Agenda Item No_4__
Application for a new Premises Licence - Chaucer Barn, Holt Road, Gresham,
Norfolk, NR11 8AD
Summary:
This is an application for a new Premises Licence
Conclusions:
Recommendations:
That Members consider and determine this case
Cllr R Price – Chairman
Licensing Committee
Ward(s) affected:
Chaucer Ward – Gresham Parish
Contact Officer, telephone
number, and e-mail:
Chris Cawley 01263 516252
chris.cawley@north-norfolk.gov.uk
1.
Jurisdiction
1.1.
North Norfolk District Council is the Licensing Authority under the
Licensing Act 2003 in respect of Premises licences for the sale of
alcohol or regulated entertainment. Where a valid application for a
premises licence or variation is received and relevant representations
are made, before determining the application, the authority must hold a
hearing to consider the case.
1.2.
The four licensing objectives to be considered when determining the
application, and relevant representations, are:
a. the prevention of crime & disorder
b. public safety
c. the prevention of public nuisance, and
d. the protection of children from harm
2.
The Application
2.1.
James Mermagan Farms Ltd & James Mermagen, (trading as Chaucer
Farming Company) have made an application for a new Premises
Licence. Appendix A and a Plan of the Premises Appendix B.
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2.2.
The Premises are used for Wedding functions. They are currently
approved by Norfolk County Council to hold wedding ceremonies.
Several licensable events have been held in the past under the
authority of Temporary Event Notices but these only allow 15
licensable events per year.
2.3.
The application seeks permission to operate as follows:
Licensable activity
Days
Times
Sale of Alcohol (for consumption on
the premises)
Monday to
Sunday
12.00 to
02.00 day
following
Live Music
Monday to
Sunday
14.00 to
02.00 day
following
Recorded Music
Hours Premises open to the public:
Premises
not open to
public
3.
Conditions
3.1.
The premises licence is subject to the following mandatory conditions:
a. LIP001 No supply of alcohol may be made under the
premises licence, at a time when there is no designated
premises supervisor in respect of the premises licence or at a
time when the designated premises supervisor does not hold
a personal licence, or the personal licence is suspended.
b. LIP002 Every supply of alcohol under the premises licence
must be made or authorised by a person who holds a
personal licence.
c. LIP003 Where a premises licence includes the condition that
at specified times one or more individuals must be at the
premises to carry out a security activity; each such individual
must be licensed by the Security Industry Authority.
d. LIP004 Where a premises licence authorises the exhibition of
films, the admission of children to the exhibition of any film to
be restricted in accordance with this section.
e. LIP006 Where a premises licence or club premises certificate
authorises the sale of alcohol for consumption on the
premises then the Premises Licence Holder, the Designated
Premises Supervisor and any other responsible person shall
take all reasonable steps to ensure that staff on relevant
premises do not carry out, arrange or participate in any
irresponsible promotions in relation to the premises.
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f. LIP007 Where a premises licence or club premises certificate
authorises the sale of alcohol for consumption on the
premises then the Premises Licence Holder, the Designated
Premises Supervisor and any other responsible person shall
ensure that no alcohol is dispensed directly by one person
into the mouth of another (other than where that other person
is unable to drink without assistance by reason of a
disability).
g. LIP008 Where a premises licence or club premises certificate
authorises the sale of alcohol for consumption on the
premises then the Premises Licence Holder, the Designated
Premises Supervisor and any other responsible person shall
ensure that free tap water is provided on request to
customers where it is reasonably available.
h. LIP009
a) The premises licence holder or club premises certificate
holder shall ensure that an age verification policy applies to
the premises in relation to the sale or supply of alcohol.
b) The policy must require individuals who appear to the
responsible person to be under 18 years of age (or such
older age as may be specified in the policy) to produce on
request, before being served alcohol, identification bearing
their photograph, date of birth and a holographic mark.
i.
3.2.
LIP010 The responsible person shall ensure that:
a) where any of the following alcoholic drinks is sold or
supplied for consumption on the premises (other than
alcoholic drinks sold or supplied having been made up in
advance ready for sale or supply in a securely closed
container) it is available to customers in the following
measures –
i)
beer or cider: ½ pint;
ii)
gin, rum, vodka or whisky: 25ml or 35ml; and
iii)
still wine in a glass: 125ml; and
b) customers are made aware of the availability of these
measures.
The licence will be subject to the following conditions which are
consistent with the operating schedule:
a. There will be regular checks to ensure that noise is minimal
after 9pm at the end of the drive.
b. All cars to be parked on site and never on the road.
c. A member of our staff to check that guests are behaving in
an appropriate fashion during the later evening.
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4.
Representations from Responsible Authorities
4.1.
Section 13(4) of the Act defines the ‟Responsible Authorities‟ as the
statutory bodies that must be sent copies of an application.
Representations made must relate to the licensing objectives.
4.2.
