2013 Response to Use of LRO to de-regulate Licensing Act (November)

Introduction

NORA members were asked to comment on this Consultation Paper and a draft response was prepared with their comments and then circulated for further scrutiny. This final response includes all the comments made by NORA members.

Whilst some NORA members without entertainment venues have no direct concerns for the proposals, those that have such facilities have expressed their considerable alarm at the likelihood of the serious problems that would arise. The numerous assumptions made in the document and in the assessment document reveal a misunderstanding of the current situation and a lack of data to justify the conclusions.

The current low incidence of problems with the entertainment licensing regime is entirely due to the largely effective licensing regime introduced in 2003 Licensing Act, which has been used by residents to persuade licensing authorities to impose adequate conditions on premises licences in order to prevent public nuisance from unwanted amplified music. In particular noise levels and hours of closure are imposed to protect the environment of residents. The 2003 Licensing Act provided the means by which this could be achieved, and the low levels of complaints and licensing reviews reflect that.

The de-regulation introduced by the 2012 Live Music Act was designed primarily to foster live music performances in small venues, which had declined substantially with the advent of the new 2003 Licensing Act. With adequate protection of residents retained, it was expected to have little effect on the environment of residents. The de-regulation came into effect on 1 October 2012, so the data for 2012/2013 (April to March) only includes six months of the change. The published data suggests a steady declne in licensing reviews since 2010, but without data on complaints of noise-nuisance to Environmental Health Deprtments, no sound conclusions can be drawn. The fall could be due to the decline in music licences and the economic depression leading to fewer noise-nuisance events.

These further proposals seek to de-regulate amplified music, a radical and far-reaching change to the 2003 Licensing Act. It has the damaging effect of undermining one of the two key aims of the Act, the involvement of residents in the licensing process, the other being the simplification of the licensing regime. Unwanted amplified music is the most serious consequence of entertainment events, and the Act made it possible for residents to ensure it is controlled so that it is not a public nuisance. NORA members strongly oppose those proposals that de-regulate amplified music. They are seen as a major step in the wrong direction and a step too far.

Accordingly there is strong opposition both to the proposals involving amplified music and to the use of the Legislative Reform Order procedure to introduce them. The logic is revealed in the answers to the twenty questions posed in the Consultation Paper.

Questions

Q1 Do you have any comments on how this LRO deregulatory measure will work for local authorities?

Yes.

NORA members see no justifiable reason to introduce de-regulation of entertainment licences for the many public authorities listed in the Consultation Paper. Premises licences already exist for all local authority entertainment venues regardless whether the entertainment is live music or recorded music and whether it is amplified or not amplified.

The Register of Licensed Public Spaces contains a long list of local authorities with venues blessed with premises licences, which recognise the undesirable effects of unwanted noise on residents, so they contain appropriate conditions to promote the third licensing objective, the prevention of public nuisance. This includes limitation of noise levels and appropriate closure times. Any musical events promoted by the local authority are highly likely to observe any conditions imposed by the licence, so de-regulation is contrary to the reason for them. Events organized by those renting venues are also likely to be conditioned by the contract between the local authority owning the venue and the organizer, which would be expected to have the same restrictions as for local authority organised events. It would be discriminatory to do otherwise. So de-regulation for these events undermines the reason for the conditions.

Accordingly the de-regulation to allow amplified musical events without an entertainment licence does not make sense unless it is the intention to enable performers to flout the conditions currently imposed by such local authorities. If so, then it can only lead to conflict between residents, the licensing authority and the local authority owning the venue. The effect on residents would be a foreseen unwanted consequence and could arouse considerable conflict.

Other local authority venues listed in the Consultation Paper appear to be indoor venues, though some authorities do own outdoor swimming pools. It is hardly justified to go to the considerable lengths to de-regulate the few council-owned venues that may not have premises licences.

Accordingly, NORA members object to this proposal, since it is liable not only to cause problems for councillors but also to invoke the anger of residents, who have worked hard to have appropriate conditions on noise levels and closure times at musical events held in council-owned properties, particularly in public open spaces.

Q2 Do you have any comments on how this LRO deregulatory measure will work for hospitals?

Yes.

