PAPER

6. There are three premises licensed for Public Entertainment in the vicinity, one premise is licensed for all days from 1000 hours to 2400 hours, one premise is licensed for Monday – Saturday 1000 hours – 2300 hours and Sunday 1200 hours – 2230 hours and the other is licensed for Monday – Saturday 1200 hours to 2300 hours and Sunday 1200 hours to 2230 hours.

7. A plan of the area is attached.

RELEVANT HISTORY

8. These premises have not previously held a Public Entertainment Licence.

COUNCIL POLICY

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

FORMAL CONSULTATION

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

11. The Council’s Environmental Protection Section have advised that the Section is concerned about the potential for noise disturbance to occur to neighbouring residential premises, and therefore strongly recommend that conditions relating to the provision of an electronic sound limiter and external doors and windows being kept shut be imposed on the licence should it be granted. A copy of their comments is attached (Appendix 3).

The applicants’ have advised that they agree to the condition relating to the provision of an electronic sound limiter, but requested that the condition relating to the closing of doors and windows only be imposed from 2100 hours. The Environmental Protection Section have confirmed that they would have no objection to this amendment.

An Officer of The Environmental Protection Section has been requested to attend the meeting to answer any questions members may have.

12. The local Councillor has been advised of the application, however, no comments have been received.

13. The Cowes Town Council have been advised of the application and have objected to the times requested. A copy of their comments is attached (Appendix 4). A representative of the Town Council has been requested to attend the meeting to substantiate their comments.

14. The Isle of Wight Fire and Rescue Service have been advised of the application and have objected to the grant of a Licence subject to completion of works. Copies of their comments are attached (Appendix 5).

15. The Council’s Building Control Department have been advised of the application and have objected to the grant of a Licence as work had been carried out without Building Regulation approval and under the circumstances building work and fire precautions may be unsatisfactory. A copy of their comments is attached (Appendix 6).

16. A letter dated 7 January 2004 has been received from the applicants’ representative advising that works required by the Fire Officer will be completed this week and that Building Regulation approval has been submitted and should be completed prior to the hearing of the application. (Appendix 7).

THIRD PARTY REPRESENTATIONS

17. The application has been advertised in the Isle of Wight County Press. No letters of comment/objection have been received in response to the advert, however, an article in the County Press on 10 December 2003 has resulted in four letters of objection being received. The main concern is for the potential of a noise nuisance. Copies of the objections are attached (Appendix 8 and 11).

18. The objectors have been advised of the amended hours of the application and copies of two letters sent to the applicants’ representative, and a letter, received by this Department, from objectors are attached (Appendix 9).

19. 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.

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

21. Letters have been received from the owners of 16 Shooters Hill regarding the proposed use of their alleyway as a fire exit for Cats. Copies of the letters are attached (Appendix 10). The owners of 16 Shooters Hill have been invited to attend the meeting to answer any questions members may have.

FINANCIAL IMPLICATIONS

21. 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

22. 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.

23. 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.

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

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

26. 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

27. 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 is particularly relevant to this matter because by the grant of a Public Entertainment Licence the Panel will have to balance the rights of the residents to enjoy their private and family life against the applicants rights to be granted a licence as requested and to develop their business.

OPTIONS

28. To grant the licence for the hours requested by the applicant.

29. To vary the hours requested by the applicant having regard to the objections and other relevant information.

30. 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, such as those recommended by the Council’s Environmental Protection Section, and additional conditions 1.8 and 11.0 relating to CCTV and Door Security Staff.

31. To grant a licence for a period of less than one year.

32. To refuse the application for a Public Entertainment Licence.

EVALUATIONS/RISK MANAGEMENT

33. Officers have considered the implications under the Human Rights Act and the Local Government (Miscellaneous Provisions) Act 1982, and due to the mixture of commercial and residential premises a noise condition to prevent unreasonable disturbance to residents could be required.

34. It is the applicants’ responsibility to carry out a risk assessment.

RECOMMENDATIONS

34. That the option at paragraph 30 be adopted.

APPENDICIES ATTACHED

36. Appendix 1: Application form.

Appendix 2 : Site plan.

Appendix 3: Environmental Protection Section’s comments.

Appendix 4: Cowes Town Council’s comments.

Appendix 5: Fire and Rescue Service’s comments.

Appendix 6: Building Control’s comments.

Appendix 7: Letter from applicants’ representative regarding completion of Fire Safety works and Building Control regulations

Appendix 8 : Public comments/objections

Appendix 9: Responses from objectors regarding the change of hours.

Appendix 10: Comments from 16 Shooters Hill, Cowes regarding fire precaution works.

Appendix 11: Further comments from objector

BACKGROUND PAPERS

37. As attached.

ADDITIONAL INFORMATION

38. The licensee has many varied responsibilities:

Licence conditions must be observed.

Co-operation with statutory authorities is fundamental.

Awareness of drug related issues is essential.

Understanding the social responsibilities attached to running a licensed premise is vital.

39. A dated 11 February 2004 has been received from one of the objectors (Appendix 9). Members attention is drawn to the last two paragraphs regarding the adjournment of hearings.

40. As the applicants’ are requesting hours until 0200 hours on Fridays and Saturdays, the Panel may wish to consider attaching conditions 1.8 and 11.0 of the Council’s Additional Licence Conditions relating to the provision of CCTV and Door Security Staff.

Contact Point: John Murphy, 823152

ROB OWEN

Head of Consumer Protection

PAPER B3