The following comments have been received from the Responsible
Authorities:
Responsible Authority
Norfolk Constabulary
Norfolk Fire Service
Norfolk Trading Standards
Norfolk Children‟s
Safeguarding Board
Norfolk Health authority
(Director of Public Health for
Norfolk)
NNDC Planning
(Development Management)
NNDC Environmental Health
(Health & Safety team)
NNDC Environmental Health
(Environmental Protection
team)
NNDC Licensing
(Responsible) authority
Comments
No objection
No objection
No objection
No response received
No response received
No response received
No objection
No objection
No objection
5.
Representations from Interested Parties
5.1.
Section 13(2) of the Act describes interested parties as local
residents/businesses (or their representatives) who live/are involved in
a business in the vicinity of the premises. Representations made must
relate to the licensing objectives.
5.2.
There are 10 letters/emails of objection from „interested parties‟ to
consider. The predominant issue raised has been that of nuisance. See
Appendix C.
6.
Notices
6.1.
The applicant is responsible for advertising the application by way of a
notice in the specified form at the premises for not less than 28
consecutive days and in a local newspaper. The Public Notice
appeared in the North Norfolk News on 19 September 2013 and a
Notice should have been displayed on the premises until 10 October
2013.
7.
Plans
7.1.
A location plan showing the general location of the premises is
attached at Appendix D.
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8.
North Norfolk District Council Licensing Policy
8.1.
The current Statement of Licensing Policy was approved by Full
Council on 14 December 2010 and the following extracts may be
relevant to this application:
3.0 Main Principles
3.1 Nothing in the „Statement of Policy‟ will:
• undermine the rights of any person to apply under the
2003 Act for a variety of permissions and have the
application considered on its individual merits, and/or
• override the right of any person to make representations
on any application or seek a review of a licence or
certificate where they are permitted to do so under the
2003 Act
3.2 Licensing is about the control of licensed premises,
qualifying clubs and temporary events within the terms of the
2003 Act, and conditions are likely to be attached to licences,
certificates and permissions that will cover matters which are
within the control of individual licensees.
3.3 When considering these conditions, the Council will primarily
focus on the direct impact of the activities taking place at
licensed premises on members of the public living, working or
engaged in normal activity in the area concerned.
3.4 The Council acknowledges that the licensing function cannot
be used for the general control of anti-social behaviour by
individuals once they are beyond the direct control of the
licensee of any premises concerned. In this respect, the
Council recognises that, apart from the licensing function, there
are a number of other mechanisms available for addressing
issues of unruly behaviour that can occur away from licensed
premises, including:
• planning and environmental health controls
• ongoing measures to create a safe and clean
environment in these areas in partnership with local
businesses, transport operators and other Council
Departments
• designation of parts of the District as places where
alcohol may not be consumed publicly
• regular liaison with Police on law enforcement issues
regarding disorder and anti-social behaviour, including
the issue of fixed penalty notices, prosecution of
those selling alcohol to people who are drunk;
confiscation of alcohol from adults and children in
designated areas and instantly closing down licensed
premises or temporary events on the grounds of disorder,
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or likelihood of disorder or excessive noise from the
premises
• the power of the police, other responsible authority or a
local resident or business or District Councillor to seek a
review of the licence or certificate
4 Crime and Disorder
4.1 Licensed premises, especially those offering late night/early
morning entertainment, alcohol and refreshment for large
numbers of people, can be a source of crime and disorder
problems.
4.2 The Council will expect Operating Schedules to satisfactorily
address these issues from the design of the premises through to
the daily operation of the business.
6 Prevention of Public Nuisance
6.1 Licensed premises, especially those operating late at night
and in the early hours of the morning, can cause a range of
nuisances impacting on people living, working or sleeping in the
vicinity of the premises.
6.2 The concerns mainly relate to noise nuisance, light pollution
and noxious smells and due regard will be taken of the impact
these may have. The Council will expect Operating Schedules to
satisfactorily address these issues. Applicants are advised to
seek advice from the Council‟s Health and Pollution
Enforcement Officers before preparing their plans and
Schedules.
6.3 The Council will consider attaching Conditions to licences
and permissions to prevent public nuisance, and these may
include Conditions drawn from the Model Pool of Conditions
relating to „Public Nuisance‟.
10 Standard Conditions
10.1 Conditions attached to licences or certificates will be
tailored to the individual style and characteristics of the
particular premises and events concerned.
10.2 However, where considered appropriate, and necessary for
the promotion of the Licensing Objectives, the Council will
consider attaching Conditions drawn from the relevant Model
Pools of Conditions and from any published Local Pool of
Conditions
9.
Guidance Issued under section 182 of the Licensing Act 2003
9.1.
The current Guidance was issued by the Home Office in June 2013
and offers advice to Licensing authorities on the discharge of their
functions under the Licensing Act 2003.
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9.2.
The following extracts may be relevant to this application and assist the
panel:
Licensing conditions – general principles
1.16 Conditions on a premises licence or club premises certificate are
important in setting the parameters within which premises can lawfully
operate. The use of wording such as “must”, “shall” and “will”, is
encouraged. Licence conditions:
• must be appropriate for the promotion of the licensing objectives;
• must be precise and enforceable;
• must be unambiguous and clear in what they intend to achieve;
• should not duplicate other statutory requirements or other duties or
responsibilities placed on the employer by other legislation;
• must be tailored to the individual type, location and characteristics of
the premises and events concerned;
• should not be standardised and may be unlawful when it cannot be
demonstrated that they are appropriate for the promotion of the
licensing objectives in an individual case;
• should not replicate offences set out in the 2003 Act or other
legislation;
• should be proportionate, justifiable and be capable of being met, (for
example, whilst beer glasses may be available in toughened glass,
wine glasses may not);
• cannot seek to manage the behaviour of customers once they are
beyond the direct management of the licence holder and their staff, but
may impact on the behaviour of customers in the immediate vicinity of
the premises or as they enter or leave; and
• should be written in a prescriptive format.
Each application on its own merits
1.17 Each application must be considered on its own merits and in
accordance with the licensing authority‟s statement of licensing policy;
for example, if the application falls within the scope of a cumulative
impact policy. Conditions attached to licences and certificates must be
tailored to the individual type, location and characteristics of the
premises and events concerned. This is essential to avoid the
imposition of disproportionate and overly burdensome conditions on
premises where there is no need for such conditions. Standardised
conditions should be avoided and indeed may be unlawful where they
cannot be shown to be appropriate for the promotion of the licensing
objectives in an individual case
Public Nuisance
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2.18 The 2003 Act enables licensing authorities and responsible
authorities, through representations, to consider what constitutes
public nuisance and what is appropriate to prevent it in terms of
conditions attached to specific premises licences and club premises
certificates. It is therefore important that in considering the promotion
of this licensing objective, licensing authorities and responsible
authorities focus on the effect of the licensable activities at the
specific premises on persons living and working (including those
carrying on business) in the area around the premises which may be
disproportionate and unreasonable. The issues will mainly concern
noise nuisance, light pollution, noxious smells and litter.
2.19 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 lowlevel 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. Public nuisance may
also arise as a result of the adverse effects of artificial light, dust,
odour and insects or where its effect is prejudicial to health.
2.20 Conditions relating to noise nuisance will usually concern steps
appropriate to control the levels of noise emanating from premises.
This might be achieved by a simple measure such as ensuring that
doors and windows are kept closed after a particular time, or more
sophisticated measures like the installation of acoustic curtains or
rubber speaker mounts. Any conditions appropriate to promote the
prevention of public nuisance should be tailored to the type, nature
and characteristics of the specific premises. 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.
2.21 As with all conditions, those relating to noise nuisance may not
be appropriate in certain circumstances where provisions in other
legislation adequately protect those living in the area of the
premises. But as stated earlier in this Guidance, the approach of
licensing authorities and responsible authorities should be one of
prevention and when their powers are engaged, licensing authorities
should be aware of the fact that other legislation may not adequately
cover concerns raised in relevant representations and additional
conditions may be appropriate.
2.22 Where applications have given rise to representations, any
appropriate conditions should normally focus on the most sensitive
periods. For example, music noise from premises usually occurs
from mid-evening until either late-evening or early-morning when
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residents in adjacent properties may be attempting to go to sleep or
are sleeping. In certain circumstances, conditions relating to noise
immediately surrounding the premises may also prove appropriate to
address any disturbance anticipated as customers enter and leave.
2.23 Measures to control light pollution will also require careful
thought. Bright lighting outside premises which is considered
appropriate to prevent crime and disorder may itself give rise to light
pollution for some neighbours. Applicants, licensing authorities and
responsible authorities will need to balance these issues.
2.24 Beyond the immediate area surrounding the premises, these
are matters for the personal responsibility of individuals under the
law. An individual who engages in anti-social behaviour is
accountable in their own right. However, it would be perfectly
reasonable for a licensing authority to impose a condition, following
relevant representations, that requires the licence holder or club to
place signs at the exits from the building encouraging patrons to be
quiet until they leave the area and to respect the rights of people
living nearby to a peaceful night.
.Determining applications where representations are made
9.33 As a matter of practice, licensing authorities should seek to focus
the hearing on the steps considered appropriate to promote the
particular licensing objective or objectives that have given rise to the
specific representation and avoid straying into undisputed areas. A
responsible authority or other person may choose to rely on their
written representation. They may not add further representations to
those disclosed to the applicant prior to the hearing, but they may
expand on their existing representation.
9.34 In determining the application with a view to promoting the
licensing objectives in the overall interests of the local community, the
licensing authority must give appropriate weight to:
• the steps that are appropriate to promote the licensing objectives;
• the representations (including supporting information) presented by
all the parties;
• this Guidance;
• its own statement of licensing policy.
