Purpose : For Decision

Committee: LICENSING SUB COMMITTEE

Date: 26 SEPTEMBER 2005

Title: APPLICATION FOR A CONVERSION AND VARIATION OF A PREMISES LICENCE FOR THE PRINCE OF WALES, PRINCES ROAD, FRESHWATER, ISLE OF WIGHT, PO40 9ED

REPORT OF THE HEAD OF CONSUMER PROTECTION

1. DETAILS OF THE APPLICATION

Applicant

Mr Christopher Plucknett

Mrs Wendy Plucknett

Premises

Prince of Wales

Princes Road

Freshwater

Isle of Wight PO40 9ED

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 Christopher Plucknett

	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	N/A
(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	N/A
	Supply of Alcohol	10:30 hours – 23:00 hours Monday – Thursday 10:30 hours – 24:00 hours Friday – Sunday 10:30 hours – 01:00 hours Friday, Saturday, Sunday & Monday of all bank holidays 10:30 hours – 01:00 hours Christmas Eve, Christmas Day, Boxing Day, 27 December 10:30 hours – 02:00 hours New Year’s Eve 10:30 hours – 01:00 hours – New Year’s Day, 2 & 3 January 06:00 hours start on occasion of televised sports from around the world
	Other Times Premises Proposed To Be Open To The Public	10:30 hours – 24:00 hours Monday – Thursday 10:30 hours – 01:00 hours Friday – Sunday 10:30 hours – 02:00 hours Friday, Saturday, Sunday & Monday of all bank holidays 10:30 hours – 02:00 hours Christmas Eve, Christmas Day, Boxing Day, 27 December 10:30 hours – 03:00 hours New Year’s Eve 10:30 hours – 02:00 hours – New Year’s Day, 2 & 3 January 06:00 hours start on occasion of televised sports from around the world

Steps to promote the licensing objectives

The Prevention of Crime & Disorder

All staff and ourselves are aware of law relating to on and off sales. Being a ‘local’ house we tend to know most people that may be a risk and keep them away. Only one point of charity collection, this is alarmed. Forged money detector is used. Fruit machine is kept away from outside doors, all windows lock, all doors triple lock.

Public Safety

No additional steps required.

The Prevention of Public Nuisance

There has been no complaint of public nuisance in the past and no reason to expect any over the foreseeable future.

The Protection of Children From Harm

We keep children away from the bars, encouraging them to be taken into the garden. The garden is totally enclosed with no access to the road. No play equipment is supplied, but if families bring light toys this is accepted. Children are not expected in the garden after dark.

2. LOCATION AND SITE CHARACTERISTICS

The Prince of Wales is a public house situated in a residential area of Freshwater a short distance from the high street. The premise has two bars and a small shop/off-licence which has a separate entrance. Entrance to the premises is either via the main entrance to the front or from the large garden and car park at the rear.

3. RELEVANT REPRESENTATIONS

Responsible Authorities
Police Sgt Graeme Mudge Hampshire Constabulary	Hampshire Constabulary have requested the following conditions in relation to unspecified dates and times in the application for televised sporting events from around the world. 1) A limit of 12 extensions per premises per year 2) An operating plan covering the additional measures to be taken to manage crime and disorder 3) Seven days notice to be given to the Police and Licensing Authority of the proposal to use the extended hours 4) An absolute veto for the Police in respect of any of the occasions
Environmental Health Officer	No representations
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

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 – 8.10

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 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.

Article 1 is particularly relevant in this case because a licence is viewed as a possession.

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

Hampshire Constabulary have raised concerns due to the dates for the start times of 06:00 hours being unspecific as it is considered that the Police will be unable to plan their resources to deal with any issues that may arise in relation to crime and disorder.

Prevention of Public Nuisance

No issues have been raised in connection with this objective

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 premises
3	Map showing location of premises
4	Copy of Justices ‘On’ Licence
5	Representation from Hampshire Constabulary

9. ADDITIONAL INFORMATION

The Prince of Wales currently holds a Justices ‘On’ Licence and operates to existing National Licensing hours. The applicant does not hold any entertainment at the premises and has not applied to include any entertainment or late night refreshment in the variation of the new licence. The only licensable activity will be the supply of alcohol for consumption on or off the premises.

Contact Point:

Andrea Colebrook, Licensing Enforcement Officer

Ext 5154 email: [email protected]

ROB OWEN

Head of Consumer Protection