East Hampshire District Council Penns Place, Petersfield Hampshire GU31 4EX Chief Executive: Will Godfrey
EAST HAMPSHIRE DISTRICT COUNCIL Minutes of the LICENSING SUB-COMMITTEE meeting held on Friday 30th November 2007, 10am, in the Council Chamber, Penns Place, Petersfield. Present: Councillors Mrs P J Bradford, Mrs A P Claxton and K J Graham. Reserve: Councillor K Carter. Officers: Principal Solicitor, Environmental Services Manager (Commercial), Principal Licensing Officer, Committee Services Co-ordinator and Committee & Councillors‟ Support Officer. 58. ELECTION OF CHAIRMAN
RESOLVED that Councillor K J Graham be elected Chairman of the SubCommittee for the hearing. 59. APOLOGIES FOR ABSENCE
Councillor Mrs Denston. 60. CHAIRMAN'S ANNOUNCEMENTS
The Chairman made the following announcements: 61. Asked that everyone present sign in using the official attendance sheet; Asked that all mobile phones be switched off; and Made all those present aware of the nearest fire exits.
DECLARATIONS OF INTEREST
None declared.
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62.
LICENSING ACT 2003 – VARIATION OF A PREMISES LICENCE – IZAAK WALTON, HIGH STREET, EAST MEON, HAMPSHIRE
The Sub-Committee considered the Report of the Principal Licensing Officer, ODMR.48/07. APPLICANT: Susan Young. The Principal Licensing Officer stated that the report related to an application to vary the premises licence for the Izaak Walton Public House, High Street, East Meon. The application had been made by the licence holder, Mrs Susan Young. A copy of the current premises licence had been enclosed in Appendix A with a location map in Appendix E. She apologised that the plan of the premises and the location map could not be viewed as the IT equipment was not working. A copy of the variation application had been enclosed in Appendix B. She asked the Sub-Committee to note an amendment to the report on page five of the agenda. This listed the appendices at 1.1 and bullet point four should read: „application for variation of premises licence‟. The report contained details of the requested variation on page six. The applicant had offered a number of steps to promote the licensing objectives and they were detailed on page seven of the agenda. The hearing had been called because representations had been received from residents living in the vicinity of the premises as shown in Appendix C of the report. Extracts of the representations were shown on pages eight and nine of the agenda. Representations from Environmental Protection and Health and Safety had been withdrawn following agreement by the applicant to proposed conditions. These conditions were detailed at 2.3 on pages seven and eight of the agenda. In respect of the residents‟ representations, a mediation meeting had been arranged to be held with the Izaak Walton. It had not been possible to arrange this meeting before this week and unfortunately, due to sickness, the Principal Licensing Officer had been unable to attend. However, Cllr David Parkinson, who had been asked by the interested parties to represent them, met with the licenceholder Mrs Young and her husband. Following this meeting, Cllr Parkinson emailed the outcomes of the discussions to the Principal Licensing Officer. The relevant content of the email had been made available to the Sub-Committee with the papers, with the agreement of Cllr Parkinson and Mr & Mrs Young. As the Sub-Committee would not have had an opportunity to consider the information, she suggested that the Sub-Committee might wish to adjourn to consider the new information before proceeding with the hearing.
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The Sub-Committee could decide to: (a) grant the application as asked; (b) modify the conditions of the licence, by altering or omitting or adding to them; and (c) reject the whole or part of the application. The Principal Licensing Officer had received confirmation from the following to attend the hearing: Mrs Sheila Young, the Applicant; Mr G Hughes, a friend of the applicant; Miss Rebecca Todd, Solicitor, Daltons Solicitors for the applicant; and Cllr David Parkinson, representing Mr J Culley and Mr I & Mrs J Campbell, Interested Parties.
