PAPER B

 

Purpose: For Decision

 

Committee:    LICENSING (DETERMINATIONS) SUB COMMITTEE           
 
Date:               2 MAY 2007
 
Title:                APPLICATION FOR THE REVIEW OF A PREMISES LICENCE FOR THE DUNCROFT HOTEL (WIGHT RABBIT BAR), 2 WILTON PARK ROAD, SHANKLIN, ISLE OF WIGHT
 
                        REPORT OF THE HEAD OF CONSUMER PROTECTION   

 

           

 

1.                  SUMMARY/PURPOSE

 

To determine an application made by the police under section 51 of the Licensing Act 2003 to review the premises licence for the Duncroft Hotel, (also known as the Wight Rabbit), 2 Wilton Park Road, Shanklin, IW.

 

2.                  BACKGROUND

 

The mechanism to review a premises licence exists to protect the community where problems associated with crime and disorder, public safety, public nuisance or the protection of children from harm are occurring at a premise for which a premises licence has been granted under the Licensing Act 2003.

 

At any stage, following the grant of a premises licence, a responsible authority, such as the police or the fire authority, or an interested party, such as a resident living in the vicinity of the premises, may ask the licensing authority to review the licence because of a matter arising at the premises in connection with any of the four licensing objectives.

 

Licensing authorities may not initiate their own reviews of premises licences. Officers of the local authority who are specified as responsible authorities under the 2003 Act, such as environmental health officers, may however request reviews on any matter which relates to the promotion of one or more of the licensing objectives.

 

3.                  DETAILS OF THE APPLICATION

 

This application is for a review of a Premises Licence under Section 51 of the Licensing Act 2003 (Appendix 1)

 

 

Applicant Name and Address

Chief Superintendent Morgan

Police Station

High Street

Newport

Isle of Wight   PO30 1SZ

 

Premises Being Reviewed

Duncroft Hotel (Wight Rabbit Bar)

2 Wilton Park Road

Shanklin,

Isle of Wight

Licence Holder

Ms Gillian Mary Tobin

 

 

Section 51 has been complied with in terms of service of the application and notification to other responsible authorities, and notices containing all relevant information have been displayed for the required 28 day period at the Duncroft Hotel, at the offices of the Council at Jubilee Stores, The Quay, Newport, IW, and on the Council’s website.

 

The Police have stated the following as the grounds for review:

 

The Prevention of Crime & Disorder

 

  • There have been incidents of crime and disorder at and in the immediate vicinity of the premises.
  • There has been a serious assault on the premises
  • There are indications that drug use has taken place on the premises

 

Prevention of Public Nuisance

 

  • Public nuisance has been caused to residents in the area by loud music and disturbance from persons using the premises.
  • Use has been made of the premises to run events for young people which have attracted large numbers. The premises are not suitable for such events which have resulted in large numbers of people being expelled into the street and causing disturbance. There has been a lack of control, by the DPS.

 

Protection of Children from Harm

 

  • The premises are frequented by young people who drink alcohol on the premises. There are two cases of underage sales which have been dealt with by the police. There is concern that young people under 18 are regularly buying alcohol on the premises.

 

The police have supplied supporting statements from local residents which are attached at Appendix 2.

 

The police recommend that the licence is revoked as their record shows that its holder has scant regard for the licensing objectives.

 

If the licence is not entirely revoked, the police recommend that live and recorded music and dancing are removed from the licence, in addition;

 

  • The use of the bar to end at 2230 hours for the sale of alcohol
  • The bar to be closed to non-residents
  • The use of the bar for bona-fide (persons having at least one main meal supplied on the premises) hotel residents only, but not guests of residents, and only until 2230hrs
  • No persons under 18 to be present in the room where the bar is located
  • No person under 18 to be employed on the premises for the sale of alcohol, or concerned in its delivery whether for payment or otherwise.

 

4.                  LOCATION AND SITE CHARACTERISTICS

 

The Duncroft Hotel is a hotel with a bar (known as the Wight Rabbit) and separate dining room situated on the corner of Wilton Park Road and Atherley Road in Shanklin. It is surrounded by mainly residential properties.

