By Jack Cummins
‘Preventing public nuisance.’ One of the five licensing objectives, of course. But who are ‘the public’?
That central question was considered and determined in a recent appeal judgment handed down in Aberdeen Sheriff Court.
First of all, here’s the background.
The operators of the Learney Arms in Torphins found themselves before Aberdeenshire Licensing Board when the local Environmental Health Department called a review hearing.
It followed complaints from the owner of the flat above the premises. The flat was originally the licensed premises owner’s accommodation. But the planning use was changed to allow the flat to be used as a separate dwellinghouse despite objections from Environmental Health.
Their concerns stemmed from the potential for noise problems unless adequate soundproofing was a condition of planning consent and the building warrant. As matters unfolded, it seems those concerns were well founded.
The premises had been the subject of complaints from a number of sources during the pandemic. These had been long resolved; but complaints from the flat owner continued – the sole source of ongoing complaints.
It seems that a number of steps were taken before the review procedure was initiated. So far as I can make out, an abatement notice was served in August 2021 but withdrawn the following month. In March 2022 a fixed penalty notice was issued under other legislation.
Eventually, Environmental Health decided to call for the premises licence review. At the hearing the licensing board decided that the premises had been operated in a manner which failed to comply with the ‘preventing public nuisance’ objective. The licence holders were handed a warning.
In addition, conditions were imposed curtailing the hours the premises could provide live and recorded music after 11pm on Fridays and Saturdays. As a result the viability of the business was placed under threat.
In the ensuing appeal to the Sheriff Principal, counsel for the Learney Arms directed a number of attacks at the board’s decision.
One landed on target, flowing from the question: “Could the noise experienced by the flat owner properly be described as a public nuisance?”. The judge’s answer was in the negative. Here’s the key passage from his judgment:
“[The licensing board] state that the [flat 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… The [licensing board] do not address that issue in their statement of reasons. Instead, they rely upon a history of complaints which on the evidence had been resolved and they were therefore left with only one complainer about noise in one location… It follows that by proceeding as they did [the licensing board] made an error of law.”
I had no involvement in this case, but I have been consulted several times in a similar situation which has the potential to ruin a licensed business.
Most recently, the owner of a bar with a popular musical entertainment offering – central to the profitability of the business – found himself on the receiving end of noise complaints from a single neighbour who lived down the street – not the closest property owner.
The dispute never became a licensing issue. Instead, it was the intervention of Environmental Health alone that put paid to the live bands.
Specialist acoustic consultants suggested that the noise problem might be brought under control through soundproofing measures – but at a cost that was simply prohibitive.
In the end, the client was warned that if the noise nuisance continued it would be regarded as a ‘statutory nuisance’ under the Environmental Protection Act 1990 leading to the issue of an abatement notice.
Contravening or failing to comply with such a notice can amount to an offence – and that in the whole circumstances of the particular case was the killer blow.
