Agenda for Licensing Panel (Licensing Act 2003 Functions) on Friday, 27th May, 2011, 10.00am

11.1       Councillor Lepper was appointed Chairman for the meeting.

(a)   Declaration of Substitutes - Where Councillors are unable to attend a meeting, a substitute Member from the main Licensing Committee may attend, speak and vote in their place for that meeting.

(b)   Declarations of Interest by all Members present of any personal interests in matters on the agenda, the nature of any interest and whether the Members regard the interest as prejudicial under the terms of the Code of Conduct.

(c)   Exclusion of Press and Public - To consider whether, in view of the nature of the business to be transacted, or the nature of the proceedings, the press and public should be excluded from the meeting when any of the following items are under consideration.

NOTE:  Any item appearing in Part 2 of the Agenda states in its heading either that it is confidential or the category under which the information disclosed in the report is exempt from disclosure and therefore not available to the public.

A list and description of the categories of exempt information is available for public inspection at Brighton and Hove Town Halls.

12a     Declaration of Substitutes

12.1    There were none.

12b     Declarations of Interest

12.2    There were none.

12c        Exclusion of the Press and Public

12.3       In accordance with section 100A of the Local Government Act 1972 (‘the Act’), the Licensing Panel considered whether the press and public should be excluded from the meeting during an item of business on the grounds that it was likely, in view of the nature of the business to be transacted or the nature of the proceedings, that if members of the press or public were present during that item, there would be disclosure to them of confidential information (as defined in section 100A(3) of the Act) or exempt information (as defined in section 100I of the Act).

12.4       RESOLVED - That the press and public be not excluded from the meeting during consideration of any item on the agenda.

Report of the Head of Planning and Public Protection (copy attached)

13.1       The Panel were requested to determine an application for a Variation of a Premises Licence under the Licensing Act 2003 for the Garden Café, St Ann’s Well Gardens, Nizells Avenue, Hove. It was noted that although the agenda referred to the application being for a new premises licence it was actually an application for a variation to an existing licence.

13.2       Mrs Wherity, Mrs Nicholson, and Mr Harrison and Mr Snell were in attendance as local residents who were objecting to the application. Mr Sharpe was present both in his capacity as a resident and as a representative of Wick Hall Tenants’ Association. Councillor Jarrett was also in attendance in his capacity as a newly appointed Local Ward Councillor. Mrs Bidwell and Ms Ball the applicants were also in attendance and were accompanied by their representative, Mr Simmonds.

13.3       Mrs McNaught, Licensing Officer introduced the report and explained that the application sought to remain open until later in the evening and to serve food and alcohol until 11.00pm. The premises did not fall within the Cumulative Impact Area or the Special Stress Areas.

13.4       Twenty four representations had been received from local residents and a Resident’s Association (one of the objections received had been withdrawn subsequently). These representations had expressed concerns relating to the Prevention of Crime and Disorder, Public Safety, Prevention of Public Nuisance and the Protection of Children from harm. A representation had been received from Sussex Police which had included conditions relating to Prevention of Crime and Disorder and the Protection of Children from Harm. This representation had been withdrawn as the applicant had agreed to the conditions and the operating schedule accordingly. Subsequently, two further representations had been received but after receiving a letter of intention from the applicants had been withdrawn. Mrs McNaught referred to the fact that a number of the letters referred to nature/wildlife conservation issues, which could not be considered by the Licensing Panel who had responsibility for determining applications in relation to the 4 licensing objectives.

13.5       There appeared to have been some confusion over what had been applied for and Mrs McNaught clarified that the application was for a variation to extend the hours for the sale of alcohol on and off the premises and the hours that the café would be open to the public. At present the sale by retail of alcohol on and off the premises took place between 8am and 9pm. The applicant was applying for 8am–11pm. The café was open presently from 8am-9.30pm. The applicant was applying for 8am-11.30pm (to include drinking up time).

13.6       A representation had been received from Sussex Police but this had been withdrawn as the applicants had agreed to conditions suggested by them and the operating schedule had been amended accordingly to include Challenge 25 and a condition that no glass would be used outside the premises. The applicants had also offered further conditions on the operating schedule to include service of alcohol with food only, and that children to be accompanied by an adults at all times.

13.7       The premises licence had been in place since 2005. One complaint had been received recently in relation to an alleged breach of licence with alcohol being served after licensable times. The Licensing Team had investigated this according to the Council’s Enforcement Policy.

