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Graeme Cushion looks at more of your food legislation questions Q. I own and operate a busy gastropub in a rural village location. The council...

Graeme Cushion looks at more of your food

legislation questions

Q. I own and operate a busy gastropub in a rural village location. The council granted planning permission a few years ago for a residential development that backs onto an enclosed courtyard at the rear of my premises. Prior to the smoking ban, the courtyard had only ever been used as a storage area because we have a fairly large beer garden. However, especially during the winter, the beer garden is not really suitable as a smoking area as it is very exposed. We began to use the rear

courtyard as it was easy to provide cover and heating. The courtyard is now used quite heavily by smokers. Over the last few weeks, I have had complaints from the residents nearest to the courtyard. They are complaining about noise, but one has also complained about smoke which is wafting through an upstairs window.

What should I do about this?

Graeme says: The smoking legislation has made difficulties of this nature commonplace. More premises are subjected to complaints from those who live nearby; both as a result of noise and as a result of smoky odours.

You are probably not undertaking any licensable activities in the courtyard, but the prob-

lems are as a result of the operation of the licensed premises. There is, therefore, potential for a review of your licence, which would result in a hearing before the licensing committee. It might well look at imposing conditions to try to minimise annoyance caused to residents.

These can be conditions limiting the number of people in the courtyard at any one time, or requiring supervision of that area so that people can be asked to keep their voices down.

If the annoyance caused by the smokers is so extreme, it is technically possible that you might be precluded from using this area as a smoking area altogether. However, it might be that the use of extractor fans or other device might enable smoke to be directed away.

Environmental health officers (EHO) also have powers under the Environmental Protection Act to issue an abatement notice in the event that nuisance is being caused by the operation of any premises. This would require you to stop causing the nuisance, whether it be noise or the escape of smoke. Such notices are normally preceded by contact by EHOs to say a complaint has been made.

EHOs have a positive duty placed upon them by legislation to investigate some complaints and can themselves be subject to legal action in the event that they do not do so. Any complaints, therefore, need to be taken seriously.

If any opportunity is given to enter into dialogue or have a meeting to discuss solutions, then these should be taken rather than ignored at the risk of a notice being imposed.

If a notice is breached, then a commercial operator can face fines of up to £20,000 for each breach that is witnessed. The EHOs themselves are adequately qualified to give evidence that a nuisance has occurred.

If you are served with a noise-abatement notice, it is imperative that you seek immediate legal advice. There is a limited window of opportunity - 21 days - to appeal against the imposition of a notice, which may provide an opportunity to enter into negotiations to resolve the problem; albeit it is better to have done this prior to the notice being imposed in the first place.

Appealing the notice, or defending proceedings for a breach, can be expensive in terms of legal costs. Early action is essential, as it is with any problems complained of and arising as a result of your operation.

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