PAPER B
Purpose: For Decision
Committee: LICENSING SUB-COMMITTEE
Date: 29 JANUARY 2007
Title: APPLICATION
FOR THE REVIEW OF A PREMISES LICENCE FOR BAR BLUU, 17 ST JAMES STREET, NEWPORT,
ISLE OF WIGHT, PO30 5HB
REPORT OF THE HEAD OF
CONSUMER PROTECTION
1.
SUMMARY/PURPOSE
For the Licensing Sub-Committee to determine an application made under section 51 of the Licensing Act 2003, to review a premises licence.
2.
BACKGROUND
a) The
mechanism to review a premises licence exists to protect the community where
problems associated with crime and disorder, public safety, public nuisance or
the protection of children from harm are occurring at a premise for which a
premises licence has been granted under the Licensing Act 2003.
b) At
any stage, following the grant of a premises licence, a responsible authority,
such as the police or the fire authority, or an interested party, such as a
resident living in the vicinity of the premises, may ask the licensing
authority to review the licence because of a matter arising at the premises in connection
with any of the four licensing objectives.
c) Licensing
authorities may not initiate their own reviews of premises licences. Officers
of the local authority who are specified as responsible authorities under the
2003 Act, such as Environmental Health Officers, may however request reviews on
any matter which relates to the promotion of one or more of the licensing
objectives.
3.
DETAILS OF THE APPLICATION
|
Applicant Name and Address |
Hampshire Constabulary Chief Superintendent
Morgan Police Station Newport Isle of Wight PO30 1SZ |
|
Premises Being Reviewed |
Bar Bluu 17 St James Street Newport Isle of Wight PO30 5HB |
|
Licence Holder |
Coralshade Limited Fleet Court New Fields Stinsford Road Poole Dorset BH17 0NF |
|
Application |
This application is for a review of a Premises
Licence under Section 51 of the Licensing Act 2003. |
The Operating Schedule shows:
|
Designated Premises Supervisor |
Mr Andrew Philip Woodward |
|
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|
Provision
of Regulated Entertainment |
Hours
of Licensable Activities |
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(a) |
Plays |
N/A |
|
(b) |
Films |
N/A |
|
(c) |
Indoor Sporting Events |
N/A |
|
(d) |
Boxing or Wrestling |
N/A |
|
(e) |
Live Music |
Each day 00:01hrs until 23:59hrs |
|
(f) |
Recorded music |
Each day 00:01hrs until 23:59hrs |
|
(g) |
Performances of Dance |
Each day 00:01hrs until 23:59hrs |
|
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Provision
of Entertainment Facilities |
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(i) |
Making music |
Each day 00:01hrs until 23:59hrs |
|
(j) |
Dancing |
Each day 00:01hrs until 23:59hrs |
|
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|
Late
Night Refreshment |
Each day 23:00 hrs until 05:00hrs |
|
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Supply
of Alcohol |
Each day 00:01hrs until 23:59hrs |
|
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Other
Times Premises Proposed To Be Open To The Public |
Each day 00:01hrs until 23:59hrs |
Conditions of the Existing Premises Licence
|
The
Prevention of Crime & Disorder |
|
1.
On occasions when the
risk assessment identifies the need for one or more individuals to be present
at the premises to carry out a security activity, such individuals will be
licensed by the Security Industry Authority 2.
No licensable activity
shall be permitted unless a CCTV system has been installed and is operating
to the written satisfaction of the Local Licensing Authority, such CCTV shall
be maintained. Copies of the recorded
images and/or tapes shall be immediately available to the police and
licensing authority with 24 hours notice.
Recordings shall be kept for a minimum of 30 days |
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Public
Safety |
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3.
Risk assessments to be
maintained in relation to slips, trips, falls and electrical safety 4.
Premises to continue
to use air conditioning |
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The
Prevention of Public Nuisance |
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5.
Premises to continue
to use noise limiter 6.
No hot food to be
provided after 23:00 hours |
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The
Protection of Children From Harm |
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7. Photographic
identification to be requested from anyone who appears to be under 18 years
of age |
4.