Following this introduction the Sub-Committee chose to accept all recently submitted papers and adjourned to consider the new information they had been presented with. The meeting adjourned at 10.10am The meeting reconvened at 10.22am The Chairman asked the Principal Licensing Officer if the times on page 6 of the agenda under end times for live and recorded music should all read „23.00hrs‟. The Principal Licensing Officer agreed that this was correct and asked for the amendment to be noted. Miss Rebecca Todd, Solicitor for the applicant addressed the Sub-Committee. She said that the applicants had held mediation talks with Cllr Parkinson on behalf of the interested parties. During the mediation many of the objections had been overcome and the applicants had agreed to the following: Ensure that the external doors were closed and self closing with draught excluders; When funds would permit they would build a more elaborate smoking area in the back garden; Put up prominent signs in the public house reminding smokers to use the designated area at the rear of the premises; Hold no more than six live music events a year; Suggested turning off live and recorded music at 11pm; Restricted the playing of live and recorded music to the main premises; and They would do their best to stop the drinking of alcohol on the High Street.
She said that there had been reference to noise vibration and this related to a letter some weeks ago. A response to the letter was contained in Appendix D 3
to the agenda. She confirmed that the applicants had accepted the following conditions as stipulated by Environmental Health and Health and Safety: In order to reduce the risk of electrocution, all entertainers‟ electrical equipment, including mains powered microphones would be protected by residual current devices (RCDs) which would be tested each time before use; Live music would not be played between the times of 23.00hrs and 19.30hrs the following day; All external doors would be kept closed, other than for access and egress in all rooms when events involving regulated entertainment was taking place. External doors would be fitted with self closing mechanisms and draught excluders; and There would be no more than six live music events per calendar year.
Miss Todd informed the Committee that the applicants had done all that they could to solve the problems and address the complaints and that they were committed to running a responsible business in the village. Councillors asked the following questions to Miss Todd (answers in italics); The application referred to the playing of background music occasionally; this could really mean quite often. Could you confirm what it meant? Amplified live music would only happen on six occasions a year. Were the applicants agreeable to all the conditions? Yes, they were. They felt that they had addressed all the queries and representations. Did the applicants live at the public house? Yes, they did. The Principal Solicitor asked for confirmation that recorded music would be turned off at 11.00pm on Friday and Saturday. This was confirmed. Cllr Parkinson on behalf of the Interested Parties addressed the SubCommittee and said that as all the representations had been covered and all conditions agreed to, he felt that there was nothing else to say. The meeting adjourned at 10.32am. The meeting reconvened at 11.05am. The Principal Solicitor informed all those present that the Sub-Committee had reached a decision as follows: In considering the application, the Sub-Committee had regard to the promotion of the licensing objectives, the Act, its statement of licensing policy, the statutory guidance issued by the Secretary of State and the representations (including supporting information) presented by all the parties. 4
The Sub-Committee had decided to grant the application for the variations to the Premises Licence, as sought. The Sub-Committee had decided to impose the following conditions, as agreed with the applicant, because they considered it necessary to do so in order to prevent public nuisance. Condition one was also necessary to ensure public safety. 1. In order to reduce the risk of electrocution, all entertainers‟ electrical equipment, including mains powered microphones would be protected by residual current devices (RCDs) which would be tested each time before use; 2. Live music should not be played between the times of 23.00hrs and 19.30hrs the following day; 3. All external doors and windows should be kept closed, other than for access and egress in all rooms when events involving regulated entertainment were taking place. External doors shall be self closing and fitted with a draught excluder; 4. There should be no more that six live music events per calendar year;
5. Prominent signs were to be put in place recommending that smokers used the rear of the premises rather than the front; 6. Recorded music should not be played after 23.00hrs;
