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Report of Head of Legal and Democratic Author: Ashley Peachey, Licensing Enforcement Officer E-mail: ashley.peachey@southandvale.gov.uk To: Licensing Acts Panel DATE: 16 October 2023 |
REPORT NO: |
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1 To present the facts and relevant representations received in respect of an application for a premises licence for 18 Upper High Street, Thame, OX9 3EX to the Licensing Acts Panel in order that it can determine the application under Section 18 of the Licensing Act 2003.
2 The relevant strategic objectives are ‘Openness and accountability’ and ‘Improved economic and community wellbeing’.
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 grant 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 22 August 2023 an application for the grant of a new premises licence was submitted for 18 Upper High Street, Thame, OX9 3EX by John Gaunt and Partners on behalf of Monkey Puzzle Trading Limited. A copy of the form is attached at Appendix A. The application is for the following:
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Licensable Activity |
Proposed Days and Times |
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Supply of alcohol (on and off sales) |
Monday to Sunday 11:00 to 22:00 |
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Hours premises are open to the public |
Monday to Sunday 08:00 to 22:30 |
3.5 Three representations have been received from other persons. All representations mention both the potential for increase in noise from the extended hours of trading and the addition of the supply of alcohol. These representations are attached at Appendices B, C and D.
3.6 During the consultation period the applicant agreed a number of additional conditions which are attached at Appendix E.
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.
6.11 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 interest 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.
2.26 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.
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.
4.3 Relevant case law is as follows:
The High Court case of East Lindsey District Council v Abu Hanif (2016) High Court 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’.
The case of R (on application of Hope and Glory Public House Ltd) v City of Westminster Magistrates’ Court and Others (2011) EWCA Civ 312 sets out 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’.
Sourced from: https://www.gov.uk/government/publications/alcohol-licensing-using-case-law/alcohol-licensing-using-case-law
Options
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) grant the licence as applied for
(b) grant 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) refuse to specify a person in the licence as the premises supervisor, and/or
(e) reject the application.
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 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 for a new premises licence (relevant pages only)
Appendix B – Representation from Linda McAllister
Appendix C – Representation from Mr and Mrs A Dite
Appendix D – Representation from David J Walker
Appendix E – Proposed conditions
Appendix F – Map showing location of the premises
Appendix A – Application form (relevant pages only)
Appendix B – Representation from Linda McAllister
From:
LIN MCALLISTER
Sent: 15 September 2023 01:47 PM
To: Licensing South <licensing@southoxon.gov.uk>
Subject: Re: OBJECTION TO LICENCE Application number
LAPREM/22418/23
Appendix C – Representation from Mr and Mrs A Dite
From: Adrian Dite
Sent: 15 September 2023 01:39 PM
To: Licensing South <licensing@southoxon.gov.uk>
Subject: LAPREM/22418/23 - Premises Licence 18 - 20 Upper High Street Thame OX9 3EX
LAPREM/22418/23 | Premises Licence | Pending Decision | 18 - 20 Upper High Street Thame OX9 3EX
With reference to the above alcohol license application we wish to raise an objection to an alcohol license being issued to these premises.
This part of the Upper High Street is primarily private housing with some small business operating as well.
18 - 20 Upper High Street is made up of 4 small dwellings, a hairdressing salon, and a small café. The café, currently serving only hot/soft drinks and cakes, uses the attached large garden area for seating for its customers as the amount of internal seating is very limited. This garden is enclosed on all sides by private gardens belonging to adjoining private houses.
The café is currently operating Tuesday to Friday 08.00 – 17.00, Saturday 09.00 – 17.00 and Sunday 10.00 – 15.00.
Although noise level from the Café has detracted from the peace enjoyed in the surrounding gardens, it has not as yet been a nuisance, as the café is mainly supported by families. It currently closes at 17.00 though extending these hours would invite a different community, which, with alcohol, could increase noise levels substantially therefore becoming a nuisance to the local neighbourhood.
The new license application wishes to extend the possible opening hours to 08.00 – 22.30 every day with a daily alcohol license between 11.00 – 22.00. This will therefore have considerably more impact on the local neighbours, as we were completely unaware the garden was to be used for commercial activity.
It should also be noted that the outdoor space for the 4 dwellings on this site is not fully enclosed from the café garden and access to some dwellings is, in fact, through the café garden. Having the garden in use, and the serving of alcohol until 10.00pm daily will be very detrimental to these dwellings.
