PAPER B2

Purpose: For Decision

Committee: LICENSING PANEL

Date: 10 AUGUST 2004

Title: APPLICATION FOR THE RENEWAL OF A PUBLIC ENTERTAINMENT LICENCE FOR THE CROWN HOTEL, 10 ST THOMAS SQUARE, RYDE

REPORT OF THE HEAD OF CONSUMER PROTECTION

PURPOSE/REASON

1. To consider an application for the renewal of a Public Entertainment Licence for The Crown Hotel, 10 St Thomas Square, Ryde.

DETAILS OF THE APPLICATION

2. An application has been received from Mr Brian Fisher-Lathwell for the renewal of a Public Entertainment Licence in respect of The Crown Hotel, 10 St Thomas Square, Ryde.

3. Times requested by the applicant are set out below:

Monday – Thursday: 1030 hours – 2300 hours

Friday and Saturday: 1030 hours – 0200 hours the following morning

Sunday: 1200 hours – 2230 hours

4. Details of existing Licence:

Monday – Thursday: 1000 hours – 2300 hours

Friday and Saturday: 1000 hours – 0200 hours the following morning

Sunday: 1200 hours – 2230 hours

LOCATION AND SITE CHARACTERISTICS

5. The Crown Hotel is situated in St.Thomas Square in Ryde, on the corner of the High Street and Crown Street, which is a part commercial, part residential area. The nearest residential properties are directly opposite the main entrance to the Crown, and across the road in St.Thomas Square, adjacent to St.Thomas rest garden.

6. There are five other pubs in the near vicinity with Public Entertainment Licences until 0200 hrs.

RELEVANT HISTORY

7. There was a Public Entertainment Licence at the Crown prior to the current licensee taking over the premises. Over the last 2 years there have been intermittent complaints regarding the level of music emanating from the premises, despite the installation of a noise limiter.

8. The current applicant first applied for the transfer of the Public Entertainment Licence in October 2003. He also applied to vary the terminal hour of the licence until 0200 hrs on Fridays and Saturdays, in order for him to obtain a Special Hours Certificate from the Magistrates Court.

9. It was recommended by Environmental Health Officers that, due to the possibility of noise disturbance, a six-month licence should be granted initially to enable the department to assess the level of disturbance on nearby noise-sensitive premises. It was also recommended that no live music be played after 2300 as pre-recorded music is easier to control.

10. The recommendation was put to the applicant’s agent who stated that the applicant had no objection to it, and the licence was therefore issued on 2 December 2003, for the current hours with conditions attached relating to the level of noise, noise limiter, CCTV and other matters.

11. Since the licence was issued on 2December 2003, there have been numerous noise complaints from loud music, 16 from a resident in the High Street, and 7 from the objector, who lives in St.Thomas Square.

12. The noise limiter was reset on 14 May 2004, but following complaints received at the beginning of June, it was again reset on 17 June 2004. A letter was sent to the licensee on 25June 2004 when it was suggested that he investigate the option of having an acoustic report carried out with a view to sound proofing being undertaken to reduce the level of noise being experienced by neighbours.

13. On 3 July 2004, a further complaint was received regarding loud music, and the officers on night shift who witnessed the noise from the complainant’s property felt that the level of noise was so loud that they had considered issuing a Noise Abatement Notice.

14. The limiter was found to be faulty and it was repaired on 12 July 2004. The licensee brought in the engineer’s report on 15 July 2004. At that time the Licensing Enforcement Officer spoke to the licensee at some length to stress the importance of keeping the noise to an acceptable level, both for local residents’ and his own benefit.

15. The following day, the Licensing Enforcement Officer sent a letter to the licensee to confirm the previous day’s discussions, and reminding him that that the situation would be monitored until the Licensing Panel hearing. The implications of not complying with licence conditions were again stressed to the licensee (Appendix 1).

16. On 23 July 2004 a further complaint was witnessed by an Environmental Health Officer on night shift who said that it was the loudest he had ever heard from the Crown and that it was definitely at a level which would constitute a Statutory Nuisance. On 26 July 2004 an Officer of Environmental Protection sent an e-mail to Mr Fisher-Lathwell asking for his comments on why the noise had been so loud over the previous weekend. Mr Fisher- Lathwell’s reply by e-mail is attached along with a memo from Environmental Protection (Appendix 2).

COUNCIL POLICY

17. All Public Entertainment applications where letters of comment or objection are received are placed before the Licensing Panel for consideration.

18. A copy of the objection has been sent to the applicant who have been requested to attend the meeting to answer any questions Members may have.

FORMAL CONSULTATION

19. The Hampshire Constabulary have commented that although they have no objection to the renewal of the licence, they would bring to the Panel’s attention a copy of their letter concerning a breach of the Crown’s CCTV condition. The letter is attached at Appendix 3.

