City of Edinburgh Council is conducting a public consultation regarding the city's grassroots live music scenes, concluding on 22nd July 2016.
It is vital that musicians and fans of live music in Edinburgh take part in the consultation.
The consultation is in the form of emails to the Council, not a questionnaire, but even very short mails can make a big impact.
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The consultation came about following concerns raised by musicians about a clause in local legislation which states that “all amplified music and vocals shall be so controlled as to be inaudible in neighbouring residential premises.”
Many musicians have long felt that this clause is stifling live music events in the city at grassroots level and beyond.
This was highlighted at Live Music Matters, a meeting convened in 2014 by City of Edinburgh Council for musicians and music industry professionals to discuss the state of live music provision in the city.
Music is Audible, a short term working group, was set up to to find practical ways for venues and local residents to co-exist.
MIA consisted of music professionals, CEC councillors and officers. Over the fourteen months of its existence, MIA explored the effects of the legislation and worked with other bodies including:
Live Music Exchange conducted a census of live music in the city in June 2015. View the report here. The findings of the census were fed into a report drafted by MVT.
MVT produced ‘Report for City of Edinburgh Council: The Challenges for Live Music in the City’ where they identified ten achievable actions for CEC to consider. Among them was a request for a rewording of the inaudibility clause.
The MVT report's main recommendation concerning inaudibility is that the legislation be amended from ‘The Board will always consider the imposition of a condition requiring amplified music from those premises to be inaudible in residential property’ to ‘Amplified music shall not be an audible nuisance in neighbouring residential premises.’
The subtle difference between the current and proposed clauses is that the audibility of live music need not be presupposed to be a nuisance: there may be appropriate localities, times of day or year, or events which are culturally important, for which some noise spill could be acceptable, provided that efforts have been made to avoid it.
This recommendation is the focus of CEC’s public consultation, which runs for twelve weeks from until 22nd July 2016.
Join the consultation
Background (click to expand)
As the MVT report explains, the current “inaudibility clause” exists to prevent noise nuisance. It ties in with one of the Five Licensing Objectives of the Licensing Act (Scotland) 2005, namely “preventing public nuisance”.
The clause is a local licensing condition applied to the Premises Licenses of all premises where alcohol is sold in Edinburgh, from off licenses to restaurants to live music venues. It is a condition rarely applied elsewhere in the UK, except as a sanction upon specific traders who have caused exceptional problems for neighbours. *Exceptions can be found in note 3 of MVT’s report.
The Licensing Act Scotland 2005, the framework under which the licensing board and licensing standards officers operate, does not call for music to be inaudible in neighbouring residential premises.
MIA suggests that audible music is not necessarily a nuisance.
While noise complaints have led to few venues losing their licenses, as the Live Music Exchange census makes clear, a significant amount of self-policing by venues and musicians takes places in regards to the potential of such an action.
Edinburgh’s Mercury Prize winners Young Fathers have criticised the city's perceived attitude to live music :
“Edinburgh is a vibrant, beautiful city. It’d be great if it had a thriving live music scene. It’s so frustrating and I think a lot more could be done. It’s obviously not good at the moment. We’ve been trying to do events for years, and it’s pretty bad when someone from the council turns up with a noise meter, saying ‘You can’t go any higher than this.” - Alloysius Massaquoi of Young Fathers to The Scotsman
This is by no means a simple topic to engage in, and others have tried in the past.
Over ten years ago The Department for Environment, Food and Rural Affairs (DEFRA) embarked on a piece of work that attempted to produce guidance for pubs and clubs about “acceptable noise”. Howard Price (Principle Policy Officer of the Chartered Institute of Environmental Health) said “DEFRA shelved the piece of work because they could not reach consensus about what they needed to achieve”.
One of the purposes of the 2005 act was to avoid duplication of legislation under different regimes. Where there is a regulatory framework in place it shouldn’t be contradicted.
Frequently Asked Questions
What is the current noise complaint procedure?
Licensing Standards Officers are deployed when there has been a noise complaint relating to a premises where alcohol is sold. Their job in the event of a complaint is to mediate between the venue and the resident, and to ensure compliance by the venue with the licensing law. A venue which does not comply will be issued with a compliance notice, and if after the notice it does not achieve inaudibility, its license will be brought for review before the Licensing Board, and could be revoked.
In a heavily tenemented city such as Edinburgh, a level of sound leakage that is completely inaudible is simply not attainable. In practice, LSOs mediate between residents and venues to find a level of noise which is acceptable to a venue's neighbours.
More subtle tools are required to strike the balance between the cultural needs of the city, and the residents who live near music venues.
It is not possible for music venues to operate in silence, so music venues and musicians need to adopt a culture of best practice to get on better with their neighbours.
Who decides what is and isn’t an audible nuisance?
In the MIA proposal, as is currently the case, it would be the task of Licensing Standards Officers to decide in the first instance whether or not an audible nuisance has been caused. If the matter is still in dispute, the Licensing Board could then make an informed decision.
What criteria would be used?
Nuisance is not defined in the Licensing Act. Rather, the legal work has been done in Environmental Health. The Consultation on Guidance to accompany the Statutory Nuisance Provisions of the Public Health etc (Scotland) Act 2008 states that "There are eight key issues to consider when evaluating whether a nuisance exists”.
They are: Impact, Locality, Time, Frequency, Duration, Convention, Importance and Avoidability. Read the report (page 15) for a detailed exploration of these criteria.
Will this lead to more noise complaints?
We don’t have reason to believe so. MIA's proposals should help set a precedent for places, times and durations for music to be played in the city. Moreover, music venues are already far better behaved than the headlines would have you believe.
