Paper B

1. DETAILS OF THE APPLICATION

Applicant

Mrs Rachel Ann Kennedy

Premises

The Waverley Hotel

2 Clatterford Road

Carisbrooke

Newport

Isle of Wight

PO30 1PA

Variation Application

This is an application for a variation of a Premises Licence under Section 34(1) of the Licensing Act 2003.

The Operating Schedule shows:

Designated Premises Supervisor

Mr Stephen Robert Kennedy

	Provision of Regulated Entertainment	Hours of Licensable Activities

(a)	Plays	N/A
(b)	Films	Sunday-Thursday 1000-0001 Friday & Saturday 1000-0100 One additional hour after the finish times on the following occasions:- New Year’s Day, Valentines Day, Thursday – Monday of the Easter Bank Holiday Weekend, Sunday & Monday of all Bank Holiday Weekends, St Patrick’s Day, St George’s Day, St David’s Day, St Andrew’s Day, 23^rd-30^th December inclusive. New Year’s Eve 36 hours as per existing provisions.
(c)	Indoor Sporting Events	Sunday-Thursday 1000-0001 Friday & Saturday 1000-0100 One additional hour after the finish times on the following occasions:- New Year’s Day, Valentines Day, Thursday – Monday of the Easter Bank Holiday Weekend, Sunday & Monday of all Bank Holiday Weekends, St Patrick’s Day, St George’s Day, St David’s Day, St Andrew’s Day, 23^rd-30^th December inclusive. New Year’s Eve 36 hours as per existing provisions.
(d)	Boxing or Wrestling	N/A
(e)	Live Music	Sunday-Thursday 1000-0001 Friday & Saturday 1000-0100 One additional hour after the finish times on the following occasions:- New Year’s Day, Valentines Day, Thursday – Monday of the Easter Bank Holiday Weekend, Sunday & Monday of all Bank Holiday Weekends, St Patrick’s Day, St George’s Day, St David’s Day, St Andrew’s Day, 23^rd-30^th December inclusive. New Year’s Eve 36 hours as per existing provisions.
(f)	Recorded music	Sunday-Thursday 1000-0001 Friday & Saturday 1000-0100 One additional hour after the finish times on the following occasions:- New Year’s Day, Valentines Day, Thursday – Monday of the Easter Bank Holiday Weekend, Sunday & Monday of all Bank Holiday Weekends, St Patrick’s Day, St George’s Day, St David’s Day, St Andrew’s Day, 23^rd-30^th December inclusive. New Year’s Eve 36 hours as per existing provisions.
(g)	Performances of Dance	Sunday-Thursday 1000-0001 Friday & Saturday 1000-0100 One additional hour after the finish times on the following occasions:- New Year’s Day, Valentines Day, Thursday – Monday of the Easter Bank Holiday Weekend, Sunday & Monday of all Bank Holiday Weekends, St Patrick’s Day, St George’s Day, St David’s Day, St Andrew’s Day, 23^rd-30^th December inclusive. New Year’s Eve 36 hours as per existing provisions.
(h)	Anything similar to (e) (f) (g) above	Sunday-Thursday 1000-0001 Friday & Saturday 1000-0100 One additional hour after the finish times on the following occasions:- New Year’s Day, Valentines Day, Thursday – Monday of the Easter Bank Holiday Weekend, Sunday & Monday of all Bank Holiday Weekends, St Patrick’s Day, St George’s Day, St David’s Day, St Andrew’s Day, 23^rd-30^th December inclusive. New Year’s Eve 36 hours as per existing provisions.

	Provision of Entertainment Facilities

(i)	making music	Sunday-Thursday 1000-0001 Friday & Saturday 1000-0100 One additional hour after the finish times on the following occasions:- New Year’s Day, Valentines Day, Thursday – Monday of the Easter Bank Holiday Weekend, Sunday & Monday of all Bank Holiday Weekends, St Patrick’s Day, St George’s Day, St David’s Day, St Andrew’s Day, 23^rd-30^th December inclusive. New Year’s Eve 36 hours as per existing provisions.
(j)	dancing	Sunday-Thursday 1000-0001 Friday & Saturday 1000-0100 One additional hour after the finish times on the following occasions:- New Year’s Day, Valentines Day, Thursday – Monday of the Easter Bank Holiday Weekend, Sunday & Monday of all Bank Holiday Weekends, St Patrick’s Day, St George’s Day, St David’s Day, St Andrew’s Day, 23^rd-30^th December inclusive. New Year’s Eve 36 hours as per existing provisions.
(k)	entertainment similar to (i) & (j) above	N/A

	Late Night Refreshment	N/A

	Supply of Alcohol	Sunday-Thursday 1000-0001 Friday & Saturday 1000-0100 One additional hour after the finish times on the following occasions:- New Year’s Day, Valentines Day, Thursday – Monday of the Easter Bank Holiday Weekend, Sunday & Monday of all Bank Holiday Weekends, St Patrick’s Day, St George’s Day, St David’s Day, St Andrew’s Day, 23^rd-30^th December inclusive. New Year’s Eve 36 hours as per existing provisions.

