Review of The Qube Premises License

8/4/2019 Review of The Qube Premises License

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PAPER A

Purpose: For Decision

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Committee LICENSING (DETERMINATIONS) SUB-COMMITTEE

Date WEDNESDAY, 21 SEPTEMBER 2011 AT 9.30AM

Title TO DETERMINE AN APPLICATION UNDER SECTION51 OF THE LICENSING ACT 2003 FOR THE REVIEWOF THE PREMISES LICENCE FOR THE QUBE,ESPLANADE PAVILION, ESPLANADE, RYDE, ISLEOF WIGHT, PO33 2EL

Report Author BILL MURPHYHEAD OF PLANNING AND REGULATORY SERVICES

BACKGROUND

1. The mechanism for reviewing a premises licence exists to protect thecommunity where problems associated with crime and disorder, publicsafety, public nuisance or the protection of children from harm are occurringat premises for which a premises licence has been granted under theLicensing Act 2003.

2. At any stage following the grant of a premises licence, a responsible authoritysuch as the police or the fire authority, or an interested party such as aresident living in the vicinity of the premises, may apply to the licensingauthority for a review of the licence on the grounds that one or more of thefour licensing objectives is not being upheld.

3. Licensing authorities may not initiate their own reviews of premises licences.

However, officers of the local authority who are specified as responsibleauthorities in the Licensing Act 2003 may request reviews on any matterwhich relates to the promotion of one or more of the licensing objectives.

4. There has been a licence in place for the premises for a number of years. Itwas transferred to the current holders of the premises licence, DayneHoskins and Andrew Pennie in June this year. Mr Hoskins is the DesignatedPremises Supervisor. The current licence is attached at Appendix A.

5. Local resident Mr Paul Thomas, being an interested party defined in theLicensing Act 2003, has applied under Section 51 of the Act for the review of

the premises licence for the Qube in relation to the licensing objectives


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The Prevention of Crime and Disorder

Public Safety

The Prevention of Public Nuisance

6. The grounds for review are as stated in Mr Thomass application(Appendix B).

CONSULTATION

7. The Licensing Act 2003 prescribes a twenty eight day consultation period,commencing the day after the review application has been correctly served.The licensing authority is required to advertise the application at or on thepremises, and at the Council offices.

8. This review application was received on 2 August 2011. Notices advertisingthe application were displayed in three positions at the premises, at theCouncil offices and on the Councils web site. The consultation period endedon 30 August 2011.

9. The outcome of the consultation in respect of this review application is asfollows:

Responsible Authorities

Childrens Services No representation received

Environmental Health Representation received (Appendix C)

Fire and Rescue Service No representation received

Trading Standards Service No representation received

Planning Services No representation received

Police Representation received (Appendix D)

The Environmental Health Officer has recommended that Conditions 39 and 40 areremoved from the licence, Condition 41 is reworded and an additional Conditionadded, as suggested in their memo.

The police have indicated in their representation that they may propose a number ofadjustments to the licence. At the time of writing the report the police were not in aposition to state their proposed adjustments, however, these will be indicated to theCommittee at the hearing. The police have also indicated that they will wish to showsome CCTV footage to the Committee at the hearing, in support of theirrepresentation.

Interested Parties

10. Twelve valid representations have been received in support of the reviewfrom interested parties (Appendix E) relating to the licensing objectives:

Prevention of public nuisance

Prevention of crime and disorder


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Public safety

The protection of children from harm

In summary, the concerns raised by the Interested Parties refer to;

Esplanade

Noise from within the premises, particularly the heavy bass beat from the music.

Anti social behaviour in the form of

Noise and disturbance from persons leaving the premises when the clubcloses and patrons loitering in the area, shouting and foul language at anytime from midnight onwards until 4am.

Violent incidents outside the premises.

Urinating and defecating on residents driveways.

Belvedere Street

Music noise from the club and noise from persons leaving the club

Castle Street

Road being used as a thoroughfare and residents being disturbed late at night bynoisy persons from the club and suffering vandalism to property.

FINANCIAL/BUDGET IMPLICATIONS

11. Broadly, Council expenditure on licensing matters, and specifically thoseadministered and enforced through Planning and Regulatory Services,

balances income generated from fees.

LEGAL IMPLICATIONS

12. The 28 day consultation period ended on 30 August 2011. Schedule 1 of theLicensing Act (Hearings) Regulations 2005 states that the application mustbe determined within 20 working days of the end of the consultation period.

National Guidance

13. The following sections from the national guidance issued under section 182 of

the Licensing Act 2003 are considered relevant to this application.

