Noise in licensed premises — grounds for licence review?

The least said about the game-winning try that should have been for Scotland, the better.

However, my overriding memory of the game however was the sound.

The French supporters are truly immense. Hearing “Allez les Bleus” and Le Marseillaise bellowed out at every opportunity, one would think it was a French home game. We Scots are a milder sounding lot.

Bengal Dish Ltd v Aberdeenshire Licensing Board

Noise of a different sort was the focus in a recent licensing case, Bengal Dish Ltd v Aberdeenshire Licensing Board.

Bengal Dish is the tenant of the Learney Arms in Torphins and under its premises licence it had permission to play music on Friday and Saturday until 1am. It had done so for many years.

In 2018 the council granted the landlord planning permission to turn the owner’s accommodation above the bar into a residential flat. That was despite environmental health officers objecting there was inadequate sound proofing between the flat and the bar.

I think you can guess where this is headed.

The person who bought the flat complained to the council’s environmental health team about the noise from the bar. The complaint ultimately reached the licensing board and triggered a review of Bengal Dish’s premises licence.

One of the grounds for a review is where circumstances may have an effect on a licensing objective. At the review hearing, the licensing board decided the objective of preventing public nuisance was impacted. 

The licensing board then made variations to Bengal Dish’s licence conditions, including the requirement that any noise from the bar must be “inaudible” in the adjoining flat after 11pm.

The practical effect of this decision was that Bengal Dish considered the only way to guarantee compliance would be to close after 11pm, or pay the significant cost of sound insulation for the flat.

Either option involved considerable financial cost for a situation not of its making and, consequently, it appealed.

Decision reversed

In agreeing to reverse the decision at the appeal, the sheriff principal considered what constitutes a public nuisance.

In short, one person’s complaint of noise was not considered sufficient. While he accepted the board’s argument the upstairs neighbour was a member of the public, he said for something to be regarded as a public nuisance it was necessary to show it affects an identifiable class of person.

In essence, noise affecting one person was not enough and, as such, Bengal Dish’s appeal was granted.

The case is useful in illustrating that licensing is not always the appropriate tool to deal with noise issues from licensed premises.

Missed opportunity

There were several other interesting legal arguments made during the appeal the sheriff principal opted not to determine, given his initial view on the public nuisance issue meant there should not have been a review of the licence in the first place.

One of the more interesting points was the relevance of the flat having inadequate insulation.

Environmental health’s view was if the flat had better insulation there would not have been a noise problem. In planning law, existing clubs and music venues have a degree of protection because developers have a responsibility to resolve conflicting sound problems that new adjacent premises might suffer.

The logic is clear: it’s your choice to develop next to a premises that may be more noisy.

This is known as the agent of change principle. There is no corresponding statutory provision in licensing or environmental health legislation.

This case was an opportunity to make clear whether there should be a similar approach in licensing cases.

Like that try that never was for Scotland, however, this was a missed opportunity…

You can read more commentary from our licensing and litigation teams, as well as from colleagues across the firm, on our news and views page.