 

5.                  REPRESENTATIONS THAT ARE RELEVANT TO ONE OR MORE OF THE LICENSING OBJECTIVES

 

Responsible Authorities

 

 

 

Environmental Health Officer

No representations

 

 

Fire Safety Officer

No representations

 

 

Planning Officer

No representations

 

 

Trading Standards Service

Support the police application for review due to underage sales having taken place on two occasions, and it is the view of the Service that the DPS has not exercised adequate control over sales of alcohol to under 18s.(Appendix 3)

 

 

Health & Safety

No representations

 

 

Children’s Services

No representations

 

 

Interested Parties

No representations

 

 

 

6.                  LOCAL POLICY CONSIDERATIONS

 

It is considered that the following paragraphs from the Council’s Licensing Authority’s Statement of Licensing Policy, 2004 to 2007 have a bearing upon the application.

 

Members’ attention in respect of this particular application is drawn to:

 

Clause 1

Licensing Objectives

All paragraphs

Clause 2

Introduction

All paragraphs

Clause 3

Integration of Strategies and Other Legislation

3.1 to 3.5

3.9 to 3.11

Clause 4

Approach to Licensing Applications

4.1 to 4.3

4.5, 4.6

Clause 6

Representation, Reviews and Appeals

All paragraphs

Clause 7

Enforcement

All paragraphs

Clause 8

Operating Schedules

8.1 to 8.2

8.13 to 8.19

 

7.                  NATIONAL GUIDANCE

 

            National guidance regarding control of areas outside the premises is as follows:

 

Paragraph 3.11         “The conditions attached to various authorisations will be focused on matters which are within the control of individual licensees and others in possession of relevant authorisations.  Accordingly, these matters will centre on the premises being used for licensable activities and the vicinity of those premises.  Whether or not incidents can be regarded as being “in the vicinity” of licensed premises is a question of fact and will depend on the particular circumstances of the case. 

 

In addressing this matter, the licensing authority will primarily focus on the direct impact of the activities taking place at the licensed premises on members of public living, working or engaged in normal activity in the area concerned. 

 

Licensing law is not the primary mechanism for the general control of nuisance and antisocial behaviour by individuals once they are away from the licensed premises and, therefore, beyond the direct control of the individual, club or business holding the licence, certificate or authorisation concerned.  Nonetheless, it is a key aspect of such control and licensing law will always be part of a holistic approach to the management of the evening and night-time economy in town and city centres.”

 

            National guidance regarding reviews is as follows:

 

Paragraph 5.100       “At any stage following the grant of a premises licence, a responsible authority or an interested party may ask the licensing authority to review the licence because of a matter arising at the premises in connection with any of the four licensing objectives.

 

Paragraph 5.102       In every case, the representation must relate to particular premises for which a premises licence is in existence and must be relevant to the promotion of the licensing objectives. Representations must be in writing and may be amplified at the subsequent hearing or may stand in their own right. Additional representations which do not amount to an amplification of the original representation may not be made at the hearing.

Paragraph 5.103       It is important to recognise that the promotion of the licensing objectives relies heavily on a partnership between licence holders, authorised persons, interested parties and responsible authorities in pursuit of common aims. It is therefore equally important that reviews are not used to drive a wedge between these groups in a way that would undermine the benefits of cooperation. It would therefore be good practice for authorised persons and responsible authorities to give licence holders early warning of their concerns about problems identified at the premises concerned and of the need for improvement. It is expected that a failure to respond to such warnings would lead to a decision to request a review.

Paragraph 5.105       Licensing authorities are expected to be aware of the need to prevent attempts to review licences merely as a second bite of the cherry following the failure of representations to persuade the licensing authority on earlier occasions. It is for licensing authorities themselves to judge what should be regarded as a reasonable interval in these circumstances. However, the Secretary of State recommends that more than one review originating from an interested party should not be permitted within a period of twelve months on similar grounds save in compelling circumstances or where it arises following a closure order.

