An Indian summer with mild temperatures can be a mixed blessing for restaurateurs but Niall McCann, Partner at Joelson explains why additional noise and disturbed neighbours can make life difficult.
Whilst the ability to use outside areas into the autumn can significantly increase the number of covers, the additional noise that patrons dining outside, coupled with noise escape from open windows and doors can lead to problems.
There are two key ways in which disturbed neighbours can make life difficult for restaurateurs.
Firstly, if public nuisance is being caused they can apply to review the premises licence. To be on the receiving end of a review application can be very bad news for an operator. The process is relatively simple. A local resident needs to complete and send a review application form to the local council. Provided that the review application is deemed relevant and not vexatious, frivolous or repetitious it is then advertised by way of a notice on the premises for 28 days. During this consultation period other residents or statutory authorities such as the Environmental Health or police may make representations. Then a licensing sub-committee hearing is convened. At this hearing, the committee can decide to warn the operator, remove the Designated
Premises Supervisor, add conditions, remove licensable activities, cut back the hours, suspend the licence or even revoke it altogether.
Given the severity of the possible actions it is imperative that a review application
– even one that looks innocuous is treated seriously. Evidence should be served well in advance of the hearing and it is enormously helpful if contemporaneous notes are kept of any relevant meetings or conversations.
Furthermore, unless relations have totally broken down, it usually pays to meet with the relevant local residents to explore whether their concerns can be dealt with outside of a committee room. Fortunately, unfavourable review decisions can be appealed to the Magistrates’ Court although this can be expensive – especially as cost awards can be made. This means if you are unsuccessful you would have to pay not only your own legal costs but also potentially those of the council as well!
Secondly, there is the risk of a Noise Abatement Notice. The local council serves these if they consider that a statutory nuisance is happening, has happened or will happen in the future. Whilst the wording of the Noise Abatement Notice is key they present three choices: to ignore and risk
a prosecution being brought, compliance and appeal. Clearly the latter two options are preferable and, even if compliance is a possibility, it is usually wise to appeal the notice (which must be done within 21 days).
Grounds for an appeal include that the legal tests have not been met to show that the issue is a statutory notice, that it was served on the wrong person, that the notice is defective or that you have used the best practicable means to stop or reduce the nuisance. If the notice is not successfully appealed and the nuisance continues the council can prosecute without giving any further notice and the fines can be steep.
Finally, as with most contentious legal issues it pays to take advice early as it could save a great deal of money and stress!