Response for Discussion – February 2020

BUSKING AND STREET ENTERTAINMENT CONSULTATION

Issue: Busking and Street Entertainment in Westminster

Outcome: Develop an agreed position with members for submission

Submission date: 24th February

SUMMARY Westminster City Council has launched for consultation a new Draft Policy to regulate and manage Busking and Street Entertainment in Westminster. The policy sets out a Westminster-wide voluntary Code of Conduct that seeks to ensure buskers are considerate of the local community and those sharing the public space.

The draft policy encourages buskers in Covent Garden to join the Street Performers Association (SPA), supports the creation of an SPA for Trafalgar Square and Leicester Square, and designates 8 dedicated pitches as the only sites appropriate for busking within four highlighted areas on Oxford Street, Piccadilly Circus, Chinatown and Leicester Square as well as locations where they deem the playing of amplified music acceptable or unacceptable.

The draft voluntary Code of Conduct is established on 7 principles:

• Safety first – ensuring buskers have public liability insurance preventing trip hazards etc. • Performance hours – limiting these to 10am to 9pm in most areas. • Avoid creating a nuisance – regarding sound not being heard by nearby premises, limitations on amplifications, music, proximity to other buskers and breaks between performances • Don’t cause an obstruction – defining the distance by which people should be able to get past and managing audiences • Cooperation with Authorised Officers and the Police – mandating buskers to cooperate with authorities. • Merchandise – which can only be sold with a street trading licence and in regulated areas / if people are members of SPAs in those areas. • Talk to the council and local community, and use the Forum – encouraging buskers to join the Busking and Street Entertainment Forum which will meet with the council on a 6-monthly basis

The policy also commits to a full review after 12 months of operation – although it is worth noting that the policy was launched for consultation by Cllr Ian Adams, who has since been replaced as Cabinet Member with responsibility for busking and licensing, by Cllr Heather Acton.

Leicester Square

The drive in Leicester Square is to encourage performers to self-regulate and join the new Westminster (Leicester Square and Trafalgar Square) Street Performers Associations.

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In the case of Leicester Square, as well as being encouraged to join the Westminster SPA, performers will need a licence to perform in one of the two designated pitch areas. The north-west pitch is designated as inappropriate for amplified noise, whilst the north-east pitch is deemed appropriate. No specific reasons have been given for why some sites are deemed suitable for amplification and others are not.

Piccadilly Circus

Piccadilly Circus is within the proposed Busking and Street Entertainment Regulation Area (below) with 2 pitches identified as acceptable – at the Anteros Statue and Glasshouse Street.

Busking and Street Entertainment Regulation Areas

The centerpiece of the Policy is the designation of four areas where competition is considered to be greatest and there is the greatest footfall and potential risk to public safety (Oxford Street – 3 pitches, Piccadilly Circus – 2 pitches, Chinatown – 1 pitch, and Leicester Square – 2 pitches) and so designates a total of 8 pitches across these areas, where busking will only be permitted if:

• Buskers are on a designated pitch • Buskers have a licence to perform at any of the pitches • Buskers are acting in according with the busking and street entertainment licence terms and conditions

CONSULTATION QUESTIONS

To what extent do you agree or disagree that our policy approach strikes the right balance between supporting busking and street entertainment, whilst protecting those who are affected by it? Strongly disagree

1. Heart of London Business Alliance is the catalyst for positive change in London’s West End, representing over 600 businesses and property owners. Our purpose is to support the commercial and cultural wellbeing of our members of the businesses and organisations we represent, and ensure our area remains integral to London’s offer as a place for people to visit, live, trade and work.

2. Heart of London welcomes the City Council’s intent to move forward on the issue of street performance and busking, as well as the commitment to introducing a licensing regime. The effects of these activities on our members have been – and continue to be – acute. We are therefore fully supportive of instituting an effective regulatory regime for these activities. We welcome the opportunity to feedback on the policy and have encouraged our members to respond individually to ensure the views of as many of the businesses affected are taken into consideration. We look forward to taking part in the review of the pilot and contributing to the development of the Policy.

3. We welcome the positive direction of travel and the opportunity the pilot offers. However, we do not believe the right balance has been achieved between supporting busking and street entertainment whilst protecting those who are affected by it. As a result, will only lead to a continuation of the status quo, which suffers from ambiguities and a lack of adequate enforcement.

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4. Street performance is part of London’s unique character, cementing its status as a global city and part of its cultural capital. However, as acknowledged in the Policy, this must be balanced against the needs of other users of the public realm as well as those affected by activities that take place within it. This means there must be a comprehensive Policy in place that provides absolute clarity on the specifics of how these interests will be balanced – from precisely what constitutes a violation of the Policy (as should be reflected in the Licensing Conditions) through to the specifics of how it will be managed and how it will be enforced. The proposed Policy fails to do this.

The Policy Principles

5. Firstly, the principles underpinning the proposals will not address the harm currently caused by the activities under consideration. Ultimately, the Policy still relies on self-regulation, a voluntary Code of Conduct and the tort of ‘nuisance’ as the test for when there are grounds for enforcement, which is effectively no departure from the current situation. Therefore, the proposals do not remedy the harm caused to our members who are continually, and adversely, affected by street performers.

6. Rather, there is a gap between the Code of Conduct and what is actually enforceable through the Licensing Conditions. For instance, not to specify noise levels within the Conditions yet provide guidance within the Code will lead to a continuation of the current ambiguity, which does not allow for effective enforcement. This is further illustrated by the guidance given in the Code surrounding the selling and/or giving away of merchandise. Here, the granting of a 6 month Temporary Trading Licence is reliant on the applicant being a holder of a Busking and Street Entertainment Licence within the regulated areas, yet no mention is made within the Conditions of revocation of the Busking and Street Entertainment Licence should merchandise be sold without a trading licence.

7. The greater emphasis on self-regulation and encouraging street performers to join a voluntary Code of Conduct is particularly disappointing, given there are already a number of SPAs in place, many of which are not fit-for-purpose, such as in Leicester Square and Piccadilly Circus, as well as the acknowledged failures of the Busk in London initiative where it has become clear that self-regulation only works for established performers, rather than short-term operators who are less sensitive to issues of public safety. These initiatives have demonstrated that self-regulation does not work and therefore should not be included in the Policy.

8. The introduction of a licensing regime presents an opportunity to provide much-needed clarity for both the performers and those affected by them, as well as to ensure a fair system across the borough. As the Policy stands, we are concerned that the lack of alignment between the Code of Conduct and the Licensing Conditions will not just be a continuation of the present confusion but may in fact add to it.

Designated Zones

9. Whilst we welcome regulating the activities under consideration, we are concerned that the inconsistencies between the zones will lead to negative effects for the borough.

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10. We are concerned that the zones are too narrowly drawn, will create a confusing patchwork of initiatives and approaches, and could easily lead to displacement into neighbouring areas. By taking a stronger line across the four named areas, little thought appears to have been given as to the risk of displacement into other neighbouring streets, particularly of performers who are not licensed, and into areas that are less appropriate for street performance or other areas of high footfall.

11. Beyond displacement, the effect of these inconsistencies is that those affected by the performances will not have recourse to the same remedies. As the Policy stands, there is a tiered system to enforcement, and therefore remedy for the complainant, that is purely location based with those in the Oxford Street, Piccadilly Circus, Chinatown and Leicester Square zones being afforded rights that others in the borough are not. For the Policy to strike the right balance, it must ensure equal access to remedy for all in the borough. This simple solution to this is to have one zone with one regulatory regime in place across its entirety.

12. Furthermore, the Policy does not consider the interrelationship of the activities covered by the Policy alongside other on-street activities, which are – and will remain – in competition with buskers and street performers for pitches. There is also the potential that a more regulated approach to some activities will result in gaps being filled by other, equally disruptive yet unregulated/ non-licensable activities.

Those Affected

13. There is scope for the Policy to be more specific regarding those who are affected by the activities under consideration.

14. The West End is an economic powerhouse, with the Heart of London area alone accounting for £4.6bn in GVA. It is therefore imperative that the interests of buskers and street entertainers are not only balanced against the interests of those who live, visit and work in Westminster, but also those who trade in the borough and are continually impacted upon by street performers and buskers, as acknowledged in the Licensing Committee Report of November 2018. Given the reliance on the tort of ‘nuisance’, it was previously the case that businesses in the area struggled to establish grounds for a claim and therefore a complaint. Although this has been addressed and businesses have been able to complain, we would welcome this being expressly included and enshrined within the Licensing Conditions.