NORA members are puzzled by this proposal. Few hospitals have facilities for large musical events. There may be rooms for small indoor musical events, but events with audiences over 200 are only likely outdoors. If they involve amplified live and recorded music, it is unclear how in-patients will be protected from the noise-nuisance.

NORA members see this proposal as unnecessary and provocative, and, if they were implemented on hospital sites, they could cause distress to resident patients and residents adjacent to the hospital.

Q3 Do you have any comments on how this LRO deregulatory measure will work for schools?

Yes.

Schools that have the facilities for musical events almost invariably already hold premises licences. If they have not applied for them, it is usually because the type of events they hold are already exempt. Where appropriate, residents will have pressed the need for controls on noise levels and hours of use. It is difficult to understand the need for de-regulation of indoor events. To de-regulate outdoor events for 500 people without noise level controls at all times would no doubt cause problems for neighbouring residents, because primary and secondary schools are usually sited in residential areas. It will undermine the third licensing objective, the prevention of public nuisance.

Q4 Do you have any comments on how this LRO deregulatory measure will work for any person offering early years and day care provision?

Yes.

NORA members are astonished that such premises for small children should be used for musical events extending into the late evenings. What on earth is expected to take place on such premises?

Q5 Do you agree that all local authorities and every hospital, school and nursery provider specified above, regardless of size, resources and capability should be included in these exemptions? If not, which bodies would you exclude from these exemptions and why?

No.

NORA members would exclude all these bodies from exemption from the ability to hold events with amplified music for 500 people between the hours of 8 am and 11 pm without the need for an entertainment licence that would control the noise levels and the hours of operation. It would negate all the efforts residents have made to prevent public nuisance.

Q6 Are you aware of any local authority body, hospital, school, (including children�s residential provision) or nursery provider that, in terms of the licensing objectives, ought to be included in these cross-activity exemptions and currently would not be?

No.

Q7 Do you have any comments on how this LRO deregulatory measure will work for live music, taking into account experience since the Live Music Act 2012 came into force?

Yes.

Currently de-regulation of live music performances applies to unamplified music with the exception of the use of recorded backing tracks, and this has been acceptable. Such performances usually present no noise problem unless there is much drumming or brass wind instruments are used. No evidence has been produced so far to reveal what effect it has had on either the number and quality of musical events or the number of complaints of public nuisance or the number of licensing reviews due to public nuisance.

Amplified live music is permitted in licensed premises for audiences of less than 200. It was meant to apply to small venues and the music would be played indoors. The increase to audiences of 500 will mean that the extra 300 are most likely to be accommodated in areas outside the built premises. Whilst noise emanating from the built premises is easily managed, the noise of unwanted amplified music generated out-of-doors is a totally different matter.

To allow it to take place from 8 am to 11 pm and exempt from licensing is bound to lead to breaches of the third licensing objective, the prevention of public nuisance, and cause distress to residents affected by noise-nuisance at times when they are entitled to expect peace and quiet in their homes. It removes the obligation to promote the licensing objective covering public nuisance.

Residents would be denied the right to object because there would be no licence to review. To invoke the help of Environmental Health Officers (EHO) using the Noise Act to control unwanted sound from musical events has proved useless. The Noise Act requires the nuisance to be frequent and to be assessed by EHOs. It is mostly used to manage unacceptable noise produced on domestic properties. One-off events are not covered, and the service provided by most EHOs has been inadequate to deal with this problem when it arises, and it will be worse because of the reduced funding of local authorities.

Q8 Do you have any comments on how this LRO deregulatory measure will work for recorded music in on-licensed premises?

Yes.

Recorded music is by its nature amplified music. Of all the musical events that cause complaints from residents and EHOs, amplified recorded music comes top of the list. This applies to on-licensed premises both indoor and outdoors. Small venues currently able to accommodate 200 people inside their premises will no doubt seek to use any available outdoor space to accommodate the extra 300.

See answer to Q7.

Q9 Do you have any views on whether, or not, there should a LRO deregulatory measure for live and recorded music on nursery premises?

Yes.

NORA members are opposed to the proposals to include any amplified music whether live or recorded. Nursery premises are usually sited in residential areas, and it would be unreasonable to inflict noise-nuisance on residents in such areas.

Q10 Do you have any comments on how this LRO deregulatory measure will work for live and recorded music on local authority, hospital, school, or community premises?

