Published: 17 September 2015 by Jonathan Smith
It has long been a doctrine in Licensing law that just because somebody had decided to move next door to a 2,000 capacity live music venue, that there is no defence for the venue in licensing law (whether that be under the old licensing regime or the new regime which heralded from 2005) that an individual resident has moved to the nuisance.
It is not surprising therefore that with Councils seemingly hell bent on attracting further residents to town centres, that it has been reported that yet another iconic live music venue, the Sheffield Boardwalk – which opened its doors in July 1976, has shut because of (amongst other things) complaints from owners of new flats. This joins a long list of other live music venues, which have recently shut, including Blind Tiger, Brighton and Boileroom in Guildford. Indeed, a venue close to me, whilst not being forced to close, was forced to spend close on £250,000 in replacing its roof following complaints from residents who lived in a block of flats which had been built some 50 years after the venue had opened.
Indeed, there are a plethora of sanctions such a venue can face as a result of complaints from a resident who may only have lived next to the venue for 1 week, when the venue itself has been there for over 100 years. It may seem highly unfair but that is the way the law stands, and it is a brave Licensing Committee which will take sympathy with an operator, faced with a vociferous group of residents who must have known that they were moving next door to a venue which is likely to create a considerable amount of music noise. That being said, there have been cases of Licensing Authorities deciding cases in favour of such venues in the past, but no decision has proceeded to the higher Courts. One notable decision was a Manchester music venue, Night and Day Café, which was successful on a review of its Premises Licence, after it was established the Local Authority in question had failed to impose appropriate conditions on the planning application requiring the sound proofing of the flats at the time that they were built, despite the venue having made representations against the grant of the planning application.
Putting the Licensing Act 2003 to one side, our live music venue could face a Closure Notice under the Anti-social Behaviour and Policing Act 2014, a Noise Abatement Notice, should the nuisance be a Statutory Nuisance under the Environmental Protection Act 1990, or a fine under the Noise Act 1996.
What can be done? Short of pleading to the sensitivity of the Licensing Committee faced with a review of a Premises Licence?
The Association of Licensed Multiple Retailers (“ALMR”) has urged Local Authorities to adopt an “Agent of Change” principle, which would help a venue which is already licensed and operating when a new residential building is built, by requiring that the developer be responsible for the effective sound proofing of the residential building. The Music Venue Trust has also criticised the existing laws, and pushed for the “Agent of Change” principle to be adopted.
This had led to one Council, Bristol City Council, forcing developers to install sound proofing for a new block of residential dwellings, built close to The Fleece. The principle itself is explained by the Music Venue Trust in an open letter it wrote to three Governmental departments:
“The principle is simple: If a venue increases its noise, it should make changes to adapt it. If a developer wants to build next to a music venue, they must build to adapt to the noise. If a new occupier moves into a zone where there is an accepted level of noise, they should make changes to adapt to it”.
In other words, whichever building is there before, be it the building generating noise, or the residential building, the second building coming to the site is responsible for paying for appropriate sound proofing. Changes have already been adopted in the state of Victoria in Australia, ensuring that developers are constructing residential dwellings to a higher specification in terms of sound proofing which are near music venues.
A similar approach was adopted when the owners of The Ministry of Sound reached an agreement with the developer, which was constructing residential properties a few metres away from the club. The developer was responsible for the acoustic protection of the flats. This does not prevent residents from complaining about noise breakout from live music venues, and with enforcement by Environmental Health Officers of noise levels inconsistent and patchy around the country, there is no guarantee one Environmental Health Officer would necessarily follow the lead of another.
The Guidance to the Licensing Act 2003 makes it clear that public nuisance in terms of the Licensing Act 2003 can be low level nuisance as opposed to a Statutory Nuisance, and so whilst the “Agent of Change” principle has to be welcomed, live music venues such as our 2,000 capacity venue, which has been around for 100 years will (unless there is any change in legislation) always face uncertainty over their future whilst residential dwellings continue to sprout around them.
What is clear is that any venue faced with the construction of residential dwellings in close proximity should ensure that they raise a representation against the planning application to try to ensure rigorous conditions are imposed requiring sound proofing of the residential units.
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