15. Although reference is made, and consideration given, to the proximity of businesses to the proposed pitches, this consideration is applied in a seemingly arbitrary manner with an unclear evidence base. For instance, amplification is deemed unacceptable in close proximity to some businesses, yet acceptable in close proximity to others, where an amplified pitch has been designated – as in the case of Leicester Square. We also note that for all of the pitches outside of Leicester Square, the reason given for not allowing amplified performances is the ‘proximity of business premises’, which is omitted from the justification for the non- amplified pitch in the north-west corner of the Square. We are also concerned that the Policy extends the hours within which amplified music can be played – to 9pm in some cases, which would have the effect of exacerbating the harm currently caused.

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16. The policy therefore fails to strike an equitable balance for those businesses that are affected and could present a less favourable trading environment for many.

Pedestrian Safety and Connectivity

17. The Policy fails to take into account pedestrian safety, pedestrian security, pedestrian management, connectivity across Central London, promoting healthy modes of transportation and the schemes that have been put forward to improve the public realm to this end.

18. Central London is unique. The challenges faced by Central London are equally unique in terms of accommodating the visitor numbers, footfall and general pressures on the public highway. The zones themselves face considerable issues relating to the management of pedestrian traffic, pedestrian safety and pedestrian security, which the Policy falls short on taking proper consideration of.

19. This is particularly pertinent with regards to Leicester Square. Coventry Street, which feeds into the Square from the West has the highest footfall of any street in the UK, as noted in the ARUP report the ‘Economic Case for Public Realm Investment in the Heart of London Area’, whilst the junction with Cranbourn Street and Charing Cross Road is one of the most dangerous in London. The north of the Square is the thoroughfare between the two whilst Cranbourn Street is the route into the Square from the Underground Station, which already results in a funnelling effect in the north of the Square and therefore an insufficient pedestrian clear zone for an area of such intense use based on what is recommended in the Westminster City Plan 2019- 2040.

20. Improving pedestrian safety and connectivity across the West End is a key driver of the proposed scheme to improve the junction of Charing Cross and Cranbourn Street. Over £60 million has been invested in improving the public realm at Piccadilly and Leicester Square over the last 10 years to create a world-class destination which is attractive to visitors and workers alike. Further proposals have been put forward for improvements to be made to Charing Cross Road and its junction with Cranbourn Street. We do not want the benefits of this investment, and future investment, to be eroded by a missed opportunity to better manage street performance and entertainment.

21. Pedestrian security is also a key concern in Leicester Square. At the request of our members, due to concerns over the growing incidence of anti-social behaviour, theft and the lack of adequate policing, we have contracted a private security firm to regularly patrol the Square. Although security in the Square has improved, this initiative does mean the Police statistics are not fully representative of the levels of crime in the Square. We are concerned that the placement of the pitches, and the further funnelling effect it will create, could be a magnet for criminals.

22. We are therefore of the opinion that the locations of the proposed pitches in the north of Leicester Square do not promote pedestrian safety and run counter to the long-term strategic aims of improving connectivity and promoting healthy modes of transport.

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Enforcement

23. Any additional restrictions to address the on-street issues will only be as successful as the associated enforcement activities. In this respect, many of our business members frequently complain about noise levels caused by street performance and busking, but it can take hours for a Council Officer to arrive at the venue and respond, by which time the act has usually moved on. All of which has led to apathy from our members in reporting disruptive street entertainment.

24. We therefore believe that the consultation should strengthen the position on enforcement, emphasising the Council’s commitment to stringently enforce and provide greater clarity on how it will be resourced.

25. This forms part of a wider theme in that the Policy fails to recognise the role of BIDs, both in working with the Council to manage the public realm, and in not having grounds to complain about noise nuisance arising from street entertainment and busking. This would be remedied by removing ‘nuisance’ as the test within the Licensing Conditions, as well as identifying BIDs as an authorised complainant.

Conclusion – West End Street Entertainment and Activities Zone

26. After consulting with our most-affected members and our own street management team, which forms part of the multi-agency approach adopted by Westminster City Council, we are concerned that the Policy will result in the continuation of the status-quo – despite extensive discussions and complaints submitted by our members about the impact of street performance and busking on their trade.

27. We are therefore of the opinion that the proposed Policy could be amended so as to be a unique, ground- breaking approach to managing on-street issues.