7. Live music and recorded music should be performed and played in the main building only. For the avoidance of doubt, live music and recorded music should not be performed or played in the garden or in any temporary structure erected in the garden; and 8. Steps shall be taken to endeavour that alcohol should not be consumed on the High Street at the front of the premises after 11pm. The Principal Solicitor advised all parties that they had the right to appeal to the Magistrates‟ Court within 21 days of the hearing. 63. LICENSING ACT 2003 – MOBILE VAN, THE SQUARE, PETERSFIELD, HAMPSHIRE
The Sub-Committee considered the Report of the Principal Licensing Officer, ODMR.47/07. APPLICANT: Mr Algas Babur. The Principal Licensing Officer stated that the report related to an application made by Mr Algas Babur, Bordon Kebab, 9a High Street, Bordon for a Premises Licence for a Mobile Van, The Square, Petersfield. A copy of the
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application had been enclosed in the agenda as Appendix B with a location map as Appendix D. She apologised that the plan of the premises and the location map could not be viewed as the IT equipment was not working. The report contained details of the licensing activities requested, which was late night refreshment until midnight Monday to Sunday. Mr Babur had stated that steps had been taken to promote the four licensing objectives and these were shown on page 49 of the agenda. The hearing was being called because representations had been received from the responsible authority, Environmental Protection, and interested parties living in the vicinity. The representations were shown in Appendix C and extracts were shown at 3.2 and 3.3 on page 50 of the agenda. She informed the Sub-Committee that mediation had taken place that week. This had been the earliest date that all the parties could meet. It had been attended by Environmental Protection, including the Environmental Protection Manager, two of the interested parties, Mr Barbur, his brother and his agent, the Police and the Principal Licensing Officer. Although the Police had not made a representation, the Principal Licensing Officer had asked the Police to attend, in order that they could assist the meeting with knowledge of late night activities in The Square. The mediation had resulted in the applicant agreeing to conditions being placed on the licence, should the Sub-Committee be minded to grant it. Mrs Fisher and Mr Chapman whilst welcoming the conditions stated that they would prefer that the licence was not granted. They wished it to be made known that they were not objecting to him trading up to 11 pm. The condition agreed would need to be written in such a way that it would be an enforceable condition on the licence if granted, but it was agreed that they should cover: Other than the continuous routine cleaning which was necessary to maintain a hygienic food business operation, the main clean and wash up at the evening trading must be carried out at the licence holder‟s home address; Signage to be applied to the outside of the van asking patrons to respect the neighbours and queue quietly; and Signage to state that no food would be sold or served after the terminal hour.
The applicant stated that he was unable to agree to the condition proposed by Environmental Protection i.e. Petersfield Kebab Van should not trade within 20 metres of the King William‟s Gate because there was not always an alternative parking space. It was therefore agreed that an enforceable condition to provide for the following be included on the licence: The van to be parked outside of the Church whenever practicable but if it was necessary to park nearer because of a lack of parking
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then an inverter was to be used to avoid the use of the generator. On occasions when because of lack of parking space outside the Church the van was located nearer King Williams‟s Gate, the van would relocate to a position outside the Church at the soonest practicable opportunity. As the Sub-Committee would not have had an opportunity to consider the outcome of the mediation, she suggested that the Sub-Committee might wish to adjourn to consider the new information before proceeding with the hearing. The Sub-Committee were advised that in determining the application: (a) (b) (c) they might grant the application as asked; modify the conditions of the licence, by altering or omitting or adding to them; and reject the whole or part of the application.
The Principal Licensing Officer had received confirmation from the following to attend the hearing: Mr Algas Babur, the applicant; Mr Kemal Babur, the applicant‟s brother to act as his interpreter; Mr Michael Giles, the applicant‟s agent; Mr Stuart Wedgbury, Environmental Protection Manager; Responsible Authority; Miss Lisa Duffy, Environmental Protection Officer, Responsible Authority; Mrs Sheila Fisher, Interested Party; Mr Glen Chapman, Interested Party and representing Mrs Taylor, Interested Party; PC Melissa Miles; and Sgt Tripp.
