Never Mind the Buzzkills? Inaudibility, Licensing and Edinburgh’s Live Music scene

ON THE CAMPAIGN TO REMOVE THE SO-CALLED INAUDIBILITY CONDITION, LIVE MUSIC IN LICENSED PREMISES AND THE SOMETIMES COMPETING RIGHTS OF RESIDENTS AND MUSICIANS
Every single on sales licensed premises (and by that I mean pubs, bars and clubs, but not shops and off licences) in Edinburgh has a condition attached to the licence:

“all amplified music and vocals must be inaudible in any neighbouring residential premises”

This condition is a local condition which Edinburgh Licensing Board developed as part of the conversion to the current liquor licensing regime, contained within the Licensing (Scotland) Act 2005. It is not a Mandatory condition of the Act itself, as is sometimes reported or expressed. It is instead a ‘local’ condition. A condition imposed by the licensing board of their own devising.

It has been argued that the condition is extreme, disproportionate, unenforceable, arbitrary, but also welcome, necessary, sensible and obvious. Welcome to one of the many dichotomies of licensing law in Scotland.

Notice that the condition only refers to ‘amplified’ music and vocals. So background music is not captured. Neither is unamplified music such as an accapella barbershop quartet or for that matter a solo drum performance with a 20 piece kit (which is not mic’d up). Neither is a guitarist who sings unamplified.

The soil in which the condition has been planted is that of one of the five licensing objectives which underpin the 2005 Act: ‘preventing public nuisance’. Every licensee has a legal duty to uphold this objective. Public nuisance arising from licensed premises may take many forms but it can be said to include nuisance from entertainment such as live music.

But is total total Inaudibility going too far? The debate sits astride a wider UK discussion on an English legal principle known as the ‘agent of change’. If you are the person who has brought about the change, you should be the one at whose feet demands are placed. One can easily see how this could apply to Mrs McGlumpher, who, having moved into a flat above The Dog and Duck which has traded for 120 years with live music at night, makes one noise complaint which could result in an abatement notice being served, a licence review, and the death of the business because punters go to The Bull and Bush down the road, where the strains of ‘Pearls a Singer’ can be heard uninterrupted.

Does it make sense that such a sword of Damocles, suspended and shining above the pub can take precedence over the old ‘but why did you move above a pub missus?’ submission? The agent of change is Mrs McGlumpher – the pub is doing what it has always done without complaint. Is it really fair for her to expect the pub to cease the entertainment? But think of poor old Mrs McGlumpher! She’s 83 and can’t get a good night sleep. Two sides, and all that.

There is a lot of material of the Agent of Change Principle but a good place to start is with the view of the Music Venue Trust which you can find here:

http://www.musicvenuetrust.com/2014/09/what-is-agent-of-change-and-why-is-it-important.

Is the condition lawful?

As I have pointed out on this blog before, conditions have to be enforceable, understandable and proportionate. In addition, s.27(7) of the 2005 Act makes it clear that conditions cannot relate to another enactment – licensing conditions should be about licensing the ‘essential function’ of what the licensing Act is aiming to regulate and that is the sale of alcohol. Is there a case that a condition about noise is ultra vires given noise is regulated under the Environmental Protection Act? This is a ‘Brightcrew’ argument of course. But it is not clear cut. One might argue that noise arises from the consumption of alcohol; that is, high spirits and singing by inebriates, whether at the karaoke or ‘just because’. Such noise could, I think it can be argued, offend the licensing objective of preventing public nuisance.

But the Edinburgh condition is about amplified music, not vocals or the human voice.

One might also argue the condition is ‘practically’ unenforceable because the only way amplified music can truly be inaudible is if it doesn’t occur at all. One might also argue it is disproportionate: it is simply going too far.

There is interest from Edinburgh City Council to look into this. The council appears to be alive to the threat that the condition places on the Edinburgh live music scene. It is suggested that there is a willingness, politically, to try to find an answer which allows a vibrant live music scene.

You can see various coverage of the Edinburgh council debate on this at the following links:

http://www.edinburgh.gov.uk/news/article/1705/edinburgh_agrees_live_music_matters

http://www.edinburgh.gov.uk/blog/newsblog/post/712/edinburgh-debates-live-music-matters

https://www.list.co.uk/article/70826-opinion-live-music-matters/

http://www.edinburghnews.scotsman.com/news/noise-rules-shake-up-for-music-venues-1-3631493

https://www.thestage.co.uk/news/2015/scotland-planners-should-adopt-agent-of-change-principle-says-theatres-trust/

The council, however, is not the licensing board. The licensing board is a separate and distinct legal entity.
The technical resolution to this is not simple. If the licensing board were convinced to drop the condition or at least amend it in some way, then each licence would have to be ‘called in’ to allow that change to take effect.

Remember that this is not some over arching policy but a specific condition imposed on every on sales licence.

There is no mechanism under the 2005 Act to allow the board to unilaterally amend all licences. Each licence would need to be subject by either (a) an application by the licensee to delete/amend the condition or (b) a review hearing, perhaps instigated by a friendly LSO or the board themselves, to amend or delete the condition.

Either way requires a hearing by law. The prospect of hundreds of licences being called into a hearing would clog up the Edinburgh licensing system no end and create costs for both the administration of these hearings, and for the licensees who would have to instruct specialist licensing solicitors to appear. If the amendment was by way of variation, this would require application fees, public notification, any person could object, and might invite all manner of comments from locals who often use a site notice to raise complaints about anything even if not relevant to the variation sought.

The alternative to all of this strife is for the board to make some sort of public announcement that it is no longer going to insist on adherence to the condition. But that approach is parastatutory at best and would not, in my view, stand up in court if a member of the public sought to challenge a licence on the basis the condition was not observed.

As a former drummer, I know it’s only Rock and roll – but I like it! (Yes I do). We can’t have a situation where live music has to wither on the vine because someone can hear it. On the other hand a resident can rightly be aggrieved if they can’t get no satisfaction. It is a balancing act. But it’s not just an Edinburgh problem.

Aberdeen has also started a conversation about the agent of change principle.

There is a live e-petition which has gathered approaching 400 signatures at the time of writing, here;

http://committees.aberdeencity.gov.uk/mgEPetitionDisplay.aspx?ID=71&RPID=0&HPID=0

The petition arises from a real life neighbour complaint scenario involving the Granite City’s Krakatoa and Downstairs entertainment venues. You can see coverage of this at the following links:

Agent of change in Aberdeen? Venues petition council

https://www.eveningexpress.co.uk/fp/news/local/plea-for-council-to-be-given-power-to-control-music-licensing-in-city/

Note that the Aberdeen challenge focuses on having the council petition the Scottish Government to amend planning policy. That won’t help the Edinburgh licensees, because the Inaudibility condition is not a planning condition, but I would really like to see a genuine debate on this issue at Holyrood both in terms of planning and licensing.

Scotland has a proud history of live entertainment and musical heritage and some of our most famous musicians and artists cut their teeth in local pubs and bars. I think that culture and talent is worth protecting from what can sometimes be a cotton wool approach to licensed premises. And that’s not for the ears!

It will be interesting to see how this all develops in Edinburgh, Aberdeen and elsewhere. Encore!

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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