3.
RELEVANT REPRESENTATIONS
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Responsible
Authorities
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Police
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No outstanding representations
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Environmental Health Officer
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No outstanding representations
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Fire Safety Officer
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No outstanding representations
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Planning Officer
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No outstanding representations
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Trading Standards Officer
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No outstanding representations
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Health & Safety
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No outstanding representations
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Children’s Services
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No outstanding representations
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Interested
Parties
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Objection letters from:
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Mr W B & Mrs A C Lingard
Candleford
Chale Green
Ventnor IW
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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:
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Clause
1
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Licensing Objectives
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All
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Clause
2
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Introduction
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Clause
3
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Integration of Strategies and Other
Legislation
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3.4, 3.9 and 3.11
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Clause
4
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Approach to Licensing Applications
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all
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Clause
5
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Cumulative Effect
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Clause
6
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Representation, Reviews and Appeals
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6.1, 6.4, 6.6
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Clause
7
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Enforcement
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Clause
8
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Operating Schedules
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8.5, and 8.13 to 8.20 inclusive
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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.
(c)
Article
1 of the First Protocol Protection of Property –
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
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The
prevention of public nuisance
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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.