LOCATION AND
SITE CHARACTERISTICS
|
Bar
Bluu is a bar/restaurant situated in Lower St James Street in central
Newport. The premise is adjacent to
Club Temptation and is set over two floors with the bar situated on the
ground floor and the restaurant on the first floor. Entrance to the premises is to the front of the building across
a small patio area. |
5.
REPRESENTATIONS
THAT ARE RELEVANT TO ONE OR MORE OF THE LICENSING OBJECTIVES
|
Responsible Authorities |
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Police |
Application for
review (Appendix 1) |
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Environmental
Health Officer |
No
representations |
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Fire Safety
Officer |
No
representations |
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Planning Officer |
No
representations |
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Trading
Standards Officer |
No
representations |
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Health &
Safety |
No
representations |
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Children’s
Services |
No
representations |
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Interested Parties |
No
representations |
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|
6.
LOCAL POLICY
CONSIDERATIONS
It is considered that the following
paragraphs 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 paragraphs |
|
Clause 2 |
Introduction |
All paragraphs |
|
Clause 3 |
Integration of
Strategies and Other Legislation |
3.1 to 3.5 3.9, 3.10 |
|
Clause 4 |
Approach to
Licensing Applications |
4.1 to 4.3 4.5, 4.6 |
|
Clause 5 |
Cumulative
Effect |
N/A |
|
Clause 6 |
Representation,
Reviews and Appeals |
All paragraphs |
|
Clause 7 |
Enforcement |
All paragraphs |
|
Clause 8 |
Operating
Schedules |
8.1 to 8.2 8.3, 8.5 to 8.10
|
7.
NATIONAL
GUIDANCE
7.1
National
guidance regarding control of areas outside the premises is as follows:
Paragraph 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.
7.2
National
guidance regarding reviews is as follows:
Paragraph 5.100 At any stage following the grant of a
premises licence, a responsible authority or an interested party may ask the
licensing authority to review the licence because of a matter arising at the
premises in connection with any of the four licensing objectives.
Paragraph 5.102 In every case, the representation must relate to particular
premises for which a premises licence is in existence and must be relevant to
the promotion of the licensing objectives. Representations must be in writing
and may be amplified at the subsequent hearing or may stand in their own right.
Additional representations which do not amount to an amplification of the
original representation may not be made at the hearing.
Paragraph 5.103 It is important to recognise that the promotion of the
licensing objectives relies heavily on a partnership between licence holders,
authorised persons, interested parties and responsible authorities in pursuit
of common aims. It is therefore equally important that reviews are not used to
drive a wedge between these groups in a way that would undermine the benefits
of cooperation. It would therefore be good practice for authorised persons and
responsible authorities to give licence holders early warning of their concerns
about problems identified at the premises concerned and of the need for
improvement. It is expected that a failure to respond to such warnings would
lead to a decision to request a review.
Paragraph 5.105 Licensing authorities are expected to be aware of the need
to prevent attempts to review licences merely as a second bite of the cherry
following the failure of representations to persuade the licensing authority on
earlier occasions. It is for licensing authorities themselves to judge what
should be regarded as a reasonable interval in these circumstances. However,
the Secretary of State recommends that more than one review originating from an
interested party should not be permitted within a period of twelve months on
similar grounds save in compelling circumstances or where it arises following a
closure order.
Paragraph 5.106 Following receipt of a request for a review from a
responsible authority or an interested party or in accordance with the closure
procedures described in Part 8 of the 2003 Act, the licensing authority must
arrange a hearing. The arrangements for the hearing must follow the provisions set
out by the Secretary of State in regulations. The Secretary of State considers
it particularly important that the premises licence holder is fully aware of
the representations made in respect of the premises, any evidence supporting
the representations and that he or his legal representatives has therefore been
able to prepare a response.
7.3
National
guidance regarding the powers of a licensing authority on the determination of
a review is as follows:
Paragraph 5.108 The licensing authority may decide that no action is
necessary if it finds that the review does not require it to take any steps
necessary to promote the licensing objectives. In addition, there is nothing to
prevent a licensing authority issuing an informal warning to the licence holder
and/or to recommend improvement within a particular period of time. It is
expected that licensing authorities will regard such warnings as an important
mechanism for ensuring that the licensing objectives are effectively promoted
and that warnings should be issued in writing to the holder of the licence.
