Licensing Acts Panel |
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Report of Head of Legal and Democratic Author: Richard Brown, Licensing Officer E-mail: richard.brown@southandvale.gov.uk To: Licensing Acts Panel DATE: 11 September 2023 |
REPORT NO: |
1 To present the facts and relevant representations received in respect of an application to vary a premises licence for The Wheatsheaf, Wantage Road, Didcot, OX11 0BS to the Licensing Acts Panel in order that it can determine the application under section 35 of the Licensing Act 2003.
2 The relevant strategic objectives are ‘Openness and accountability’ and ‘Improved economic and community wellbeing’.
Background
3.1 The Licensing Act 2003 (‘the Act’) established a single integrated scheme for licensing premises which are used for the supply of alcohol, regulated entertainment, late night refreshment or permission to carry on some or all of these activities. In the Act these activities are referred to collectively as the ‘licensable activities’.
3.2 A Licensing Authority must carry out its function under the Licensing Act with a view to promoting the four licensing objectives. The licensing objectives are:
· prevention of crime and disorder
· public safety
· prevention of public nuisance
· protection of children from harm.
In carrying out its functions, the Licensing Authority must also have regard to its statement of licensing policy and any guidance issued by the Secretary of State (section 182 guidance).
3.3 Licences will normally be granted by the licensing officer under delegated powers but in the event of relevant representations being received regarding the variation of a premises licence, and where these representations cannot be resolved through any mediation process, the application is referred to the Licensing Acts Panel to be determined.
3.4 On 27 July 2023 an application to vary the premises licence for The Wheatsheaf, Wantage Road, Didcot, OX11 0BS was submitted by TLT solicitors on behalf of the licence holder, Punch Taverns Limited. A copy of the application form is attached at Appendix A. The application seeks to vary the licence for regulated entertainment as follows:
|
Licensable Activity |
Current days and times |
Proposed days and times |
|
Live music (indoors) |
None |
Fridays and Saturdays: 11:00 to 00:00 the following day |
|
Recorded music (indoors) |
None |
Fridays and Saturdays: 11:00 to 00:30 the following day |
It should be noted that Part 3 of the application asks for live music until 00:30 as does the required newspaper advertisement and locally displayed notice Appendix G. However, Part 4 box E clearly asks for live music until 00:00. The applicant has been requested to clarify the hours sought and an update will be provided at the meeting
3.5 The application also seeks to amend the existing licence conditions as follows:
· To amend the following condition from ‘The outside areas must not be used by customers between the hours of midnight and 08:00 on any day’ to ‘The outside areas must not be used by customers between the hours of midnight and 08:00 on any day (save for smokers)’.
· To add a condition ‘A notice shall be prominently displayed at any area used for smoking requesting patrons to respect the needs of local residents and use the area quietly’.
3.6 A representation has been received from Environmental Protection in respect of this application (please see Appendix B). They have asked that the application be refused, but if granted that the following conditions be amended and added:
1. “The outside areas must not be used by customers after the hours of midnight and 08:00 on any day” be amended to read “The outside areas shall not be used by customers between 23:00 hours and 08:00 hours except for the purpose of smoking”.
2. No amplified live or recorded music be performed unless it is controlled by a noise limiting device. The settings of such a device are to be agreed with the Local Authority prior to any such entertainment taking place.
3. The DPS or other designated person shall make regular external checks to ensure that any noise breakout minimised. Such checks are to be recorded and records to be kept for 12 months.
4. Doors and windows shall be kept closed (other than for ingress and egress) when entertainment involving live or amplified music is taking place.
These conditions have not been agreed with the applicant.
3.7 Three representations have been received from other persons. All three mention both the potential for increase in noise from the proposed music and from patrons leaving the premises at the end of the evening causing a nuisance. The representations are attached at Appendices C, D and E.
3.8 A map showing the location of the premises is attached at Appendix F. This map indicates the approximate residential location of any other persons who have made representations as indicated in the above paragraph.