The Sub-Committee decided not to adjourn to consider the new information. Mr M Giles, Agent for the applicant addressed the Sub-Committee. He said that the applicant had been operating in The Square, Petersfield since 1990. The Square itself had been a meeting place for the citizens of Petersfield since the 11th Century and was used as a general access by pedestrians accessing other parts of Petersfield. The applicant had a good relationship with other traders and their customers and worked safely and efficiently in the location. They were applying for a licence as the original kebab van had been stolen and the replacement van required a licence. Mr Giles said that the licence for the old van had allowed the applicant to trade until 3am. However since the application for the new van the applicant had tried to co-operate with the local residents and had made changes to the licensing application. His clients were now only asking for a licence to trade 7
from 11pm to 12 midnight. He reminded the Sub-Committee that his client did not require a licence to trade up to 11pm. The applicant had noted the objections from Interested Parties and Responsible Authorities and had agreed to a number of conditions if the SubCommittee were minded to grant the application. Mr Giles said that there were not many locations in the Square for the van to park. The normal location was in front of St Peter‟s Church. However, this space was sometimes taken and the only other location that could be used was near the front of the façade of flats in King William‟s Gate. The problem was that of vehicular access to The Square in that the Police wanted it kept clear for emergency vehicles. He said that if the application was successful the applicant intended to invest £1,000 in an electronic inverter that would only be used if the van was located close to King William‟s Gate. The inverter would replace the generator and when in use no noise would be emitted from the van. In addition the applicant had agreed to put up signs on the van asking patrons to behave and also that it would close at 12pm midnight. In addition the applicant had agreed that the main cleaning of the van would be undertaken at their home address. Mr Giles reminded the Sub-Committee that the applicant was only asking for the retention of one hours trading, they had given up the three additional hours attached to the old van. Councillors asked the following questions to Mr Giles (answers in italics); When parked outside of the Church entrance were the users of the Church e.g. the bell ringers happy for you to be located there? Yes they were. The van did not cause any annoyance. If he was unable to park the van in that location, he would park close to King William’s Gate and watch for a space to become available. Once the van was located outside of the Church it remained there for the rest of the evening. That meant that the van could move to two different locations during the evening, was the applicant happy to do this? Yes he was. The applicant had a clear view of the preferred site and when it became free he would move location. The shops remained open until 6pm. It might not be until 7pm or 8pm before the van could relocate. Yes, that was correct. The serving hatch opened onto the Square and the applicant was prepared to invest in an inverter to cut down on the noise when it was located close to King Williams Gate. Mr Stuart Wedgbury, Environmental Services Manager (Protection) addressed the Sub-Committee. He explained that he was making representations on behalf of the Environmental Protection Team as a Responsible Authority. The Team‟s remit included the investigation of nuisances and included making
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comments as a responsible authority in respect of the licensing objective to prevent public nuisance. He explained that the Environmental Protection Team had received three complaints from residents concerning alleged nuisance associated with the use of the kebab van on The Square. These concerns related to three issues: Cooking odour; Noise from the generator; and Noise from clientele.
He said that of the issues, only one “noise from generators” might in principle be capable of control using the powers to deal with statutory nuisance under the Environmental Projection Act 1990 (EPA90). However, it was appropriate in principle to make representation in respect of all the matters under the Licensing Act. Mr Wedgbury explained that Environmental Projection Officers had made three late night visits to the vicinity to objectively assess the circumstances and risks of public nuisance being caused. He said that it was important to note that on each occasion the kebab van was located outside of the Church (South side). It was understood that the van had been formerly located on the side of The Square adjacent to King William‟s Gate where residential units were located above ground floor level. The three assessments were made on the following dates and times: Friday 9th November 2007 between 22.40hrs and 00.15hrs; Tuesday 13th November 2007 between 22.45hrs and 23.33hrs; and Saturday 17th November 2007 between 22.00hrs and 22.45hrs.
The visits were undertaken by three different officers from the Environmental Protection Team. Mr Wedgbury gave the Sub-Committee details of the findings of the officers and included: No cooking odour had been detectable within the Square; Noise from the generator had only been audible at the residential façade during quiet periods on the Tuesday night. However, it was not likely to be audible within any residential premises; Noise from the clientele had been observed on one of the three visits. On the Tuesday evening most of the noise within The Square had been associated with the kebab van. The noise had been audible within a car with closed windows. On the Friday and Saturday evenings more people noise had been noted from people
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crossing The Square. Very little noise on those evenings had been associated with clientele using the kebab van. He said that in considering public nuisance it was appropriate to take account of the character of the location. It was a Town Square where it should be expected that some late night noise would occur. In the view of Environmental Protection, the kebab van in its current location (outside the Church) did not pose a significant risk of public nuisance. However, should the kebab van to be located outside the flats in King William‟s Gate, in his view: The noise from the generator would be likely to be significant within the flats. The noise would continue throughout the period of operation and posed a significant risk of public nuisance; and Noise from clientele associated with the use of the van would be more significant and noticeably louder within the flats.