Paragraph 5.106       Following receipt of a request for a review from a responsible authority or an interested party or in accordance with the closure procedures described in Part 8 of the 2003 Act, the licensing authority must arrange a hearing. The arrangements for the hearing must follow the provisions set out by the Secretary of State in regulations. The Secretary of State considers it particularly important that the premises licence holder is fully aware of the representations made in respect of the premises, any evidence supporting the representations and that he or his legal representatives has therefore been able to prepare a response.”

National guidance regarding the powers of a licensing authority on the  determination of a review is as follows:

 

Paragraph 5.108       “The licensing authority may decide that no action is necessary if it finds that the review does not require it to take any steps necessary to promote the licensing objectives. In addition, there is nothing to prevent a licensing authority issuing an informal warning to the licence holder and/or to recommend improvement within a particular period of time. It is expected that licensing authorities will regard such warnings as an important mechanism for ensuring that the licensing objectives are effectively promoted and that warnings should be issued in writing to the holder of the licence. However, where responsible authorities like the police or environmental health officers have already issued warnings requiring improvement – either orally or in writing – that have failed as part of their own stepped approach to concerns, licensing authorities should not merely repeat that approach.

Paragraph 5.109       Where the licensing authority considers that action under its statutory powers is necessary, it may take any of the following steps:

 

1.    to modify the conditions of the premises licence (which includes adding new conditions or any alteration or omission of an existing condition), for example, by reducing the hours of opening or by requiring door supervisors at particular times;

 2.    to exclude a licensable activity from the scope of the licence, for example, to exclude the performance of live music or playing of recorded music (where it is not within the incidental live and recorded music exemption);

 3.    to remove the designated premises supervisor, for example, because they consider that the problems are the result of poor management;

 4.    to suspend the licence for a period not exceeding three months;

 5.    to revoke the licence.

 

Paragraph 5.110       In deciding which of these powers to invoke, it is expected that licensing authorities should so far as possible seek to establish the cause or causes of the concerns which the representations identify. The remedial action taken should generally be directed at these causes and should always be no more than a necessary and proportionate response. For example, licensing authorities should be alive to the possibility that the removal and replacement of the designated premises supervisor may be sufficient to remedy a problem where the cause of the identified problem directly relates to poor management decisions made by that individual. Equally, it may emerge that poor management is a direct reflection of poor company practice or policy and the mere removal of the designated premises supervisor may be an inadequate response to the problems presented. Indeed, where subsequent review hearings are generated by representations, it should be rare merely to remove a succession of designated premises supervisors as this would be a clear indication of deeper problems which impact upon the licensing objectives.

Paragraph 5.111       Licensing authorities should also note that modifications of conditions and exclusions of licensable activities may be imposed either permanently or for a temporary period of up to three months. Accordingly temporary changes or suspension of the licence for up to three months may be imposed. This could impact on the business holding the licence financially and would only be expected to be pursued as a necessary means of promoting the licensing objectives. Accordingly, a licence could be suspended for a weekend as a means of deterring the holder from allowing the problems that gave rise to the review to happen again. However, it will always be important that any detrimental financial impact that may result from a licensing authority’s decision is necessary and proportionate to the promotion of the licensing objectives in the circumstances that gave rise to the application for a review.”

 

National guidance regarding public nuisance is as follows:

 

Paragraph 7.39: “The 2003 Act requires licensing authorities following receipt of relevant representations and, through the making of representations, responsible authorities to make judgements about what constitutes public nuisance and what is necessary, in terms of conditions attached to specific premises licences and club premises certificates to prevent it. It is therefore important that in considering the promotion of this licensing objective, licensing authorities and responsible authorities focus on impacts of the licensable activities at the specific premises on persons living and working (including doing business) in the vicinity that are disproportionate and unreasonable. The issues will mainly concern noise nuisance, light pollution, noxious smells and litter.

 

Paragraph 7.40: Public nuisance is given a statutory meaning in many pieces of legislation. It is however not narrowly defined in the 2003 Act and retains its broad common law meaning for the Act’s purposes. The prevention of public nuisance could therefore include low-level nuisance perhaps affecting a few people living locally as well as major disturbance affecting the whole community. It may also include in appropriate circumstances the reduction of the living and working amenity and environment of interested parties (as defined in the 2003 Act) in the vicinity of licensed premises.

