Legal surgery
Graeme Cushion, partner at licensing solicitors Poppleston Allen, answers more of your food legislation questions
Q I own a busy pub/restaurant on the outskirts of the town centre. The front of the restaurant faces onto a largely commercial street, albeit at the very edge of town. Behind the restaurant is a largely residential area. There is a courtyard to the rear of the premises. This has only been used for storage in the past, so I haven't previously experienced any difficulties with our neighbours. With the arrival of the smoking ban, our staff can no longer smoke inside the premises and have been using the courtyard. I have just received a letter from the local environmental health department threatening service of a noise abatement notice due to complaints received from residents to the rear of the restaurant. What should I do?
Graeme says: The issue of noise being caused by gatherings of smokers outside licensed premises was predicted by many in advance of the arrival of the smoking ban, and it has been experienced as a reality by many operators since.
It is a very difficult issue. Many premises - and it seems that yours is one of them - are situated close to residents and therefore have difficulty in providing any sort of outside area for smokers - whether they be staff or customers - that is guaranteed to have no impact upon residents living nearby.
Threatened service of a noise abatement notice is a serious issue. Once the notice has been served upon you by the local authority, it remains in place until it is either withdrawn by the local authority or until you no longer own the premises. The notice will normally require you to cease causing a noise or perhaps indicate specific steps that you have to comply with in order to achieve this.
Any breach of the notice can lead to a fine of up to £20,000, but it is not uncommon for environmental health officers (EHOs) to wait until there have been several breaches prior to prosecuting. This means the potential financial exposure can be very large indeed.
There is obviously a right of appeal against a noise abatement notice. This applies where the terms are either unreasonable or, indeed, where there is some defect on the notice that makes it invalid. You would be well-advised to take immediate legal advice in the event that one is served.
In situations such as the one you find yourself in, there is also the very real risk of review proceedings being instigated by the EHO as a responsible authority under the Licensing Act 2003. It can bring the whole existence of your licence into question and you would certainly be risking the imposition of stringent conditions to prevent a nuisance being caused in the future.
From a practical point of view, you need to consider whether it is going to be better for you to allow staff to smoke outside the front of the premises rather than in the courtyard.
You may, however, feel that it may be rather off-putting for customers to see staff mem-
bers loitering outside the premises having a cigarette.
If their breaks are not too regular, then you may require staff to go a little further afield if they want to smoke. Continuing to allow staff to use the outside area to the rear of the premises seems to be asking for trouble unless you can secure their compliance in being absolutely quiet while they have their cigarette break.
