1.
DETAILS
OF THE APPLICATION
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Applicant |
Mrs Michelle Lay |
|
Premises |
Top Deck Forresters Hall High Street Yarmouth Isle of Wight PO41 0PL |
|
Premises
Licence Application |
This
is an application for a Premises Licence under Section 16(1)(a) of the
Licensing Act 2003. (Appendix 1) |
The
Operating Schedule shows:
|
Designated Premises
Supervisor |
Mrs
Michelle Lay |
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Provision of Regulated
Entertainment |
Hours of Licensable
Activities |
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(a) |
Plays |
N/A |
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(b) |
Films |
N/A |
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(c) |
Indoor
Sporting Events |
N/A |
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(d) |
Boxing
or Wrestling |
N/A |
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(e) |
Live
Music |
Monday-Sunday
1000-0100 |
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(f) |
Recorded
music |
Monday-Sunday
1000-0100 |
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(g) |
Performances
of Dance |
Monday-Sunday
1000-0100 |
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(h) |
Anything
similar to (e) (f) (g) above |
Monday-Sunday
1000-0100 |
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Provision of Entertainment
Facilities |
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(i) |
making
music |
Monday-Sunday
1000-0100 |
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(j) |
dancing |
Monday-Sunday
1000-0100 |
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(k) |
entertainment
similar to (i) & (j) above |
Monday-Sunday
1000-0100 |
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Late Night Refreshment |
Monday-Sunday
2300-0100 |
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Supply of Alcohol |
Monday-Sunday
1000-0100 |
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Other Times Premises
Proposed To Be Open To The Public |
Monday-Sunday
0800-0130 |
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Steps
to promote the licensing objectives
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The Prevention of Crime
& Disorder |
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The
applicant states that these are not the type of premises to cause major crime
and disorder issues. The premises
operate as a restaurant/wine bar at the premium end of the market and thus do
not attract young customers. The
applicant states that excessive drinking is not encouraged. |
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Public Safety |
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The
applicant states that the electrical and fire alarms are all new having been
completed this year. The stairway is
well lit with handrails and the area of slips, trips and falls has been dealt
with by way of a risk assessment.
There are no car parking facilities at the premises. |
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The Prevention of Public
Nuisance |
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The
applicant states that additional glazing and sound proofing has been
installed to prevent sound escaping through the fabric of the building. In addition to this the ventilation is
such that there is no need for doors and windows to be opened. The stairway and landing provide a porch
effect and the applicant claims that this also assists in preventing sound
escaping when doors are opened. The
applicant has no intention of serving hot food after 2300 hours. |
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The Protection of Children
From Harm |
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The
applicant states that photographic identification will be required from any
person who appears to be under 21 years of age. The applicant anticipates that any children attending the
premises will be accompanied by their family. |
2. LOCATION AND SITE CHARACTERISTICS
|
Top Deck is a
restaurant/bar situated on the first floor of Forresters Hall in a
predominantly residential area of Yarmouth. The premises are located next to
Yarmouth Police Station. (Appendix 2) |
3. RELEVANT REPRESENTATIONS
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Responsible
Authorities |
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Police |
No outstanding representations |
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Environmental Health Officer |
No outstanding representations |
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Fire Safety Officer |
No outstanding representations |
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Planning Officer |
No outstanding representations |
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Trading Standards Officer |
No outstanding representations |
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Health & Safety |
No outstanding representations |
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Children’s Services |
No outstanding representations |
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Interested
Parties |
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Map showing the location of objector’s
properties in relation to the premises (Appendix 3) Letters of objection (Appendix 4) |
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B & A Vernon The Deacons Yarmouth Isle of Wight PO41 0PN |
Concerned about potential
noise disturbance from traffic at unsociable hours. |
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TR & YH Brown Russells High Street Yarmouth Isle of Wight PO41 0PL |
Concerned about potential noise disturbance
from entertainment, increased numbers of vehicles and customers when leaving
the premises. Also concerned about
cooking odours that may affect occupants of neighbouring properties. Concerns have also been raised in relation
to the potential for anti social behaviour and a perceived reduction in
security and personal safety particularly of the older residents. |
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Mr David J Fentum 1a Yarmouth House High Street Yarmouth Isle of Wight PO41 0PL |
Concerned about the potential
for noise disturbance and nuisance from odours to residents. |
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D & DA Suckling 2 Grove Place South Street Yarmouth Isle of Wight PO41 0QD |