However, where responsible authorities like the police or environmental health
officers have already issued warnings requiring improvement – either orally or
in writing – that have failed as part of their own stepped approach to
concerns, licensing authorities should not merely repeat that approach.
Paragraph
5.109 Where
the licensing authority considers that action under its statutory powers is
necessary, it may take any of the following steps:
7.3.1 to modify the conditions of the premises licence
(which includes adding new conditions or any alteration or omission of an
existing condition), for example, by reducing the hours of opening or by
requiring door supervisors at particular times;
7.3.2 to exclude a licensable activity from the scope of
the licence, for example, to exclude the performance of live music or playing
of recorded music (where it is not within the incidental live and recorded
music exemption);
7.3.3 to remove the designated premises supervisor, for
example, because they consider that the problems are the result of poor
management;
7.3.4 to suspend the licence for a period not exceeding
three months;
7.3.5 to revoke the licence.
Paragraph
5.110 In
deciding which of these powers to invoke, it is expected that licensing
authorities should so far as possible seek to establish the cause or causes of
the concerns which the representations identify. The remedial action taken
should generally be directed at these causes and should always be no more than a
necessary and proportionate response. For example, licensing authorities should
be alive to the possibility that the removal and replacement of the designated
premises supervisor may be sufficient to remedy a problem where the cause of
the identified problem directly relates to poor management decisions made by
that individual. Equally, it may emerge that poor management is a direct
reflection of poor company practice or policy and the mere removal of the
designated premises supervisor may be an inadequate response to the problems
presented. Indeed, where subsequent review hearings are generated by
representations, it should be rare merely to remove a succession of designated
premises supervisors as this would be a clear indication of deeper problems
which impact upon the licensing objectives.
Paragraph
5.111 Licensing
authorities should also note that modifications of conditions and exclusions of
licensable activities may be imposed either permanently or for a temporary
period of up to three months. Accordingly temporary changes or suspension of
the licence for up to three months may be imposed. This could impact on the
business holding the licence financially and would only be expected to be
pursued as a necessary means of promoting the licensing objectives.
Accordingly, a licence could be suspended for a weekend as a means of deterring
the holder from allowing the problems that gave rise to the review to happen
again. However, it will always be important that any detrimental financial
impact that may result from a licensing authority’s decision is necessary and
proportionate to the promotion of the licensing objectives in the circumstances
that gave rise to the application for a review.
7.4
National
guidance regarding public nuisance is as follows:
Paragraph
7.39: The 2003 Act requires licensing authorities following receipt of relevant
representations and, through the making of representations, responsible
authorities to make judgements about what constitutes public nuisance and what
is necessary, in terms of conditions attached to specific premises licences and
club premises certificates to prevent it. It is therefore important that in
considering the promotion of this licensing objective, licensing authorities
and responsible authorities focus on impacts of the licensable activities at
the specific premises on persons living and working (including doing business)
in the vicinity that are disproportionate and unreasonable. The issues will
mainly concern noise nuisance, light pollution, noxious smells and litter.
Paragraph
7.40: Public nuisance is given a statutory meaning in many pieces of
legislation. It is however not narrowly defined in the 2003 Act and retains its
broad common law meaning for the Act’s purposes. The prevention of public
nuisance could therefore include low-level nuisance perhaps affecting a few
people living locally as well as major disturbance affecting the whole
community. It may also include in appropriate circumstances the reduction of
the living and working amenity and environment of interested parties (as
defined in the 2003 Act) in the vicinity of licensed premises.
Paragraph
7.41: Conditions relating to noise nuisance will normally concern steps
necessary to control the levels of noise emanating from premises, from simple
mechanisms like ensuring that doors and windows are kept closed after a
particular time in the evening to more sophisticated mechanisms like sound
level inhibitors on amplification equipment or sound proofing. Any conditions
necessary to promote the prevention of public nuisance should be tailored to
the style and characteristics of premises and the type of activities expected
to take place there.
Paragraph
7.42: As with all conditions, it will be clear that conditions relating to
noise nuisance may in certain circumstances not be necessary where the
provisions of the Environmental Protection Act 1990 and of the Noise Act 1996
adequately protect those living in the vicinity of the premises in question.