Relevant, Vexatious and Frivolous Representations
9.4 A representation is “relevant” if it relates to the likely effect of the
grant of the licence on the promotion of at least one of the licensing
objectives. For example, a representation from a local businessperson
about the commercial damage caused by competition from new
licensed premises would not be relevant. On the other hand, a
representation by a businessperson that nuisance caused by new
premises would deter customers from entering the local area, and the
steps proposed by the applicant to prevent that nuisance were
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inadequate, would be relevant. In other words, representations should
relate to the impact of licensable activities carried on from premises on
the objectives. For representations in relation to variations to be
relevant, they should be confined to the subject matter of the variation.
There is no requirement for a responsible authority or other person to
produce a recorded history of problems at premises to support their
representations, and in fact this would not be possible for new
premises.
9.5 It is for the licensing authority to determine whether a
representation (other than a representation from responsible authority)
is frivolous or vexatious on the basis of what might ordinarily be
considered to be vexatious or frivolous. A representation may be
considered to be vexatious if it appears to be intended to cause
aggravation or annoyance, whether to a competitor or other person,
without reasonable cause or justification. Vexatious circumstances
may arise because of disputes between rival businesses and local
knowledge will therefore be invaluable in considering such matters.
Licensing authorities can consider the main effect of the
representation, and whether any inconvenience or expense caused
by it could reasonably be considered to be proportionate.
9.9 It is recommended that, in borderline cases, the benefit of the
doubt about any aspect of a representation should be given to the
person making that representation. The subsequent hearing would
then provide an opportunity for the person or body making the
representation to amplify and clarify it.
Determining actions that are appropriate for the promotion of the
licensing objectives
9.38 Licensing authorities are best placed to determine what actions
are appropriate for the promotion of the licensing objectives in their
areas. All licensing determinations should be considered on a case by
case basis. They should take into account any representations or
objections that have been received from responsible authorities or
other persons, and representations made by the applicant or premises
user as the case may be.
9.39 The authority‟s determination should be evidence-based, justified
as being appropriate for the promotion of the licensing objectives and
proportionate to what it is intended to achieve.
9.40 Determination of whether an action or step is appropriate for the
promotion of the licensing objectives requires an assessment of what
action or step would be suitable to achieve that end. Whilst this does
not therefore require a licensing authority to decide that no lesser step
will achieve the aim, the authority should aim to consider the potential
burden that the condition would impose on the premises licence holder
(such as the financial burden due to restrictions on licensable
activities) as well as the potential benefit in terms of the promotion of
the licensing objectives. However, it is imperative that the authority
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ensures that the factors which form the basis of its determination are
limited to consideration of the promotion of the objectives and nothing
outside those parameters. As with the consideration of licence
variations, the licensing authority should consider wider issues such as
other conditions already in place to mitigate potential negative impact
on the promotion of the licensing objectives and the track record of the
business. Further advice on determining what is appropriate when
imposing conditions on a licence or certificate is provided in Chapter
10. The licensing authority is expected to come to its determination
based on an assessment of the evidence on both the risks and
benefits either for or against making the determination.
Conditions attached to Premises Licences
10.2 Conditions include any limitations or restrictions attached to a
licence or certificate and essentially are the steps or actions that the
holder of the premises licence or the club premises certificate will be
required to take or refrain from taking in relation to the carrying on of
licensable activities at the premises in question. Failure to comply with
any condition attached to a licence or certificate is a criminal offence,
which on conviction is punishable by a fine of up to £20,000 or up to
six months imprisonment. The courts have made clear that it is
particularly important that conditions which are imprecise or difficult for
a licence holder to observe should be avoided.
10.3 There are three types of condition that may be attached to a
licence or certificate: proposed, imposed and mandatory. Each of
these categories is described in more detail below
Proposed Conditions
10.4 The conditions that are appropriate for the promotion of the
licensing objectives should emerge initially from the risk assessment
carried out by a prospective licence or certificate holder, which they
should carry out before making their application for a premises licence
or club premises certificate. This would be translated into the steps
recorded in the operating schedule or club operating schedule, which
must also set out the proposed hours during which licensable activities
will be conducted and any other hours during which the premises will
be open to the public.
10.5 It is 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
Imposed Conditions
10.8 The licensing authority may not impose any conditions unless its
discretion has been engaged following receipt of relevant
representations and it is satisfied as a result of a hearing (unless all
parties agree a hearing is not necessary) that it is appropriate to
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impose conditions to promote one or more of the four licensing
objectives.
10.9 It is possible that, in certain cases, where there are other
legislative provisions which are relevant and must be observed by the
applicant, no additional conditions are appropriate to promote the
licensing objectives.
Proportionality
10.10 The 2003 Act requires that licensing conditions should be
tailored to the size, type, location and characteristics and activities
taking place at the premises concerned. Conditions should be
determined on a case by case basis and standardised conditions
which ignore these individual aspects should be avoided. Licensing
authorities and other responsible authorities should be alive to the
indirect costs that can arise because of conditions. These could be a
deterrent to holding events that are valuable to the community or for
the funding of good and important causes. Licensing authorities should
therefore ensure that any conditions they impose are only those which
are appropriate for the promotion of the licensing objectives.
Hours of trading
10.11 The Government acknowledges that different licensing
strategies may be appropriate for the promotion of the licensing
objectives in different areas. The 2003 Act gives the licensing authority
power to make decisions regarding licensed opening hours as part of
the implementation of its licensing policy statement and licensing
authorities are best placed to make decisions about appropriate
opening hours in their areas based on their local knowledge and in
consultation with responsible authorities. However, licensing
authorities must always consider each application and must not
impose predetermined licensed opening hours, without giving Live
music
Types of regulated entertainment
15.1 Subject to the conditions, definitions and the exemptions referred
to in Schedule 1 (see especially paragraphs 15.9-15.11 below), the
types of entertainment regulated by the 2003 Act (as amended by the
Live Music Act 2012 and the Licensing Act 2003
(Descriptions of Entertainment) (Amendment) Order 2013) are:
• a performance of a play;
• an exhibition of a film;
• an indoor sporting event;
• a boxing or wrestling entertainment;
• a contest, exhibition or display which combines boxing or wrestling
with one or more martial arts (“combined fighting sports”);
• a performance of live music;
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• any playing of recorded music;
• a performance of dance;
• entertainment of a similar description to a performance of live music,
any playing of recorded music or a performance of dance.
General circumstances in which entertainment activities are
licensable
15.2 A more detailed description of some of the above entertainments,
and the circumstances in which they are licensable, is given in
paragraph 15.10 (for the general overview) and paragraphs 15.2915.33 (for conditions).
15.3 More generally, to be licensable, one or more of these activities
needs to be provided (at least partly) to entertain that audience; has to
be held on premises made available (again, at least in part) for the
purpose of enabling that activity; and must also take place either:
• in the presence of a public audience, or
• in private, where a charge is made with a view to profit.
Audience
15.4 For the purposes of regulated entertainment, the term “audience”
refers to any person for whose entertainment (at least in part) any
licensable activities are provided. An audience member need not be,
or want to be, entertained: what matters is that an audience is present
and that the purpose of the licensable activity is (at least in part)
intended to entertain any person present. The audience will not
include performers, together with any person who contributes technical
skills in substantial support of a performer (for example, a sound
engineer or stage technician), during any associated activities. This
includes setting up before the entertainment, reasonable breaks
(including intervals) between activities and packing up thereafter.
Similarly, security staff and bar workers will not form part of the
audience while undertaking their duties, which include reasonable
breaks. 15.5 The amendments made to the 2003 Act by the Live
Music Act 2012 (“the 2012 Act”) and
the Licensing Act 2003 (Descriptions of Entertainment) (Amendment)
Order 2013 (“the 2013 Order”) do not prevent more than one activity
(or for a single activity, more than one performance or event) being
held concurrently, provided that the audience for each such
performance or event does not exceed the threshold at which such a
performance or event becomes licensable. In some circumstances,
there will be a clear distinction between performances or events; for
example, in separate rooms or on separate floors. However, any
person involved in organising or holding these activities must ensure
that audiences do not grow or migrate so that the audience exceeds
the relevant limit for any one performance or event at any time. If
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uncertain, it might be easier and more flexible to secure an appropriate
authorisation.
Private events
15.6 Events held in private are not licensable unless those attending
are charged for the entertainment with a view to making a profit
(including raising money for charity). For example, where a party is
held for friends in a private dwelling featuring amplified live music, if a
charge or contribution is made solely to cover the costs of the
entertainment, the activity is not regulated entertainment. Similarly,
any charge made to the organiser of a private event by musicians,
other performers, or their agents does not of itself make that
entertainment licensable – it would only do so if the guests attending
were themselves charged by the organiser for that entertainment with
a view to achieving a profit. The fact that this might inadvertently result
in the organiser making a profit would be irrelevant, as long as there
had not been an intention to make a profit.
15.7 Schedule 1 to the 2003 Act also makes it clear that before
entertainment is regarded as being provided for consideration, a
charge has to be:
• made by or on behalf of a person concerned with the organisation or
management of the entertainment; and
• paid by or on behalf of some or all of the persons for whom the
entertainment is provided.
15.8 Of course, anyone involved in the organisation or provision of
entertainment activities – whether or not any such activity is licensable
under the 2003 Act – must comply with any applicable duties that may
be imposed by other legislation (e.g. crime and disorder, fire, health
and safety, noise, nuisance and planning). Any such person should
take steps to be aware of relevant best practice, and may find
responsible authorities a useful source of expert support and advice.