Yes.

Of all the musical events that cause complaints from residents and EHOs, unwanted amplified music comes top of the list. This applies to premises both indoors but especially to those outdoors. Venues currently able to accommodate 200 people inside their premises will no doubt seek to use any available outdoor space to accommodate the extra 300.

See answer to Q7.

Q11 Do you have any comments on how this LRO deregulatory measure will work for circuses?

Yes.

The proposal for circuses is acceptable since their performances take place in large tents, so that the noise levels outside them are usually not likely to cause public nuisance.

Q12 Do you have any comments on how this LRO deregulatory measure will work for Greco-Roman and freestyle Wrestling?

Yes.

This proposal is unlikely to lead to public nuisance, so it is supported.

Q13 On non-legislative solutions, do you agree with our assessment in this regard?

No.

NORA members do not understand how the current licensing regime can be considered a sufficient burden on the entertainment industry to justify using the LRO measure to enact the proposals.

Almost all the venues listed in the Consultation Paper already have premises licences, so the licensing process is not a burden. The existence of conditions on these licences designed to prevent public nuisance do limit the freedom to amplify live and recorded music, but to consider this a burden is to regard the needs of residents and the community as being unreasonable or not worthy of consideration.

The benefits appear to be trivial in terms of financial saving. Considering that the revenue attributed to the entertainment industry runs into hundreds of million pounds each year, the suggested savings of £16.8M over ten years is simply insignificant. To consider it is reducing the burden sufficiently to justify the use of the LRO procedure is just not credible.

Q14 On proportionality, do you agree with our assessment in this regard?

No.

The proposals are not proportionate in that they involve a substantial change to the 2003 Licensing Act for a trivial benefit to those currently subject to the legislation.

The analysis of the proportionality in the assessment document deals primarily with the supposed benefits, which financially are trivial. With an annual turnover of hundreds of million pounds a year, the saving of £1.6M cannot be regarded other than trivial. The suggestion that the proposals will add significantly to the enjoyment of the community is not backed by any hard evidence and is all conjecture and hearsay.

On the other hand the dis-benefits are serious and can affect large numbers of residents all over the country, especially where there are many open-air musical events.

The de-regulation of amplified live and recorded music is bound to lead to more noise pollution and more public nuisance. The burden placed on residents suffering this assault can be serious both in terms of distress but also lead to chronic ill-health. Campaigns to combat the public nuisance exact a considerable toll though it may not be assessable in financial terms. The lack of a licence means that residents no longer have the effective tools provided by the 2003 Licensing Act with which to address the problem of noise-nuisance.

The Noise Act is quoted as the means by which residents might manage noise-nuisance, but this Act is primarily designed to relate to repeated unwanted noise, which is usually generated on domestic premises. It requires frequent nuisance and must be measured by EHOs. It is useless in managing one-off and irregular events. Out-of-hours service is not provided by many local authorities, and the reduction in local authority budgets will reduce this public service.

Q15 On fair balance, do you agree with our assessment in this regard?

No.

The proposals dealing with the de-regulation of amplified music cannot be considered to strike a fair balance between the interests of the entertainment industry and its customers when it is at the expense of the general community.

The assessment document deals primarily with the supposed financial benefits, which are shown to be trivial in comparison to the total budget of the entertainment industry. With an annual turnover of hundreds of million pounds a year, the saving of £1.6M cannot be regarded other than trivial. The suggestion that the proposals will add significantly to the enjoyment of the community is not backed by any hard evidence and is all conjecture and hearsay.

On the other hand the dis-benefits are serious and can affect large numbers of residents all over the country, especially where there are many open-air musical events.

The de-regulation of amplified live and recorded music is bound to lead to more noise pollution and more public nuisance. The burden placed on residents suffering this assault can be serious both in terms of distress but also lead to chronic ill-health. Campaigns to combat the public nuisance exact a considerable toll though it may not be assessable in financial terms. The lack of a licence means that residents no longer have the effective tools provided by the 2003 Licensing Act with which to address the problem of noise-nuisance.

The Noise Act is quoted as the means by which residents might manage noise-nuisance, but this Act is primarily designed to relate to repeated unwanted noise, which is usually generated on domestic premises. It requires frequent nuisance and must be measured by EHOs. . It is useless in managing one-off and irregular events. Out-of-hours service is not provided by many local authorities, and the reduction in local authority budgets will reduce this public service.

