I noted with interest the report in last week's Morning Advertiser about the licensee who successfully appealed to the magistrates against a noise abatement notice. It cost him a great deal of money, but in terms of the continuing prosperity of the pub it was probably worth it.
An abatement notice is a potent weapon in a local authority's armoury because the threat it poses is more or less everlasting. It just stays in the background, waiting for something to happen.
The sequence of events goes something like this: local residents, or as in this case even just one, complain to the local authority, which then serves a noise abatement notice under the Environmental Protection Act, giving the licensee 21 days to abate the nuisance and to execute certain specified works related to double-glazing, soundproofing and the like.
The notice has a schedule which sets out details of the works to be done and requires the provision of music to cease at 11pm each evening.
There are two alternative reactions to the notice. The owner can do nothing, or he can take proper advice and appeal the notice.
What happens to the owner who does nothing? After the time limit expires, the residents continue to suffer the same annoyance and, again, they complain to the council. The requirements of the notice have now taken effect and have the force of law, rather like a restrictive covenant imposed forever on a property, but with the teeth of criminal penalties upon breach.
The provisions of the notice may no longer be challenged in a court of law and, every time there is a complaint of noise that is contrary to the terms of the notice (for example music occurring after 11pm), proceedings can be issued, which can carry a fine of up to £20,000. Under the new law, of course, the actual licence is at risk.
It will do no good for the owner of the premises to plead to the court that he did everything possible to lessen the effects of the noise. In one case, the defendant was holding a party three years after a noise nuisance notice. When a passing police officer complained of noise the music was turned down, but the defendant was nevertheless still prosecuted and convicted.
So my advice is, as soon as a notice appears on the horizon, take some good legal advice and go directly for an appeal, or else you lay up trouble for the future.
Q&A
Prison for licensing offences
Q. We have seen a rather scary report that a licensing lawyer says company directors can go to prison for licensing offences even if they are not involved directly in running the premises. We have such a situation here. Is this possible?
A. I think the word "scary" is about right. Of course, there is a provision in the Licensing Act, which I mentioned recently, of a maximum penalty for offences of a fine of up to £20,000 or up to six months in prison. But as far as I am aware, since the passing of the Act and its implementation in 2005, there has never been a penalty even remotely close to this against a pub operator.
However, one shopkeeper was reportedly jailed in 2008 for persistently selling alcohol without a licence at all. He had been warned on several occasions and prosecuted before, so this was a last resort.
It is for this type of offence that the serious penalty was included in the Act.
However, a case involving Hall & Woodhouse last year held that a company could not be held automatically liable for licensing offences as such, even if they held the licence, when others were carrying out the licensable activities. It would be wrong, therefore, to suggest that there was any enhanced liability on company directors unless there was some personal involvement in the offences, or a deliberate ignoring of serious licensing malpractice for which they could be personally responsible.
Whose name over door?
Q. We have recently taken over a small country pub with a manager as designated premises supervisor. My question is: whose name goes over the door — is it the names of the premises licence holders or the name of the DPS?
A. Technically speaking, you do not need the old-style nameplate above the main entrance of the pub, although I know of many places where it is retained. The legal requirement is for the licence summary to be displayed prominently and this is a document prepared by the licensing authority and issued to you when you take over the pub, so you have no control over its contents. This will state the name of the holder of the premises licence together with the name of the DPS whom you have specified to run the premises.
Can clubs sell to public?
Q. We have clubs round here that have premises licences although they operate as clubs. Does this mean they can open their bars to the public and switch between being a club and a pub, or must they confine sales to a part of the premises only?
A. It is true that a premises licence granted to a club is essentially the same as one for a public house,
in that the licence authorises sales to members of the public, not just to club members and guests, as is the case with a club premises certificate.
However, a number of club licences that I have looked at do have a condition restricting sales to members and guests, plus persons attending a prearranged event in a specified part of the premises. This is to allow the kind of limited sales to non-members provided under section 49 of the previous Act, but not replicated in the new Act.
In the absence of such a restrictive condition, of course, the licence can be operated in the same way as a pub licence.
However, in such circumstances there would indeed be a problem over such things as the use of jackpot gaming machines and the requirement to have licensed door staff, as the exemptions would not apply.
If members of the public were allowed into the bar area, then the club would cease to qualify for the machine exemption and would either have to switch the machines off or revert to AWP machines, as in pubs. Similarly, the club exemption on security staff would no longer be applicable.
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