Each application on its own merits

1.15 Each application must be considered on its own merits and anyconditions attached to licences and certificates must be tailored to theindividual style and characteristics of the premises and eventsconcerned. This is essential to avoid the imposition of disproportionateand overly burdensome conditions on premises where there is noneed for such conditions. Standardised conditions should be avoided

and indeed, may be unlawful where they cannot be shown to benecessary for the promotion of the licensing objectives in anyindividual case.


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Avoiding duplication of other legal requirements

1.16 The licensing authority should only impose conditions on a premiseslicence or club premises certificate which are necessary andproportionate for the promotion of the licensing objectives. If otherexisting law already places certain statutory responsibilities on anemployer or operator of premises, it cannot be necessary to imposethe same or similar duties on the premises licence holder or club. It is

only where additional and supplementary measures are necessary topromote the licensing objectives that necessary, proportionateconditions will need to be attached to a licence.

Hours of opening

1.19 The four licensing objectives should be paramount considerations at alltimes and licensing authorities should always consider the individualmerits of a case.

Related legislation and strategies

1.27 In addition, when considering a new premises licence or followingreviews that have identified problems with a particular premises,licensing authorities may consider imposing conditions as appropriate,such as preventing customers from taking open containers outside thepremises or installing CCTV. However, any conditions imposed mustnot be aspirational and must be within the control of the licensee. Forexample, a condition may require premises to adopt a particulardispersal policy, but a licensee cannot force customers to abide by it.

Public nuisance

2.32 The 2003 Act requires licensing authorities (following receipt ofrelevant representations) and responsible authorities, throughrepresentations, to make judgements about what constitutes publicnuisance and what is necessary to prevent it in terms of conditionsattached to specific premises licences and club premises certificates.It is therefore important that in considering the promotion of thislicensing objective, licensing authorities and responsible authoritiesfocus on impacts of the licensable activities at the specific premises onpersons living and working (including doing business) in the vicinity

that are disproportionate and unreasonable. The issues will mainlyconcern noise nuisance, light pollution, noxious smells and litter.

2.33 Public nuisance is given a statutory meaning in many pieces oflegislation. It is however not narrowly defined in the 2003 Act andretains its broad common law meaning. It is important to rememberthat the prevention of public nuisance could therefore include low-levelnuisance perhaps affecting a few people living locally as well as majordisturbance affecting the whole community. It may also include inappropriate circumstances the reduction of the living and workingamenity and environment of interested parties (as defined in the 2003

Act) in the vicinity of licensed premises.


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2.34 Conditions relating to noise nuisance will normally concern stepsnecessary to control the levels of noise emanating from premises. Thismight be achieved by a simple measure such as ensuring that doorsand windows are kept closed after a particular time in the evening tomore sophisticated measures like the installation of acoustic curtainsor rubber speaker mounts. Any conditions necessary to promote theprevention of public nuisance should be tailored to the style andcharacteristics of the specific premises. Licensing authorities shouldbe aware of the need to avoid unnecessary or disproportionatemeasures that could deter events that are valuable to the community,such as live music. Noise limiters, for example, are very expensive topurchase and install and are likely to be a considerable burden forsmaller venues.

2.35 As with all conditions, it will be clear that conditions relating to noisenuisance may not be necessary in certain circumstances where theprovisions of the Environmental Protection Act 1990, the Noise Act1996, or the Clean Neighbourhoods and Environment Act 2005

adequately protect those living in the vicinity of the premises. But asstated earlier in this Guidance, the approach of licensing authoritiesand responsible authorities should be one of prevention and whentheir powers are engaged, licensing authorities should be aware of thefact that other legislation may not adequately cover concerns raised inrelevant representations and additional conditions may be necessary.

2.36 Where applications have given rise to representations, any necessaryand appropriate conditions should normally focus on the mostsensitive periods. For example, music noise from premises usuallyoccurs from mid-evening until either late evening or early morning

when residents in adjacent properties may be attempting to go tosleep or are sleeping. In certain circumstances, conditions relating tonoise in the immediate vicinity of the premises may also provenecessary to address any disturbance anticipated as customers enterand leave.

Implications under the Crime and Disorder Act 1998

14. Members are advised that without prejudice to any other obligation imposed on it, itshall be the duty of each authority to which this section applies to exercise itsfunctions 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 itsarea.

Human Rights

15. Members are advised that this application must be considered against thebackground of the implications of the Human Rights Act 1998.

16. There are three convention rights, which need to be considered in this context:

Article 6 - Right to a Fair Trial

17. In the determination of his civil rights and obligations or of any criminal chargeagainst him, everyone is entitled to a fair and public hearing within a reasonable


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time by an independent and impartial tribunal established by law.