Circumstances in which entertainment activities are not
licensable
15.9 This Guidance cannot give examples of every eventuality or
possible entertainment activity. However, the following activities are
examples of entertainment which are not licensable:
• education – teaching students to perform music or to dance;
• activities which involve participation as acts of worship in a religious
context;
• activities that take place in places of public religious worship;
• the demonstration of a product – for example, a guitar – in a music
shop;
• the rehearsal of a play or performance of music for a private
audience where no charge is made with a view to making a profit
(including raising money for charity);
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• games played in pubs, youth clubs etc. (e.g. pool, darts, table tennis
and billiards);
• stand-up comedy;
• the provision of entertainment facilities (such as dance floors, which
were previously licensable under the 2003 Act before its amendment
by the 2012 Act).
15.10 As a result of amendments to the 2003 Act by the 2012 Act and
the 2013 Order, no licence is required for the following activities to the
extent that they take place between 08:00-23:00 on any day:
• a performance of a play in the presence of any audience of no more
than 500 people;
• an indoor sporting event in the presence of any audience of no more
than 1,000 people;
• most performances of dance in the presence of any audience of no
more than 500 people; and
• live music, where the live music comprises:
– a performance of unamplified live music;
– a performance of live amplified music in a workplace with an
audience of no more than 200 people; or
– a performance of live music on licensed premises9 which takes
place in the presence of an audience of no more than 200 people,
provided that a number of important conditions are satisfied.
So, for example, an indoor sporting event that takes place between
07:00 and 23:30 on a particular day is licensable in respect of activities
taking place between 07:00-08:00 and 23:00-23:30. Similarly, where
the audience for a performance of dance fluctuates, those activities
are licensable if, and for so long as, the number of people in the
audience exceeds 500.
15.11 The various effects of the changes made to entertainment
licensing under the 2003 Act by the 2012 Act and the 2013 Order are
described below. For live music, see paragraphs 15.12 to 15.19 below;
and for an explanation of what happens where an existing
authorisation imposes conditions on plays, indoor sporting events and
dance, see paragraphs 15.29 to 15.33 below.
Live music and the effect of the Live Music Act 2012
15.12 To encourage more performances of live music, the Live Music
Act 2012 amended the 2003 Act by deregulating aspects of the
performance of live music so that in certain circumstances live music
is not a licensable activity. However, it remains licensable:
• where a performance of live music – whether amplified or
unamplified – takes place before 08:00 or after 23:00 on any day;
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• where a performance of amplified live music does not take place
either on relevant licensed premises, or at a workplace that is not
licensed other than for the provision of late night refreshment;
• where a performance of amplified live music takes place at relevant
licensed premises at a time when those premises are not open for the
purposes of being used for the sale or supply of alcohol for
consumption on the premises (see Chapter 3 of this Guidance);
8 For an explanation of which performances of dance are fully licensable,
see paragraph 15.32-15.33.
9 The Live Music Act 2012 provides that if premises are licensed under the
2003 Act, they cannot also be treated as a workplace
for the
• where a performance of amplified live music takes place at relevant
licensed premises, or workplaces, in the presence of an audience of
more than 200 people; or
• where a licensing authority intentionally removes the effect of the
deregulation provided for by the 2003 Act (as amended by the 2012
Act) when imposing a condition on a premises licence or club
premises certificate as a result of a licence review (see paragraphs
15.23-15.24 below).
15.13 In any of the above circumstances, unless the performance of
live music is appropriately authorised by a premises licence, club
premises certificate or Temporary Event Notice, allowing it to take
place could lead to enforcement action and, where relevant, a review
of the alcohol licence or certificate.
15.14 Public performance of live unamplified music that takes place
between 08:00 and 23:00 on any day no longer requires a licence in
any location. An exception to this is where a specific condition related
to live music is included following a review of the premises licence or
club premises certificate in respect of relevant licensed premises.
15.15 This amendment to the 2003 Act by the 2012 Act means that
section 177 of the 2003 Act now only applies to performances of
dance.
Key terms used in the Live Music Act 2012
15.16 Under the „live music‟ provisions, „music‟ includes vocal or
instrumental music or any combination of the two. „Live music‟ is a
performance of live music in the presence of an audience which it is
intended to entertain. While a performance of live music can include
the playing of some recorded music, „live‟ music requires that the
performance does not consist entirely of the playing of recorded music
without any additional (substantial and continual) creative contribution
being made. So, for example, a drum machine or backing track being
used to accompany a vocalist or a band would be part of the
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performance of amplified live music. The performance of a DJ who is
merely playing tracks would not be classified as live music, but it might
if he or she was performing a set which largely consisted of mixing
recorded music to create new sounds. There will inevitably be a
degree of judgement as to whether a performance is live music or not
and organisers of events should check with their licensing authority if
in doubt. In the event of a dispute about whether a performance is live
music or not, it will ultimately be for the courts to decide in the
individual circumstances of any case.
15.17 A “workplace” is as defined in regulation 2(1) of the Workplace
(Health, Safety and Welfare) Regulations 1992 and is anywhere that is
made available to any person as a place of work. It is a very wide term
which can include outdoor spaces, as well as the means of entry and
exit.
