If you are providing entertainment consisting of public music, singing, dancing or a display of indoor sport, then it is imperative that you know whether the premises you are utilising needs to be licensed for this ‘public entertainment’, or if it holds an existing Premises Licence.
Many venues will have an annual licence covering live or recorded music performances, in which case an application will not be necessary, but in its absence a Temporary Event Notice (TEN) will be required.
Law concerning the issuing of Public Entertainment Licences was introduced as part of the London Government Act 1963, and later extended to the rest of the UK in the Local Government (Misc. Provisions) Act 1982. It granted local authorities the power to control the licensing of premises for the provision of music, public dancing and other forms of entertainment. Recently the Licensing Act 2003 came into effect, and this has brought together live and recorded performance licensing with the licensing of another six ‘regulated entertainments’ and the sale of alcohol for consumption on premises. The new regulations and practices are listed below.
Each premises (with exceptions such as those below) must now pay a one-off application fee for the new 'premises licence' of £100 to £500 depending on factors such as the size of premises. The Government says this one-off fee will be the same whether or not regulated entertainment is provided. There is some suggestion that fees may be higher in the south east (justified on the basis of higher salary costs etc). There will be annual inspection and enforcement fees of between £50-150. For very big events, such as the Glastonbury Festival, there is likely to be a 'super fee'.
Premises licence applications will probably need to be submitted at least 28 days in advance to the local authority with the fee up front, although the exact timing is yet to be decided. Applicants wanting live music will have to 'tick the box' for this regulated entertainment. The application must include a plan of the premises and an 'operating schedule' setting out the licensable activities and the times during which they will be taking place. Live music applications may need to go into some detail since this could determine to a great extent whether subsequent local authority conditions are proportionate. Premises that do not seek live music authorisation initially will be able to apply to vary the licence at a later date. The cost of variation is likely to be in the region of that for a full application.
When is a licence applicable?
In bars and pubs
Featured (ie not incidental or spontaneous) live music in pubs and bars using any amplification at all remains illegal unless licensed, and still subject to potentially onerous conditions, although these may be partially alleviated via the small venues concession (see below). Featured unamplified live music remains illegal unless licensed, but it does seem that any potentially onerous conditions that might otherwise relate to the music will be suspended where the small venues concession applies (see below).
If the bars or pubs qualify on the other criteria, and they provide performances of live amplified music, licence conditions relating to public nuisance or the protection of children from harm will 'not have effect' initially. They could have effect, however, if problems or complaints led to a review of the licence. The suspension of noise and protection of harm conditions would apply whenever such premises are open and providing the live music. This could be round the clock. However, safety and crime and disorder conditions would apply at all times.
If such premises provide solely unamplified live music at any time between 8am and midnight, and they are not being used for the provision of any other description of regulated entertainment, then it seems any licence condition that would otherwise relate to the performance will be suspended (subject to review as above).
At other qualifying places such as restaurants, libraries, hospitals, public spaces, your front garden and so on, the wider unamplified concession applies, but if such places wish to provide amplified live music at any time, they will be subject to the full range of licence conditions (NB: Any place with a premises licence permitting live music can benefit from the unamplified concession).
One-off events in unlicensed premises
Premises which do not hold a premises licence authorising live music can apply for a TEN, as can premises where live music is authorised but there is a wish to provide entertainment which is beyond the scope of the licence. The cost is £21. The application must be submitted simultaneously to the police and local authority at least 10 working days in advance of the event on 'a prescribed form'. Only the police have power to object and then only in relation to the crime and disorder objective.
A maximum of 12 TENs per year per premises will be allowed. Up to 499 persons may attend/participate in the event at any one time, and the event may last up to 96 hours. However, no more than a total of 15 days per year per premises of such events is allowed. Back-to-back TENs are prohibited - there must be a minimum of 24 hours between TENs at a single premises.
Carol singers going from door to door, or just deciding to sing in a particular place, or even turning up unannounced in a pub and singing, would not require a licence, just as drinkers in a public house who suddenly decided to start singing carols would not be licensable. However, if a business in a shopping mall, for example, arranges for a group of singers to sing carols this will be the same as their arranging any performance of live music and a premises licence or temporary event notice would be required. So, if you are arranging in advance with your local pub or supermarket to sing carols and collect money from the assembled customers, you will need either to confirm that the premises itself holds a licence for public entertainment, or arrange a TEN yourself for each licensable venue.