3.9 It should be noted that the licence holder is able to make use of the Live Music Act 2012 and the Legislative Reform (Entertainment Licensing) Order 2014 exemptions. This means that no licence is required to play live and recorded music in a premises licensed for the sale of alcohol between the hours of 08:00-23:00 where attendance is limited to 500 persons. Any conditions which relate to live music and recorded music will also not have effect between these hours unless these are added by a panel as a result of a review of the premises licence at a later stage.
Policy and guidance
4.1 The relevant sections of the council’s statement of licensing policy are as follows:
3.11 Conditions attached to various authorisations will be focused on matters which are within the control of licence holders, and will focus primarily on the direct impact of any activities taking place at those premises on those living, working, or otherwise engaged, in the area concerned.
3.13 Conditions shall be appropriate and proportionate to achieve the promotion of the licensing objectives, and shall be tailored to suit the circumstances and premises. Conditions will not be attached where adequate legislative control exists.
6.1 Public nuisance is a broad concept, which concerns how the activity of one person (or business) affects the amenity of other persons living and working in the area of the licensed premises, for example, how noise from playing music interferes with another person’s right to sleep, or adverse impacts from light or odour.
6.2 The Act requires, and the Licensing Authority expects, applicants to demonstrate within their operating schedule how they intend to prevent public nuisance arising. This will be of particular importance where there are residential properties in the vicinity of the licensed premises.
6.3 When appropriate on application or review the Licensing Authority will consider the adequacy of proposed measures to remove or effectively manage the potential for public nuisance, anti-social behaviour and other crime which may impact on the promotion of the licensing objectives.
6.4 When an operating schedule does not sufficiently address the prevention of public nuisance the Licensing Authority will consider all reasonable conditions suggested by responsible authorities in any relevant representation to prevent public nuisance. In some locations it may be appropriate and proportionate to limit opening hours, the times of licensable activities or the types of licensable activities taking place.
6.11 Noise can come either directly or indirectly from licensed premises. Direct noise, such as that from entertainment activity, will be under the premises’ direct control. Indirect noise, such as that from vehicles and customers coming to and from the premises may not be under direct control, but the premises can strongly influence it. Both types of noise will be of more significance in areas with residential accommodation and will usually, but not exclusively, be of greater importance between 11pm and 7am. However it must be noted that noise and disturbance can also cause public nuisance outside these times. The operating schedule should identify the control measures that will be taken to minimise the impact of both types of noise on neighbouring residents and businesses.
6.13 Noise and disturbance from people outside can cause public nuisance even when those people are not behaving badly. The operating schedule should identify the control measures that will be taken to minimise the impact of use of outside areas. This may include noise and disturbance from customers on the premises and customers in outdoor areas such as terraces, beer gardens and smoking areas. It will also include noise, disturbance and obstruction from customers in the vicinity of the premises including customers congregating outside premises to smoke or drink, customers arriving, leaving or queuing outside premises.
6.15 Amendments to the Act have removed the requirement for licensing of a wide range of entertainment between the hours of 8am and 11pm. This does not reduce the risk of noise nuisance occurring. The risk increases when the entertainment takes place in the open air or within a marquee. Steps should be taken to prevent noise and vibration from entertainment causing nuisance. This may include noise from music, human voices and other forms of entertainment whether amplified or not. Consideration should also be given to ensure noise is not audible at sensitive locations such as dwellings, hospitals, hotels and other business premises. Any noise should also not cause unreasonable disturbance to the wider public, such as passers-by and people using public facilities. The Environmental Protection team are responsible for dealing with noise complaints arising from unregulated entertainment.
9.7 The licensing panel will determine each case on its individual merits whilst having regard to the legislation, the Secretary of State’s guidance and this policy. Where the licensing panel determines that it is appropriate and proportionate to attach conditions to a licence or certificate it will ensure that those conditions are focused on the direct impact of the activities taking place at the premises concerned. Such conditions will be proportionate to the activity to be controlled and will only be imposed in the interests of promoting the licensing objectives.
4.2 The relevant sections of the Secretary of State’s guidance issued under section 182 of the Licensing Act 2003 are as follows:
1.16 Licensing conditions must be tailored to the individual type, location and characteristics of the premises and events concerned. They should be proportionate, justifiable and be capable of being met.
