Paper A

1. DETAILS OF THE APPLICATION

Applicant

Mrs Allison Merrett

Mrs Victoria Sanders

Premises

The Colwell Bay Inn

Colwell Road

Freshwater

Isle of Wight PO40 9LZ

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. (Appendix 1)

The Operating Schedule shows:

Designated Premises Supervisor

Mrs Allison Merrett

	Provision of Regulated Entertainment	Hours of Licensable Activities
(a)	Plays	N/A
(b)	Films	10.00 – 00.30 hours each day
(c)	Indoor Sporting Events	10.00 – 00.30 hours each day
(d)	Boxing or Wrestling	N/A
(e)	Live Music	10.00 – 2400 hours each day
(f)	Recorded music	10.00 – 24.00 hours each day
(g)	Performances of Dance	N/A
(h)	Anything similar to (e) (f) (g) above	10.00 – 24.00 hours each day
	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 – 00.30 hours each day
	Supply of Alcohol	10.00 – 24.00 hours each day 10.00 hours New Year’s Eve - 01.00 hours on 2 January 10.00 – 01.00 hours Friday – Monday on all Bank Holidays, Christmas Eve and Boxing Day
	Other Times Premises Proposed To Be Open To The Public	10.00 – 00.30 hours each day. Hours extended by thirty minutes after last sale on 2 January, Friday – Monday on all Bank Holidays, Christmas Eve and Boxing Day.

Steps to promote the licensing objectives

The Prevention of Crime & Disorder

The applicants believe that providing a thirty minute extension of opening hours after the end of the sale of alcohol will promote this objective, as the last drink will be consumed less quickly and will provide customers access to the pubs toilet facilities. Also the applicants intend to provide non-alcoholic refreshments during this period.

Public Safety

The applicants state that a risk assessment has not identified any risk of crowding.

The Prevention of Public Nuisance

The applicants state that live music will end at midnight except on New Years Eve and New Years Day when it is intended that all music will end at 00.30 hours. Recorded music indoors will end at 00.30 hours and will be reduced to background level during the wind down period.

The applicants have stated that all windows will be kept closed after 22.00 hours, the use of the garden will end at or before 23.00 hours and that notices will be placed in prominent positions on exits requesting that customers leave the premises quietly.

The applicants have also stated that the kitchen extractor filters will be cleaned on a weekly basis in order to minimise any cooking odours to residents.

The Protection of Children From Harm

The applicants state that the restrictions set out in the Licensing Act 2003 will apply. Photographic proof of age will be required to be shown by anyone seeking to purchase alcohol who appears to be under twenty years of age.

2. LOCATION AND SITE CHARACTERISTICS

The Colwell Bay Inn is a detached public house situated on the main road between Yarmouth and Freshwater. It has a separate dining area, a patio to the front of the building and a garden to the rear, it also has a car park. (Appendix 2)

3. RELEVANT REPRESENTATIONS

Responsible Authorities
Police	No representations outstanding
Environmental Health Officer	No representations outstanding
Fire Safety Officer	No representations outstanding
Planning Officer	No representations outstanding
Trading Standards Officer	No representations outstanding
Health & Safety	No representations outstanding
Children’s Services	No representations outstanding
Interested Parties
(Appendix 3)
Mr Mark Lawrence L’Ancresse Colwell Road Freshwater Isle of Wight PO40 9LZ	Concerned about potential noise disturbance from customers using the patio area at the front of the premises and when leaving the premises.
Mrs Janet & Mr Peter Haire Stanbury Colwell Road Totland Bay Isle of Wight PO39 0AH	Concerned about potential disturbance to elderly residents from customers leaving the premises.
Mrs Wendy & Mr Peter Tayler Bayside Colwell Chine Road Isle of Wight	Concerned about potential noise disturbance from music emanating from the premises.
Ms Nicky Drew & Mr Bob Hurle Rockstone Cottage Colwell Chine Road Freshwater Isle of Wight	Concerned about potential noise disturbance from the premises and from vehicles and customers when leaving the premises. Also concerned about the potential for disturbances caused by customers behaving badly after a few drinks.
Mrs A & Mr J Denby Surrey Cottage Colwell Road Freshwater Isle of Wight PO40 9LZ	Concerned about potential noise disturbance from entertainment and customers when leaving the premises.
Mrs Agnes & Mr Colin Chambers The Moorings Colwell Close Freshwater Isle of Wight PO40 9NA	Concerned about potential noise disturbance from the premises if doors are left open and the noise from customers on the patio to the front of the building. Also concerned about potential noise disturbance from customers when leaving the premises.

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	1.1 – 1.5
Clause 2	Introduction	2.1
Clause 3	Integration of Strategies and Other Legislation	3.1, 3.2, 3.5, 3.9, 3.10, 3.11, 3.12
Clause 4	Approach to Licensing Applications	4.1, 4.2, 4.3, 4.5
Clause 5	Cumulative Effect	N/A
Clause 6	Representation, Reviews and Appeals	6.1
Clause 7	Enforcement	7.1
Clause 8	Operating Schedules	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 sub 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 magistrates’ 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 variation to 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

Objectors claim that the potential for ‘bad’/’loutish’ behaviour may increase if the application is successful due to increased amounts of alcohol being consumed.

Prevention of Public Nuisance

Objectors claim that the noise from customers using the patio at the front of the premises and when leaving the premises both on foot and by vehicle may cause a nuisance to residents. Objectors also believe that this could prove detrimental to the security and wellbeing of elderly residents.

Objectors claim that the provision of music until midnight may cause a noise nuisance to persons living in the vicinity.

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	Letters of objection
4	Justices’ ‘On ‘ Licence & Supper Hours Certificate

9. ADDITIONAL INFORMATION

The premises currently has a Justices ‘On’ Licence and a Supper Hours Certificate (Appendix 4),which permits the sale of alcohol to take place for a further one hour after current permitted hours ie.Until midnight Monday- Saturday and until 23.30 hours on Sunday, provided that hot food is available.

The Supper Hours Certificate also extends the current twenty minute ‘drinking up’ period to thirty minutes. The applicants therefore automatically have the hours they are requesting for the sale of alcohol and the hours in which premises are open to the public by way of conversion. The applicants have applied to extend the period in which they may supply hot food and hot drinks for a further thirty minutes and for the inclusion on their licence of regulated entertainment, these activities are stated on pages B - 1 and B - 2 of this report.

The only matters for consideration today are the representations made by the interested parties in relation to the issues of potential public nuisance and crime and disorder.

Contact Point:

Andrea Colebrook

Ext 5154

ROB OWEN

Head of Consumer Protection