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Fighting the cause effect

A representation against a variation must be about the effect of it on the licensing objectives

I am following on from my last piece when I wrote about why it can be very difficult in some areas for pub operators to develop their businesses and indeed, on occasion, simply to operate on a day by day basis. I touched upon the combined threat of some local councillors’ political antipathy and the greater organisation and militancy of some residents and residents’ associations. The common denominator is a failure to distinguish between different styles of operator such that the local pub wanting to extend its outside area can attract the same hostile reception as a late night bar wanting to trade until 2am.

I thought it may be interesting in this follow-up to give you some specific examples; what in effect are “case studies” where I have of course, for reasons of confidentiality changed some of the details but broadly these are real life experiences.

Let us start with a little bit of law (forgive me) and S.35(5) of the Licensing Act 2003 which makes it clear that if making a representation against a variation then to be relevant it must be about the effect of the variation on the licensing objectives. In other words, if I am making a variation to extend my pub’s layout then my existing business and licence should be protected; the reason for this is to prevent a variation becoming what is effectively a “back door Review” such that an operator is not putting his current business at risk when looking to improve it. If a resident is unhappy with the existing business then the Review process is designed specifically to address that.

In practice, however, this distinction can become somewhat blurred, and if a resident is getting disturbed then it is a difficult piece of mental gymnastics to ignore that and simply concentrate on the proposed variation.

Recently, I submitted an application to change a condition which prevented the front doors of a pub opening on to a busy street at any time. Following discussions with the Council’s noise officer it became clear that the mischief here was to prevent breakout from entertainment but the condition was worded as a blanket ban. There was a resident who lived at the rear of the premises who was disturbed by noise from the pub’s garden which was over 40 metres away from the front doors. Three residents attended the hearing and it was, I am afraid, a difficult one and not only because one of the councillors fell asleep within 5 minutes of the start of the hearing(!) and did so on at least three other occasions. The councillors did not appreciate that opening the front doors would not have any impact on the existing disturbance from the garden and there was no evidence of any likelihood of noise nuisance from this new source (any noise of people would be drowned out by the busy road and the high ambient noise levels). Despite this the councillors, although they granted the application in part, imposed several conditions including a general monitoring condition which in its wording applied not just when the doors were open but whenever the premises were trading. It amounted to an effective restriction on the existing business and something which the operator of course did not want and which was unlawful. The committee saw their role as “addressing all the issues”, not looking simply at the effect of the variation.

The operator here had to threaten an appeal before a sensible compromise was reached and the condition re-worded in such a way that it only applied to the front doors and windows which were the subject of the variation application.

A second recent example relates to a smart pub in an affluent area in north London where there has been noise from customers at the front of the premises. These residents are well organised and had already instructed a solicitor to represent them. The Council through the noise and licensing officers have very much taken their side. Responsibly and sensibly the operator agreed to limit the time for customers to be outside and to monitor them, and to several other conditions. However, as the residents have flexed their muscles several of them are insistent on even more restriction and indeed (supported by the Council) that the operator’s own noise management plan should include their input! In other words, local residents who may not even use the pub should be able to influence its day to day management. Here the pub has been entirely reasonable and has addressed the principal concerns but this is still not, it seems sufficient. The residents do not just want to avoid disturbance but it seems they wanttheir local pub run in a way entirely suited to their needs – a nice pub but very quiet!

I do not mean to be overly pessimistic but these twin difficulties of councillors not appreciating the distinction between a variation and the existing business and the intractability of some local residents are becoming more regular problems for operators to face.

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