28. With all parties committed to addressing the disruption caused by busking and street entertainment, and creating a well-managed, world-class public realm, we would strongly recommend the establishment of a West End Street Entertainment and Activities Zone. Within the Zone, street entertainment and other potentially disruptive on-street activities would not be permitted without a licence or the express permission of the Local Authority. This would also help to address the problem that many activities that cause disruption to our businesses and pedestrians, do not fall within the definition of a licensable activity or street performance. This Policy has the potential to be a springboard for a more holistic approach to the management of all on-street activities and could serve as a model for the future management of town centres across the globe.

To what extent do you agree or disagree with the seven principles set out in the voluntary code of conduct?

Agree 1. Whilst the principles are welcome, it is worth noting that the proposed Code of Conduct is still voluntary, and so will not carry any weight with performers who may not adhere to the Code and are likely to cause disruption.

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2. As outlined above, extensive experience has indicated that voluntary codes and self-regulation will not resolve the issue. Instead, the Code of Conduct and Licensing Conditions must be alignment - and properly enforced - to ensure adherence.

To what extent do you agree or disagree with the proposed joint working with the SPA in Trafalgar Square?

Neither Agree nor Disagree – as outside of Heart of London’s area

To what extent do you agree or disagree that the Council should introduce regulation in these areas?

Oxford Street – Strongly Agree

Piccadilly – Strongly Agree

Chinatown – Strongly Agree

Leicester Square – Strongly Agree

Whilst we agree with the designation of (an) area(s) we strongly suggest that there is one area, with a uniform licensing scheme for busking and street entertainment, as well as other on-street activities, in place across the whole of the West End. This is due to the risk of displacement into neighbouring areas that may be even less appropriate for street performance or busking. As a result, we strongly believe a wider designated area covering a wider range of activities is required for the West End. We agree with the designation of (an) area(s) To what extent do you agree with the 3 areas designated on Oxford Street (Marble Arch, Old Quebec Street, Vere Street)? Neither Agree nor Disagree – as outside of Heart of London’s area

To what extent do you agree or disagree with the designated area of Leicester Square, Chinatown and Piccadilly Circus in which busking is prohibited unless on one of the 5 designated pitches?

Agree

To what extend do you agree with the location of the proposed 5 designated pitches on Piccadilly Circus (Glasshouse Street and Anteros), Chinatown (Gerrard Street) and Leicester Square (North West Terrace and North East Terrace)?

1. We are supportive of well-managed street entertainment and busking.

2. We are therefore in favour of the principle of designating pitches, provided these are within a wider designated area covering the West End and accompanied by a wider definition of on-street activities that are licensable.

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3. However, we are concerned that some of the designated pitches are not in positions that will promote pedestrian safety and connectivity across the wider West End.

4. The junction with Cranbourn Street and Charing Cross Road is one of the most dangerous in London, which is compounded by it being the most popular pedestrian route from Covent Garden to Leicester Square, whilst Coventry Street has the highest usage of any street in the UK. Both of these streets feed into the north of Leicester Square and produce a funnelling effect. We are concerned that the placement of the pitches in the Square, particularly the amplification of Pitch 11 and its likelihood of attracting a larger crowd, will have a further funnelling effect in an area that with an already inadequate pedestrian clear zone. We would welcome the removal of all amplified pitches from the Zone and further investigation into alternative pitches.

5. Diverting visitors away from the Underground and towards healthy, more sustainable modes of transport is a key pillar of the London-wide transport policy. It is also a key driver of the proposed scheme to improve Charing Cross Road. By placing the pitches in the north of the Square, the Policy is at odds with these aims and has not taken proper consideration of the wider plans for the area.

6. We are also extremely concerned that the proposals for Leicester Square are unbalanced, confusing and arbitrary. In other areas the draft proposal bans amplified and percussion performances in areas where they will cause nuisance and harm to neighbouring businesses. However, in Leicester Square, an unamplified pitch is designated in the north-west corner (where amplified performances are currently permitted) and recommends an amplified pitch in the north-east corner despite it being nearer than many other pitches to hotels, a charity community centre, al-fresco diners and businesses.

7. As a principle, we do not support the playing of amplified music on these pitches as we cannot see why this is required, and the playing of amplified music presents even greater challenges and a burden on our businesses in needing to measure and evidence noise levels, with the measuring of noise frequently being open to challenge and dispute as the Policy still proposes reliance on the test for ‘nuisance’. Instead, the Licensing Conditions should stipulate the permissible, and therefore enforceable, noise levels and precisely what constitutes an enforceable obstruction.

To what extent do you agree or disagree with the proposed licensing conditions?

