APPLICATION FOR A CONVERSION AND VARIATION OF A PREMISES LICENCE – DRIFTWOOD BEACH BAR ‘N GRILL, CULVER PARADE, SANDOWN, ISLE OF WIGHT.

1. DETAILS OF THE APPLICATION

Applicant

Mr Sean Dion Ware

2 Sandy Close

Blackwater

Isle of Wight

PO30 3BU

Premises

Driftwood Beach Bar ‘n Grill

Culver Parade

Sandown

Isle of Wight

PO36 8LA

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

Mr Sean Dion Ware

2 Sandy Close

Blackwater

Isle of Wight

PO30 3BU

	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	Sunday to Monday 09:00 hrs to 23:59 hrs
(f)	Recorded music	Sunday to Monday 09:00 hrs to 23:59 hrs
(g)	Performances of Dance	Sunday to Monday 09:00 hrs to 23:59 hrs
(h)	Anything similar to (e) (f) (g) above	Sunday to Monday 09:00 hrs to 23:59 hrs

	Provision of Entertainment Facilities
(i)	making music	Sunday to Monday 09:00 hrs to 23:59 hrs
(j)	dancing	Sunday to Monday 09:00 hrs to 23:59 hrs
(k)	entertainment similar to (i) & (j) above	Sunday to Monday 09:00 hrs to 23:59 hrs
	Late Night Refreshment	Sunday to Monday 09:00 hrs to 23:59 hrs
	Supply of Alcohol	Sunday to Monday 09:00 hrs to 23:59 hrs
	Other Times Premises Proposed To Be Open To The Public	Sunday to Monday 07:30 hrs to 00:30 hrs

Steps to promote the licensing objectives

The Prevention of Crime & Disorder

The applicant states that by seeking to remain open for 30 minutes after the end of sale of alcohol will ensure an orderly dispersal of customers

Public Safety

The applicant states that by seeking to close at midnight it will avoid any possible clash of customers leaving the nearby nightclub which closes at 02:00hrs.

The applicant states that the conditions attached to the justices licence will prevent injury to public on the beach.

The Prevention of Public Nuisance

The applicant states that although he seeks the flexibility for entertainment throughout opening hours, it will only normally be provided from 20:00 hrs until 23:30 hrs on Friday, Saturday & Sunday.

The applicant states that when entertainment is provided outdoors, it will end at 22:30 hrs and the speakers will be directed towards the sea.

The Protection of Children From Harm

The applicant states that photo identification is required from all customers that appear to be under the age of 21 years.

2. LOCATION AND SITE CHARACTERISTICS

The Driftwood Beach Bar ‘n Grill is a single storey building situated on the beach in a partially residential area. The building has a kitchen and bar area with indoor seating with tables. At each end of the building there is a patio area with further seating and tables. (Appendix 2)

3. RELEVANT REPRESENTATIONS

Responsible Authorities

Police	No representations
Environmental Health Officer (Appendix 3)	Noise Nuisance: Recommends an electronic sound limiting device to control the level of noise breakout. Recommends that no public entertainment shall take place inside with the external doors or windows being kept open. Recommends signage to be clear and legible. Recommends internal communications procedure to monitor noise.
Fire Safety Officer	No outstanding objections
Planning Officer	No outstanding objections
Trading Standards Officer	No outstanding objections
Health & Safety	No outstanding objections
Children’s Services	No outstanding objections
Interested Parties	Attached as Appendix 4
Mr William & Mrs Peggy Forward ‘Seawinds’, Culver Parade, Sandown, Isle of Wight, PO36 8AT.	Concerned about the potential noise disturbance from external music at the premises and from the premises due to the later hours of opening.
Mr R. Labbett 29 Culver Parade, Sandown, Isle of Wight, PO36 8AT.	Concerned about the potential noise disturbance from the premises and at closing time.
Mrs Joan Surry Lavender Blue, 8 St Pete Way, Sandown, Isle of Wight, PO36 8DB	Concerned about the potential noise disturbance from the premises and at closing time.

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 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 Liquor Licensing Panel 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 by opening later the Driftwood Beach Bar ‘n Grill could potentially cause an increase in the amount of unruly behaviour that is currently experienced.

Prevention of Public Nuisance

Objectors claim:

That the noise from customers leaving the Driftwood Beach Bar ‘n Grill may cause a noise nuisance if the premises are open until 00:30 hrs.

· That the provision of live music may cause a noise nuisance as the location is generally quiet.

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

Application form

Plan of premises

Memorandum from Environmental Health Department

Letters of objection

9. ADDITIONAL INFORMATION

The applicant is represented by Mr Brian Oxford, Licensing Consultant.
The Driftwood Beach Bar ‘n Grill does not currently hold a Public Entertainment Licence.

Contact Point: