The Licensing Act 2003: post-legislative scrutiny Contents

Chapter 11: Live Music

Introduction

521.Pubs and clubs have long been sites of music, entertainment and cultural activity in the England and Wales. Live music performances have been found to be one of the  greatest draws of custom for pubs, with one in four publicans reporting increases in takings of between 25% and 50% on nights when they have live music compared to other nights. Pubs that provide music take on average 44% more money than pubs without music, rising to 60% more at the weekend.491

522.Alongside pubs which put on live music, there are also many venues which are primarily concerned with live music, but which also serve alcohol. In particular, this includes around 450 grassroots music venues (GMVs), smaller music venues with capacities of less than 1,000. With such venues providing many fledgling musicians with their first public performance platforms, they are described by the Music Venues Trust as the “start motor of the music industry engine”.492

523.UK Music, a group which campaigns and lobbies on behalf of the UK recorded and live music industry, has noted that the average spend on alcohol is significantly lower at these venues than at typical licensed premises, at £6.27 per head in 2015 compared with a national average of £15.30. However, they added that “the sustainability of grassroots music venues (GMVs) is intrinsically financially dependent upon the sale of alcohol” and other subsidiary trades such as trade in merchandise. 493 Operating music venues within London have shrunk by 35% in the past eight years. Restrictive licensing laws are often cited as a contributing factor in venue closures.494

524.From 1964 until the commencement of the Licensing Act 2003, live music performances were regulated by “music and dancing” licences, otherwise known as Public Entertainment Licences (PELs). This included a “two in a bar” exemption, which allowed licensed premises to put on live performances involving no more than two performers without requiring a PEL. This regulatory framework was widely disliked by licensees and musicians alike, and could be subject to peculiar interpretations, with councils sometimes even counting audiences that sang along against the two-person limit.

525.However, the Licensing Act 2003 effectively removed even this limited exemption. It created the licensable activity of “regulated entertainment” (see Box 8), requiring a premises licence for all classes of entertainment included within it, unless specific exemptions applied. A number of attempts were made to reduce the restrictions on small-scale live music performances, none of which were deemed very successful by performers, before the Live Music Act 2012 was introduced.

Box 8: Regulated Entertainment

The following activities are defined as “regulated entertainment”:

  • a performance of a play (but no longer for audiences up to 500 people);495
  • an exhibition of a film;
  • an indoor sporting event which takes place wholly inside a building and at which the spectators are accommodated wholly inside the building;
  • boxing and wrestling;
  • performance of live music;
  • playing of recorded music;
  • performance of dance;
  • entertainment of a similar description to the above.

There are specific exemptions for film exhibitions for advertisement, information and education, and in museums and art galleries; music incidental to certain other activities; religious services and places of worship; garden fetes; and Morris dancing. Sexual entertainment venues are exempt, but only because they are regulated under the Local Government (Miscellaneous Provisions) Act 1982.

Live Music Act 2012

526.The Live Music Act took effect from 1 October 2012, and since 6 April 2015 also applies to recorded music, and covers larger audiences.496 The Act disapplies licence conditions to the activities covered by the Act if the following criteria are satisfied:

527.Live music also ceases to be classed as ‘regulated entertainment’ if the above criteria are satisfied. The Live Music Act also creates a general exemption that live unamplified music provided anywhere will not be regarded as the provision of regulated entertainment if it takes place between 8am and 11pm, regardless of the number of people in the audience.

528.Determining the impact of the Live Music Act 2012 statistically is difficult, as its success may be indicated by a decrease in licence applications for live music, as many premises no longer require them.497 Alternatively, this may simply reflect a decreased interest among licensees in putting on live music performances.

Box 9: Licensing trends associated with the Live Music Act 2012

  • Over the first full year of the Live Music Act (March 2013–March 2014) there was a 1.3% increase in the overall number of licences authorising some form of regulated entertainment in premises in England and Wales.
  • The same period saw a 1.5% decrease in the number of premises licences authorising live music, and a 5.9% decrease in the number of club premises certificates authorising live music.
  • In the following two years (March 2014–March 2016), there was an overall decrease of 1.4% in premises licences authorising regulated entertainment, a 3.5% decrease in premises licences authorising live music.
  • There was also a 20.2% increase in club premises certificates authorising live music.