1. We strongly believe that other street-based activities that are not defined as street performance or busking within a West End Street Entertainment and Activities Zone should also require either a licence or express permission from the Local Authority or else these activities will ‘fill any void’ created by greater regulation of street-performance and busking in these areas.

2. We are very concerned that the Code of Conduct and the Licensing Conditions are not aligned, thus creating a gap – and confusion – between what is suggested and what is actually enforceable. For clarity, ease of management, complaint and enforcement, the two need to mirror one another.

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3. In terms of individual conditions, we agree with the principle of requiring a licence. However, we are concerned that the bar is set too low in terms of public liability insurance (condition 9).

4. We would also suggest that the conditions should specify who persons authorised by the council are likely to be (conditions 4 and 10).

5. Regarding condition 8, this would appear to be ambiguous and we would suggest this is clarified to emphasise that there should be an objectively measurable gap between any street performances that are taking place.

6. We also note that there is a contradiction throughout the consultation on the noise levels, including within the proposed Licensing Condition 10, which states that amplified entertainment should ‘not cause a nuisance to persons in nearby premises’. However, within the voluntary Code of Conduct it states that buskers should ‘not be heard by nearby premises’ and the ‘volume should only be heard just above ambient noise level’. These therefore only constitute guidance with the effect being that there will only be enforcement against buskers and performers where the test for ‘nuisance’ is met, which is no departure from the current situation.

7. The Licensing Conditions are an opportunity to specify what constitutes acceptable noise levels in a consistent and objective manner, which will erase ambiguity for all parties as well as allowing for measurement, evaluation and clarity on when enforcement will take place. This is further complicated by allowing some amplified pitches. As a result, we believe the simple solution is to not have amplified street entertainment and busking in the borough and for decibel limit for performances to be instituted.

8. We believe that the Authority should look to move away from the tort position on nuisance to the designation of a Zone, as proposed in our consultation response. This will remove ambiguity and allow for objective, pitch-dependent measures, instead of relying on outdated common law.

9. Finally, given the focus on the Licence Conditions, we would suggest that an updated policy sets-out the procedures for enforcement and the revocation of a licence, which is currently absent from the consultation. Otherwise there runs the risk of complaints of unfair treatment towards performers and ambiguity for complainants.

To what extent do you agree or disagree with a £20 fee being charged to apply for a busking and street entertainment licence?

Disagree

If you disagree with a £20 fee being charged to apply for a busking and street entertainment licence, please let us know why.

1. We would like to note that our preferred response would be ‘neither agree nor disagree’.

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2. Ultimately, the introduction of any new regulation results in costs. We are concerned that the lack of detail surrounding administration, on-street management and enforcement within the Policy document means the £20 fee may not cover fully cover them.

3. We would welcome further detail being provided relating to these costs as we concerned that the management and enforcement of the Policy may result in costs to agencies other than the City Council and we would appreciate transparency regarding this matter from the outset.

Further comments or Suggestions on the Draft Policy

1. Overall, the proposed Policy will have an effect on the supply of buskers and street entertainers, as well as their locations. However, the policy will have no effect on curtailing the harm caused by these activities, which may in fact be exacerbated by the policy – for instance, through allowing amplified music until 9pm. The policy also excludes certain parties from seeking remedy through its inconsistencies across the borough and its failure to expressly enshrine businesses as complainants within the Licensing Conditions. As a result, it is not felt that the Policy will address the challenges street performance and associated on-street activities can create on a day-to-day basis for businesses and residents – and indeed for performers themselves.

2. This, coupled with the lack of alignment between the Code of Conduct and the Licensing Conditions, means that there is no departure from the current situation and its reliance on the test for ‘nuisance’ whereby the burden of proof falls on the complainant.

3. To remedy this, we suggest the Policy is used as an opportunity to institute a West End Street Entertainment and Activities Zone within which these, and other potentially disruptive on-street activities would not be permitted without a licence or permission of the Local Authority. This would also help to address the problem that many activities that cause disruption to our businesses and pedestrians, do not fall within the definition of a licensable activity or street performance and would give absolute clarity for all parties, particularly around enforcement.

4. Should the pilot scheme be progressed, Heart of London will be closely monitoring and evaluating its efficacy with our members. We look forward to gathering a robust evidence base to help inform Council policy on the issue moving forward to ensure the Policy, plus its management and enforcement, are fit-for-purpose.

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