13.8       Mrs McNaught drew the Panel’s attention to the relevant paragraphs of the Council’s Statement of Licensing Policy relating to Café Bars and Restaurants with outside service which sought to prevent the premises from becoming a public house. In the case of café bars:

·        the sale of intoxicating liquor and other beverages  had to be by waiter/waitress service for consumption by persons seated at tables; and

·        substantial food had to be available at all times. Licensees needed to be aware that a breach of conditions was likely to lead to the appropriate enforcement action.

13.9       In the case of restaurants with an outside service area the applicant would need to demonstrate that they had the agreement of the Local Authority to use the area defined on any plan provided. Notwithstanding that residents had expressed concerns about the consumption of alcohol in the park there was a DPPO for drinking in a public place but this only became an offence when an individual was asked to stop drinking by a Police officer. Consideration could be given to applying conditions that no open containers should be taken beyond the licensed area, however off sales would not prevent someone buying a bottle of wine and consuming it in the park, as they could from any off licence in the city.

13.10    Residents had also expressed concern in relation to the increased potential for anti-social behaviour and or statutory public nuisances occurring. However, such matters were dealt with by the Environmental Health Department under the Environmental Protection Act 1990, that department had a duty to investigate any complaints received relating to alleged nuisances.

13.11    Mr Sharp spoke as a local resident and on behalf of the Wick Hall Long Lease Tenants’ Association. He stated that residents were very worried at the nuisance which could result from individuals urinating in the park and depositing bottles and other rubbish there and or behaving in a menacing way which might intimidate residents. Mr Sharp was also of the view that light pollution and late night noise could be detrimental to bats and other wildlife living in the park, in addition he considered that there would be increased pressure on parking in the vicinity which was already at a premium.

13.12    The Chairman explained that none of these issues were captured by the Licensing Act 2003 and that the Panel could only consider issues which fell directly within the Council’s licensing responsibilities in accordance with the need to uphold the four licensing objectives. The same was true of matters in relation to any restrictive covenants on the land etc. Although any such issues would need to be resolved in order for the premises to trade lawfully, the onus fell on the applicants to ensure that all necessary permissions were in place, it did not fall within the licensing regime.

13.13    Mr Sharp went on to state that as a consequence of the profusion of outlets selling alcohol there had been increasing noise and other nuisance related to alcohol consumption in recent years. Permission to sell alcohol late at night for consumption off the premises would only make the situation worse and should therefore be resisted.

13.14    Mr Sharp stated that in his view a number of residents had not objected to the application as they had been reassured that the applicants would only serve alcohol at special events e.g., when wedding receptions had been booked. He referred to a recent Spring Festival event which had been held in the park. On that occasion alcohol had been served from separate servery hatches to customers without food. Alcohol had been served after the hour at which it should have ceased, that gave residents little faith regarding how the premises would be run in future.

13.15    Mr Snell made reference to the same incident stating that a lot of glass and debris had been found afterwards and this raised concerns for the future safety of children and others using the park during the day and that a number of individuals had been observed walking around the park with uncorked wine bottles. The applicants had indicated that they had a direct line to the Police but this was not correct also there were plans to close down the Police Station in Holland Road which would be the nearest help point.

13.16    Councillor Duncan enquired regarding incidents in the area and whether they had been reported to local councillors/the Police and was informed that an incidence involving damage to a car had been reported to the Police.

13.17    Councillors Duncan and Sykes enquired whether any incidents in the area had been attributable to the café. Mr Snell stated that it was impossible to attribute incidents back to their source but none the less the experience of residents was that incidents in the area had increased over recent years. Reference was also made to a grassed area outside the curtiledge of the café but which was used by it. Mrs McNaughton, the Licensing Officer showed the area under discussion including the additional grassed area referred to by reference to plans.

13.18    Mrs Wherity referred to her submitted letter of objection stating that that if granted the variation would contribute to unacceptable noise levels and inconsiderate behaviour, including littering and vandalism as a result of a business trying to conduct business in a poorly lit area. Mrs Wherity was concerned that additional lighting should be provided  and referred to some deliberate damage which had occurred to trees and seedlings in the park in the past.

13.19    Mr Harrison stated that he had suffered increasing levels of disturbance over recent years by vandalism and noise caused by drunken people walking up and down Furze Hill and St Ann’s Well Gardens, very late at night and into the early hours of the morning. He was of the view that the sale of any alcohol to be drunk off the premises would add to the risk of drunken behaviour in the nearby residential areas, the park was bordered on all sides by housing.