 

Paragraph 7.41: Conditions relating to noise nuisance will normally concern steps necessary to control the levels of noise emanating from premises, from simple mechanisms like ensuring that doors and windows are kept closed after a particular time in the evening to more sophisticated mechanisms like sound level inhibitors on amplification equipment or sound proofing. Any conditions necessary to promote the prevention of public nuisance should be tailored to the style and characteristics of premises and the type of activities expected to take place there.

 

Paragraph 7.42: As with all conditions, it will be clear that conditions relating to noise nuisance may in certain circumstances not be necessary where the provisions of the Environmental Protection Act 1990 and of the Noise Act 1996 adequately protect those living in the vicinity of the premises in question. But as stated earlier in this Guidance, the approach of licensing authorities and responsible authorities should be one of prevention and when their powers are engaged, licensing authorities should be aware of the fact that other legislation may not adequately cover concerns raised in relevant representations and additional conditions may be necessary.

 

Paragraph 7.43: Where applications have given rise to representations, any necessary and appropriate conditions should normally focus on the most sensitive periods. For example, music noise from premises usually occurs from mid-evening until either late evening or early morning when residents in adjacent properties may be attempting to go to sleep or are sleeping. In certain circumstances, conditions relating to noise may also prove necessary to address any disturbance anticipated as customers enter and leave the premises and therefore, in the immediate vicinity of the premises.”

 

8.                  IMPLICATIONS UNDER THE HUMAN RIGHTS ACT 1998

 

Members are advised that this application must be considered against the background of the implications of the Human Rights Act 1998.

 

There are three convention rights, which need to be considered in this context:

 

(a)               Article 6 Right to a Fair Trial –

In the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

 

It has been held that the fact that there is a right of appeal to the Magistrates’ Court from any decision of the Licensing Authority is sufficient to make the Council’s licensing system compliant with the convention rights.

 

(b)               Article 8 Right to Respect for Private and Family Life –

Everyone has the right to respect for his private and family life, his home and his correspondence.  In the case of article 8 there shall be no interference by a public authority with the exercise of this right except as such in accordance with the law and is necessary on a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder and crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

 

(c)               Article 1 of the First Protocol Protection of Property –

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. In the case of Article 1 of the first protocol it states that “no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law.  The preceding provisions (of which articles 6 and 8 are but two) shall not however in any way impair the right of the state to enforce such laws as it deems necessary to control the use of the property in accordance with general interest or to secure the payment of taxes or other contributions or penalties”.

 

A licence is viewed as a possession thus making Article 1 relevant in this case.

 

The Licensing Authority acknowledges the right of business in its area to operate, but equally acknowledges the fact that this must be balanced against the rights of residents not to be disturbed by unreasonable noise and nuisance caused by licensed premises.  The Licensing Authority must ensure that the reasons given for any interference with these rights are necessary and proportionate and in accordance with the Council’s legitimate aim, in this instance promoting the licensing objectives.

 

9.                  OBSERVATIONS

 

The Licensing (Determinations) Sub-Committee is obliged to determine this application with a view to promoting the licensing objectives, which are:

 

·                    The prevention of crime and disorder

·                    Public safety

·                    The prevention of public nuisance

·                    The protection of children from harm

 

In making its decision, the Licensing (Determinations) Sub-Committee is also obliged to have regard to national guidance and the Council’s own Licensing Policy.

 

The Licensing (Determinations) Sub-Committee must also have regard to all of the representations made and the evidence it hears.

 

The Licensing (Determinations) Sub-Committee must take such of the following steps (if any) as it considers necessary for the promotion of the licensing objectives:

 

1.         to modify the conditions of the licence.

2.         to exclude a licensable activity from the scope of the licence

3.         to remove the designated premises supervisor

4.         to suspend the licence for a period not exceeding three months

5.         to revoke the licence

 

The Licensing (Determinations) Sub-Committee is asked to note that it may not take the above steps merely because it considers it desirable to do so.  It must actually be necessary in order to promote the licensing objectives.

