PAPER A

1. DETAILS OF THE APPLICATION

Applicant	Mrs Madeleine Lesley Trigwell and Mr John Clifford Abbotts
Premises	La Vaca Loca (mad cow), 109 High Street, Shanklin, IW
Conversion & Variation Application	This application is for a conversion of the Premises Licence during the transitional period under Schedule 8 paragraph 2(2) of the Licensing Act 2003 and for a simultaneous variation of the licence under Schedule 8 paragraph 7(1) (b) of the Licensing Act 2003 (Appendix 1)

The Operating Schedule shows:

Designated Premises Supervisor

Mrs Madeleine Lesley Trigwell

	Provision of Regulated Entertainment	Hours of Licensable Activities
(a)	Plays	N/A
(b)	Films	N/A
(c)	Indoor Sporting Events	N/A
(d)	Boxing or Wrestling	N/A
(e)	Live Music	N/A
(f)	Recorded music	N/A
(g)	Performances of Dance	N/A
(h)	Anything similar to (e) (f) (g) above	10:00 hours to 02:00 hours all days (live and recorded music, both amplified and unamplified and the performance of dance).
	Provision of Entertainment Facilities
(i)	making music
(j)	dancing
(k)	entertainment similar to (i) & (j) above	10:00 hours to 02:00 hours all days (facilities for making music both amplified and unamplified and dancing).
	Late Night Refreshment	23:00 hours to 02:00 hours all days
	Supply of Alcohol	10:00 hours to 02:00 hours all days
	Other Times Premises Proposed To Be Open To The Public	10:00 hours to 03:00 hours all days
	Conditions to be removed	To remove the conditions inherent in the Justices Restaurant Licence and the Supper Hours Certificate.

Steps to promote the licensing objectives

General

The premises operate as a restaurant, but would seek flexibility to be able to offer drinks without meals. The risk assessment has not identified any additional steps as being required in relation to the licensing objectives.

The Prevention of Crime & Disorder

The premises operating as a restaurant have not attracted any crime and disorder issued and the small scale of the operation makes it unlikely that this would change if this application was granted.

The addition of the 60 minute drinking up period will ensure that customers can finish their meal and drinks in their own time and leave in small numbers, avoiding noise disturbance or the possibility of conflict on departure.

Public Safety

There is no car parking at the venue and no likelihood of there being any fireworks displays. The areas of slips, trips, falls and electrical safety have been covered in the risk assessment.

The Prevention of Public Nuisance

There have been no issues of nuisance either from noise or food odour at the premises. The location of the premises in a tourist area with many licensed premises in the vicinity, some opening until 02:00 hours, makes it unlikely that the application, if granted, would change the situation.

The Protection of Children From Harm

There is no outdoors children’s play equipment and the premises do not tend to attract children. Photo identification is requested from anyone who appears to be under the age of 18 years.

2. LOCATION AND SITE CHARACTERISTICS

The premises is a restaurant/bar located on the main road of the tourist area of Shanklin Old Village, and comprise of one main bar/dining area. (Appendix 2)

3. RELEVANT REPRESENTATIONS

Responsible Authorities
Police	No outstanding representations
Environmental Health Officer	No outstanding representations
Fire Safety Officer	No outstanding representations
Planning Officer	No outstanding representations
Trading Standards Officer	No outstanding representations
Health & Safety	No outstanding representations
Children’s Services	No outstanding representations
Interested Parties
(Appendix 3)
Objection letters from:	Beverley Hedley-Ward 111 High Street, Shanklin, IW Colin W J Nigh & Shirley A Nigh Dolly Vardens, 101 High Street, Shanklin, IW

4. LOCAL POLICY CONSIDERATIONS

It is considered that the following policies 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
Clause 2	Introduction
Clause 3	Integration of Strategies and Other Legislation	3.4, 3.9 and 3.11
Clause 4	Approach to Licensing Applications	all
Clause 5	Cumulative Effect
Clause 6	Representation, Reviews and Appeals	6.1, 6.4, 6.6
Clause 7	Enforcement
Clause 8	Operating Schedules	8.5, and 8.13 to 8.20 inclusive

