Legal advice: Hitting the right note
It has been recently reported in The Publican that the Department for Culture, Media and Sport (DCMS) has employed pollsters MORI to assess the impact of the new licensing regime on live music. The government and many local authorities are sending out conflicting signals concerning live music. While the "two in a bar rule" has disappeared and local residents are ever more savvy about licensable activities which might affect them, many councils specifically state in their licensing policies that live music venues are to be encouraged.
As many of you will be aware, if you converted your old on-licence during transition, the effect of the premises licence issued in its place is identical in almost all respects.
However, there are anomalies, of which the position on the "two in a bar" rule is probably the greatest. Section 182 of the Licensing Act 1964 permitted up to two entertainers to perform live music in licensed premises without the need for a public entertainment licence.
There is no such provision in the Licensing Act 2003. The government's reasoning is that for no extra cost pubs may apply to obtain permission to stage live music when obtaining permission to sell alcohol: during transition, that would translate into the need to apply for a variation when applying for a conversion.
This leads to the question: what to do if you converted, but did not vary, your on-licence and would like to host live music? You have two options.
Option one
If you wish to have live music on a regular basis you should apply to vary your premises licence. In order to minimise the chances of receiving representations you should consult with your local environmental health officer (EHO) before putting the application in.
They will be able to advise on the steps (if any) to be taken to avoid a representation being made. It is not uncommon for EHOs to request that windows and doors are kept shut during the performance of live music and for a noise limiter to be installed and set to a level agreed by them, something which can prove expensive.
Depending upon your relationship with your local residents it might be worthwhile forewarning them of the application and discussing any concerns they might have.
If your variation application goes to a hearing, section 7.19 of the guidance issued by the Culture Secretary could be worth citing if you made use of the "two in a bar rule" under the Licensing Act 1964. It states that, when making a decision, committees should have regard to the history of certain events at the premises. So if you previously had two entertainers performing regularly and this did not cause nuisance the provision of small-scale live musical entertainment should be permitted.
Option two
Alternatively, if you only have live music occasionally you might find it easier and more cost-effective to use your yearly allocation of temporary event notices (TENS) to which only the police may object, in order to secure permission to stage live music events. Please be warned, the TENS, route should not be seen as a cunning way to circumnavigate a seemingly officious EHO. If your live music disturbs the neighbours or causes a nuisance there is a raft of other legislation that can be invoked by the police, fire officer or EHO to curb your activities.
Fortunately, not all forms of music are deemed to be a regulated activity that requires- licensing. Background or "incidental' music can be played without a licence. While "incidental" is not defined by the Licensing Act 2003, it has been suggested that music is 'incidental' if the volume of the music is sufficiently low to permit patrons to talk above it without having to raise their voices and if it is ancillary to another activity such as eating or drinking.
Given the additional complexity presented by the new legislation as far as live music is concerned, the results of the MORI survey will make very interesting reading!
