Paper C

1. DETAILS OF THE APPLICATION

Applicant

Bernay Hotel

Premises

24 Victoria Road

Sandown

Isle of Wight

PO36 8AL

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 variation of the Premises Licence during the transitional period under Schedule 8 paragraph 7(1) (b) of the Licensing Act 2003.

The Operating Schedule shows:

Designated Premises Supervisor

Mr Geoffrey Arnold Avison

Bernay Hotel

24 Victoria Road

Sandown

Isle of Wight

PO36 8AL

	Provision of Regulated Entertainment	Hours of Licensable Activities

(a)	Plays	Not Applicable
(b)	Films	Not Applicable
(c)	Indoor Sporting Events	Not Applicable
(d)	Boxing or Wrestling	Not Applicable
(e)	Live Music	See (h) Below
(f)	Recorded music	See (h) Below
(g)	Performances of Dance	See (h) Below
(h)	Anything similar to (e) (f) (g) above	Monday to Sunday 07:00 hours until 01:00 hours

	Provision of Entertainment Facilities

(i)	making music	See (k) Below
(j)	dancing	See (k) Below
(k)	entertainment similar to (i) & (j) above	Monday to Sunday 07:00 hours until 01:00 hours

	Late Night Refreshment	Not Applicable

	Supply of Alcohol	Monday to Sunday 10:30 hours until 23:00 hours
	Non Standard Timings Applicable to all Activities	Christmas Eve and New Years Eve until 02:00 hours
	Conditions To Be Removed	Conditions attached to Justices Residential Licence

Steps to promote the licensing objectives

The Prevention of Crime & Disorder

To check if person appears to be under 21 years

Public Safety

Emergency exit signs to be in place
Fire and electrical certificates to be kept in date
Fire fighting appliances checked yearly
Trip hazards to be monitored

The Prevention of Public Nuisance

Doors and windows to be kept closed during the performance of live and recorded music

The Protection of Children From Harm

Children must be accompanied by a responsible adult
All children must leave before 22:00 hours
Children not allowed to wander around

2. LOCATION AND SITE CHARACTERISTICS

The Bernay Hotel is a 10 bedroom hotel with accommodation for 22 adults. The building is situated in a residential area with a hotel to one side and a private residential house to the other. Entry to the premises is through a lobbied sun-lounge. The ground floor comprises of the bar and lounge to the front of the building with seating and tables for guests. (Appendix 2)

3. RELEVANT REPRESENTATIONS

Responsible Authorities	(Appendix 3)

Police	No representations

Environmental Health Officer Mr Gareth Davies Principal Environmental Health Practitioner Jubilee Stores The Quay Newport Isle of Wight PO30 2EH	Noise Nuisance: Recommendation: that prior to any public entertainment taking place after 23:00 hours, either a) a noise limiter shall be installed or b) a sound integrity report from a qualified acoustician be carried out and the recommendations acted upon. Recommendation: internal communication procedure to be in place to receive and respond to noise complaints.

Fire Safety Officer	No representations

Planning Officer	No representations

Trading Standards Officer	No representations

Health & Safety	No representations

Children’s Services	No representations

Interested Parties	No representations

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 & 3.11
Clause 4	Approach to Licensing Applications	All
Clause 5	Cumulative Effect
Clause 6	Representation, Reviews and Appeals
Clause 7	Enforcement
Clause 8	Operating Schedules	8.1 8.2 8.3 to 8.9 8.13 to 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”.

Article 8 is relevant in this case, as the Licensing 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 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.

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

None Raised

Prevention of Public Nuisance

The Principal Environmental Health practitioner claims that if the application is granted it could cause a noise nuisance to neighbours.

Public Safety

None Raised

Protection of Children From Harm

None 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