15.18 In addition to what paragraphs 15.4 and 15.5 above say about
the way in which the 2003 Act uses the term “audience”, people may
be part of an audience even if they are not located in exactly the same
place as the performers, provided they are present within the audible
range of the performance. So, for example, if a band is performing in a
marquee, people dancing outside that marquee may nevertheless be
members of the audience.
15.19 For the purposes of this Chapter only, “relevant licensed
premises” refers to premises which are authorised to sell or supply
alcohol for consumption on the premises by a premises licence or club
premises certificate. Premises cannot benefit from the deregulation
introduced by the 2012 Act by virtue of holding an authorisation for the
sale or supply of alcohol under a Temporary Event Notice.
Licence conditions and reviews
15.20 The amendments made to the 2003 Act by the Live Music Act
2012 affect conditions relating to live music in licensed premises. Any
existing licence conditions on relevant licensed premises (or
conditions added on a determination of an application for a premises
licence or club premises certificate) which relate to live music remain
in place, but are suspended between the hours of 08:00 and 23:00 on
the same day where the following conditions are met:
• at the time of the live music, the premises are open for the purposes
of being used for the sale or supply of alcohol for consumption on the
premises;
• if the live music is amplified, the performance takes place before an
audience of no more than 200 people; and
• the live music takes place between 08.00 and 23.00 on the same
day.
15.21 The effect of conditions relating to other activities that are
deregulated between 08:00- 23:00 is explained in paragraphs 15.29 to
15.33.
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Live music and conditions
15.22 In some instances, it will be obvious that a condition relates to
live music and will be suspended, for example “during performances of
live music all doors and windows must remain closed”. In other
instances, it might not be so obvious: for example, a condition stating
“during performances of Regulated Entertainment all doors and
windows must remain closed” would not apply if the only entertainment
provided was live music between 08:00 and 23:00 on the same day to
an audience of up to 200, but the condition would continue to apply if
there was a disco in an adjoining room.
15.23 However, even where the 2003 Act (as amended by the 2012
Act) has deregulated aspects of the performance of live music, it
remains possible to apply for a review of a premises licence or club
premises certificate if there are appropriate grounds to do so.
On a review of a premises licence or club premises certificate, section
177A(3) of the
2003 Act permits a licensing authority to lift the suspension and give
renewed effect to an existing condition relating to live music. Similarly,
under section 177A(4), a licensing authority may add a condition
relating to live music as if live music were regulated entertainment,
and as if that premises licence or club premises certificate licensed the
live music.
15.24 An application for a review in relation to relevant premises can
be made by a licensing authority, any responsible authority or any
other person. Applications for review must still be relevant to one or
more of the licensing objectives and meet a number of further
requirements (see Chapter 11 of this Guidance for more information
about reviews under the 2003 Act).
15.25 More general licence conditions (e.g. those relating to overall
management of potential noise nuisance) that are not specifically
related to the provision of entertainment (e.g. signage asking patrons
to leave quietly) will continue to have effect.
Live music: conditions relating to beer gardens
15.26 Beer gardens are often included as part of a premises licence or
club premises
certificate. Live amplified music that takes place in a beer garden is
exempt from licensing requirements, provided the beer garden is
included in the licence or certificate applying to the relevant licensed
premises, and the performance takes place between 08:00 and 23:00
on the same day before an audience of 200 people or fewer.
15.27 Where a beer garden does not form part of the relevant licensed
premises and so is not included in plans attached to a premises
licence or club premises certificate, it is nevertheless very likely that it
will be a workplace. Paragraph 12B of Schedule 1 to the 2003 Act
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says that a performance of live music in a workplace that does not
have a licence (except to provide late night refreshment) is not
regulated entertainment if it takes place between 08:00 and 23:00 on
the same day in front of an audience of no more than 200 people.
15.28 However, a licensing authority may, in appropriate
circumstances, impose a licence condition that relates to the
performance of live music in an unlicensed beer garden using any
associated premises licence or club premises certificate. Provided
such a condition is lawfully imposed, it takes effect in accordance with
its terms.
Conditions relating to other non-licensable activities
15.36 If appropriate for the promotion of the licensing objectives, and if
there is a link to remaining licensable activities, conditions that relate
to non-licensable activities can be added to or altered on that premises
licence or club premises certificate at review following problems
occurring at the premises. This has been a feature of licence
conditions since the 2003 Act came into force. A relevant example
could be the use of conditions relating to large screen broadcasts of
certain sporting events which, combined with alcohol consumption,
create a genuine risk to the promotion of the licensing objectives. It is
also not uncommon for licence conditions relating to the sale of
alcohol to restrict access to outside areas, such as unlicensed beer
gardens, after a certain time.