 

10.             APPENDICES ATTACHED

 

Appendix 1 -  Application for review

Appendix 2 – Supporting statements from local residents

Appendix 3 – Trading Standards representation

Appendix 4 -  Duncroft Hotel’s Premises Licence

 

11.       BACKGROUND PAPERS

 

Minutes of the Licensing (Determinations) Sub-Committee held in Committee Room 1, County Hall, Newport on Thursday 21 August 2006.

 

12.       ADDITIONAL INFORMATION

 

The Premises Licence (Appendix 4) shows:

 

Designated Premises Supervisor

Gillian Tobin

 

Provision of Regulated Entertainment

Hours of Licensable Activities

 

 

Live Music (on not more than 15 occasions per year)

All days 1000hrs to 2400hrs

 

Recorded music

Mon to Sat     1000hrs to 2400hrs

Sunday           1200hrs to 2300hrs (2400hrs when one of the 15 occasions with live music)

 

Performances of Dance

Mon to Sat     1000hrs to 2400hrs

Sunday           1200hrs to 2300hrs (2400hrs when one of the 15 occasions with live music)

Supply of Alcohol

All Days 1000hrs to 2400hrs

24 hrs for residents only

Opening Hours of Premises

All Days 1000hrs to 2400hrs

24 hrs for residents only

Non Standard Timings

N/A

 

Conditions of the Existing Premises Licence:

 

The Prevention of Crime & Disorder

Alcohol shall not be consumed in the outside area of the premises after 2300hrs.

 

Suitable beverages other than intoxicating liquor (including drinking water) shall be equally available for consumption with or otherwise as an ancillary to meals served in the licensed premises.

 

The Prevention of Public Nuisance

No regulated entertainment shall take place outside.

 

Windows to be closed at 2200hrs during regulated entertainment.

 

Live music to be restricted to 15 times per year.

 

No regulated entertainment to take place after 2300hrs on Sundays except in relation to the 15 occasions during the year referred to in condition above, the applicant to give the licensing authority advance notice of each occasion.

 

Prior to the Licensing Act 2003 being implemented, the previous owner of the premises operated it strictly as a hotel with a liquor licence to sell alcohol to residents only.

 

When the licence was transferred to Ms Tobin a variation was also applied for to include other licensable activities, i.e. live and recorded music and dancing, and for some of the old licence conditions to be removed to allow for the premises to be opened to the public. The application indicated that music was requested to allow for school visits and wedding parties, almost exclusively between June and September each year. A letter following the application stated that it was the intention only to play music for very occasional weddings which were not expected to number more than 5 or 6 per year.

 

The application for variation resulted in many representations being received from local residents. Many of their concerns related to perceived crime and disorder and public nuisance issues. However, as the police had had no previous problems with the premises they did not submit a representation at that time.

 

The application was considered by the Licensing Sub-Committee on 21st August 2006. Conditions were attached to limit the number of occasions when later hours could be used and live music could be played, in order to promote the licensing objective of the prevention of public nuisance.

 

On Saturday 23rd September 2006, the police were called to an incident involving a large number of people in the street who had come from a party at the premises. This resulted in the Licensing Sergeant and the Council’s Licensing Officer carrying out a joint visit to the premises to discuss with Ms Tobin her responsibilities under the Licensing Act, and the operation of the premises.

 

On 1st February a test-purchase by police and trading standards resulted in an underage sale being made and a fixed penalty notice being given to Ms Tobin.

 

On 5th February 2007 Ms Tobin gave notice of a Temporary Event on Sunday 18th February between midnight and 1000hrs. This was to enable her to hold a joint birthday and wedding anniversary party that could continue beyond the hours authorised by her premises licence. Only the police could object on the grounds of crime and disorder, but did not do so on that occasion. The Temporary Event was therefore permitted, however, complaints were subsequently received of loud music and from persons entering and leaving the premises throughout the night.

 

On 1st March 2007 another test purchase operation was carried out which resulted in another underage sale and a fixed penalty notice being given to a bar person at the premises.

