regularly by staff, and it is very important to establish good relations with neighbours through regular contact to identify and resolve issues before they blow up into costly proceedings.
The issue of plastic glasses is of course a public safety argument. However, unless there is a voluntary agreement, conditions can only be imposed by the licensing authority, either on new application for a premises licence, variation application, or review application, if the condition is considered "appropriate" to promote the licensing objective concerned. If there is no history of "glassing" or disorder in a pub, it would be difficult to argue that a plastic glasses condition was appropriate. Likewise the type of venue will be relevant. A restuarant or hotel are unlikely to be a high risks, moving up the scale to a pure drinking pub.
The Stautory Guidance states that all applications must be considered on a case by case basis. This precludes a blanket ban on the use of glasses. The licensing authority must consider the potential burden of a condition on the licence holder (such as financial burden) and the potential benefits in terms of promotion of the licensing objective. The licensing authority must consider the evidence, so lack of evidence will favour the licence holder.
Licensing Law Specialist
Tel: 0845 003 5639
Blog by Nigel Musgrove
Nigel has been providing dispute resolution advice as a solicitor for over 35 years. As well as advising SMEs and business owners on disputes he also offers a specialist licensing law service. View profile
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