Source: National Statistics, Entertainment Licensing 2014: https://www.gov.uk/government/publications/entertainment-licensing-2014/entertainment-licensing-statistics-2014 ; National Statistics Entertainment Licensing 2016: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/571246/Entertainment_Licensing_Statistics_2016_-_Tables.xlsx [accessed 10 March 2017]

529.Most respondents expressed support or broad acceptance for the deregulatory measures contained in the Live Music Act 2012. The live music industry representatives, business owners and some local councils believed it to be a proportionate and reasonable form of deregulation, which corresponded with the Department for Culture, Media and Sport’s belief that it had been “popular, proportionate and effective”.498

530.CAMRA argued that “the changes made through the Live Music Act have not only facilitated greater provision of live music in pubs, but also ensured that a more diverse range of venues can now offer live music, increasing the range of experiences that are available to local communities through the licensed trade”.499 Poppleston Allen, solicitors who provide legal representation to many licensees, argued that it had been successful, and had allowed many of their clients to put on small scale music events without the need to go through the TENs system.500

531.Whilst many local councils believed that the Live Music Act 2012 had been mostly successful, or at least acceptable, in its deregulation of live music, they were nevertheless concerned that the size of events permissible under the Act had increased in 2015 (from audiences of 200 to 500, including staff), and they did not think that any further extensions should be permitted. One local council summed up this attitude when they acknowledged that while they had not “been made aware of any serious problems arising out of the implementation of the Live Music Act”, they believed there should now be “breathing space while the effect of this deregulation is assessed”.501

532.A number of local authorities and residents’ associations went further in their criticisms of the Live Music Act 2012. Evidence submitted by the Federation of Bath Residents’ Associations claimed it was a “‘one size fits all’ deregulation regime which has added to the noise pollution of many town and city centres to the detriment of residents anywhere near where live music is played without the need for a licence.”502 The Gloucestershire Licensing Officers’ Group were of the similar view that deregulation has now “gone too far as the controls that were in place disappeared under the Live Music Act”.503

533.Hounslow Borough Council noted that it was “now possible for reasonably large events to be held without any public consultation which in our experience can be distressing for our residents”.504 Lambeth Borough Council, referring specifically to live music in beer gardens, noted that they now have to deal with more noise complaints from nearby residents than they once did, “who don’t understand that we can’t simply stop this activity”.505

534.It does appear however that many of the concerns of local authorities and local residents stem more from a lack of understanding of the controls which have remained in place following the Live Music Act 2012, or a general inability on the part of councils to use them effectively. Ashford Borough Council spoke for many local authorities when they claimed that “recent deregulation has created confusion amongst applicants as to what is regulated and what is not”.506

535.Lambeth Borough Council, while critical of the Live Music Act 2012, also acknowledged that both they and local residents still retain the option to bring a review against premises which cause problems with noise nuisance. However, they claim that “in practice most authorities are under resourced and will only bring a review on the most problematic of premises, and residents seem reluctant to bring their own reviews, no doubt for fear of local reprisal or not wanting to be named.”507

536.Poppleston Allen knew of “a handful of cases where conditions have been re-imposed upon licences following noise complaints, meaning that licence holders who previously could rely upon the exempting provisions of the 2012 Act either cannot hold live music at all, or only by complying with very strict conditions”. While they believe this to be “relatively rare”, in their view “this does seem to show that the 2012 Act has teeth”.508 A list of measures which can be taken in the event of noise complaints is presented in Box 10.

Box 10: Mechanisms for protecting local residents in live-music related cases

  • Upon a review of the premises licence the Licensing Authority can determine that conditions on the premises licence relating to live or recorded music will apply even between 8am and 11pm;
  • If the licence doesn’t presently authorise live or recorded music the Licensing Authority can add conditions to the Premises Licence as though the live or recorded music were regulated entertainment authorised by that licence, again to apply even between 8am and 11pm;
  • The Licensing Authority can determine that live or recorded music at the premises is a licensable activity and live or recorded music can no longer be provided without permission on the Premises Licence or a Temporary Event Notice;
  • Other noise legislation, for example in the Environmental Protection Act 1990, will continue to apply. The Live Music Act does not allow licensed premises to cause a noise nuisance.

