Dundee City Licensing Board
Supplement to Statement of Licensing Policy 2025
Music Noise from Licensed Premises Consultation Document
The Licensing Board is periodically obliged to publish a Statement of Licensing Policy in terms of Section 6 of the Licensing (Scotland) Act 2005 (“the 2005 Act”). The current policy was adopted in January 2024. The Board had considered, inter alia, including revised provisions concerning the issue of music noise from licensed premises in the Policy but decided to await the outcome of an appeal involving another Board which was due to be heard at that time and which involved the consideration of the extent of the public nuisance licensing objective in this context. That appeal has since been heard and a judgment issued so the Board now wish to put forward proposals concerning music noise nuisance as a possible supplement to the Policy.
The Board is obliged to consult with a number of categories of persons before making a final decision on the contents of such a supplementary statement. The persons who are to be consulted for this purpose under Section 6 of the 2005 Act are -
- The Local Licensing Forum;
- Representatives of persons listed in Paragraph 2 (6) of Schedule 2 to the 2005 Act whose interests the Board considers are not represented on the Local Licensing Forum;
- The Local Health Board;
- Such other persons as the Board thinks appropriate.
Music noise from licensed premises
Currently, the Board generally attaches a condition to licences where live music is to be provided which requires all amplified music to be inaudible in the nearest residential accommodation. The Board wishes to explore whether this is an appropriate approach to maintain.
The relevant licensing objective is the prevention of public nuisance (emphasis added). A question arises as to whether noise caused by music within licensed premises can be regarded as “public” in that sense. Case law from England had suggested that, to be a “public nuisance”, the effect of the noise should be “sufficiently widespread and sufficiently indiscriminate to amount to something more than private nuisance.”
Scots Law does not recognize the same distinction between public and private nuisance. The 2005 Act has therefore innovated on the common law by creating this concept. Public nuisance under the 2005 Act is not the same as statutory nuisance under the Environmental Protection Act 1990. That does not mean to say that the Board might, or should, leave matters to action under the 1990 Act or indeed recognising that an aggrieved person may have a remedy by interdict for common law nuisance, the civil courts. Public nuisance and what might be done about it is a matter for the Licensing Board to consider.
In the context of that particular licensing objective, especially when taken in conjunction with the references in the statutory 2005 Act Guidance to the effect upon “local residents” and “communities”, this tended to support an argument that the objective will only be engaged when the noise has that wider level of impact and that where that public character of the nuisance is lacking, then an individual complainer would have to seek a remedy either via the statutory nuisance route (by complaining to the local authority noise control section) or a private law action for nuisance in the civil courts.
However, there is a qualification to this approach where the nature of the noise nuisance (such as the duration, frequency, quality, time of day, etc.) would support a conclusion that the nuisance has gone beyond the mere discomfort of one person and has reached a level such that it can be considered to be likely to be a public nuisance in the sense above referred to. Where there was evidence before the Board that could allow that inference to be drawn, then a public nuisance might still arise. Whatever view a Board takes it can only act if there is a proper basis in fact to find, directly or by inference, that a nuisance is public.
This issue was discussed in the case of Bengal Dish v. Aberdeenshire Licensing Board. In that case, Sheriff Principal Pyle agreed with the proposition that a complaint from one person will generally be insufficient to engage the public nuisance objective and that there would be a need to show that a nuisance was affecting an identifiable class of persons before the Licensing Board could consider taking any action on the basis of that objective. In that case the only complaint came from the owner of an adjacent flat and there was no evidence to show that the alleged noise was capable of being heard outside of the flat.
In terms of Board policy, the Board could include a statement which indicates that the Board is concerned with nuisance which has a reasonable link to the provision of alcohol on the premises. In such a statement, the Board may generally consider that such a nuisance might exist where there is evidence that what is being complained about is the impact on a sufficiently large number of members of the public by reference to one act or a series of acts, or where the effect was sufficiently widespread or indiscriminate.
It might stress that it would generally need evidence from more than one source to support the matter being a public nuisance, but that in cases where even one source of evidence existed, that might, if the evidence was sufficiently strong, allow the Board to draw the inference that the nuisance was likely to be a public one. Even if the evidence is from one source, provided that test is met, a Board might infer that the nuisance is still “public” even if there is only one source of evidence.