13.20    Mrs Nicholson considered that the statement that alcohol would only be sold with food and the further reference to off sales was contradictory , she also sought further clarification regarding responsibility for the grassed area. The Chairman, Councillor Lepper sought full clarification on this matter and Mrs McNaught, the Licensing Officer referred to the outside areas on the plan which formed part of the café and the additional area which was licensed under a separate arrangement with the Council.

13.21    Mr Simmonds then gave the submission on behalf of the applicants. He stated that the applicants were very sorry for the incident which had been referred to which had been the first and only transgression during all of the years (6) during which they had run the premises. On that occasion staff had not noticed the time and service of alcohol had gone on beyond the permitted time and this was acknowledged and admitted  and rigorous measures had been put into place to ensure that this did not happen again. Opened wine bottles had not been sold but had been provided as gifts to the organisers. A number of the conditions on the existing licence were ambiguous and were not tightly drawn and in the process of applying for the application the applicants had sought to address this and to revise existing conditions in order to make them clear and unequivocal. There had been a number of events taking place in the park on the evening in question.

13.22    The applicants were happy to meet all of the conditions imposed by the Police and it should be noted that neither the Police or Environmental Health had raised objections to the proposals. It was proposed that alcohol would not be served after 8.00pm except with food and by waiter/waitress service at tables only. It was proposed that alcohol would be served in conjunction with tapas evenings and similar events which the café had trialled successfully and for which there was an identified demand. The premises were well run and such events would attract a mature and established clientele, the café did not operate as a pub.

13.23    In answer to questions of Councillors Lepper and Duncan it was confirmed that there was no strict definition of the café bar condition related to “substantial“ food. It was explained that during the day a variety of items including cakes, sandwiches and light snacks were sold as well as well as more substantial meals as well as a variety of beverages including tea and coffee.

13.24    In answer to questions the applicants explained that it was not intended to hold these events every evening and that other catered events such as wedding receptions would still take place. The premises had its own toilet facilities for use by customers and these were in addition to those available to the public in the park itself. It was understood that the toilets located in the park were closed early in the evening. All alcohol was served in polycarbonate receptacles and staff did not sell alcohol without food during the day. A narrow range of alcohol was stocked which did not include spirits or high strength beers and ciders.

13.25    As there were no further questions, the Licensing Officer then gave her closing submission on behalf of the Licensing Authority. It was re-iterated that it was not an offence to bring alcohol into the park or to consume it whilst there. Whilst consideration could be given to applying conditions that no open containers could be taken beyond the licensed area that would not prevent someone from buying a bottle of wine and consuming it in the park.

13.26    Each of the interested parties then had the opportunity to make their closing submissions. Each re-iterated their earlier points and concerns. Mrs Nicholson stated that her concerns still remained. Mr Snell stated that he considered that alcohol should only be sold with food and that this should only be permitted until 9.00pm. Mr Sharp stated that he would have no objections if the licence operated as originally described with alcohol being served only on the premises and only with food. Mrs Wherity and Mr Harrison re-iterated their earlier remarks.

13.27    Mr Simmonds gave the closing submission on behalf of the applicants. He clarified that it was intended that alcohol would be served with food. The applicants had run the café for six years and apart from the one recent and regrettable event that had been addressed, it had been very well run and in consequence statutory authorities such as the Police had raised no objections. The applicant had agreed to all of the conditions recommended by the Police  and he hoped that it had been demonstrated that the premises would operate lawfully in a way which was workable for the applicants and supported the licensing objectives.

13.28    The Chairman stated that the Panel had listened very carefully to all of the submissions made. The Panel agreed to grant the proposed variation of hours for the sale of alcohol until 23:00 but wished to place additional conditions on the licence(these are set out below).

13.29    RESOLVED - That approval be given to the proposed variation of hours for  the sale of alcohol until 23.00 in respect of the Garden Café, St Ann’s Well Gardens, Nizells Avenue, Hove. However, the Panel require that the following additional conditions be placed on the licence. It should be noted that these were in addition to those conditions agreed between the applicant and the Police and set out in the circulated papers.

              The additional conditions to be placed on the Licence are as follows:

              After 8.00pm alcohol will only be served ancillary to food to persons seated at tables on the premises or at tables in the area permitted for the cafes use by the lease/agreement with Brighton and Hove City Council where tables provided by the premises are kept.; and

              Sale of alcohol shall be by waiter/waitress service for consumption by people seated at tables.

              The Panel believed that these measures were proportionate and necessary in order to promote the licensing objectives, and would deal with the concerns raised by the residents.

              Note: The Legal Adviser to the Panel explained that the applicants would receive this decision in writing and that the variation would take effect from the date of that letter.