According to an article in the Scotsman, approximately 11,000 complaints are made per year to the City Of Edinburgh Council. Yet, as outlined in the Live Music Exchange census, CEC's figures for 2014-15 indicate that only 213 complaints that year were related to entertainment-based noise from licensed venues. Some 64 of those complaints relate to live music, pertaining to just 18 venues. Based on the Scotsman’s approximate figures, complaints about music venues accounted for just 2% of noise complaints.
Will an objective test “inaudibility” be traded in for a subjective test “nuisance”?
Notions of 'audibility' are a poor measure of the level of sound leaking from a venue, as different people have different levels of hearing, and indeed different levels of tolerance of what they regard as noise. This is part of the problem of noise audibility being subjective, which it inherently is as it a sense measurement not a scientific one.
In 2015, the Institute of Licensing published Guidance on Premises License Conditions, a consultation document which highlights notions of subjectivity in relation to inaudibility. The document points out the following: -
“Conditions imposed on a license should be:
1. Appropriate, necessary and proportionate;
2. Precise, clear and unambiguous;
3. Practical, realistic and enforceable; etc.”
On the topic of precision, clarity and unambiguity they continue...
“So, for example, where a condition requires “inaudibility” at the nearest noise sensitive premises, what exactly do we mean by the word “inaudibility”? Inaudible to whom? An average teenagers ability to hear high-frequency sound is measurably better than a thirty-something’s. Is the condition complied with in the case of a thirty-year old, but breached when a teenager is present? The quiet hum of an air conditioning unit in an office would fail the “inaudibility” test, but is that what the condition was intended to prevent? And where, precisely, do we mean when we say “nearest noise sensitive premises”? Do we meant he block of retirement flats 30 metres away, or the student accommodation 20 metres away? If the problems associated with this commonly encountered noise condition are seen as far-fetched or overly pedantic, then the reader can turn to the High Court where a similarly worded condition was stretch down for lack of clarity and precision.
“Inaudibility conditions have been popular in the past but have faced sufficient criticism in the courts to be quashed as invalid for lack of precision. Noise conditions are notoriously difficult to pre-empt and should be applied only where professional advice has been obtained from the authority acoustic advisor. Such conditions will be strictly tailored to the premises in question and the concerns to hand in relation to noise attenuation and resultant nuisance.”
Isn’t all unwanted sound a nuisance?
MIA suggest that the matter is more subtle than that. There is a balance to be found between the cultural and residential needs of the city. The law already allows for a more subtle approach to be taken, although this currently isn't written into Edinburgh Licensing Board’s current policy.
Why do night-time revellers desire for music trump the need for residents to enjoy peace in their homes?
This is a a very relevant concern that MIA's recommendations do not ignore. The question must also be asked, however, why a desire by some for complete inaudibility must trump the needs of Edinburgh’s culture-loving community to partake in or enjoy live music across the city, especially in a city centre which historically has been a natural home for live music. Taking both questions into account is a balancing act which the current subjectively implemented notion of inaudibility is not fit to measure.
The new recommendation regarding the change of wording regarding inaudibility is a common sense solution that allows live music to thrive alongside the residential population of the city.
It should be noted as well that many residents of the city – particularly in the city centre -are either musicians, gig-goers or both, who live in the city precisely because it it a hub of culture and creativity.
Will this lead to ever increasing numbers and ever increasing hours of leisure facilities, pubs and restaurants, and extra “festivals” ?
There is nothing in our proposals requesting increased hours, more premises, or more festivals.
Why do musicians and music venues want to make more noise than they already do?
They don't. The current legislation does not reflect the reality of the current work that Licensing Standards Officers do to mediate between venues and residents.
The MIA working group recognises the needs of residents to have quiet enjoyment of their homes, whilst also living in a city that is a thriving cultural hub. Music should be part of Edinburgh’s cultural offering, and music is audible.
To be clear, MIA's recommendations are not making the case for a noise-making free-for-all.
Rather, the recommendations in relation to audibility favour a common sense approach that enables music venues and other spaces hosting live music to operate responsibly in relation to their neighbours.
Live music is thriving in Edinburgh, so what’s the problem?
Edinburgh’s live music scene’s good health exists despite the inaudibility clause rather than because of it, occasionally flouting the rules, as inaudibility is so difficult to achieve in a heavily tenemented city.
Does this affect Leith?
Yes, premises in Leith are covered by the same licensing law as the rest of Edinburgh, and have the same licensing board.
What does this have to do with the Agent Of Change principle?
Agent Of Change is a different proposal with related effects, and is a planning issue rather than a licensing one.
“The Agent of Change Principle is not complicated or controversial, it’s simple common sense: The person or business responsible for the change is responsible for managing the impact of the change. This means that an apartment block to be built near an established live music venue would have to pay for soundproofing, while a live music venue opening in a residential area would be responsible for the costs. A resident who moves next door to a music venue would, in law, be assessed as having made that decision understanding that there’s going to be some music noise, and a music venue that buys a new PA would be expected to carry out tests to make sure its noise emissions don’t increase.” - Music Venue Trust
Who can we get in touch with about this?
The consultation is your chance to voice your opinion, so use the consultation link to get in touch with the council.
Does this affect my right to complain about noisy neighbours?
No. Noise issues between domestic residents are not a licensing issue and will continue to be dealt with by the Council’s Night Noise Team and Police Scotland.
How does this affect Edinburgh Festivals?
In practice, Festival shows are currently shown an ‘indulgence’ to ignore the inaudibility clause because they are culturally important, and there is a convention to have a degree of noise spill at that time of year. Under our proposals, this would be allowed to carry on in a legitimate way, rather than Licensing Standards Officers turning a blind eye during August on an unwritten understanding that sound leak is part of a greater cultural good.