But as stated earlier in this Guidance, the approach of licensing authorities
and responsible authorities should be one of prevention and when their powers
are engaged, licensing authorities should be aware of the fact that other
legislation may not adequately cover concerns raised in relevant
representations and additional conditions may be necessary.
Paragraph
7.43: Where applications have given rise to representations, any necessary and
appropriate conditions should normally focus on the most sensitive periods. For
example, music noise from premises usually occurs from mid-evening until either
late evening or early morning when residents in adjacent properties may be
attempting to go to sleep or are sleeping. In certain circumstances, conditions
relating to noise may also prove necessary to address any disturbance anticipated
as customers enter and leave the premises and therefore, in the immediate
vicinity of the premises.
8.
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, 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.
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 thus making Article 6
relevant in this case.
The Licensing Authority supports the
establishment and implementation of a protocol
agreed with Hampshire and Isle of Wight Police for the reduction of crime and
disorder associated with any licensed activities.
9.
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.
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 (if any) as it considers
necessary for the promotion of the licensing objectives:
i.
To modify the conditions of the licence.
ii.
To exclude a licensable activity from the scope of
the licence
iii.
To remove the designated premises supervisor
iv.
To suspend the licence for a period not exceeding
three months
v.
To revoke the licence
The Licensing
Sub-Committee is asked to note that it may not take the above steps merely
because it considers it desirable to do so.
It must actually be necessary in order to promote the licensing
objectives.
Under the headings of the
4 licensing objectives, Hampshire Constabulary have made the following
representations in their application for review:
The Prevention of Crime & Disorder
|
·
The police state that Mr Woodward the DPS
has operated the premises otherwise than in accordance with the Premises
Licence issued on 6/7/06, in respect of the condition at Annex 3 Condition 1
in respect of CCTV. ·
16 incidents have been logged by the
police since the grant of the 24 hour licence. ·
It is the police view that there is a
common theme amongst the incidents of disorder associated with alcohol. ·
3 allegations of assault are still under
investigation. ·
The assaults have allegedly been committed
by door supervisors on persons being removed from the premises. ·
CCTV has been requested by the police in
all 3 cases. ·
The police state that the attitude of the
DPS has been obstructive and he has failed to co-operate fully in making CCTV
evidence available. ·
Recommendation that: ·
The DPS be varied to a person not
commercially involved in the premises ·
Curtailing the hours of the premises to
02:00 hours ·
A change in the door supervisor company. ·
Revision of the CCTV licence condition to
ensure that images are immediately available to police. |
Prevention of Public Nuisance
|
·
None |
Public Safety
|
·
The police state that Bar Bluu constitutes
a public safety risk due to the frequency and severity of assaults that occur
at the premises. |
Protection of Children From Harm
|
·
None |
8. APPENDICES ATTACHED
|
1 |
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2 |
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3. |
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4. |
Copy of letter sent to Mr Woodward confirming that
CCTV system satisfactory |
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5. |
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6. |
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7. |
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8. |
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9. |
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10. |
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11. |
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12. |
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13. |
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14. |
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15. |
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16. |
9. BACKGROUND PAPERS
|
1.
Minutes of the Licensing Sub-Committee held in
Committee Room 1, County Hall, Newport on Thursday 6 July 2006 commencing at
09:50hrs 2.
Application for the variation of a premises licence
in respect of Bar Bluu 3.
Hampshire Constabulary and Isle of Wight Council
Licensing Authority Joint Licensing Protocol. |
10. ADDITIONAL INFORMATION
|
4.
The CCTV system at Bar Bluu has
been replaced following joint
inspections from the Licensing Officer, Local Authority CCTV Manager
and the Police. The system is now
operating to the satisfaction of the Local Licensing Authority as per
condition 1 of Annex 3 of the existing premises licence. A copy of the letter that was sent to Mr
Woodward on 30 November 2006 to confirm this is attached at Appendix 4. |
Contact Point:
|
Andrea
Colebrook Licensing
Officer |
Ext
5154 |
ROB
OWEN
Head
of Consumer Protection