PAPER B1
Purpose: For Decision
Committee: LICENSING
COMMITTEE
Date: 18 JANUARY
2005
Title: APPLICATION
FOR RENEWAL OF THE PUBLIC ENTERTAINMENT LICENCE FOR THE TAP, 2 AVENUE ROAD,
SANDOWN
REPORT OF THE HEAD OF
CONSUMER PROTECTION
PURPOSE/REASON
1. To
consider an application for the renewal of a Public Entertainment Licence for
The Tap, 2 Avenue Road, Sandown.
DETAILS OF THE APPLICATION
2. An application has been received from Patrick Legg and Kim
Longworth for the renewal of a Public Entertainment Licence in respect of The
Tap, 2 Avenue Road, Sandown.
3. Times requested by
the applicant which are the same as the existing hours, are set out below:
Monday – Wednesday: 1100 –
2300 hours
Thursday – Saturday: 1100
hours – 0130 hours the following morning
Sunday: 1200 hours – 2230
hours
LOCATION AND SITE
CHARACTERISTICS
4. The premises are situated close to
hotels and other residential properties. Small shops are in close proximity. It
is less than 100 yards from the main shopping area and sea front.
RELEVANT HISTORY
5. Two noise complaints have been received
since the last licence was granted; these were received on 10 February 2004 and
7 June 2004. On the 25 June 2004 a noise limiting device installed
in the premises was set with the assistance of officers from the Environmental
Protection Section. It was noted by the
officers that the doors closest to the stage were required to be kept closed
during public entertainment to avoid noise disturbance. A further visit was made by officers on the
19 November 2004 where the noise level at that time was determined as unlikely
to result in disturbance. Since either
of these visits no further complaints have been received.
6. A standard noise letter was sent to Mr
Legg following the complaint received on 7 June 2004 and a copy of Mr Legg’s
reply is set out at Appendix 1.
COUNCIL POLICY
7. All
Public Entertainment applications where letters of comment are received are
placed before the Licensing Panel for consideration.
8. Copies
of the objections/comments have been sent to the applicants who have been
requested to attend the meeting to answer any questions Members may have.
FORMAL CONSULTATION
9. The Hampshire Constabulary has been advised of the
application and has confirmed that they have no objection to this application.
10. The Isle of Wight Fire
and Rescue have been advised of the application and have confirmed that they
have no objection.
11. The Council’s Environmental Protection Section have been
advised of the application and have confirmed that they have no objection to
this application, subject to the
imposition of standard conditions relating to the operation and maintenance of
the sound limiting device and closure of doors and windows during public
entertainment. An Officer has been requested to attend the
meeting to answer any questions members may have.
12. The local Councillor has been advised of the application and
no comments have been received.
13. The Crime and Disorder Unit have been advised of the
application and no comments have been received.
THIRD PARTY REPRESENTATIONS
14. The application has been
advertised in the Isle of Wight County Press and two letters of objection have
been received, copies of which are attached as Appendix 2.
15. The objectors have been
informed of the time, date and location of the meeting should they wish to
attend.
FINANCIAL
IMPLICATIONS
16. 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
17. 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 potential for unreasonable noise
disturbance from entertainment at the premises having regard to any noise
sensitive accommodation in the vicinity, 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.
18. 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.
19. Each application should
be considered individually so as to comply with the rules of Natural Justice.
IMPLICATIONS UNDER
THE CRIME AND DISORDER ACT 1998
20. 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
21. 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 in 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 is particularly relevant in this case because
in considering whether to grant a Public Entertainment Licence, the Panel will
have to balance the rights of residents against the applicant’s right to run
his business.
OPTIONS
22. To grant the licence for
the hours requested by the applicant, with the existing conditions attached to
the licence.
23. To vary the hours
requested by the applicant having regard to the objections and other relevant
information.
24. To issue the licence
subject to the Council’s standard terms and conditions along with any
additional conditions the Licensing Panel believe to be reasonable.
25. To grant a licence for a
period of less than one year.
26. To refuse to renew the
Public Entertainment Licence.
EVALUATIONS/RISK
MANAGEMENT
27. Officers have evaluated the application
and have taken into account the following:
28. That in the absence of objections from
the Police, Safer Communities Team and the conditions requested by
Environmental Health, renewal is appropriate.
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RECOMMENDATIONS
29. To
grant the licence for the hours requested by the applicant, with the existing
conditions, together with the
following additional conditions to be attached to the licence.:
Electronic Sound Limiter
Prior
to any public entertainment taking place an electronic sound limiting device
shall be installed in the premises to control the level of noise
breakout. The details of the device
to be installed in the premises shall be submitted to the Licensing Section for
approval. Once approved the limiter
shall be installed and set up by a competent person. It shall be set at a level agreed with the
Licensing Authority. The sound
limiter level once set shall not be adjusted without prior approval of the
Licensing Section and no entertainment shall take place on the premises
unless the limiter is used to control the level of sound. Upon completion of the installation a
report shall be issued to the Licensing Section certifying the agreed devices
set levels and its tamper proof integrity.
The limiter shall then thereafter be maintained by a competent person
every twelve months. The results of
this maintenance shall include a test of its normal operation and
certification of the devices tamper proof integrity shall be recorded and
forwarded to the licensing section on application for renewal of the public
entertainment license. In the event
of a malfunction affecting noise output appropriate action shall be taken to
ameliorate the effect and the licensing section shall be notified
immediately.
Ventilation
No public entertainment shall take
place with the external doors or windows being kept open, so as to provide
ventilation. Ventilation shall only
be provided by suitable and sufficient mechanical means, so as to avoid the
necessity for opening doors and windows etc.
(The amount of ventilation provided is also a requirement under Health
and Safety legislation). The mechanical system shall be operated as required
and maintained thereafter.
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APPENDICES
ATTACHED
30. Appendix 1: letter from Mr Legg
Appendix 2: third party letters of
objection
Additional Information
BACKGROUND PAPERS
31. As
attached.
ADDITIONAL INFORMATION
32. Mr
Legg has held a PEL at the premises since 2001.
Contact Point: John Murphy, 823152
ROB OWEN
Head of
Consumer Protection