Propel Legal Briefing - The naughty list – facing enforcement by Tim Shield

First appearing for Propel Hospitality in their Legal Briefing on Wednesday 14th December 2022

The naughty list – facing enforcement by Tim Shield

We are (and have been for some months now) in a time of contradiction in the licensing world. On one hand, the vast benefits the leisure industry provides the country with has finally been acknowledged by local and national government. The nation reaps the rewards of hospitality’s taxation, employment, vibrant town and city centres, and the incredible innovation that operators continue to conjure up consistently each year. Unfortunately, that does not mean we are out of the woods regarding licensing regulation and enforcement.

The industry responds, often of its own accord, to the ever-changing concerns and issues that develop within our society – such as the drink spiking ‘epidemic’ and an operator’s choice to ensure the reinforcement of a safe environment for all customers via testing kits and signage. This, in turn, has led to some supportive activity from the licensing authorities. We have seen a spate of recent reversals and removals of the late night levy in cities such as Liverpool and Nottingham. In a number of cases, we have even borne witness to the removal or relaxation of cumulative impact policies which can often stifle new developments and sometimes crush the chances of the rejuvenation of a prosperous night-time economy.

Unfortunately, here at John Gaunt & Partners (JG&P), we feel there has been an increase in enforcement activity, some of which feeling a tad unfair. There is the well-publicised case of Night and Day Café Club in Manchester, which has been well-loved since it first opened in 1991, but it is currently facing a battle in appealing a noise abatement notice issued by the council. This iconic venue has hosted many large household name bands over the years such as the Arctic Monkeys, Wet Leg and Kasabian – many playing some of their most formative gigs at the site. 

The noise abatement notice was served following the conversion of a building into a block of flats immediately adjacent to the premises. The Guardian reports that the first complaint was received following the bar’s first live show after lockdown in June 2021, when a neighbour who had moved in during the pandemic the previous year complained about the volume. The fact that the venue is now having to deal with a stressful court case based on something that many consider was predominantly the fault of the council’s planning does feel unjustified and irrational.

A petition set up by the club’s owner, Ben Smithson, now stands at 97,500 signatures and is still growing. The appeal asks Manchester City Council to “address the real issue here, which is that housing with ill-considered planning and construction has been approved and built next to a pre-existing live music business”. It will be interesting to see if the court tries to create a device to bring balance to this situation, as we feel it is a prime example of this newfound issue.

This case is due back in court on 17 January, and it has raised a number of questions about whose obligation it is to prevent such noise nuisance. If the principle of the Agent of Change had the weight we consider it deserves, the court could look to prevent problems like this from arising. It would mean that a person or business introducing something new is responsible for managing the impact of that change. If this was in place, it would mean the developer or owner would be responsible for ensuring the potential occupants are not disturbed by the noise. There have been recent requests for the principle of Agent of Change to be added to the Section 182 Guidance of the Licensing Act 2003. Maybe this case will be the push that is needed to get the wheels into motion for reconsideration of the principle.

The team at JG&P are undoubtedly seeing an increase in enforcement activity. Under the Licensing Act 2003, there are many different avenues for enforcement which are presented in a variety of formats. A standard licensing review is a process over a set period of time, with the more serious of cases leading to the revocation of a premises licence. However, there is also the more draconian summary review which can be issued and force immediate closure within a very short period of time through what are known as interim steps. There is a firm statutory threshold for this form of application, but in our experience, these summary reviews are appearing more and more commonly, and in instances where in the past they would have been deemed an inappropriate approach.
We have found that noise abatement notices are being issued more often by local authorities, similar to Manchester’s Day and Night Café situation. An example of a recent case we worked on includes enforcement action being taken after customers who were attending a wake spontaneously burst into song (presumably in commemoration to the deceased) in the beer garden of a pub. This was successfully appealed. Could it be that we are seeing some of the fallout of the pandemic and its restrictions? The public may potentially be more sensitive to noise disruption after a prolonged amount of time of near silence during the lockdowns and heavy regulations. Is it possible that this is leading to more noise abatement notices?

While nobody would argue that a badly run premises should not face sanctions, there must undoubtedly be a fair balance struck. On occasion, a premises will have to face the ultimatum of working out a compromise with the authority or face enforcement action and costly proceedings which could result in further restrictions on their premises licence. If enforcement measures become a necessary route of action against a venue, then the relevant authorities should still take note of what will be lost if those premises are no longer there. These bodies must base their decision not only upon the licensing objectives (prevention of crime and disorder, public safety, prevention of public nuisance and protection of children from harm) but also in protecting venues of cultural and social value.
Let us hope that the industry and the services that well run operators provide to towns and cities up and down the country continues to be more widely appreciated. We are undoubtedly facing incredibly difficult times, not only as a nation, but as an industry. But hopefully this festive season will bring joy and cheer to the many millions of people who celebrate the holiday period. Let’s wish for a prosperous, peaceful and successful festive period for operators, customers and regulators alike. Merry Christmas and a Happy New Year from the team at JG&P.Tim Shield is a partner at John Gaunt & Partners