	Other Times Premises Proposed To Be Open To The Public	Sunday-Thursday 1000-0030 Friday & Saturday 1000-0130 30 minutes after the sale of alcohol times for non standard days listed above.

Steps to promote the licensing objectives

The Prevention of Crime & Disorder

The applicant states that by providing a thirty minute extension of opening hours after the end of the sale of alcohol this objective will be promoted as the last drink will be consumed less quickly, with access to the pub’s toilet facilities.

Regular liaison with Police.

Proof of age verification scheme in operation.

Zero tolerance policy on the use or supply of drugs.

Public Safety

The applicant states that the fire safety measures with which the premises are provided will be maintained in good working order, and their adequacy will be determined on a regular basis by carrying out a fire risk assessment. As the safety of occupants is influenced by numbers of persons present, their disposition and the activities taking place, a safe occupancy level will be maintained.

No risks are identified that are not covered by other legislation.

Annual Corgi testing of appliances and PAT testing as required.

The Prevention of Public Nuisance

The applicant states that all regulated entertainment will end at least an hour before the supply of alcohol.

Regular noise checks during regulated entertainment.

Customer notices re leaving the premises quietly.

Outside areas kept clean and tidy and bins emptied regularly.

No drinks taken off site apart from off-sales.

The Protection of Children From Harm

The applicant states that the restrictions set out in the Licensing Act 2003 will apply.

No unusual risks of harm to children are identified.

Proof of Age scheme in operation.

2. LOCATION AND SITE CHARACTERISTICS

The Waverley Hotel is a large detached public house consisting of two bars, a garden and a car park. A plan of the premises is attached as Appendix 2. The premises is situated on a busy road located in a residential area of Carisbrooke, A map showing the location of the premises and the objector’s property is attached as Appendix 3.

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 4)
Mr D Barnard Church End 9 The Barns Priory Farm Lane Newport Isle of Wight PO30 5JZ	Concerned about potential noise disturbance and nuisance to local residents if the premises are permitted to remain open for a longer period of time.

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	2.1
Clause 3	Integration of Strategies and Other Legislation	3.1, 3.2, 3.4, 3.11
Clause 4	Approach to Licensing Applications	All
Clause 5	Cumulative Effect	N/A
Clause 6	Representation, Reviews and Appeals	6.6 - 6.8
Clause 7	Enforcement	N/A
Clause 8	Operating Schedules	8.1, 8.2, 8.13 – 8.20

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.

3.53 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”.

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 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.

ARTICLE 6 is particularly relevant in this case as it has been held that the fact there is a right of appeal to the magistrate’s court from any decision of the Licensing Sub Committee is sufficient to make the Council’s licensing system compliant with the convention rights.

ARTICLE 8 is particularly relevant in this case because in considering whether to grant the Premises Licence, the Licensing Sub Committee will have to balance the rights of residents against the applicant’s right to run their business.

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 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 objections raised:

Demand: This is clearly not a matter for a Licensing Authority as advised by paragraph 3.12 of national guidance.

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

The Prevention of Crime & Disorder

No issues have been raised in connection with this objective.

Prevention of Public Nuisance

Mr Barnard has raised concerns in relation to the potential for noise disturbance to local residents.

Public Safety

No issues have been raised in connection with this objective.

Protection of Children from Harm

No issues have been raised in connection with this objective.

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
2	Plan of the premises
3	Map showing the location of objector’s property in relation to the premises.
4	Copy of objection letter received.

9. ADDITIONAL INFORMATION

The Waverley Hotel was granted a Premises Licence by way of conversion on 10 August 2005 under the transitional arrangements. At this time no application to vary the Premises Licence to include regulated entertainment was made. The applicant wishes to be able to provide regulated entertainment and has therefore submitted this application to vary the existing Premises Licence to authorise such activities.