Talking Points -

Nuisance and the Licensing Act

Public Nuisance is perhaps one of the more difficult of the four licensing objectives to pin down. It is to be given, the Guidance tells us, its common-law meaning. This is all well and good, until you realise that the common-law of public nuisance has been developing (and changing) for at least the last two hundred years: what was found to be a public nuisance in the 19th century may not be so in the 21st. We offer here a brief summary of our view of the basic principles of the law of public nuisance as it relates to the Licensing Act 2003, and would like to invite your comments and observations, and your experiences via the Forum on the issue.

The objective concerns itself only with public nuisance, not statutory or private nuisance
An interest in land does not have to be shown to establish public nuisance, but it must occur on somewhere other than on the premises concerned
It must be so widespread that it would be unreasonable for a single person to take action
The standard of interference: a late 19th century case describes it as “interfering with the ordinary comfort of human existence… according to plain and sober and simple notions among the English people”
The character of the area in which the premises are situated is also a factor to be taken into account
In certain circumstances, even a temporary interference can give rise to a public nuisance
The Guidance predicts that public nuisance issues will mainly concern:
Noise
Light pollution
Noxious smells
Litter
Noise: includes vibration
Odours: “where existing legislation does not provide adequately for the prevention of public nuisance”
“…any necessary and appropriate conditions should normally focus on the most sensitive periods”
Representations about nuisance must be “positively tied or linked by as causal connection to a particular premises”
Closure orders: the Guidance suggests that police officers wishing to make closure orders would find “liaison with local government officers with existing powers for controlling noise … beneficial”

To summarise, it would seem from the case law and the Guidance that nuisance under the 2003 Act is, or will be, something that affects a number of, though not necessarily all, interested parties. It should not take account of undue sensitivity, but the ordinary existence of those parties, and should focus on the most sensitive periods eg night time: which begs the question of how, when an apparently significant proportion of the community wish to stay out late drinking, etc., is the balance to be struck with those who wish to sleep? Noise, light, smells and litter all fall to be considered, but in order to impose conditions or take action against any person or premises, it must be shown, or be capable of being shown, that the nuisance is coming from or being caused by the premises in question: general disturbance will not satisfy the test.

We and your colleagues would like to hear your views on the subject of public nuisance: please subscribe to the Forum (it’s free !) and let us know your experiences and views on the subject.