 

On 5th March 2007, Ms Tobin gave notice of another Temporary Event for Sunday 18th March between midnight and 1000hrs. The police objected and the application was considered by the Licensing Sub-Committee on 16th March 2007, who resolved to issue a Counter-Notice in order to promote the licensing objective of crime and disorder.

 

A third test-purchase operation was carried out on 5th April 2007. This time no underage sale was made.

 

The Environmental Health database shows that complaints of noise from music have been received from local residents on 25/9/06, 31/1/07 and 19/2/07. However, no log sheets have been forthcoming from complainants, therefore the complaints have not been substantiated by officers.

 

 

 

 

Contact Point:           

 

Sarah MacDonald

Licensing Officer

Ext 5156

 

 

                                                                        ROB OWEN

                                                            Head of Consumer Protection

 

 

 

 

 

 

 

 

APPENDIX 1
 




APPENDIX 2
 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPENDIX 3
 
 

 

 

APPENDIX 4
 
 

 

 

 

 

 


Premises Licence Number:

 

IW 010822

 

Ms Gillian Mary Tobin

 

Duncroft Hotel

 

2 Wilton Park Road

Shanklin

Isle of Wight

PO37 7BT

 

 

Licensable Activities Authorised by the Licence

 

Licensable Activity

Permitted Hours

 

 

Live Music (on not more than 15 occasions per year)

All days 1000hrs to 2400hrs

 

 

 

Recorded Music

Monday to Saturday 1000hrs to 2400hrs

Sunday 1200hrs to 2300hrs (2400hrs when one of the 15 occasions with live music)

 

 

Performances of Dance

Monday to Saturday 1000hrs to 2400hrs

Sunday 1200hrs to 2300hrs (2400hrs when one of the 15 occasions with live music)

 

 

Supply of Alcohol

All days 1000hrs to 2400hrs

24 hrs for residents only

 

 

Opening Hours of Premises

All days1000hrs to 2400hrs

24 hrs for residents only

 

 

The certificate authorises the supply of alcohol for consumption on and off the premises

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Full Name

Address, postcode, telephone number of holder of premises licence

 

Mrs Gillian Mary Tobin, Duncroft Hotel, 2 Wilton Park Road, Shanklin, Isle of Wight

PO37 7BT (01983) 862427

 

 

 

Registered number of holder

                                                            

                                                             N/A

 

Name, full address, postcode, telephone number of designated premises Supervisor

 

Mrs Gillian Tobin, Duncroft Hotel, 2 Wilton Park Road, Shanklin, Isle of Wight

PO37 7BT (01983) 862427

 

Personal Licence Number and issuing authority of personal licence held by designated premises supervisor

 

IW 014734 Isle of Wight Council

 

 

 

ISLE OF WIGHT COUNCIL

Jubilee Stores

The Quay

Newport

Isle of Wight

PO30 2EH

 

Premises Licence Number 

IW 010822

 

 

Annex 2

Conditions consistent with the operating Schedule

 

 

 

1.                  No regulated entertainment shall take place outside.

 

2.                  Alcohol shall not be consumed in the outside area of the premises after 2300hrs.

 

3.                  Suitable beverages other than intoxicating liquor (including drinking water) shall be equally available for consumption with or otherwise as an ancillary to meals served in the licensed premises.

 

 

 

 

 

ISLE OF WIGHT COUNCIL

Jubilee Stores

The Quay

Newport

Isle of Wight

PO30 2EH

 

Premises Licence Number 

IW 010822

 

 

Annex 3

Conditions attached after a hearing by the licensing authority

 

 

4.                  Windows to be closed at 2200hrs during regulated entertainment.

 

5.                  Live music to be restricted to 15 times per year.

 

6.                  No regulated entertainment to take place after 2300hrs on Sundays except in relation to the 15 occasions during the year referred to in condition (5) above, the applicant to give the licensing authority advance notice of each occasion.

 

 

 

 

 

ISLE OF WIGHT COUNCIL

Jubilee Stores

The Quay

Newport

Isle of Wight

PO30 2EH

 

Premises Licence Number

IW 010822

 

 

Annex 4

Plans