It might be said that the granting of this alcohol license could contribute positively to the commercial vitality of the town. However, there are many alcohol outlets in Thame, and adding another in this area may adversely affect existing businesses. There is sufficient evidence to conclude that the additional opening hours would result in overriding impacts upon the local environment and the neighbouring amenity.
On balance, we urge you to reject this application.
Mr & Mrs A Dite
Wellington Street, Thame
Appendix D – Representation from David J Walker
From:
david walker
Sent: 19 September 2023 05:49 PM
To: Licensing South <licensing@southoxon.gov.uk>
Cc: David Walker
Subject: Monkey Puzzle Cafe Upper High Street Thame
OX9
Dear Sir/Madam
I am writing in regard to the application for a licence at the above premises which is next door to my fathers house at __ Upper High Street Thame OX9 3EX
This has comes as a disappointing surprise to me especially after the owner assured me in June that he had no intention of applying for a licence and was just using the garden for occasional private parties. However he did not inform us of his application which could have been expected.
The works to refurbish the Monkey Puzzle were noisy and disruptive but we cooperated as neighbours allowing the blocking up of 2 windows on the party wall and the restoration/conversion was done extremely well in my opinion. Since completion there have been some general noise issues with evening events and more regularly dishwashers and toilets on the party wall which transmit sound directly into No __ but we have not raised complaints in the context of the above.
The grant of an application would be detrimental to the residential nature of the area and is unnecessary in the context of the apparent success of the Monkey Puzzle. My father moved in to be in a residential area some 6 years ago and with his bedroom facing the garden at the rear would be detrimentally affected by a late night licence and this would be exacerbated by the ongoing transmitted sound which would continue after the hours of the licence itself.
I would ask that these comments be accepted in the spirit in which they are offered and the application be rejected
Kind regards
Yours faithfully
David J Walker MBA MRICS
Appendix E – Proposed conditions
1) A digital CCTV system shall be installed and maintained in accordance with current Home Office Guidelines relating to UK Police Requirements for Digital CCTV Systems. The system shall ensure all licensed areas of the premises (except toilet facilities) are monitored, including all entry and exit points and external areas, and should ensure frontal identification of every person entering and in any light condition. All cameras shall continually record whilst the premises are open to the public and the recordings shall be kept and available for a minimum of 31 days with accurate time and date stamping. Any breakdown or system failure shall be notified to Thames Valley Police immediately and remedied as soon as practicable. A member of staff trained in data retrieval and viewing from the CCTV system shall be available at all times when the premises is open to the public. Recordings shall be made available to an authorised officer of Thames Valley Police or an authorised officer of the council together with facilities for viewing. The recordings for the preceding two days shall be made available immediately on request. Recordings outside this period shall be made available within 48 hours. Any request from Thames Valley Police, Trading Standards or the council for a copy of the CCTV recording to be made for evidential purposes must be carried out within 48 hours. A sign shall be placed in a prominent position on the premises notifying customers that CCTV is in operation.
2) Any serious incident at the premises which impacts any of the four licensing objectives shall be recorded in a register kept at the premises and shall contain the following information:
a) time and date
b) description of the incident
c) name of staff members or door supervisors involved
d) action taken as a result of the incident
e) name of member of staff recording the incident
f) This record must be retained at the premises for a period of not less than six months and be available on lawful request which is compliant with data protection legislation, by any authorised officer of the council or Thames Valley Police. The record should be signed off by the DPS or a nominated representative at least once a month.
3) The licence holder or their nominated representative shall devise, implement and maintain a Challenge 25 policy as part of their policy relating to alcohol sales. Clear signage relating to the policy shall be displayed at the premises. Only a valid driver’s licence showing a photograph of the person, a valid passport, national identity card or proof of age card showing the “PASS” hologram are to be accepted as identification.
4) All staff employed (whether paid or unpaid) in the sale of alcohol shall be trained in respect of the law relating to the sale of alcohol, proxy purchases, identification checking, the company’s proof of age policy and the procedure on handling and recording refusals. Refresher training shall be carried out every six months. Such training sessions are to be documented and records shall be kept for a minimum of one year and be made available upon request to an authorised officer of the council, Trading Standards and Thames Valley Police.
5) A refusal register (written or electronic) shall be maintained at the premises to record sales of alcohol that have been refused. The register is to be made available upon lawful request, which complies with data protection legislation, by Thames Valley Police, Trading Standards Officers and Licensing Officers. The register should include details of the time, date, member of staff refusing the sale, reason for refusal (for example intoxication or underage) and a brief description of the person refused.
Appendix F – Map showing location of the premises (blue) and approximate locations of other persons submitting representation (yellow)
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