15.37 Similarly, while karaoke no longer needs licensing as the
provision of entertainment facilities (and will generally be classed as a
performance of live music – see paragraph 15.16 above) it might, for
example, be possible on review to limit the use or volume of a
microphone made available for customers, if a problem had occurred
because of customers purchasing alcohol for consumption on the
premises becoming louder and less aware of causing noise nuisance
later in the evening. Another example might be a condition restricting
access to a dance floor, where the presence of customers who had
been consuming alcohol on the premises had led to serious disorder.
Temporary event notices
15.38 The circumstances in which a temporary event notice (“TEN”) is
required for a
performance of live music are described above in paragraph 15.12. In
addition, licensing authorities should be aware that, following changes
made by the 2013 Order, a TEN is only required for an indoor sporting
event or the performance of dance or a play if the activity takes place
before 08:00 or after 23:00 on any day. As no more than 499 people
can be permitted on authorised premises by a TEN, a TEN cannot
authorise the performance of a play or dance, or an indoor sporting
event, where such an activity is licensable because the relevant
audience limit is exceeded (see paragraph 15.10). Other regulated
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entertainment, or the sale or supply of alcohol, would need to be
authorised by a TEN or a premises licence or club premises certificate.
More than one entertainment event in the same premises
15.39 Where there are different audience limits for different
entertainment activities (e.g. 500 for plays or dance, 1,000 for indoor
sport) and different activities are occurring at the same premises at the
same time, the event organisers must ensure that the audience for
each entertainment does not exceed the relevant threshold unless an
authorisation is in place for that entertainment. Event organisers will
have to consider the possibility of audience migration (see also
paragraph 15.5).
Morris dancing
15.40 The amendments to the 2003 Act by the 2012 Act extend the
exemption relating to music accompanying morris dancing in
paragraph 11 of Schedule 1 to the 2003 Act, so that it applies to the
playing of live or recorded music as an integral part of a performance
of morris dancing, or similar activity.
Incidental music
15.41 In addition to provisions introduced by the 2012 Act, the
performance of live music or playing of recorded music is not
regulated entertainment under the 2003 Act if it is „incidental‟ to
another activity “which is not itself a description of entertainment falling
within paragraph 2” of Schedule 1 to the 2003 Act.
15.42 As a result of the 2013 Order, the incidental music exemption
can apply to an indoor sporting event or a performance of a play or
dance for which no licence is required as it takes place between 08:00
and 23:00 on the same day before an audience which does not
exceed the relevant limit; such an activity would no longer be a
description of entertainment within the meaning of paragraph 2 of
Schedule 1 to the 2003 Act. This means that, while a performance of
live music or the playing of recorded music cannot be incidental to a
boxing or wrestling entertainment, such music may be within the scope
of the incidental music exemption for an indoor sporting event or
performance of a play or dance for which no licence is required (e.g.
because it is an indoor sporting event taking place between 08:00 and
23:00 before an audience which does not exceed 1,000).
15.43 Whether or not music is “incidental” to another activity will
depend on the facts of each case. In considering whether or not live or
recorded music is incidental, one relevant factor will be whether,
against a background of the other activities already taking place, the
addition of music` will create the potential to undermine the promotion
of one or more of the four licensing objectives of the 2003 Act. Other
factors might include some or all of the following:
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• Is the music the main, or one of the main, reasons for people
attending the premises and being charged?
• Is the music advertised as the main attraction?
• Does the volume of the music disrupt or predominate over other
activities, or could it be described as „background‟ music?
15.44 Conversely, factors which would not normally be relevant in
themselves include:
• The number of musicians, e.g. an orchestra providing incidental
music at a large exhibition.
• Whether musicians are paid.
• Whether the performance is pre-arranged.
• Whether a charge is made for admission to the premises.
Spontaneous music, singing and dancing
15.45 The spontaneous performance of music, singing or dancing
does not amount to the provision of regulated entertainment and is not
a licensable activity because the premises at which these
spontaneous activities occur would not have been made available to
those taking part for that purpose.
10.
Determination
10.1. The Sub Committee are requested to consider the application,
representations, and determine this application.
10.2. When considering this application the Sub Committee will need to have
regard to the North Norfolk District Council Licensing Policy and to
statutory guidance under the Licensing Act 2003 issued by the
Secretary of State
10.3. In determining the application for a Premises Licence the Sub
Committee may take the following actions:
a. Grant the application
b. Grant the application subject to conditions relevant to the
promotion of the licensing objectives
c. Refuse the application
10.4. This application must be determined and notified to the applicant within
5 working days from the conclusion of the hearing. Reasons for the
Panel‟s decision must be given as both the applicant and objectors
have a right of appeal against that decision to the Magistrates Court.
10.5. There is a right of appeal to the decision of the Sub Committee to the
Magistrates court within 21 days.
Appendices:
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A. Copy of Application
B. Plan of Premises
C. Letters/emails of objection or support from interested parties
D. Location Plan
Background Papers:
1. The Licensing Act 2003
2. North Norfolk District Council Statement of Licensing Policy (14 December
2010)
3. Guidance issued under section 182 of the Licensing Act 2003 (June 2013)
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