2.20 The 2003 Act enables licensing authorities and responsible authorities, through representations, to consider what constitutes public nuisance and what is appropriate to prevent it in terms of conditions attached to specific premises licences and club premises certificates. It is therefore important that in considering the promotion of this licensing objective, licensing authorities and responsible authorities focus on the effect of the licensable activities at the specific premises on persons living and working (including those carrying on business) in the area around the premises which may be disproportionate and unreasonable. The issues will mainly concern noise nuisance, light pollution, noxious smells and litter.
2.21 Public nuisance is given a statutory meaning in many pieces of legislation. It is however not narrowly defined in the 2003 Act and retains its broad common law meaning. It may include in appropriate circumstances the reduction of the living and working amenity and environment of other persons living and working in the area of the licensed premises. Public nuisance may also arise as a result of the adverse effects of artificial light, dust, odour and insects or where its effect is prejudicial to health.
2.22 Conditions relating to noise nuisance will usually concern steps appropriate to control the levels of noise emanating from premises. This might be achieved by a simple measure such as ensuring that doors and windows are kept closed after a particular time, or persons are not permitted in garden areas of the premises after a certain time. More sophisticated measures like the installation of acoustic curtains or rubber speaker mounts to mitigate sound escape from the premises may be appropriate. However, conditions in relation to live or recorded music may not be enforceable in circumstances where the entertainment activity itself is not licensable (see chapter 16). Any conditions appropriate to promote the prevention of public nuisance should be tailored to the type, nature and characteristics of the specific premises and its licensable activities. Licensing authorities should avoid inappropriate or disproportionate measures that could deter events that are valuable to the community, such as live music. Noise limiters, for example, are expensive to purchase and install and are likely to be a considerable burden for smaller venues.
2.23 As with all conditions, those relating to noise nuisance may not be appropriate in certain circumstances where provisions in other legislation adequately protect those living in the area of the premises. But as stated earlier in this Guidance, the approach of licensing authorities and responsible authorities should be one of prevention and when their powers are engaged, licensing authorities should be aware of the fact that other legislation may not adequately cover concerns raised in relevant representations and additional conditions may be appropriate.
2.24 Where applications have given rise to representations, any appropriate conditions should normally focus on the most sensitive periods. For example, the most sensitive period for people being disturbed by unreasonably loud music is at night and into the early morning when residents in adjacent properties may be attempting to go to sleep or are sleeping. This is why there is still a need for a licence for performances of live music between 11 pm and 8 am. In certain circumstances, conditions relating to noise emanating from the premises may also be appropriate to address any disturbance anticipated as customers enter and leave.
2.26 Beyond the immediate area surrounding the premises, these are matters for the personal responsibility of individuals under the law. An individual who engages in antisocial behaviour is accountable in their own right. However, it would be perfectly reasonable for a licensing authority to impose a condition, following relevant representations, that requires the licence holder or club to place signs at the exits from the building encouraging patrons to be quiet until they leave the area, or that, if they wish to smoke, to do so at designated places on the premises instead of outside, and to respect the rights of people living nearby to a peaceful night.
9.37 As a matter of practice, licensing authorities should seek to focus the hearing on the steps considered appropriate to promote the particular licensing objective or objectives that have given rise to the specific representation and avoid straying into undisputed areas.
9.42 Licensing authorities are best placed to determine what actions are appropriate for the promotion of the licensing objectives in their areas. All licensing determinations should be considered on a case-by-case basis. They should take into account any representations or objections that have been received from responsible authorities or other persons, and representations made by the applicant or premises user as the case may be.
9.43 The authority’s determination should be evidence-based, justified as being appropriate for the promotion of the licensing objectives and proportionate to what it is intended to achieve.