18. It has been held that the fact that there is a right of appeal to the Magistrates Courtfrom any decision of the Licensing Authority is sufficient to make the Councilslicensing system compliant with the convention rights.

Article 8 - Right to Respect for Private and Family Life

19. Everyone has the right to respect for his private and family life, his home and hiscorrespondence. In the case of article 8 there shall be no interference by a publicauthority with the exercise of this right except as such in accordance with the lawand is necessary on a democratic society in the interests of national security, publicsafety or the economic wellbeing of the country, for the prevention of disorder andcrime, for the protection of health or morals or for the protection of the rights andfreedoms of others.

Article 1 - First Protocol Protection of Property

20. Every natural or legal person is entitled to the peaceful enjoyment of hispossessions. In the case of Article 1 of the first protocol it states that no one shallbe deprived of his possessions except in the public interest and subject to theconditions provided for by law and the general principles of international law. Thepreceding provisions (of which articles 6 and 8 are but two) shall not however inany way impair the right of the state to enforce such laws as it deems necessary tocontrol the use of the property in accordance with general interest or to secure thepayment of taxes or other contributions or penalties.

21. The Licensing Authority acknowledges the right of businesses in its area tooperate, but equally acknowledges the fact that this must be balanced against the

rights of residents not to be disturbed by unreasonable noise and nuisance causedby licensed premises. The Sub-Committee needs to be clear as to the rightsgranted and the need to ensure that the reasons given for any interference areproportionate and in accordance with the Councils legitimate aim.

22. It is considered that the following paragraphs from the Licensing AuthoritysStatement of Licensing Policy 2011 2014 have a bearing upon the application.Members attention in respect of this particular application is drawn to:

Paragraph 1 Introduction N/AParagraph 2 Licensing Objectives All

Paragraph 3 Licensable Activities N/AParagraph 4 Integration of Strategies All

and Other LegislationParagraph 5 Approach to Licensing All

ApplicationsParagraph 6 Cumulative Effect N/AParagraph 7 Representation, Reviews, All

and AppealsParagraph 8 Enforcement N/AParagraph 9 Operating Schedules 9.11 9.19


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EQUALITY AND DIVERSITY

23. The council as a public body is subject to general and specific duties underequality and diversity legislation and as such has a duty to go beyond prohibitionand publish and promote service improvements by engaging with the localcommunity to assess the impact of any decision on the local community. As arequirement under the Equalities Act 2010 and further improvements to diversity

legislation all local authorities are required to impact assess their services,policies/strategies and decisions with regard to diversity legislation race,disability, gender, age, sexual orientation and religion/belief. (NB: this list is notexhaustive, it does cover current legislation but future development could alsoinclude poverty and social inclusion as an example).

24. The equality impact assessment looks at how a service promotes equality anddiversity to ensure legal compliance and that the services we provide and thedecisions that we make meet the needs of our local community.

25. It is believed that the equality impact assessment will not be affected by the grantor refusal of this premises licence application.

OPTIONS

Option 1 - To retain the licence in its current formOption 2 - To modify the conditions of the licenceOption 3 - To exclude a licensable activity from the scope of the licenceOption 4 - To remove the designated premises supervisorOption 5 - To suspend the licence for a period not exceeding three monthsOption 6 - To revoke the licence

RISK MANAGEMENT

26. With regard to Option 1: To retain the existing permitted hours and licenceconditions would allow licensable activities to continue in the current form.

27. With regard to Option 2: Modifying the conditions of the licence, for example, byreducing the hours of opening or adding further conditions to the licence, maysatisfy residents concerns but is likely to impact on the manner in which the licenceholder conducts his business and may have financial implications for the licenceholder.

28. With regard to Option 3: The Sub-Committee may wish to consider excluding aparticular licensable activity, which may address issues in respect of adverseimpact on the licensing objectives. This course of action is likely to impact on themanner in which the licence holder conducts his business and may have financialimplications.

29. With regard to Option 4: The Sub-Committee may wish to remove the DPS if theyconsider that this would enable better management of the premises.

30. With regard to Options 5 and 6: The suspension or revocation of the licence maysatisfy local residents, but would have an obvious impact on the livelihood of thelicence holders.


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EVALUATION

31. The Sub-Committee is obliged to determine this application with a view topromoting the licensing objectives, which are:

a. The Prevention of Crime and Disorderb. The Prevention of Public Nuisance

c. Public Safetyd. The Protection of Children from Harm

32. This application has had sufficient consultation as prescribed under the LicensingAct 2003. With the exception of those stated, none of the responsible authoritiesunder the Act have made representations to this application.

