PAPER B

Purpose: For Decision

Committee: LICENSING PANEL

Date: 26 AUGUST 2004

Title: APPLICATION FOR THE VARIATION OF HOURS OF THE PUBLIC ENTERTAINMENT LICENCE AT PLANET ICE LTD, QUAY ROAD, RYDE

REPORT OF THE HEAD OF CONSUMER PROTECTION

PURPOSE/REASON

1. To consider an application for the Variation of hours of the Public Entertainment Licence (PEL) at Planet Ice Ltd, Quay Road, Ryde.

DETAILS OF THE APPLICATION

2. An application has been received from Lorna Cotton for the Variation of hours of the Public Entertainment Licence in respect of Planet Ice Ltd, Quay Road, Ryde.

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

Friday 27 August 2004: 2000 hours – 0300 hours the following morning

Saturday 28 August 2004: 2000 hours – 0400 hours the following morning

4. Details of existing Licence:

All days: 0600 hours – 2400 hours

LOCATION AND SITE CHARACTERISTICS

5. Planet Ice Ltd is situated adjacent to The Balcony Nightclub and LA Bowl.

6. The Balcony has a PEL until 0200 on weekdays and Saturdays and until 0030 on Sundays.

RELEVANT HISTORY

7. Planet Ice do not have late night entertainment very often, however, a letter of complaint dated 1 January 2004 was received regarding noise from Planet Ice on 31 December 2003, when the entertainment went on until 0600 hours the following morning, due to the premises having been granted an extension by the Magistrates Court, which had the effect of automatically extending their PEL for that evening. The letter is set out at Appendix 1.

FORMAL CONSULTATION

10. The Hampshire Constabulary have confirmed that they have no objection to this application.

11. The Isle of Wight Fire and Rescue have been advised of the application but have not yet commented.

12. The Council’s Environmental Protection Section have been advised of the application and whilst not opposing it, they have recommended conditions which are set out at Appendix 2.

13. The local Councillor has been advised of the application and has confirmed that he is against it on the grounds that residents have complained to him in the past, and that one of the days for which a late PEL is required is a Sunday. A copy of his comments is set out at Appendix 3.

THIRD PARTY REPRESENTATIONS

14. The application has been advertised in the Isle of Wight County Press and one letter of objection has been received. A copy of the letter is set out at Appendix 4. However, due to an error by the County Press, the days of the variation were incorrectly advertised. Another advert was placed in the County Press but due to a further error by them the closing date for objections has had to be extended to 26^th August.

15. If there are any objections received between the date of writing the report and the date of the meeting, copies will be forwarded to the applicant, and time will be given at the meeting for the Panel to consider any objections.

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 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.

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 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”.

Article 1 is relevant in this case as a licence is viewed as a possession.

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 the variation to the Public Entertainment Licence, the Panel will have to balance the rights of residents against the applicant’s right to run their business.

OPTIONS

22. To vary the hours as requested by the applicant having regard to the objections and other relevant information and issue the licence subject to the Council’s standard Licence conditions and any additional conditions the Panel believe to be reasonable, such as those recommended by the Environmental Protection Section. The licence shall only come into force once any such conditions are met.

23. To vary the licence until 0200 for this occasion only, subject to the Council’s standard Licence conditions and any additional conditions the Panel believe to be reasonable, such as those recommended by the Environmental Protection Section. The licence shall only come into force once any such conditions are met.

24. To refuse the application for Variation of hours of the Public Entertainment Licence.

EVALUATIONS/RISK MANAGEMENT

25. It is the applicants’ responsibility to carry out their own risk assessment.

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

i) There are no other premises in Ryde which have a PEL later than 0200.

ii) On the previous occasion when Public Entertainment was provided beyond 0200, a complaint was received from a local resident.

RECOMMENDATIONS

27. To vary the licence until 0200 for this occasion only, subject to the Council’s standard Licence conditions and any additional conditions the Panel believe to be reasonable, such as those recommended by the Environmental Protection Section. The licence shall only come into force once any such conditions are met.