The Live Music Forum
Hamish Birchall Bulletin
Friday 30th June 2006 - Busking - noise
Last week I reported that Southwark's licensing department were advising buskers to obtain a Temporary Event Notice under the new Licensing Act. This contradicted DCMS advice that busking would not be licensable.
However, when further enquiries were made by a national newspaper, Southwark's press office denied that the council had a 'policy' to licence buskers. But a council policy may not be the same as advice provided to individual musicians by officials. So, for clarification I asked Southwark's press office to respond to a couple of questions:
The reply came yesterday (29 June):
' The Licencing Act does not exempt buskers from needing a license but advice from the Local Authority Coordinators of Regulatory Services (LACORS) suggests that this is 'neither pragmatic nor realistic' and buskers should be treated on a case by case basis. We therefore don't have one rule for all buskers, but instead would look at whether or not individuals cause genuine noise nuisance before we took any action.'
In other words, yes, busking is covered by the Licensing Act, but we will only take action under that Act if there are noise complaints. Encouraging, except... if noise is a problem w hy use licensing to deal with it? What about noise regulation under the Environmental Protection Act?
A council spokesperson said:
'I have spoken to Environmental Protection, who say there is little scope for action from this point of view. This is because primarily, t he term 'statutory nuisance' deals with noise from premises. Theoretically, there is scope if a busker is deemed to be busking from a vehicle, or using equipment or machinery, but this is unlikely. Also, the Control of Pollution 1974 could be used if the busker was using a loudspeaker in the street, but again this is unlikely.'
Is this correct? According to experts in noise legislation, the answer is 'no':
1. Noise abatement notices issued under s.80 of the Environmental Protection Act 1990 (as amended by the 1993 Noise and Statutory Nuisance Act) are not confined to noise from premises. Section 79(1)(ga) explicitly states that 'statutory nuisances' can include noise from 'equipment in a street'.
2. Section 79(7) provides that '"equipment" includes a musical instrument'.
3. Recent case law showed that noise abatement notices can be used to prosecute noisy buskers: Westminster City Council v Prian Bruno McDonald, 28 October 2002, Neutral Citation Number:  EWHC 2698 (Admin).
Why should councils or indeed government ministers play down the power to control noise using the EPA? The answer seems to be a fear of increased public demand for noise enforcement and the potential drain on resources.
By coincidence, this week the Department for Environment, Food and Rural Affairs (DEFRA) issued a press release entitled 'New powers to curb noise in late-night pubs and clubs':
The new powers will only apply to licensed premises betweeen 11pm and 7am. They are due to come into force in October, and have been created specifically to address the potential for late night noise nuisance resulting from longer pub and club opening hours. One important implication of the announcement is that between 7am and 11pm existing noise legislation has been deemed adequate to address noise nuisance, irrespective of licensing.
This reinforces the case for the deregulation of the licensing of live music under the Licensing Act 2003.