33. Members should determine the application in accordance with section 52 of theLicensing Act 2003 and The Licensing Act (Hearings) Regulations 2005.

34. In making its decision, the Sub-Committee is also obliged to have regard tonational guidance and the Councils own Statement of Licensing Policy.

35. The Sub-Committee must have regard to all of the representations made and theevidence it hears.

36. If the Sub-Committee decide to take no action and retain the licence in its currentform, it may not address the concerns that have been raised by local residents,and could lead to an appeal by the review applicant or other interested parties.

37. Modifying the conditions of the licence or reducing the hours of opening may

reduce the risk of public nuisance and may satisfy local residents. However, anyconditions must be deemed necessary and proportionate and the decision toattach further conditions may be appealed by all parties but may increase the riskof an appeal by the licence holder.

38. The removal of a particular licensable activity may address the concerns raised bylocal residents. However, this could have a serious impact on the operation of thebusiness and is likely to lead to an appeal by the licence holder.

39. It is not considered necessary to remove the DPS in this case.

40. If the Sub-Committee decides to suspend or revoke the licence, it should only doso after having had regard to all the evidence and be satisfied that to do so wouldnot adversely impact on the licensing objectives. This decision may be appealed byall parties.

RECOMMENDATION

41. Members should determine the application in accordance with section 52 of theLicensing Act 2003 and The Licensing Act (Hearings) Regulations 2005.


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APPENDICES ATTACHED

Appendix A Current premises licence for The QubeAppendix B Application for review submitted under Section 51 of the

Licensing Act 2003.Appendix C Representations received from Environmental HealthAppendix D Representations received from PoliceAppendix E Representations received from Interested Parties

BACKGROUND PAPERS

Isle of Wight Council Licensing Authority Statement of Licensing Policy 2011 2014.http://www.iwight.com/living_here/environment/environmental_health/images/LICENSINGPOLICY2011-2014.pdf

Contact Point: Mrs Sarah MacDonald, Senior Licensing Officer, 01983 823159 e-mail: [email protected]

BILL MURPHY

Head of Planning and Regulatory Services
http://www.iwight.com/council/committees/Licensing%20(Determinations)%20Sub%20Committee/21-9-11/PAPER%20A%20-%20APPENDIX%20A.pdfhttp://www.iwight.com/council/committees/Licensing%20(Determinations)%20Sub%20Committee/21-9-11/PAPER%20A%20-%20APPENDIX%20B.pdfhttp://www.iwight.com/council/committees/Licensing%20(Determinations)%20Sub%20Committee/21-9-11/PAPER%20A%20-%20APPENDIX%20C.pdfhttp://www.iwight.com/council/committees/Licensing%20(Determinations)%20Sub%20Committee/21-9-11/PAPER%20A%20-%20APPENDIX%20D.pdfhttp://www.iwight.com/council/committees/Licensing%20(Determinations)%20Sub%20Committee/21-9-11/PAPER%20A%20-%20APPENDIX%20E.pdfhttp://www.iwight.com/living_here/environment/environmental_health/images/LICENSINGPOLICY2011-2014.pdfhttp://www.iwight.com/living_here/environment/environmental_health/images/LICENSINGPOLICY2011-2014.pdfmailto:[email protected]:[email protected]:[email protected]://www.iwight.com/living_here/environment/environmental_health/images/LICENSINGPOLICY2011-2014.pdfhttp://www.iwight.com/living_here/environment/environmental_health/images/LICENSINGPOLICY2011-2014.pdfhttp://www.iwight.com/council/committees/Licensing%20(Determinations)%20Sub%20Committee/21-9-11/PAPER%20A%20-%20APPENDIX%20E.pdfhttp://www.iwight.com/council/committees/Licensing%20(Determinations)%20Sub%20Committee/21-9-11/PAPER%20A%20-%20APPENDIX%20D.pdfhttp://www.iwight.com/council/committees/Licensing%20(Determinations)%20Sub%20Committee/21-9-11/PAPER%20A%20-%20APPENDIX%20C.pdfhttp://www.iwight.com/council/committees/Licensing%20(Determinations)%20Sub%20Committee/21-9-11/PAPER%20A%20-%20APPENDIX%20B.pdfhttp://www.iwight.com/council/committees/Licensing%20(Determinations)%20Sub%20Committee/21-9-11/PAPER%20A%20-%20APPENDIX%20A.pdf

Documents

Review of The Qube Premises License