Q16 On necessary protection, do you agree with our assessment in this regard?

No.

The proposals covering amplified music de-regulation remove the current necessary protection that enables the community to protect itself from public nuisance.

The lack of a licence means that residents no longer have the effective tools provided by the 2003 Licensing Act with which to address the problem of noise-nuisance.

The Noise Act is quoted as the means by which residents might manage noise-nuisance, but this Act is primarily designed to relate to repeated unwanted noise, which is usually generated on domestic premises. It requires frequent nuisance and must be measured by EHOs. It is useless in managing one-off and irregular events. Out-of-hours service is not provided by many local authorities, and the reduction in local authority budgets will reduce this public service.

Q17 On rights and freedoms, do you agree with our assessment in this regard?

No.

They also remove the rights and freedoms that would enable the community to protect itself from public nuisance.

Q18 On constitutional significance, do you agree with our assessment in this regard?

No comment.

Q19 Do you agree that the Affirmative Parliamentary procedure should apply to the scrutiny of these proposals?

No.

Q20 Do you have views on the expected benefits as set out in the accompanying Impact Assessment?

Yes.

BENEFITS

The benefits appear to be trivial in terms of financial saving. Considering that the revenue attributed to the entertainment industry runs into hundreds of million pounds each year, the suggested savings of £16.8M over ten years is so insignificant. To consider it is reducing the burden sufficiently to justify the use of the LRO procedure is just not credible. The exemption from seeking appropriate licences is shown in the NORA answers to be unnecessary for nearly all the premises listed in the Consultation Paper.

There is no published data on the number of entertainment events taking place in the UK, so the effects of the 2003 Licensing Act and the 2012 Live Music Act are unknown. Hearsay is not evidence that should be used to justify legislative changes.

DIS-BENEFITS

On the other hand, the dis-benefits are considerable.

DATA

It was understood that the de-regulation in the 2012 Live Music Act was designed to make it easier and therefore more encouraging for small groups of musicians to entertain limited audiences mostly in small venues. The music was live and unamplified, and it was considered unlikely to upset residents adjacent to these venues.

There are three indicators for noise-nuisance. Complaints to Local Authorities and the Police of unwanted and intrusive noise are the first line of action. The number of licensing hearings covers representations to Licensing Authorities that are substantial with evidence from several sources - residents, EHOs and the Police. Licensing Reviews describe the most serious complaints that can even lead to the loss of the premises licence. The number of Licensing Reviews for noise-nuisance is therefore only the tip of the iceberg.

Published data on complaints is hard to find, but would reflect the level of concern of residents. It would include noise-nuisance from barking dogs and domestic noise as well as noise from entertainment venues, so it is difficult to assess the relevance to noise-nuisance from entertainment venues.

The number of licebnsing hearings is in decline with figures of 4300 for 2009/2010, 3878 for 2011/2012and 3289 for 2012/2013. How many were brought about by representations from residents about public nuisance is unknown.

The number of Licensing Reviews is also in decline with figures of 1334 for 2009/2010, 1015 for 2011/2012 and 800 for 2012/2013. Of these reviews public nuisance was the reason for 440 (33%) in 2009/2010, 309 (30%) in 2011/2012 and 268 (33%) in 2012/2013. There are 350 Licensing Authorities in the UK.

The steady decline in licensing hearings and reviews is not explained. Is it due to closures of venues or reductions in entertainment events, attendances and the consumption of alcohol or the economic recession? This data does show that around 30% of reviews are due to complaints of public nuisance raised by residents and EHOS, and no doubt those brought about by EHOs are mostly at the instigation of residents. The data for 2012/2013 only covers the first six months after the introduction of the de-regulations due to the 2012 Live Music Act.

Hence it is not possible to draw any sound conclusions from this data as to whether or not the October 2012 de-regulation has had any effect on noise-nuisance problems. Accordingly to introduce more de-regulation, especially de-regulation that would facilitate amplified music causing noise-nuisance, is premature.

Proposal issues

There are two key issues in the proposals. The first is the increase in audience size from 200 to 500, and the second is the inclusion of amplified live and recorded music.

