Committee: LICENSING SUB-COMMITTEE

Date: 22 SEPTEMBER 2005

Title: APPLICATION FOR CONVERSION AND VARIATION OF PREMISES LICENCE – THE LAST RESORT, 33-35 HIGH STREET, SHANKLIN, ISLE OF WIGHT

REPORT OF THE HEAD OF CONSUMER PROTECTION

_____________________________________________________________________

1. DETAILS OF THE APPLICATION

Applicant	Clive Russell White and Natasha White
Premises	The Last Resort, 33-35 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 A)

The Operating Schedule shows:

Designated Premises Supervisor

Mr Clive Russell White

	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	11:00 hours to 23:59 hours all days (background music for members of the public taking table meals on the premises. Evenings only during summer months)
(g)	Performances of Dance	N/A
(h)	Anything similar to (e) (f) (g) above	N/A
	Provision of Entertainment Facilities
(i)	making music	N/A
(j)	dancing	N/A
(k)	entertainment similar to (i) & (j) above	N/A
	Late Night Refreshment	23:00 hours to 23:59 hours (hot food and hot drinks will be provided for consumption on the premises).
	Supply of Alcohol	11:00 hours to 23:59 hours all days
	Other Times Premises Proposed To Be Open To The Public	11:30 hours to 00:15 hours all days (the premises tends to close during the morning during the summer months of July and August).
	Conditions to be removed	To remove the limit on the supply of alcohol to those persons taking table meals on the premises, and allow the supply of alcohol to any member of the public who wishes to purchase such a drink for consumption on the premises.

Steps to promote the licensing objectives

General

The applicant is on the premises during the time when it is open to the public, keeping the premises under proper supervision.

The Prevention of Crime & Disorder

There are no problems of crime and disorder on these premises and no special steps are required other than the general supervision of the premises by the Personal Licence holder (also the Premises Supervisor).

Public Safety

The applicant is fully aware of Health & Safety requirements. There are no problems with public safety on these premises and no special steps are required other than the general supervision of the premises by the Personal Licence Holder (also the DPS).

The Prevention of Public Nuisance

There are no problems of public nuisance on these premises and special steps are required other than the general supervision of the premises by the Personal Licence holder (also the DPS).

The Protection of Children From Harm

Children are permitted on the premises when accompanied by a responsible adult. There are no problems with exposing children to harm on these premises and no special steps are required other than the general supervision of the premises by the Personal Licence holder (also the DPS).

2. LOCATION AND SITE CHARACTERISTICS

The premises is situated in the High Street in Shanklin. It operates as a restaurant providing table meals to members of the public. Background music is provided by means of a CD player. Alcohol is served to those taking table meals, as an ancillary to the meal.

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
Objection letters from:	Davina Butterfield 33a High Street Shanklin Isle of Wight PO37 6LP (Appendix B)

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	8.13 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

No representations raised

Prevention of Public Nuisance

The objector is concerned about disturbance from loud music and crashing bottles, and feels that the hours they have already are late enough.

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

A.	Application form with attachments
B.	Objection letter
C.	Letter from applicants’ solicitor
D.	Map showing location of premises in relation to surrounding area