Concerned about potential
noise disturbance from regulated entertainment, ventilation equipment in the
roof of the premises and cooking odours. |
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Ms J Service Pinings Corner High Street Yarmouth Isle of Wight PO41 0PL |
Concerned about potential noise disturbance
from staff and customers when entering and leaving the premises in the early
hours of the morning. Also concerned
about noise disturbance from music, ventilation equipment, additional traffic
and the disposal and early collection of refuse. Ms Service also considers that there is an increased risk of
anti social behaviour if this application is successful. |
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Mrs Sydney Attrill 1 Grove Place South Street Yarmouth Isle of Wight |
Concerned about potential noise disturbance
from customers, regulated entertainment, refrigeration and air conditioning
units if they were to be installed in order to combat the need for windows to
be open. Also concerned about refuse
collection arrangements as the premises have no external storage area. |
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Mr M D Mence Tovah High Street Yarmouth Isle of Wight PO41 0PL |
Concerned about potential noise disturbance
from music, additional traffic, deliveries and refuse collections. Also concerned about pollution from
odours, fumes, lights and signage. Mr
Mence states there is a lack of public transport and he believes that there
is an increased risk of anti social behaviour. Concerns have also been raised in relation to public safety as
Mr Mence states that the premises have no secondary staircase for the purpose
of evacuation in case of an emergency. |
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DW Lee & HK Lee 2 The Old Dairy South Street Yarmouth Isle of Wight PO41 0QD |
Concerned about the potential for noise
disturbance from customers when leaving the premises and from an increased
amount of traffic. Also concerned
about the potential for nuisance from cooking odours, and from refuse
disposal and collection. In relation
to public safety concerns were raised regarding access and egress in an
emergency situation as they state that the premises has a steep staircase
which may be hazardous if customers have been drinking. |
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Mr & Mrs CB Anderson Foresters Cottage High Street Yarmouth Isle of Wight PO41 0PL |
Concerned about the potential for noise
disturbance from the bar service area, kitchen, customers, music both
amplified and non amplified, cooling machines & refuse disposal. Mr & Mrs Anderson state that their
property is immediately adjacent to Forresters Hall and they have quoted
extracts from a surveyors report stating that the structure of the building
is such that it cannot be readily changed to reduce noise. Concerns have also been raised in relation
to the potential for nuisance from odours due to the position of the existing
flue. |
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Mr & Mrs JA Mence Peelers High Street Yarmouth Isle of Wight PO41 0PL |
Concerned about potential noise disturbance
and disorder at weekends. Also
concerned about interference associated with odours, fumes, lights, signage
and the depositing of waste overnight.
In relation to public safety concerns have been raised regarding the
lack of a secondary means of escape in the event of a fire. Mr & Mrs Mence also state that there
is a lack of public transport in Yarmouth during the evenings. |
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Mrs S Donaldson Anson High Street Yarmouth Isle of Wight PO41 0PL |
Concerned about the potential for noise
disturbance. |
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 |
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Clause
2 |
Introduction |
2.1 |
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Clause
3 |
Integration of Strategies and Other
Legislation |
3.1, 3.2, 3.4, 3.11 |
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Clause
4 |
Approach to Licensing Applications |
All |
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Clause
5 |
Cumulative Effect |
N/A |
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Clause
6 |
Representation, Reviews and Appeals |
6.6 - 6.8 |
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Clause
7 |
Enforcement |
N/A |
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Clause
8 |
Operating Schedules |
8.1, 8.2, 8.13 – 8.19, 8.22 |
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.
(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”.
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.
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
|
Objectors have raised concerns in relation to the
potential for anti social behaviour. |
Prevention of
Public Nuisance
|
All objectors have raised concerns in relation to
the potential for public nuisance in respect of noise from regulated
entertainment, customers and staff when leaving the premises, additional
traffic noise, refuse disposal and pollution in the form of cooking odours
and lights from signage. |
Public Safety
|
Several objectors have raised concerns in relation
to the lack of secondary means of escape in the event of an emergency. |
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
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Application form |
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Plan of the premises |
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Map showing the location of objector’s properties
in relation to the premises. |
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Copy of all relevant outstanding objections
received. |
9. ADDITIONAL INFORMATION
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These premises have
previously been granted a Justices ‘On’ Licence subject to conditions that
were mutually agreed at the court hearing between the objectors and the
previous manager of the premises, these conditions were as follows:
The Environmental Health
Department have recommended conditions that should be attached to this
application, these have all been agreed by the applicant and are as follows:
|
Contact
Point:
|
Andrea
Colebrook |
Ext
5154 |
ROB
OWEN
Head of Consumer Protection