Environmental Protection would therefore prefer that the kebab van was not located here for the reasons listed above. However, the evidence from Environmental Protection‟s observations had been that on busy evenings more people-noise was associated with people not using the kebab van and therefore they could not substantiate that a significant risk of public nuisance would exist. He said that Environmental Protection therefore recommended that an enforceable condition to ensure that the kebab van was not located too close to the flats in King William‟s Gate. Mr Wedgbury informed the Sub-Committee that since making the representations colleagues had attended a mediation meeting with the applicants, interested parties, police and licensing officers. He understood that the applicant had proposed the following: To replace the generator with a quieter means of providing power as an alternative to an absolute restriction on location as originally proposed; and That some flexibility in location be provided to deal with circumstances where the preferred pitch outside the Church had been occupied.
He said that this would be an acceptable solution in respect of the generator noise, provided Environmental Protection was satisfied that plant noise would be insignificant. Both proposed amendments were acceptable provided they could be translated into enforceable conditions. Mr Wedgbury suggested the following conditions be applied: The applicant should obtain written permission from the Licensing Authority before the first use of any plant to supply electricity to
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the kebab van. Thereafter only approved plant should be used to supply electricity to the kebab van; and The kebab van should only operate within the area marked in red on the attached plan, except where this was not practicable due to its occupation by other road users.
The Principal Solicitor asked a number of questions including: (answers are in italic) Had the applicant agreed to the map set out in the condition? Yes, they had. Had the area plan been agreed with the Licensing Authority? It had been important to work on the precise area being discussed. Had the applicant seen the condition and map in writing? Yes, they had discussed the map and condition at mediations. It had been important to create a primary and secondary location. The van did not require a licence up to 11pm. Mr Chapman, Interested Party asked a number of questions including: (answers are italic) Had any of the Environmental Protection officers visited the bedrooms of the flats overlooking The Square? No, officers had not visited the flats. What had the weather conditions been like on the nights officers had visited The Square? On the Tuesday it had been dry and blustery and Friday dry and not overly cold. He did not know the conditions for the Saturday visit.
The Principal Solicitor suggested that if the Sub-Committee were minded to adjourn it would allow the applicants and interested parties to look at the map with the cross hatching. The Sub-Committee agreed to adjourn to allow the applicants and interested parties to review the map. The meeting adjourned at 11.54am. The meeting reconvened at 12.14pm. The Principal Solicitor advised the Sub-Committee that Mr Wedgebury and Mr Giles had met and agreed a potential condition. Mr Wedgbury advised the Sub-Committee that two conditions were proposed and they were: The kebab van would only occupy the area marked except where practicable – South of The Square; and
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The inverter should not be used until it had been agreed by the Environmental Protection Officer.
He explained that Environmental Protection had not heard of an inverter before and that they wanted to look at it before it was agreed. Mr Giles on behalf of the applicant explained what an inverter did. Basically it converted the power from a 12 volt power battery and powered the electrical equipment inside the kebab van. He confirmed that no noise was emitted. The Principal Licensing Officer said that the Licensing Authority would require a copy of the map for any licence that might be agreed. The Environmental Services Manager (Commercial) asked how long the inverter could run for and was informed that it could run continuously for ten hours. It was confirmed that the black hatched area was where the kebab van was normally located in front of the Church and did not cover the area around King William‟s Gate. Mr Chapman, an Interested Party and on behalf of Mrs Taylor, an Interested Party addressed the Sub-Committee and said that the interested parties had nothing personal against the applicant and understood that he had a business to run. However, he believed it was only fair and reasonable to expect residents of King William‟s Gate to have a reasonable nights sleep. The problem for residents was the additional hour requested. He understood that he knew it was a busy market square and that the applicant had traded there for a number of years. He said that a number of the flats including Mrs Fishers had bedrooms that overlooked The Square. It was a dynamic challenge to co-habit with businesses and residents. Those residents who overlooked The Square could see and hear that the noise emitting from The Square came mainly from the kebab van. In addition there was a transient noise from people walking across The Square. He said that the noise centred on the kebab van, mostly from people standing in line or consuming food close by. He said that it must be noted that the features of The Square had changed with the building of residential flats. He said that although his flat had double glazing he had to sleep with ear plugs, as that was how loud the noise had been. In addition, the residents who had already occupied the building had been maintaining noise logs. Residents‟ objections were to the additional hour from 11pm to 12 midnight. Residents requested that the additional hour should not be granted to enable residents to get a decent nights sleep. Mr Chapman said that with all due respect Environmental Protection sitting in a car observing the noise was not the right way to test it. They should have visited the flats and heard and seen the noise from that location.
