Posted by Woods Whur | Licensing Law

I was recently asked to advise a client on what did and what did not constitute regulated entertainment under the Licensing Act 2003.  The background to the question was a fairly complicated one in that  a Premises Application conducted by my client in person had been refused and objections had been received to Temporary Event Notice applications, on the ground of nuisance.  My client was looking to explore the possibility of running an event without a Temporary Event Notice or Premises Licence and wanted my advice on what could and could not take place. A fairly straightforward question I thought! 

As a general rule, live and recorded music would be licensable under the Licensing Act 2003 but there are of course numerous exemptions.  The Live Music Act 2012 created exemptions for live amplified music in unlicensed premises (which didn’t apply in this case) and for unamplified music elsewhere (no audience limit 08:00 – 23:00).  Some entertainment facilities (stages, microphone stands) have not been licensable since October 2012 and recorded music in unlicensed premises benefits from the same exemption as live music, which also covers DJs and discos. 

I thought I would just check a number of points in the section 182 Guidance and I have to admit that I am not sure that I have either looked at this recently or remember looking at it at all.  I turned to Chapter 16, expecting to see a few paragraphs on the subject, and was somewhat surprised to see that the Chapter on regulated entertainment runs to 28 pages.  This compares to 8 pages in Chapter 11 on reviews, 8 pages in Chapter 2 on the licensing objectives, 5 pages in Chapter 5 on who needs a Premises Licence and even 6 pages in Chapter 7 for Temporary Event Notice.  Indeed, the chapter on regulated entertainment is the same length as the chapters on Temporary Event Notices, reviews and who needs a premises licence, all put together!

My client wanted advice on private events, which are dealt with at paragraph 16.1.3.  This starts well: “Events held in private are not licensable unless those attending are charged for the entertainment with a view to making a profit”.  Just because a musician charges the organiser of a private event, this does not of itself make the entertainment licensable.  This makes sense – you could have a private party at home and pay a musician to attend.  It only becomes licensable if guests attending are themselves charged, with a view to achieving a profit.

If, therefore, you want to hold a wedding on private land and you pay the landowner to provide wedding facilities and entertainment facilities, then that event is licensable because the landowner is charging the wedding couple with a view to achieving a profit.  If, however, the wedding couple paid the landowner for use of the land but paid the entertainer directly, without the landowner having any involvement in organising the entertainment, the music would not amount to regulated entertainment and would not be licensable.  The wedding couple are not seeking to make a profit in paying the entertainer and do not (as a general rule!) charge their guests to attend their wedding.

The chapter of the s182 Guidance continues setting out circumstances in which entertainment activities are no longer licensable, for example those staged by local authorities, hospital health care providers and school proprietors.  We often get queries from school premises with regard to musical entertainment and also from community premises, which are dealt with at 16.2.1.  No licence is required for the performance of live music or the playing of recorded music on community premises between 08:00 and 23:00, as long as there is no Premises Licence permitting the sale of alcohol, there are less than 500 people attending and the written consent of the  community premises’ management committee has been obtained.

Live music is dealt with at paragraphs 16.2.6 – 16.2.9, with key terms used in relation to live music explored at paragraphs 16.3.0 – 16.3.2. 

If you have a Premises Licence which authorises live music and/or recorded music, what is the position now that live music and/or recorded music is exempt under the Live Music Act?  Paragraph 16.3.6 of the s182 Guidance confirms that any existing licence conditions relating to live music or recorded music remain in place, but are suspended between 08:00 and 23:00, as long as the Premises are open for the sale of alcohol and the audience is less than 500.  

Where we have encountered difficulties sometimes is in advising clients on whether a licence condition does in fact relate to live or recorded music.  General management conditions may have been placed on the licence with an eye or ear on potential noise nuisance but it may not specifically relate to the provision of entertainment.  It could relate to noise from customers or noise from entertainment.  Holders of Premises Licences need to be very careful therefore, if they are determining that a licence condition is not applicable.  In many ways, common sense should prevail and the general duty to promote the licensing objectives and to prevent a nuisance still applies, so if the condition promotes the objectives and prevents a nuisance then Premises Licence holders should apply the conditions. 

There are further paragraphs in the Guidance on incidental music. Incidental music is not regulated entertainment if it is incidental to another activity which does not itself fall within a description of entertainment under paragraph 2 of Schedule 1 to the 2003 Act (clear as mud!).  Whether or not recorded music is incidental is one of the most regular questions we get asked when preparing new applications.  The Guidance sets out, at paragraph 16.5.9?  some factors which may be considered:

  • is the music the main or one of the main reasons for people attending the Premises and being charged;
  • is the music advertised as the main attraction; and
  • does the volume of music disrupt or predominate over other activities or could it be described as background music.

All of this is incredibly subjective and therefore difficult to enforce.  What is background music at 1:00pm whilst customers are having lunch, will be completely different to background music at 11:00pm, as the music might well be considerably louder and yet could still be classed as incidental and background music.

The Chapter of the Guidance ends by referring to other licensing regimes, such as those covering copyrighting and leafleting, and it is also necessary to consider whether the “entertainment” requires any other form of licence such as a TV licence or indeed a licence from the maker/broadcaster of any film or advert.

If in doubt, read the guidance, or contact us for advice!