The rules on noise must strike a balance

There's a danger up-and-coming musicians will struggle to find a place to play in Edinburgh. Picture: Cate Gillon

There's a danger up-and-coming musicians will struggle to find a place to play in Edinburgh. Picture: Cate Gillon

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NIALL Hassard considers the sound, and the fury, in Edinburgh.

Live music venues in Edinburgh are fighting for their right to party – and the city council and interested parties should consider a noise condition which is precise and objective to resolve the issues experienced across the city.

The current condition stipulates that, “all amplified music and vocals must be inaudible in neighbouring residential property”. Although the intention is commendable, its scope and application have caused live music venues, in particular bars doubling as music venues, severe problems.

In November 2014, local music professionals met City of Edinburgh Council officials at Live Music Matters to discuss the state of the capital’s live music scene and to put forward ideas to enhance the offering.

The inaudibility condition emerged as a contentious topic for the music community and it was blamed for a dearth of local venues. The council’s representatives agreed to look at the current rules and assess their impact on entertainment venues and residents. Meetings are on-going and a petition to scrap the inaudibility condition attracted 1,000 signatures in 24 hours, with numbers now reaching over 3,250 at the time of writing.

So what is the problem with the licensing condition? The condition sets the threshold for noise from amplified music and vocals at zero – or does it? Inaudibility is not necessarily an objective test, whether one can hear amplified music depends on a number of factors such as an individual’s hearing, background noise, weather conditions, lifestyle, and dare I say it, tolerance/interpretation. The following example demonstrates the issues:

A city-centre pub makes a name for itself supporting local talent by having live bands on a Friday and Saturday night between 8pm and 11pm. The upstairs neighbour is a busy middle-aged professional, with below average hearing and a tendency to have the TV or radio on when at home. His normal bedtime is 12:30am. The publican is responsible, having taken steps to soundproof the premises and set appropriate sound levels. Everyone is happy and the pub thrives for years, as do the bands. The upstairs neighbour sells the flat and is replaced by a young self-employed artist. The new neighbour has excellent hearing and tends to be in the flat most evenings, working in silence. On the first band night, there is audible low-level music and vocals apparent within the flat. It is reported by the artist at 9pm. Licensing Standards attend and substantiate the claim, confirming audibility. The publican is de facto in breach of his condition and must stop the live music or attempt to soundproof further. Notwithstanding the costs, the test of inaudibility means that acoustic sound experts are reticent to give assurances that the condition can be satisfied.

The scenario above is not at all fanciful but based on real-life cases. No latitude is given within the terms of the condition. A breach is a breach. Licensees attest their frustration at being held to a standard beyond any comparison within the statutory or common law realms of noise nuisance. The point often made is, in a mixed commercial/residential area in a city, there must be a more objective test that sets a reasonable, verifiable threshold for tolerance.

The result of breaching the inaudibility condition is likely to be a Review of the Premises Licence, which could lead to the permission to provide live entertainment being stripped from the licence. Operating licensed premises, other than in accordance with the licence, is a criminal offence.

Legally, the question is: how can a business operator be held to account for a criminal offence by a condition which is subjective, imprecise and difficult to observe?

The English High Court judicially reviewed inaudibility conditions under the English Licensing Act and found that the term “inaudibility” is vague and imprecise and there must be some specificity given to what is meant by inaudible.

In the case of R (Developing Retail Ltd) v South East Hampshire Magistrates’ Court [2011] the court held that the correct course, when seeking to legitimately prevent nuisance, is to impose a condition prohibiting entertainment noise from exceeding “a specified level of decibels measured at a particular location over a particular period”. Given the rationale and logic of the English approach, Edinburgh would be better-served with a noise condition that strikes a better balance between the legitimate interests of businesses and residents but moreover, a condition which is precise and objective.

• Niall Hassard is an Associate in Lindsays Licensing team www.lindsays.co.uk

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