537.The way that live music in licensed premises is currently regulated is not without criticism from the other end of the spectrum either. It remains the position of the Musicians’ Union and the Music Venue Trust that live music should not be regulated through licensing in any form.509 They note that other legislation, such as the Environmental Protection Act 1990, Health and Safety at Work etc. Act 1974 and the Fire Safety Order 2005 also exists and is more than sufficient for regulating live music.510 UK Music highlighted practice in New South Wales, where live music venue licensing was abolished in 2009.511

538.This view was not, however, shared by Paul Latham of the UK Live Music Group, who argued that the present state of regulation through the Licensing Act 2003 and the Live Music Act 2012 was reasonable and appropriate. He argued that responsible operators did not wish for a “wild west … where you just take the shackles off us and let us get on with it. You have to legislate for the worst, as well as the best”.512

539.He did however suggest, in common with the local authorities mentioned earlier, that overlapping layers of legislation regulating live music could prove confusing to licensees and local authorities alike. He pointed out that, because there are various pieces of legislation relating to live music, guidance should be provided in a simplified form, with “all the best bits of the legislation, to say, ‘That is it. Just adhere to those and do not do those. Do not mess about’.”513

540.Although a number of local authorities and local residents’ associations believed that the Live Music Act 2012 had gone too far in deregulating licensable activities, concrete examples of unreasonable levels of nuisance caused by those activities seemed few and far between. Any licensable activity after 11pm is still regulated under the Licensing Act 2003; there remain remedies for daytime nuisance relating to music, and many concerns appeared to relate to fears of further deregulation, rather than the situation as it presently stands. The Live Music Act 2012 appears largely to have succeeded in its intention to facilitate live music, in particular, as a cultural and commercial activity in licensed premises.

541.We believe that the Live Music Act 2012 is working broadly as intended, but that there is not presently a case for further deregulation, let alone the complete removal of all live music-related regulation from the Licensing Act 2003.

542.We recommend that more be done to spread awareness of the provisions of the Live Music Act 2012 and its implications for licensed premises among local councils, licensed premises and local residents.

‘Agent of Change’ principle

543.The evidence we heard has highlighted the need to consider how licensed premises which put on live music performances are to be accommodated and protected in the UK’s towns and cities when the need for housing, and residents’ accompanying expectations of quiet living environments, are ever more pressing.

544.One of the most frequent suggestions we heard was to introduce a full ‘agent of change’ principle into UK planning law. This would require anyone instigating a new building development or a change in land use (the ‘agent’ precipitating a change in a given area) to take into account the nearby properties and their functions. If there was reason to believe the functions of the new property or conversion would clash with those of the pre-existing properties, it would fall to the agent of change to take actions to mitigate this clash.514

545.In written evidence, Birmingham City Council, alongside a number of other city councils, described serious problems with the way that urban authorities are encouraged to accommodate both the greater use of city centres for both residential uses and the night time economy. They described how:

“Local authorities are encouraged to use space in city centres for residential accommodation, especially apartments. Residents may object to the granting of new licences for bars, clubs and restaurants nearby, because of the impact the premises will have on their quality of life, or the impact that large numbers of customers will have on local parking and the consequential increase in numbers of taxis that will be attracted to the area.”515

546.Leeds City Council gave us the example of the Duck and Drake, a city centre pub in Leeds well known for live music:

“It is very popular and is one of the few premises with a beer garden in the city centre. This is absolutely vital in the summer as the building is small and hot. The pub has a late licence and has enjoyed popularity for many years. A developer has built flats right next to the pub. The pub received noise complaints from residents living next door who complained about the use of the beer garden into the early hours of the morning. Not only has the pub had to close its beer garden by 9pm, but now has to close all windows and doors to avoid a noise nuisance which makes it unbearably hot in the summer.”516

547.They believed that this could have been avoided if there had been a full ‘agent of change’ principle established in planning law. The onus would have been on the developer to take the proximity of the pub into consideration, and might have required that sound proofing and air conditioning be installed. Alternatively the developer could have been made to sound proof and air condition the pub.

548.The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016 came into effect on 6 April 2016. Developers are now required to seek prior approval from the local planning authority on noise impacts before changing the use of a site from offices to residential dwellings. A number of representatives from the live music and entertainment industries approved of this move, with Equity describing it as an “important step towards rebalancing the need to provide new housing while also protecting existing live entertainment venues”.517

549.However, while all witnesses who discussed this change welcomed it, most believed it still did not go far enough. Alex Mann of the Musicians’ Union told us that they were still “partial measures” which only affected conversions, where existing buildings are converted into domestic residences. He noted that the measures “do not, however, cover new housing developments which are not conversions. The venues that exist in the spaces already are at a bit of a disadvantage. If you build a block of flats next to a venue that already exists, the first thing a tenant might consider doing is complaining about noise.”518

550.The UK Live Music Group, the Musicians’ Union and the Music Venue Trust also argued that even this limited provision was sometimes not being taken seriously by developers, and was not being enforced. They requested that the current provisions be extended beyond permitted development rights to cover new build developments, and that they be explicitly referred to as an ‘agent of change’ principle, as this clearly and succinctly described the intention behind the principle.519

551.However, Mark Davyd of the Music Venue Trust warned against an “overly simplistic” approach to introducing a full agent of change principle, as this might equally act as a blanket prohibition on new music venues. In his view, “if somebody wanted to build a music venue, people would be able to say, ‘Well, there was no music venue here before’”.520 Instead, he highlighted the Australian model, where there is a “region-wide overlay, with local interpretation”. If this was replicated in the UK, councils could create “music zones within towns and cities and designate specific streets on which agent of change would be applied.”

