7.
The following premises are licensed under the Late Night Refreshment
8.Houses
Act 1969:
Kentucky
Fried Chicken, Furrlongs, Newport
Open
between the hours of 0500 hours – 2400 hours
McDonald’s
Restaurant, 93 – 94 St James Street, Newport
Open
between the hours of 0500 hours – 2330 hours
Temptations
Nightclub and Coffee Plus Café, 16 Lower St James Street, Newport
Open
between the hours of 0500 hours – 0500 hours
COUNCIL POLICY
8. The
Council’s Licensing Panel considers all new Street Trading Consents for fast
food or ice cream, and renewals where letters of comment have been received.
9. A copy of the Police comments have been
sent to the applicant who has been invited to attend the meeting to answer any
questions Members may have.
FORMAL CONSULTATION
10. The Hampshire Constabulary
have been advised of the application and have made comments regarding the
trading hours. A copy of their comments
is attached (Appendix 2).
11. A representative of the
Hampshire Constabulary 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 has confirmed that he
has no objection.
13. The
Council’s Highways Department, Wight Leisure, Revenues Section, Fire Safety and
the Council’s Food Section have all been advised of the application. However, no comments have been received.
THIRD PARTY REPRESENTATIONS
14. The application has been
advertised in the Isle of Wight County Press, and no letters of objection have
been received.
15. The Local Business
Association has been advised of the application, however, no comments have been
received.
FINANCIAL IMPLICATIONS
16. Broadly, Council
expenditure on Licensing matters, and in particular those which are
administered and enforced through Consumer Protection, balances income received
from licence fees.
LEGAL IMPLICATIONS
17. Each application
should be considered individually so as to comply with the rules of Natural
Justice.
18. Street
Trading Consents are issued under the Local Government (Miscellaneous
Provisions) Act 1982, Schedule 4.
19. “Consent
street” means a street in which street trading is prohibited without the
consent of the district council.
20. There is no right of appeal against the
refusal to grant or renew a consent or against the revocation or variation of a
consent.
21. Trading consents
7 – (1) An application for a street trading consent or
the renewal of such a consent shall be made in writing to the district council.
(2) Subject to sub-paragraph (3) below, the council
may grant a consent if they think fit.
(3) A street trading consent shall not be granted –
(a) to a person under the age of 17 years; or
(b) for any trading in a highway to which a control
order under section 7 of the Local Government (Miscellaneous Provisions) Act
1976 is in force, other than trading to which the control order does not apply.
(4) When granting or renewing a street trading
consent, the council may attach such conditions to it as they consider
reasonably necessary.
(5) Without prejudice to the generality of
sub-paragraph (4) above, the conditions that may be attached to a street trading consent by firtue of that sub-paragraph
include conditions to prevent –
(a) obstruction of the street or danger to persons
using it; or
(b) nuisance or annoyance (whether to persons using
the street or otherwise).
(6) The council may at any time vary the conditions
of a street trading consent.
(7) Subject to sub-paragraph (8) below, the holder
of a street trading consent shall not trade in a consent street from a van or
other vehicle or from a stall, barrow or cart.
(8) The council may include in a street trading
consent permission for its holder to trade in a consent street –
(a) from a stationary van, cart, barrow or other
vehicle; or
(b) from a portable stall.
(9) If they include such a permission, they may
make the consent subject to conditions –
(a) as to where the holder of the street trading
consent may trade by virtue of the permission; and
(b) as to the times between which or periods for
which he may so trade.
(10) A street trading consent may be granted for any
period not exceeding 12 months but may be revoked at any time.
(11) The holder of a street trading consent may at
any time surrender his consent to the council and it shall then cease to be
valid.
22. Late
Night Refreshment Houses Act 1969:
A person who keeps open for
public refreshment, resort and entertainment at any time between the hours of
10pm at night and 5 am the following morning is required to hold an annual
Licence granted in accordance with the Late Night Refreshment Houses Act
1969. Premises in respect of which a
liquor licence is in force do not require to be licensed where they are not
kept open as a late night refreshment house longer than half an hour after
normal evening closing time.
IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998
23. 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
24. 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.
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 is
important in respect of this application as the residents have the right to
enjoy their private and family life without undue disturbance and the public
have the right to be able to use the area free of any unnecessary obstruction
or interruption.
Article 1 of the
first protocol is important as Mr Tracey has an existing consent to trade and
this could be viewed as a possession, which should not be denied him without
good reason.
OPTIONS
25. To grant the application.
26. To vary the hours.
27. To vary the location.
28. To grant the consent for
a lesser period.
29. To refuse the
application.
EVALUATION/RISK MANAGEMENT
30. Prior to making the recommendation
Officers have considered the implications under the Human Rights Act, Crime and
Disorder and the Late Night Refreshment Houses Act 1969. It is the applicant’s responsibility to carry
out a risk assessment.
|
RECOMMENDATIONS
31. To grant the application as requested
by the applicant.
|
APPENDICIES ATTACHED
32. Appendix 1: Application
Appendix 2: Hampshire Constabulary’s comments.
BACKGROUND PAPERS
33. As
attached.
ADDITIONAL INFORMATION
34. When determining the
application Members may wish to take into account the following:
(a) noise to local residents,
particularly late at night
(b) litter
(c) smell
(d) road safety
(e)
comments from Members, Police, Parish or Town Councils and Business
Associations
(f)
the type of goods which are to be sold.
35. A district council is under no duty to
grant a street trading consent and need not specify statutory grounds for
refusal.
36. There is no statutory limitation on a
district council’s power to revoke or refuse to renew a street trading consent.
Contact Point: John Murphy, Senior Licensing Officer ( 823152.
ROB OWEN
Head of
Consumer Protection
