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Wed 9th Mar 2022 - Legal Briefing

A reminder on the public safety objective by Luke Elford and Michelle Hazlewood

The licensing regime informs us that each of the four licensing objectives are of equal importance, but does that mantra ring true in practice? In our experiences as licensing solicitors, it often feels like the other objectives – such as the prevention of crime and disorder, the prevention of public nuisance and the protection of children from harm – appear to outshine public safety, and it is sometimes considered less of a priority.

Quite often, we deal with premises licences where there are an abundance of conditions addressing those matters, but see very few aimed at ensuring the safety of the public in comparison. While this licensing objective can be overlooked or downplayed in comparison to its peers, this can be unnerving considering that it has the potential for the most catastrophic of consequences. We believe it is absolutely essential that the welfare of customers must be taken seriously from the get-go of the licensing process, rather than after the mistakes have already been made.

Only recently, we heard about an incident at a bar in London where the entire mezzanine floor collapsed, injuring 13 people. This is not the only accident of its kind, as a couple of years ago, the ceiling of a West End theatre caved in after a water leak, falling onto the audience below. Another central London bar hit headlines in January as five clubbers were taken to hospital after being given caustic soda instead of salt to consume with their tequila shots. These examples highlight the scope and extent of public safety, so prevention of these different risks is essential. When serious, critical incidents like this occur at licensed premises (and they happen more often than you think), it is the public that faces the most serious consequences first and foremost.

In licensing applications, we see the public safety objective addressed in a variety of ways. The measures in place will vary between premises, depending on the type of venue and its environmental considerations, but they often include the following:

• Fire safety
• Emergency access and egress
• Good communication with responsible authorities and the emergency services
• Having trained first aiders and first aid kits
• Safety of those performing at a premises
• Capacity limits
• CCTV coverage

We have found that the amount of focus on the public safety licensing objective often differs depending on the local authority. In one area of London, the council arranges to visit premises to check that the venue is suitable for the public in advance of issuing a premises licence. In another part of the country, applicants are required to provide evidence of how slippery, or unslippery, their floors are. Operators often have to chase the manufacturer regarding their slip ratings in order to pass this test. This can prove to be a huge admin hurdle, and it is the only local authority in the country to have this rule in place, but it can help avoid lawsuits and defend against litigation culture.

The thorniest public safety issue of them all is that of a venue’s capacity. The number of customers and staff that can be within a premises at any one time is often the focus of many license conditions. Here, multiple regimes and considerations such as fire safety, building regulation and other criteria overlap and compete with one another as to who should have the final say.

The permitted capacity for a premises will be calculated in accordance with a premises’ fire risk assessment, which is required by law under The Regulatory Reform (Fire Safety) Order 2005, and to be kept under review. However, this alone does not result in the final figure. Licensing authorities will also recommend the capacity of a premises after considering how many toilets it has. This originates from the British Standard 6465 in respect of sanitary installations. Of course, some authorities are hotter on this than others, but the rules specify a different optimum ratio of toilets for different types of premises, for example, pubs and restaurants.

Here, two problems occur. The first is the argument about whether a premises fits a certain category of hospitality venue or not. For example, would you consider a pub that serves significant amounts of food still just a pub, or is it a restaurant too? Secondly, the British Standard hasn’t kept pace with societal change when discussing the gender of customers and the toilets they use. By default, there may only be male or female toilets available in a venue, without recognising that people might identify as something other than this. In recent years, we have seen unisex toilets becoming more and more prevalent up and down the country, as society becomes more gender inclusive. However, the British Standard says that a unisex bathroom should have a sink inside the same room as the toilet to consider it fit for purpose. This can take up a lot of space in a venue when you compare it to tightly packed urinals, and also requires costly refurbishments.

There are so many factors for operators to consider regarding health and safety. The real question is, how do we ensure that the public safety objective is promoted without overburdening and micro-managing businesses? Those within hospitality battle to balance the culture of “where there’s blame, there’s a claim” with taking reasonable action to prevent serious accidents from occurring. A significant incident is likely to cause a breach of the Licensing Act and, in turn, can lead to a licence review. Let us continue to ensure that this industry is providing the public with safe and pleasant environments while also avoiding hefty litigation processes.
Luke Elford and Michelle Hazlewood are partners at John Gaunt & Partners

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