20. The Isle of Wight Fire and Rescue have been advised of the application and no comments have been received.

21. The Council’s Environmental Protection Section have been advised of the application and have commented by way of their letter to Mr Fisher-Lathwell dated 25 June 2004, attached at Appendix 4. An Officer has been requested to attend the meeting to answer any questions members may have.

22. The local Councillor has been advised of the application and no comments have been received.

THIRD PARTY REPRESENTATIONS

23. The application has been advertised in the Isle of Wight County Press and a letter of objection has been received, a copy of which is attached at Appendix 5.

24. The objectors have been informed of the time, date and location of the meeting should they wish to attend.

FINANCIAL IMPLICATIONS

25. Broadly, Council expenditure on Licensing matters, and in particular those that are administered and enforced through Consumer Protection, balances income received from licence fees.

LEGAL IMPLICATIONS

26. Legislation governing Public Entertainment Licensing is set out below:

Local Government (Miscellaneous Provisions) Act 1982

Schedule 1 – Licensing of public entertainments

a) Paragraphs 1 (1)(2)(3): An entertainments licence is required for any public dancing or music or any other public entertainment of a like kind, unless it is music performed in a place of religious worship or as an incident of a religious meeting or service.

b) Paragraph 1 (4): The appropriate authority may grant to any applicant, and from time to time renew, a licence for the use of any place specified in it on such terms and conditions and subject to such restrictions as may be so specified.

c) Paragraph 6 (3): An applicant for the grant, renewal or transfer of an entertainments licence shall furnish such particulars and give such other notices as the appropriate authority may by regulation prescribe.

There is no express provision in the Act for the making of objections by other third parties. It will commonly be found, however, that local authorities have used the power given to them by this paragraph to require applicants to give public notice of their applications.

This Council therefore advertised applications in the Official Notices section of the local paper inviting comments from local residents who may consider that they would be unreasonably affected. In addition, the Council’s Environmental Protection Section is consulted to assess the structural acoustic suitability of the premises having regard to any noise sensitive accommodation in the nearby vicinity that may be affected by the provision of the entertainment, and the local Councillor and Town or Parish Council are consulted.

d) Paragraph 6 (4): In considering any application for the grant, renewal or transfer of an entertainments licence, the appropriate authority shall have regard to any observations submitted to them by the chief officer of police and by the fire authority.

The police and fire authority must be given notice of an application (sub-paragraphs (1) and (2)) and the local authority is required to have regard to any observations submitted by them.

27. Members are aware that local opposition or support (in whatever form) for a proposal is not in itself grounds for refusing or granting a licensing permission, unless that opposition or support is based upon valid reasons and concerns which can be sustained.

28. Each application should be considered individually so as to comply with the rules of Natural Justice.

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

29. Without prejudice to any other obligation imposed on it, it shall be the duty of each authority to which this section applies to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to prevent, crime and disorder in its area.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT 1998

30. Members are advised that this application must be considered against a 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 Panel 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”.

d) The Panel needs to be clear as 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 8 and Article 1 are particularly relevant in this case because a licence is deemed to be a possession, and in considering whether to grant or renew a Public Entertainment Licence, the Panel will have to balance the rights of residents against the applicant’s right to run his business.

OPTIONS

31. To renew the licence for the hours requested by the applicant, subject to the Council’s standard licence conditions and any additional conditions the Licensing Panel believe to be reasonable, such as not to have any live bands, for a period of one year.

32. To renew the licence for the hours requested subject to the Council’s standard licence conditions and any additional conditions the Licensing Panel believe to be reasonable, for a further period of three months.

33. To renew the licence but reduce the hours requested by the applicant having regard to the objection and information from the Environmental Protection Section.

34. To refuse to renew the Public Entertainment Licence.

EVALUATIONS/RISK MANAGEMENT

35. Officers have evaluated the application and have taken the following into account:

a) The licensee was given six months in which to prove that he was capable of providing entertainment without causing unreasonable disturbance to local residents.

b) The building does not appear to be suitable for the type of entertainment the applicant wishes to provide, as there have been a large number of noise complaints in the six-month period.

c) The limiter has had to be reset on a number of occasions and would appear to be inadequate in controlling the level of noise breakout, particularly when live bands are playing.

d) The most recent letter sent by the Licensing Enforcement Officer stressing the importance of complying with conditions seems to have had no effect.

e) The licensee’s apparent willingness to co-operate, and the steps that he states he is proposing to take to alleviate the noise problem.

f) The fact that the licensee has recently suffered a close family bereavement, resulting in a high profile court case which could have affected his vigilance in the monitoring of the entertainment.

36. Officers feel that having taken all the above factors into account, they have no option but to recommend that the Panel refuse to renew the Public Entertainment Licence.

RECOMMENDATIONS

37. It is recommended that the Panel refuse to renew the Public Entertainment Licence.