1. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Licence conditions – enforceable and appropriate. To prevent public nuisance Jim Hunter. Training and Qualifications Officer Institute of Licensing

2. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Aims and Objectives How to draft or request conditions that are fit for purpose. Focus on conditions to prevent public nuisance

3. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions No member of the public shall be admitted to the licensed site after 2100 hours without good and sufficient reason. No person shall be admitted to the licensed site who is at that time visibly drunk or under the influence of drugs.

4. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions The designated premises supervisor (DPS) or his nominated deputy, who shall be the holder of a personal licence to sell alcohol, shall be present on the licensed site at all times. Prior to the sale of alcohol, the designated premises supervisor shall instruct all bar staff in the prevention of sale to anyone who is drunk or under the age of 18 years.

5. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions can be attached to a licence, When offered in the operating schedule, At a hearing, application for the grant or variation, at a review and summary review, By way of a minor variation, At a consideration hearing following a closure order, At an appeal When there are new mandatory conditions TENS

6. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions s18 (2) (a) such conditions as are consistent with the operating schedule.... + Mandatory conditions Same provision for CPCs Note slightly different for variations does not state allowed to impose conditions consistent with.

7. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions From s182 Guidance 10.9 It is also not acceptable for licensing authorities to simply replicate the wording from an applicant’s operating schedule. A condition should be interpreted in accordance with the applicant’s intention. Conditions should be appropriate for the promotion of the licensing objectives and easily enforceable.

8. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions This was a problem in 2005 Licensees did not really have a clue Applicants for licences were under severe pressures due to the timescales involved So were the Responsible Authorities As were the Licensing Officers

9. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions Proportionate. Achievable. Understandable. Enforceable. Necessary/appropriate. Promote the licensing objectives. Not duplicated in other primary legislation. Individual and tailored to the premises

10. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Public Nuisance Amplified sound from the premises shall not be clearly audible at the boundary of any noise sensitive premises Uttlesford District Council v English Heritage [2007] EWHC 816 (Admin) (available online at: http://www.bailii.org/ew/cases/EWHC/Admin/ 2007/816.html) http://www.bailii.org/ew/cases/EWHC/Admin/ 2007/816.html

11. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Public Nuisance Amplified sound from the premises shall not be clearly audible at the boundary of any noise sensitive premises Insufficiently precise. It was amended to ‘music levels should not exceed LAeq 52dB over any 15 minute period at a distance of 1 metre from any residential premises’.

12. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions See: Crawley Borough Council v Attenborough [2006] 170 JP 593; [2006] EWHC 1278 (Admin) available online at: http://www.bailii.org/ew/cases/EWHC/Admin/ 2006/1278.html http://www.bailii.org/ew/cases/EWHC/Admin/ 2006/1278.html

13. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions Extract from Scott Baker L.J., at paras 6-7: “It is important that a premises licence and any conditions attached to it should be clear. Not just those with specialised knowledge but also an independent bystander such as a neighbour. As a breach of licence carries criminal sanctions. Everyone must know where they stand after reading the licence and its conditions.

14. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions It not that straight forward. Think about conditions relating to noise nuisance..... “Clearly Audible” creates problems but then understanding the specifics of a condition with maximum set decibel levels has its own problems

15. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions Licensee to comply may need a noise monitor How would a neighbour be able to establish if the condition was being met?

16. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions Take aways To enable the identification of litter. “All packaging used to wrap or cover food or drink from the premises shall be unique to the premises and clearly state the name of the premises which has sold or supplied the food or drink.” Good condition?

17. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions Take aways To enable litter from the premises to be correctly disposed of. “ A litter patrol must be conducted after the premises has closed. The patrol must look for and pick up any litter relating to their premises in a 50m radius from their premises, all litter to be suitably disposed of. Good condition?

18. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions Q: When is a condition not a condition? A: When no “Licensable Activities” are taking place?

19. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions S136 (a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or (b) he knowingly allows a licensable activity to be so carried on.

20. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions Q: When is a condition not a condition?

21. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions Conditions should not duplicate primary legislation. S182 Guidance 10.17 So, licensing authorities should not seek to impose fire safety conditions that may duplicate any requirements or prohibitions that could be imposed under the Regulatory Reform (Fire Safety) Order 2005 (see Chapter 2). Likewise EPA 1990

22. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions

23. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Conditions Door supervisors may be used to record entrance and exit of patrons to ensure capacity limits are not breached. Avoid May (Must), should (Shall) & best endeavours! (Will) Licences with over 160 conditions.

24. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 What is Public Nuisance? Noise Light Litter Noxious smells

25. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Public Nuisance 2.34 Public nuisance is given a statutory meaning in many pieces of legislation. It is however not narrowly defined in the 2003 Act and retains its broad common law meaning. It is important to remember that the prevention of public nuisance could therefore include low-level nuisance, perhaps affecting a few people living locally, as well as major disturbance affecting the whole community. It may also include in appropriate circumstances the reduction of the living and working amenity and environment of other persons living and working in the area of the licensed premises.

26. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Public Nuisance R (Hope and Glory Public House Limited) v City of Westminster Magistrates' Court [2011] EWCA Civ 31 http://www.bailii.org/ew/cases/EWCA/Civ/2011/3 1.html the main condition being that no customer should be permitted to take drink from the premises in an open container after 6 pm.

27. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Public Nuisance Only one person actually suffered a noise nuisance, although she had complained numerous times. Still held to be a “public nuisance”

28. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Public Nuisance THE QUEEN ON THE APPLICATION OF THE LORD MAYOR AND THE CITIZENS OF WESTMINSTER CITY COUNCIL Claimant v METROPOLITAN STIPENDIARY MAGISTRATE Defendant and MARC MERRAN Interested Party http://www.bailii.org/cgi- bin/markup.cgi?doc=/ew/cases/EWHC/Admin/200 8/1202.html&query=movida&method=boolean

29. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Institute of Licensing Understandable and achievable conditions No food or drinks to be consumed outside the premises "No food or drinks supplied on the premises are to be consumed in the vicinity of the premises." 29 Delivering Excellence in Licensing ©Institute of Licensing 2012

30. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Institute of Licensing Understandable and achievable conditions No new entries (other than staff) after 2.15am "No person may enter the club after 2.15 a.m., other than the staff, who has not already entered the premises that night prior to 2.15 a.m.." 30 Delivering Excellence in Licensing ©Institute of Licensing 2012

31. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Institute of Licensing Understandable and achievable conditions During the winding down period the temp of the music played and its volume to be reduced substantially to the extent that for the last half hour it is possible throughout the premises to have a spoken conversation with another at normal speech level. 31 Delivering Excellence in Licensing ©Institute of Licensing 2012

32. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Public Nuisance It would be possible to provide for precise limits by reference to decibel levels measured at particular places in the club, or, should a lighting condition be attached, by reference to light measurements taken at particular points by a light meter, but that is not the only way, nor necessarily the best way, of stipulating elements of a winding down period.

33. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Public Nuisance It should be stated that where a district judge or Magistrates' Court is considering imposing conditions on the grant or variation of a licence it will almost always be good practice for the conditions under consideration to be outlined for debate by the parties. In that way errors of drafting can be identified, as can improvements, as can, most important, consideration of the underlying propositions behind the conditions

34. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 What is Public Nuisance? Licensing authorities should be aware of the need to avoid inappropriate or disproportionate measures that could deter events that are valuable to the community, such as live music. Noise limiters, for example, are very expensive to purchase and install and are likely to be a considerable burden for smaller venues.

35. Institute of licensing Delivering Excellence in Licensing ©Institute of Licensing 2012 Jim Hunter jim@instituteoflicensing.org 07970 111401 www.instituteoflicensing.org jim@instituteoflicensing.org www.instituteoflicensing.org