Small venues - licence conditions concession
The Government has introduced a partial alleviation from certain licence conditions in small venues. The amendment is quite complex and difficult to interpret. This is our understanding at the moment:
- In all cases, to qualify for the concession, the permitted capacity must be 200 or fewer and a premises licence must already be in force authorising ‘music entertainment’
- Music entertainment means the performance of live music or performance of dance
The amendment also makes a key distinction between places used primarily for the consumption of alcohol and those that are not – see ‘bars and pubs’ and ‘everywhere else’ above.
In places not primarily used for the supply and consumption of alcohol and where completely unamplified live music is provided, the suspension of all licence conditions does represent a significant concession. In practice, however, it will benefit a relatively small proportion of performers.
Lobbying by Making Music and others has achieved:
- A complete exemption from any licensing requirement for regulated entertainment provided in a public place of religious worship.
- A similar exemption for garden fêtes and similar functions, provided they are not for private gain
- An exemption from licence fees for regulated entertainment for village halls and community premises, schools and sixth form colleges.
- An exemption for the performance of live music (amplified or unamplified) anywhere, if it is 'incidental' to other activities such as eating and drinking (but not dancing, or another licensable entertainment)
- A suspension of licence conditions (but NOT the licence requirement) for unamplified live music in any premises between 8am and midnight (subject to review, if, for example, this gives rise to problems for local residents)
- A suspension of licence conditions relating to public nuisance and the protection of children from harm for amplified music in premises used primarily for the supply of alcohol for consumption on the premises ie pubs, bars etc (subject to the same review procedure above), restricting those conditions to public safety, crime and disorder only
- A complete exemption for Morris dancing or any dancing of a similar nature, and any unamplified live music that is 'integral' to the performance.
- An exemption from possible criminal prosecution for ordinary performers playing in unlicensed premises or at unlicensed events.
- A clarification that at private events, where musicians are directly engaged by those putting on the event, this no longer triggers licensing (however there remains an ambiguity that if entertainment agents are engaged to provide the band, this does fall within the licensing regime if the guests are charged for the entertainment)
- An increase in the maximum number of Temporary Event Notices allowed per premises per year from 5 to 12. The maximum duration of a TEN also increased from 72 to 96 hours (although no more than a total of 15 days Temporary Event Notice events will be permitted per year per premises). There is no change in the maximum number of participants/audience - still 499
Clear Guidance for local authorities will militate against unnecessary onerous conditions, but then it remains up to the local authority to implement the conditions according to the guidance. Local authorities tend to be very unsure about what constitutes a 'necessary' condition. The only means to challenge a disputed condition - an appeal to magistrates, or judicial review - is potentially costly and very time consuming, and likely to be beyond the means of smaller organisations.
Where pubs and bars are concerned, local authorities will be empowered to impose any condition relating to the provision of live music, amplified or not, which they consider 'necessary' for public safety and crime and disorder – unless the concession is used. If local authorities argue, as they have consistently in the past, that because live music attracts more people than usual the installation of more toilets is necessary (public safety), or door supervisors are needed (crime and disorder), the only way for the licence applicant to challenge the conditions will be via appeal to the Magistrates court, or application for judicial review to the High Court. Both routes are potentially costly and risky for the applicant, and likely to be beyond the means of smaller organisations. The delay between lodging an appeal and the hearing date can be months. And while licence conditions pertaining to regulated entertainment are in dispute the licensee must refrain from providing the entertainment, or implement the condition.
None of this applies to activities that are not licensable - such as the provision of big screen broadcast entertainment.
A final word
Those of our members who perform regularly in other premises not known as concert venues (stately homes, pubs etc) must ensure that the premises have the correct licence before promoting or even performing in an event. Whilst we are promised that obtaining licences should not be expensive or onerous, we wait and see! If you have any reports of issues associated with premises licences from now on, please do let us know at firstname.lastname@example.org.
We hope you find this Making Music resource useful. If you have any comments or suggestions about the guidance please contact us. Whilst every effort is made to ensure that the content of this guidance is accurate and up to date, Making Music do not warrant, nor accept any liability or responsibility for the completeness or accuracy of the content, or for any loss which may arise from reliance on the information contained in it.