A possible scenario might involve evidence (e.g., from the local Environmental Health department) as to the likely wider impact of noise felt not just by one complainer, but more generally, and so make an evidential finding of public nuisance open to the Board, if the Board accepted that evidence. Typically, though the Board is often asked to consider alleged nuisance which relates to one adjoining or nearby property where there is little evidence to show that other persons are affected.
It might also add, in considering whether there is a nuisance, that this would involve, amongst other considerations, a consideration of the nature of the matter complained of, duration, frequency, quality (shrillness, grating, impulsivity, sporadic, repeated) and the hour of it.
As part of any such statement, the Board might stress that it can only consider public nuisance and that may mean that in many cases involving noise complaints only affecting adjacent property, that the appropriate recourse might be through the environmental health department or through the common law of nuisance.
There are other issues with an inaudibility condition. The idea of nuisance includes a threshold for a nuisance to arise. Noise in itself, is not a nuisance, but can become so having regard to the whole circumstances of a case, including the competing claims of licenced premises to operate and provide music and those of neighbours and the wider public to enjoy their own space or situation without noise becoming a problem for them. The law has recognised the need for a threshold.
As to what is a nuisance, in Watt v Jamieson , Lord President Cooper said that:-
“The critical question is whether what he was exposed to was plus quam tolerabile when due weight has been given to all the surrounding circumstances of the offensive conduct and its effects. If that test is satisfied, I do not consider that our law accepts as a defence that the nature of the user complained of was usual, familiar and normal. Any type of use which in the sense indicated above subjects adjoining proprietors to substantial annoyance, or causes material damage to their property, in prima facie not a "reasonable" use.”
Note the emphasis on substantial annoyance. This approach was followed by the Sheriff in Anderson v Dundee City Council
where he said:-
“In my opinion the authorities to which I have referred make it clear that in order to be a nuisance something must be substantial and it must be intolerable to the ordinary person. Something which causes mere discomfort is not enough.”
By contrast an inaudibility condition mandates that noise cannot be heard. This may go beyond the test that the law sets. Although the cases referred to were decided in different contexts, it is considered likely that a Court may accept that an inaudibility condition goes further than preventing “substantial annoyance” and would protect “mere discomfort.” Such a condition may be unlawful.
In addition, a condition, if breached, can be a criminal offence and also form the basis for a premises licence review under the 2005 Act. A condition to be lawful must be reasonable and certain and be capable of objectively verifiable compliance, monitoring and enforcement. This arises due to the licensing caselaw on imposition of conditions by public bodies on commercial or similar activities and is reinforced by aspects of the Provision of Services Regulations 2009.
A condition requiring inaudibility is neither as inaudibility is subjective in nature. Audibility changes for different people depending on their hearing. Noise may be audible within a property however this may not cause annoyance to the occupant of the property. The occupant may change over time to someone more tolerant and yet the condition would remain. Inaudibility in a particular area will also depend on the background noise level in the property. It is a “moveable standard”, over which the person subject to the condition may have little or no control and yet still be potentially subject to criminal and civil law controls.
The efficacy of the condition cannot be measured. A licence holder cannot know when they have complied with it or are complying with the condition. The condition is not reasonably achievable and is thereby probably unreasonable. It cannot be reasonably enforced. Due to the uncertainty of whether or not the condition can be complied with, the licence holder may be subject to sanctions which may be at considerable cost to their business.
Against that whole background, the retention of the inaudibility condition would probably not be appropriate, particularly as it would not be enforceable in a case where there is only one complainer, which tends to be the most common situation for cases presented to the Board in this context.
By contrast if the Board in any specific case put before it was satisfied that the test in Bengal Dish was met, then this can open the route to potential action by the Board without the need for any condition (s) to be attached to premises licences.
- Do you think that the inaudibility condition should be retained or dispensed with? (Please give reasons) If not, why not? Either way please give the Board reasons for your views.
- Would you support the alternative approach as outlined above based upon the wider interpretation of the public nuisance objective? (Please give reasons)
- Do you have any additional observations/comments on how the Board should deal with the issue of music noise from licensed premises? (Please give reasons)
The period for consultation will run up to and including 31st August 2025. Responses should be submitted either by email to licensing.board@dundeecity.gov.uk or by writing to the Licensing Office, 21 City Square, Dundee DD1 3BY.