9.44 Determination of whether an action or step is appropriate for the promotion of the licensing objectives requires an assessment of what action or step would be suitable to achieve that end. While this does not therefore require a licensing authority to decide that no lesser step will achieve the aim, the authority should aim to consider the potential burden that any condition would impose on the premises licence holder (such as the financial burden due to restrictions on licensable activities) as well as the potential benefit in terms of the promotion of the licensing objectives. However, it is imperative that the authority ensures that the factors which form the basis of its determination are limited to consideration of the promotion of the objectives and nothing outside those parameters. As with the consideration of licence variations, the licensing authority should consider wider issues such as other conditions already in place to mitigate potential negative impact on the promotion of the licensing objectives and the track record of the business. Further advice on determining what is appropriate when imposing conditions on a licence or certificate is provided in Chapter 10. The licensing authority is expected to come to its determination based on an assessment of the evidence on both the risks and benefits either for or against making the determination.
10.8 The licensing authority may not impose any conditions unless its discretion has been exercised following receipt of relevant representations and it is satisfied as a result of a hearing (unless all parties agree a hearing is not necessary) that it is appropriate to impose conditions to promote one or more of the four licensing objectives.
16.39 Chapter 9 of this Guidance sets out how a licensing authority must determine applications for a new licence or to vary an existing premises licence. Licence conditions imposed, in accordance with paragraphs 9.42 to 9.44, for live or recorded music activities will only apply if the activity meets the criteria of having more than 500 people present, and/or the activities are taking place between 23.00 and 08.00.
4.3 The licensing panel may also wish to view relevant case law as follows:
East Lindsey District Council v Abu Hanif (2016) High Court stated case reaffirms the prospective nature of the Licensing Act and how licensing authorities and courts should approach the promotion of the licensing objectives. It reaffirms that they require a ‘prospective consideration of what is warranted in the public interest, having regard to the twin considerations of prevention and deterrence’.
R (on application of Hope and Glory Public House Ltd) v City of Westminster Magistrates’ Court and Others (2011) EWCA Civ 312 also states how licensing authorities should approach licensing decision making: ‘They involve an evaluation of what is to be regarded as reasonably acceptable in the particular location. In any case, deciding what (if any) conditions should be attached to a licence as necessary and proportionate to the promotion of the statutory licensing objectives is essentially a matter of judgment rather than a matter of pure fact’.
R (on application of Daniel Thwaites plc) v Wirral Magistrates’ Court and Others (2008) EWHC 838 (Admin) emphasises the important role that responsible authorities have in providing information to decision makers to contextualise the issue before them, as they are experts in their fields.
Sourced from: https://www.gov.uk/government/publications/alcohol-licensing-using-case-law/alcohol-licensing-using-case-law
5.1 In determining the application the authority must give weight to:
· representations received from responsible authorities
· relevant representations received from other persons
· the Secretary of State’s guidance issued under Section 182 of the Licensing Act 2003
· the council’s statement of licensing policy and
· the steps appropriate to promote the licensing objectives
5.2 In view of the above, the panel is requested to consider the application for a premises licence and decide whether to:
(a) vary the licence as applied for
(b) vary the licence after modifying any conditions to such extent as the authority considers appropriate for the promotion of the licensing objectives,
(c) exclude from the scope of the licence any of the licensable activities to which the application relates
(d) reject the application in whole or in part.
6 Should the applicant or any other person wish to appeal against a decision of the council, they may do so to the magistrates’ court. The council would incur costs should this occur, although the court may decide to award costs if the council’s decision was upheld.
7.1 The Human Rights Act 1998 requires public bodies to ensure everything they do is compatible with Convention Rights and makes it unlawful for a public authority to act incompatibly with those rights. When determining whether to grant the application the panel will be aware of human rights considerations, specifically Part 1, Article 6, the right to a fair trial, Part 2 and Article 8 the right to respect for private and family life for those making representations.
7.2 The hearing of all applications is subject to the principles of natural justice.
7.3 Section 17 of the Crime and Disorder Act 1998 states, ‘without prejudice to any other obligation imposed on it, it shall be the duty of each authority to exercise its various functions with due regard to the likely effect of those functions on, and the need to do all that it reasonably can to prevent crime and disorder in its area’.
7.4 Under Schedule 5, Part 1 of the Licensing Act 2003, any person aggrieved by the decision in respect of the application may appeal to a Magistrates’ Court within 21 days of the date of the decision.
