This is a very useful little case concerning a premises in Torphins, called the Learney Arms. It is as yet unreported but I will update the blog with a link should that change. I am grateful to Advocate Scott Blair, who acted for the Pursuer in this case, for giving me a copy of the decision.
This case relates to the imposition of a variation to restrict the premises ability to offer live or recorded music to not later than 11pm, following a premises licence review hearing. This centres around complaints from noise from an upstairs neighbour. The review was brought by the Environmental Health department of the local authority.
The importance of this case is that it confirms under discrete Scottish licensing laws that the wider legal definition of what constitutes a “public” nuisance under general administrative law and UK licensing law is the same: namely, that nuisance experienced by a single complainant is *not sufficient* to meet the test of what constitutes “public”.
Sheriff Principal Pyle, who has dealt with a number of other licensing appeals over the years, puts it this way:
“The question therefore became whether the noise experienced by the flat owner could properly be described as a public nuisance, such that the defenders were entitled to vary the conditions of the pursuers’ premises licence. In my opinion, it is obvious that they were not so entitled. The defenders state that the owner is a member of the public. That is doubtless true, but it ignores the rule that for something to be regarded as a public nuisance it is necessary to show that it affects an identifiable class of the public.”
In reaching this view he relies on long-established legal and licensing principles, citing the famous case of R (Hope and Glory) Public House Ltd v City of Westminster Magistrates Court [2009] EHWC 1996 Admin; and the older Att-Gen v PYA Quarries [1957] 2QB 169 decision. Hope and Glory is a case very well known to those who practise licensing law under the Licensing Act 2003 (England & Wales) whilst the PYA Quarries case comes from a wider body of general administrative law (of which licensing is a sub-group).
A “class of the public” means something more than a single person: it means a “representative cross section” and “effect on a sufficiently high number of members of the public which was sufficiently widespread or indiscriminate“. In short compass, public nuisance must be understood as a plurality. I think it is long-established, however, that the plurality can be persons beyond the customers of the premises (Sangha v Bute and Cowal Divisional Licensing Board 1990 SCLR 409).
This judgement may be surprising at a local level, as it may jar to read that complaints from a single source do not, as a matter of law, engage the licensing objective of preventing public nuisance, but this is a long-established legal point which has only now found discrete voice (so far as I know) in a Scottish licensing case under the 2005 Act.
I think it is worth ventilating the view that there is a difference between what is public nuisance under the Licensing (Scotland) Act 2005; and what constitutes statutory nuisance under the Environmental Protection Act 1990; and what may deemed to be a common law nuisance. For the avoidance of doubt, a statutory nuisance or a common law nuisance is not the same thing as decreeing it a “public nuisance” under the 2005 Act. As an aside, it is worth noting that the Pursuer in this case reminds us that nuisance at common law must be more than “mere discomfort” (Watt v Jamieson 1954 SC 56; Anderson v Dundee City Council 2000 SLT (Sh Ct) 134).
This point is, for me, a further reminder that all of us who live and work in the world of regulatory and licensing law should tread carefully in knowing what legislative framework is the correct one to follow to address an alleged mischief. If an Environmental health officer fails to make a case under their own legislation, it is improper to use the licensing system as a “stalking horse” to get at the alleged mischief – unless, of course, they can make out the case that there is public nuisance, as that term should be properly understood.
Understanding that public nuisance and common law nuisance are two different animals takes us only part of the journey. We must then remember that even if public nuisance was found in fact, in order for a board to engage steps under s.39 of the 2005 Act it would still have to be a case where the public nuisance alleged met the Brightcrew test; ie that it had a sufficient nexus to the sale of alcohol. This is a test which does not exist under the licensing laws of England & Wales, where broader matters can be considered – as the 2003 Act does not just deal with the licensing of alcohol, but other matters (eg “late night refreshment”).
I would remind readers of Bapu Properties Ltd v City of Glasgow Licensing Board (Glasgow Sheriff Court, 22 February 2012, unreported, but see McGowan on Alcohol Licensing (2021): Pages 26 and 31). In that case the Sheriff said the following:
“I conclude that, to the extent that the Board’s decision proceeds under Section 30(5)(b) of the 2005 Act, the apprehended ‘public nuisance’, upon which the Board’s decision was predicated, was not related to the sale of alcohol. The single function of a Licensing Board under the 2005 Act is that of the licensing of the sale of alcohol. The powers to licence the sale of alcohol cannot be deployed to effect objectives not related to the sale of alcohol, but which the Licensing Board might yet find desirable.”
This is all language linked to wider legal concepts of a body acting ultra vires; or acting with an improper purpose.
Let us also remind ourselves that nuisance may not always be noise nuisance. A person may experience, for example, “smell nuisance” from a licensed premises. But that is not a matter for the licensing board. Another example (from the heady days of a pre-social media world) might be fly-posting, which could be a form of nuisance, but is irrelevant as far as licensing goes (Maresq T/A La Belle Angele v Edinburgh Licensing Board 2001 SC 126).
But even with that, the journey is not yet complete, because we must also remind ourselves that the licensing objective is about Preventing Public Nuisance. This means it is about not necessarily that public nuisance has occurred in fact, but should be an exploration of what steps were taken to prevent it; and what steps have been taken to prevent re-occurrence. This is known in Scots licensing law as “future proofing” and is a further legal principle we must have in our minds around this discrete area. Consider the following dicta (from Lidl UK GmbH v City of Glasgow Licensing Board [2013] CSIH 25):
“the process of review is essentially forward looking. It involves examining whether the continuance of the particular premises licence in issue, without taking any of the steps listed in section 39(2) [that is, the sanctions open to a Board, e.g. suspension, revocation, etc], would be inconsistent with endeavouring to achieve the licensing objective in question. The process of review is therefore not directed to imposing a penalty in respect of some past event which is not likely to recur to an extent liable to jeopardise the licensing objective.”
Lastly, remember that this is all linked to the test as to whether a step should be taken by the board is whether they consider it “necessary or appropriate” (s.39(1), 2005 Act) for the purposes of licensing objectives.
Bengal Dish may have a very discrete point to make, but it is nevertheless of great utility in allowing these wider issues around “public nuisance” in the context of the 2005 Act to be explored. I hope this analysis takes the reader some way in that exploration.
McGowan on Licensing: Blawg 