5. NATIONAL GUIDANCE

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

“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 licensing hours is as follows:

“With regard to licensing hours consideration, which will be given to the individual merits of an application. The Government strongly recommends that Licensing Authorities should recognise that longer licensing hours with regard to the sale of alcohol are important to ensure that the concentrations of customers leaving premises simultaneously are avoided. This is necessary to reduce the friction at late night fast food outlets, taxi ranks and other sources of transport, which lead to disorder and disturbance. The Government also wants to ensure that licensing hours should not inhibit the development of thriving and safe evening and night-time local economies which are important for investment and employment locally and attractive to domestic and international tourists without compromising the ability to resource local services associated with the night-time economy. Providing consumers with greater choice and flexibility is an important consideration.”

National guidance regarding non-duplication of other regimes is as follows:

“Planning, building control and licensing regimes will be properly separated, to avoid duplication and inefficiency. Applications for premises licences for permanent commercial premises should normally be from businesses with planning consent for the property concerned. Licensing applications should not be a re-run of the planning application and should not cut across decisions taken by the local authority planning committee or following appeals against decisions taken by that committee. Similarly, the granting by the licensing committee of any variation of a licence which involves a material alteration to a building would not relieve the applicant of the need to apply for planning permission or building control where appropriate.

There should be a firm commitment to avoid duplication with other regulatory regimes so far as possible. Conditions in respect of public safety should only be attached to premises licences and club premises certificates that are “necessary” for the promotion of that licensing objective and if already provided for in other legislations, they cannot be considered necessary in the context of licensing law. Such regulations will not however always cover the unique circumstances that arise in connection with licensable activities, particularly regulated entertainment, at specific premises and tailored conditions may be necessary.”

6. 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 or of any criminal charge against him, 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.

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”.

Article 8 is relevant in this case, as the Sub Committee must balance the rights of the applicant to run their business in the way they wish, with the rights of the neighbours not to be unreasonably disturbed.

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

The Licensing Authority acknowledges the right of businesses 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 needs to be clear as to the rights granted and the need to ensure that the reasons given for any interference are proportionate and in accordance with the Council’s legitimate aim.

7. OBSERVATIONS

The Licensing 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 Sub Committee is also obliged to have regard to national guidance and the Council’s own Licensing Policy.

Of course, the Licensing Sub Committee must also have regard to all of the representations made and the evidence it hears.

The Licensing Sub Committee must take such of the following steps as it considers necessary for the promotion of the licensing objectives:

i. Grant the application as requested.

ii. Modify the conditions of the licence by altering or omitting or adding to them such conditions as suggested by the applicant.

iii. Reject the whole or part of the application.

The Licensing Sub Committee is asked to note that it may not modify the conditions or reject the whole or part of the application merely because it considers it desirable to do so. It must actually be necessary in order to promote the licensing objectives.

As to the representations raised:

The Prevention of Crime & Disorder

There are concerns over possible damage to shops and properties during the early hours when customers leave intoxicated, and objectors are concerned that it could result in more vandalism.

Prevention of Public Nuisance

The objectors believe that the hours requested would result in noise disturbance and lack of sleep to local residents.

Public Safety

No representations raised

Protection of Children From Harm

No representations raised

The Head of Consumer Protection’s opinion is that all matters can be dealt with by conditions and do not amount to sufficient grounds to refuse the variation outright.

Nonetheless it is a matter for the Licensing Sub Committee to determine in the light of the above matters and any other matters it considers material.

8. APPENDICES ATTACHED

1.	Application form with attachments
2.	Map showing location of premises in relation to surrounding area
3.	Objection letters

9. ADDITIONAL INFORMATION

The premise currently holds a full on-licence allowing the sale by retail of alcohol for consumption on the premises. There is also a Supper Hours Certificate allowing alcohol to be served with a table meal from 10:00 hours until 24:00 hours Monday to Saturday, from 12:00 hours until 23:30 hours on Sundays, Good Friday and Christmas Day, and for 24 hours on New Year’s Eve into New Year’s Day.

Contact Point: Sarah MacDonald, Ext 5156

ROB OWEN

Head of Consumer Protection