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1. DETAILS OF THE APPLICATION

Applicant

Mrs Gillian Mary Tobin

Premises

Duncroft Hotel

2 Wilton Park Road

Shanklin

Isle of Wight

Conversion & Variation Application

This application is for a variation of the Premises Licence under Section 34 of the Licensing Act 2003 (Appendix A)

The Operating Schedule shows:

Designated Premises Supervisor

Mrs Gillian Tobin

	Provision of Regulated Entertainment	Hours of Licensable Activities

(e)	Live Music	Mon – Sat 1000 to 2400 hrs Sun 1200 to 2330 hrs
(f)	Recorded music	Mon – Sat 1000 to 2400 hrs Sun 1200 to 2330 hrs
(g)	Performances of Dance	Mon – Sat 1000 to 2400 hrs Sun 1200 to 2330 hrs
(h)	Anything similar to (e) (f) (g) above	Mon – Sat 1000 to 2400 hrs Sun 1200 to 2330 hrs

	Supply of Alcohol	Residential condition to be removed allowing hours as above.

	Other Times Premises Proposed To Be Open To The Public	Not specified

Steps to promote the licensing objectives

General

Encourage sense of family hotel with bar area very much food led

No rowdy behaviour will be accepted

Tight control on serving people who have had too much to drink

No bookings accepted for drinking parties or stag type events

The Prevention of Crime & Disorder

No further steps listed.

Public Safety

No further steps listed.

The Prevention of Public Nuisance

No further steps listed.

The Protection of Children From Harm

No further steps listed.

2. LOCATION AND SITE CHARACTERISTICS

The Duncroft Hotel is situated on the corner of Wilton Park Road and Atherley Road in Shanklin. There is a dining room and bar lounge, and an outside area with a few picnic-style tables and chairs.

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

Mr D Gambling	9 Wilton Park Road, Shanklin
Ms C O’Brien	6 Wilton Park Road, Shanklin
Mr C Norman	7 Wilton Park Road, Shanklin
S Davison	30 Atherley Road, Shanklin
John & Hayley Clark	Ryedale Private Hotel, 3 Atherley Road, Shanklin
Robin Goodfellow	11 Wilton Park Road, Shanklin
Mr & Mrs B S Carter	5 Wilton Park Road, Shanklin
Mr R Heredge & Mrs J Jackson	14 Wilton Park Road, Shanklin
G May	24 Atherley Road, Shanklin
Mrs J Taylor	South Wight Catholic Parish 7 Atherley Road, Shanklin
Mr & Mrs K Nixon	12 Atherley Road, Shanklin
Anthea Church	3 Wilton Park Road, Shanklin
C & J Gaskin	Atholl Court Guest House 1 Atherley Road, Shanklin
Ms J M Ingham	15 Atherley Road, Shanklin
Mr & Mrs A Bailey	6 Atherley Road, Shanklin
M J & H Whitchurch	18 Wilton Park Road, Shanklin
Miss E Corlett	Flat 3, 5 Atherley Road, Shanklin
Mr T Waller	Flat 1, 5 Atherley Road, Shanklin
Ms J Rogers-Thorn	4 Wilton Park Road, Shanklin

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	3.2, 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, 6.7
Clause 7	Enforcement
Clause 8	Operating Schedules	8.2, 8.3, 8.5, 8.7, 8.11, 8.13 to 8.20 inclusive

5. NATIONAL GUIDANCE

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

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 licensing hours is as follows:

3.29 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:

3.51 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.

7. 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 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 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.

8. 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 asked.

ii. Modify the conditions of the licence by altering or omitting or adding to them.

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:

Character/property values: These are matters for planning. They do not raise issues relevant to the licensing objectives.

The Prevention of Crime & Disorder

The interested parties are concerned that the area already suffers from incidents of drunkenness, vandalism and other anti-social behaviour on a regular basis and believe that the removal of the ‘residents only’ condition will add to crime and disorder in the area.

Prevention of Public Nuisance

The interested parties are concerned that they would be disturbed by an increase in noise levels late at night from loud music, from patrons drinking in the outside area and from patrons leaving the premises at that time on foot and by car.

Public Safety

The interested parties are concerned over the current lack of parking and believe that the removal of the residents only condition would increase the traffic problems and affect public safety, particularly as the hotel is on the corner of a busy road junction.

Protection of Children From Harm

No representations

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.

9. APPENDICES ATTACHED

A	Application to vary the premises licence
B	Additional letter from applicant
C	Letters of objection
D	Map showing location of premises in relation to surrounding area.

10. ADDITIONAL INFORMATION

The applicant is applying for variation of the licence to have the facility to serve alcohol for non-residents, particularly when having lunch or an evening meal, and also to cater for occasional functions such as wedding receptions.

The applicant also wishes to provide regulated entertainment, primarily in the form of background music, but also occasional live music or disco for visiting childrens’ school parties as in the past, (although this did not previously need to be licensed) and for wedding receptions as mentioned before.

The applicant has also requested the removal of the ‘dry lounge’ condition. This is an old justices’ licence condition which, if the variation is granted, will no longer be relevant.

The applicant has submitted a letter with regard to noise abatement (Appendix B) in which she states that the hours applied for will not be regular opening hours and that closing hours for non-residents would generally be 2300hrs, but that she requires the facility for the extra hour for weddings as above.

There have been a high number of representations received from interested parties living in Wilton Park Road and Atherley Road (Appendix C). It is believed that many of these representations were received as a result of an unknown person ‘canvassing’ for objections in the vicinity without being aware of the full facts of the application. This has meant that a number of representations have been rejected as being either ‘irrelevant, frivolous or vexatious’ as defined in the Licensing Act, as they are either factually incorrect or do not relate to the promotion of the four licensing objectives. Where representations have been rejected, objectors have been given reasons for the rejection. Many of the representations refer to the apparently high level of crime and disorder already existing in the area, although the police have not objected to this application.

A map showing the location of the premises in relation to the surrounding area is attached (Appendix D).

The applicant has taken into account the concerns of residents and has agreed to the following conditions being placed on the licence to prevent public nuisance:

No regulated entertainment shall take place outside.
Alcohol shall not be consumed in the outside area of the premises after 2300hrs.

There are two other hotels in Atherley Road which are already open to non-residents. One of these has a licence for regulated entertainment until 2300, alcohol to 0200 and late night refreshment to 2330 for non-residents, and the other has a licence for music and alcohol until 0100 for non-residents.

With this in mind, the applicant does not feel it necessary to offer any further conditions to be placed on the licence.

Contact Point:

Sarah MacDonald

Ext 5156