552.Mark Davyd also noted that the language used to describe licensing and planning regulations which related to music venues could often be unhelpfully vague and opaque—he suggested replacing terms such as “cultural spaces”, which can be “very subjective and open to interpretation”, with specific descriptions of the types of venues in question.521

553.We recommend that a full ‘Agent of Change’ principle be adopted in both planning and licensing guidance522 to help protect both licensed premises and local residents from consequences arising from any new built development in their nearby vicinity.


491 Written evidence from the British Beer & Pub Association (LIC0111)

492 Q 197 (Mark Davyd, Music Venue Trust)

493 Written evidence from Music Venue Trust (LIC0058)

494 Written evidence from UK Music (LIC0096)

495 Licensing Act 2003 (Descriptions of Entertainment) (Amendment) Order 2013 (SI 2013/1578)

496 Live Music Act 2012, Legislative Reform (Entertainment Licensing) Order 2014 (SI 2014/3253)

497 The Department for Culture, Media and Sport, the department responsible for compiling these statistics, additionally noted that, following the Live Music Act 2012, it could “therefore be expected that licences authorising live music performances may decrease, as may applications for new licences. However as the Live Music Act only partially deregulated live music in defined circumstances, the live music category is likely to remain in place on most pre-existing licences. These statistics do not provide an indication of whether the Act has increased the provision of live music itself.” DCMS, Entertainment Licensing 2016, Statistical Release (November 2016): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/571412/Entertainment_Licensing_2016.pdf [accessed 10 March 2017]

498 Q 15 (Kate McGavin, Deputy Director of Media and Creativity, Department for Culture, Media and Sport)

499 Written evidence from CAMRA (LIC0121)

500 Written evidence from Poppleston Allen (LIC0105)

501 Written evidence from Suffolk Coastal District Council and Waveney District Council (LIC0029)

502 Written evidence from Federation of Bath Residents’ Associations (LIC0031)

503 Written evidence from Gloucestershire Licensing Officer’s Group (LIC0101)

504 Written evidence from London Borough of Hounslow (LIC0025)

505 Written evidence from London Borough of Lambeth (LIC0134)

506 Written evidence from Ashford Borough Council (LIC0016)

507 Written evidence from London Borough of Lambeth (LIC0134)

508 Written evidence from Poppleston Allen (LIC0105)

509 Written evidence from the Music Venue Trust (LIC0058); Q 203 (Alex Mann, Musicians’ Union)

510 The Environmental Protection Act 1990 makes provision for noise abatement notices, the Control of Pollution Act 1974 sets restrictions on the timing of loudspeaker use, the Health and Safety at Work etc. Act 1974 covers noise nuisance and the Regulatory Reform (Fire Safety) Order 2005 (SI 2005/1541) covers fire safety.

511 Written evidence from UK Music (LIC0096)

512 Q 203 (Paul Latham, UK Live Music Group)

513 Q 204 (Paul Latham, UK Live Music Group)

514 An amendment proposing the addition of an ‘agent of change’ principle to the Housing and Planning Bill was made in the Commons but was not subsequently included in the Housing and Planning Act 2016. However, in its recent consultation paper, the Government is now asking for views on the inclusion of a full ‘agent of change principle within the National Planning Policy Framework. DCLG, Fixing our Broken Housing Market, Cm 9352, February 2017, p 103: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/590463/Fixing_our_broken_housing_market_-_accessible_version.pdf [accessed 10 March 2017]

515 Written evidence from Birmingham City Council Licensing and Environmental Health (LIC0141)

516 Written evidence from Leeds City Council (LIC0034)

517 Written evidence from Equity (LIC0071)

518 Q 199 (Alex Mann Musicians’ Union)

519 Q 199 (Paul Latham, UK Live Music Group, Alex Mann, Musicians’ Union and Mark Davyd, Music Venue Trust)

520 Q 199 (Mark Davyd, Music Venue Trust)

521 Ibid.

522 The National Planning Policy framework and the section 182 Guidance respectively.




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