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The Principal Licensing Officer addressed the Sub-Committee and said that need was not a consideration under the Licensing Act. Mr Giles on behalf of the applicant asked a number of questions including: (answers in italics) Would you agree that since the issues had been raised that the applicant had gone out of his way to work at and improve the noise and impact on residents in King William‟s Gate? Yes, he was grateful for the concessions and steps taken to reduce the hours of business. However, there had been six or seven occasions when the van had not closed at 12 midnight and one occasion had run on until 12.40pm Had the residents of King William‟s Gate spoken to the residents in St Peter‟s Road. No, they had not. He did not believe that the noise from The Square would reach that road as there was a building blocking the noise. The Principal Licensing Officer confirmed that no representations had been received from residents of St Peter‟s Road. Environmental Protection confirmed to the Sub-Committee that they had only received a few complaints about noise. In reply, Mr Chapman informed the Sub-Committee that most of the residents of King William‟s Gate still had to move in. The first resident had moved in at the end of May 2007 and he had moved in during August 2007. There was one other resident. Therefore there would be a limited number of complaints. The Chairman referred to a letter dated the 15th July 2007 which referred to music from a public house in The Square which had its doors wide open. PC Miles addressed the Sub-Committee in order to provide observations about The Square. She said that it was a gathering place for people and the Churchyard a place for the youth of the area to congregate. She said that if there were problems around The Square then the Police usually moved the people on. There were no records of incidents or assaults that would result in public order disputes. PC Miles said that there were ten records of complaints from Mrs Fisher, a resident of King William‟s Gate about nuisance in The Square. She said that in general The Square was a place for people to gather and it had always been a place to congregate. She said that it would be difficult to relocate the kebab van. Mr Giles on behalf of the applicant in summing up informed the SubCommittee that the kebab van did not broadcast music or entertainment.
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Mrs Fisher, an Interested Party in summing up addressed the Sub-Committee and said that it was not the kebab van that generated the noise, it was the people who frequented the kebab van. The meeting adjourned at 12.45pm. The meeting reconvened at 13.00pm. The Principal Solicitor informed all those present that the Sub-Committee had reached a decision as follows: In considering the application, the Committee had regard to the promotion of the licensing objectives, the Act, its statement of licensing policy, the statutory guidance issued by the Secretary of State and the representations (including supporting information) presented by all the parties. The Sub-Committee had decided to grant the application for a Premises Licence until 12.00 midnight. The Sub-Committee had decided to impose the following conditions, as agreed with the parties, in order to prevent public nuisance. 1. The Kebab van should only operate within the area cross-hatched in black, on the attached plan, except where this was not practicable; 2. If the Kebab van was unable to operate from within the area crosshatched in black on the attached plan then an inverter was to be used to avoid the use of a generator. The inverter should not be used until its use had been approved in writing by East Hampshire District Council‟s Environmental Protection Manager; 3. Other than the continuous routine cleaning which was necessary to maintain hygienic food business operation, the main clean and wash up at the end of evening trading must be carried out the licence holder‟s home address; 4. Signage to be applied to the outside of the van asking patrons to respect the neighbours and queue quietly; and 5. Signage to be applied to the outside of the van stating that no food will be served or sold after midnight. The Principal Solicitor advised all parties that they had the right to appeal to the Magistrates‟ Court within 21 days of the hearing. The meeting closed at 13.02pm.
Signed…………………………………. Chairman
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