8 This report provides information submitted by the applicant, a responsible authority and other persons. The panel should determine this application with a view to promoting the four licensing objectives. It must, having had regard to all the relevant representations and the evidence it hears, determine the application using the options outlined in section 5 of this report.
Appendix A – Application (relevant pages only)
Appendix B – Responsible Authorities representation
Appendix C – Representation from Mr and Mrs Amos
Appendix D – Representation from Ms Bellingham
Appendix E – Representation from Mr Whiting
Appendix F – Map of area
Appendix A - Application form (relevant pages only)
Appendix B – Representation from Environmental Protection
Appendix C - Representation from Mr and Mrs Amos
From: Joan Amos
Sent: 24
August 2023 02:07 PM
To: Licensing South
<licensing@southoxon.gov.uk>
Subject: Wheatsheaf in Didcot
To whom it may concern,
I am writing to you to put forward some points which concern my husband and I about the application put forward by Punch Taverns Ltd regarding The Wheatsheaf pub in Wantage Road, Didcot, OX11 0BS.
They are applying for permission to play live and recorded music each weekend between 11 And 00.30am
We have lived at XX, Wantage Road, across the road from the Wheatsheaf for 40 years. Occasionally over the years they have had live music events at the Wheatsheaf during the evening. This music has always finished at 11 pm. Which we feel is reasonable. However the noise does travel across to us especially in the Summer months when we have bedroom windows open. The time scale that is proposed in this application 11-00.30 will obviously cause a great problem for us as noise at this time would be very unacceptable.
Also occasional music events is acceptable to us finishing at 11 pm but not every weekend as is proposed.
A second problem would be the noise created by people leaving the pub at that time of the evening having had lots to drink. We have had to endure lots of disturbance in the early hours of the morning many years ago when the Broadway, another local pub stayed open until the early hours of the morning. This has not been a problem in recent years and we really would not welcome this happening again on a regulAr basis.
The people smoking outside will also be speaking loudly as they will have been drinking
During the extended evening again causing an antisocial disturbance for the nearby residences.
We are not objecting to occasional music events as long as it is within reasonable hours I.e. finishing at 11pm and only happening occasionally, not every weekend.
Regards
Joan and Dennis Amos
Appendix D – Representation from Ms Bellingham
From: Julie
Bellingham
Sent: 08 August 2023 03:23 PM
To: Licensing South
<licensing@southoxon.gov.uk>
Subject: Wheatsheaf application (OX11 0BS)
Dear
licensing department,
I would like to object to the Wheatsheaf application for live and
recorded music.
This pub is in a densely residential area. It isn’t in a city
centre or commercial area where people are less likely to be
affected by noise. We live just less than 100m away from the pub,
and it is already noisy. People are loud and disruptive both at the
pub and when leaving, often disturbing our sleep and our
child’s sleep. Live and recorded music would make this
worse.
The application says that smokers would be allowed outside and a
notice would ask patrons to use the area quietly. I cannot imagine
this notice will have any effect on the noise level.
It is unreasonable for live music to be played every weekend until
12.30am in an area where many families are trying to sleep in their
homes.
Thank you,
Julie Bellingham
XX Wantage Road,
Didcot
Appendix E – Representation from Mr Whiting
From: Julie
Whiting
Sent: 15 August 2023 07:14 PM
To: Licensing South
<licensing@southoxon.gov.uk>
Subject: REF: Live Music at the Wheatsheaf Public
House, Wantage Road, Didcot
Dear Sir/Madam,
REF: Live Music at the Wheatsheaf Public House, Wantage Road, Didcot
I would like to object to the proposed music licence applied for by the above establishment to extend the hours and frequency of live music.
Currently the live music is infrequent and has breached the public house boundaries disturbing the neighbouring homes, in what is a residential area. I perceive that having more live music will exacerbate the problem.
I live in the residential area surrounding the pub, and have been aware of noisy and rowdy behaviour including swearing and shouting at closing time from the patrons when leaving the public house, which is worse during those times when the pub has live music.
Regards
David Whiting,
XX Wantage Road,
Didcot,
Appendix F – Map showing location of the premises (yellow) and approximate location of other persons making representations (green)