AUDIENCE SIZE

The audience figure of 200 is crucial. It applies to small venues such as local pubs, clubs and village and church halls, and the performances take place almost entirely indoors. The size of musical groups is small and the amount of disturbance from the music is limited, because it is contained within the building of the venue. When the music stops and people leave, the noise of 200 people in the adjacent areas is not unacceptable. It is precisely this style of entertainment the Live Music Act was intended to foster, and is supported by NORA members.

An increase in audience size to 500 is not just a minor change, since it would include larger venues and encourage the use of outdoor space for those venues that cannot contain more than 200 within their building. It would engage larger musical groups, who would seek to use amplification. Musical groups of this size are usually well-established and are not expected to need the support of the Live Music Act. The noise of 500 people milling in streets after events is substantial, and is bound to cause disturbance for local and even distant residents.

AMPLIFIED MUSIC

As explained in the response to the 2011 Consultation Paper, NORA members support for the increase in audience size was dependent on the restriction to unamplified music and any de-regulation should only apply to the hours between 0800 and 2200.

Unamplified live music can cause noise pollution when certain instruments are used, but it is amplified live and recorded music that causes the most public nuisance. The 2003 Licensing Act enabled residents to seek noise limitation on events involving amplified music, and the threat of losing a licence ensured that licensees observed the relevant conditions on their premises licence. Removing the need for a licence deprives residents from any involvement in controlling noise levels which would prevent public nuisance due to loud music. The facility to seek licensing reviews is lost.

The further extension to allow events with no audience limit in certain locations will lead to tremendous problems where locations are near residential dwellings. NORA members with such venues in their locality are strongly opposed to this proposal.

HOURS of MUSICAL EVENTS

Underlying all the proposals is the belief that to promote musical events from 0800 hours to 2300 hours is acceptable, but even within these hours the public merit protection. Surely residents are entitled to some peace and quiet when they return from daytime work and during the day at weekends. In Kroon v Netherlands [1994] 19 EHRR 263, it was held that Article 8 of the Human Rights Act imposes a positive obligation on public authorities to take reasonable and appropriate measures to protect individuals against nuisances of various kinds, which includes protection from noise-nuisance. Moreno Gomez v Spain (2005) 41 EHRR 40 covered the noise from licensed entertainment, where residents were exposed to 'high noise levels causing serious disturbance'.

Many NORA members consider the choice of the later hour of 2300 hours is too late for the vast majority of the community. Some Licensing Authorities have including earlier time limits for outdoor events in their Licensing Policies. Continental Europe has 2200 hours as the closure time for street events that can lead to public nuisance, and NORA members do not accept that this country is so different. Why should its residents be subject to unacceptable noise-nuisance at any time prior to 2300 hours and after 0800 hours? The problem is much more serious with one-off events, since if they present a problem it is too late to prevent it, whereas regular events causing problems can be the subject of complaints leading to measures that prevent further problems.

NORA members understood that the 2003 Licensing Act was designed to simplify the licensing process but at the same time increase residents' direct involvement in licensing decisions. The proposals in this Consultation Paper will undermine this very principle, because they will remove any possible involvement of residents in the process. The removal of the need for an entertainment licence removes the need to promote the four licensing objectives, the mainstay of the 2003 Licensing Act.

To rely on the suggested remedies for residents' concerns - the Noise Act, etc., which pertained prior to the 2003 Licensing Act - is a serious betrayal of the community. It ignores the limitations of this Act. The noise-nuisance has to be repeated and be assessed by EHOs. It fails to cover the problems with single events The current reduction in local authority funding means services responsible for public protection are now inadequate to protect the public from unacceptable intrusion in their lives by unwanted noise and to ensure their ability to enjoy their properties

Conclusion

That these proposals will swing the balance even more in favour of the entertainment industry at the expense of residents is, in the opinion of NORA members, a step too far. The financial benefit to licensees is trivial in comparison with the annual turnover of the entertainment industry, and the claim that the impact on public nuisance will be minimal has no evidential basis to support it.

Accordingly this organisation is strongly opposed to any of the proposed changes to the 2003 Licensing Act that remove the need for a licence for amplified music.

November 2013                                                Alan B Shrank - NORA chairman