Agenda item - Application for a New Charles Street & Envy, 8 Marine Parade, Brighton

Report of the Director of Public Health (copy attached)

36.1   The Panel considered a report of the Director of Public Health in relation to an application for a New Premises Licence under the Licensing Act 2003 for Charles Street and Envy, 8 Marine Parade, Brighton.  In attendance were Ms C Eames (Poppleston Allen) and Mr P Wright (Operations Director) on behalf of the Applicant Stonegate Pub Company Limited, Mr S Ventum (Counsel. Sussex Police), Sergeant B Hearth and Acting Chief Inspector R Apps (Sussex Police) and Mr R Rolfe, Mr T Scoble and Dr J Thomas attended to object to the application. 

            Introduction by Licensing Officer

36.2   The Licensing Officer stated that this was an application for a new premises licence for Charles Street & Envy, 8 Marine Parade, Brighton. The application stated that the premises were split into to two distinct customer trading areas; on the ground floor was Charles Street which operated as a sea front bar with casual dining, and on the first floor of was Envy, a bar venue providing entertainment in the form of music, dancing, DJ’s and club nights. The application sought to trade 7 days a week with alcohol for consumption on and off the premises from 11.00 am to 02.00 am Sunday to Wednesday and from 11.00 am to 05.00 am Thursday to Saturday. The same hours were also requested for the licensable activities of Films (the exception to this was a start time of 07:00 am), with indoor sporting events, live music, recorded music, performance of dance, anything of a similar description and late night refreshment with a start time of 11.00 am.  The application sought opening hours half an hour after the terminal hour each day so 02.30 am Sunday-Wednesday and 05.30 am Thursday to Saturday. In addition to this the application sought a further hour on a number of days which were listed on page 33 of the agenda. There was already a premises licence in force at this venue (Charles Street and Envy licence reference 1445/3/2010/02329/LAPRET) which allowed all of the licensable activities applied for in this application  Sunday – Wednesday:  11:00 – 02:00 and Thursday – Saturday:   11:00 – 03:00. The applicant had indicated that they would surrender the existing licence should the panel be minded to grant this application. The premises fell within the Cumulative Impact Area. Many of the conditions suggested in appendix C (page 30 of the agenda) of the Statement of Licensing Policy had been included in the applicants operating schedule which could be found on pages 45-47 of the agenda and pages 37-38 of the addendum in their amended operating schedule. This included conditionsregarding provision of CCTV, BCRP membership, Pubwatch participation, written drugs policy, written dispersal policy, conditions to manage smokers, refusals log, Challenge 21 policy and signage and staff training. The Licensing Authority had received 4 representations.  They were received from local residents, a Resident Association, and Sussex Police. The representations had concerns relating to Prevention of Crime and Disorder, Cumulative Impact and the Prevention of Public Nuisance. Representations were also received by the Licensing Authority and Environmental Protection Team but subsequently withdrawn following consideration of the operating schedule, evidence bundle and agreed conditions including the management and supervision of smokers. In light of this and further to the evidence submitted, the Licensing team had withdrawn its representation satisfied that the applicant had demonstrated exceptional circumstances and would not negatively impact on the Cumulative Impact Area. The agreed conditions appeared on page 35 of the evidence bundle submitted by the applicant last week, page 37-38 of the addendum.  Representations were attached at Appendix D from page 55 of the agenda. The Statement of Licensing Policy stated that applications which were likely to add to the existing cumulative impact would be refused following relevant representations. This presumption of refusal could be rebutted by the applicant if they could show that their application would have no negative cumulative impact on Licensing Objectives. Furthermore, this special policy was not absolute. Upon receipt of a relevant representation, the Licensing Authority would always consider the circumstances of each case and whether there were exceptional circumstances to justify departing from its special policy in the light of the individual circumstances of the case. If an application was unlikely to add to the Cumulative Impact of the Area, it may be granted.

          Questions to the Licensing Officer

36.3    The Chair asked if it was known why the Environmental Protection Team had withdrawn their representation. The Licensing Officer said that they weren’t able to comment on behalf of the Environmental Protection Team. However, the solicitor said that they would have been satisfied that the applicant had demonstrated exceptional circumstances.

            Representations

36.4    Mr Ventum said that the Police were concerned with two areas. The first was the extension of hours as outlined in Appendix C & D, and the second was the extension of the terminal hour by one hour on certain notable dates. The applicant had based their application on the desire to reduce homophobic incidents, but that had not been shown in their evidence. Only two situations of homophobic abuse had been recorded; verbal abuse to staff on 14 August 2015 and harassment of a transvestite male on 28 June 2015. Mr Ventum accepted those were both unpleasant incidents, but they would not have been avoided if the premises had closed an hour later. Closing at 5.00 am would mean that the premises would shut, and people be leaving, after Operation Marble stopped at 4.00 am. The Police were also concerned that a £1 drinks promotion on a Thursday would be extended for an additional two hours if the new licence were granted. The premises were located in Queens Park area which ranked high on alcohol related admissions, and extending the drinks promotion could exacerbate the situation. Mr Ventum concluded by saying that the presumption was that the application would not be granted unless exceptional circumstances could be shown.

36.5    The Chair asked if there were questions to the Police, but there were none.

36.6    Mr Rolfe said he agreed with the Police’s concerns. He said that he represented people who were disturbed during the night from people leaving the premises, and an extension to the opening hours would only prolong that.

36.7    Dr Thomas said that these were large premises, with a potential capacity in excess of 250, which was situated within a residential area and within the Cumulative Impact Zone. The Statement of Licensing Policy stated that applications which were likely to add to the existing cumulative impact would be refused following relevant representations, and that should not be ignored. The applicant had stated that there would be a designated smoking area, which would stop customers smoking outside of the premises, but the smoking terrace would accommodate 25 people and that would still create noise. The applicant had said that the extension of the closing time would mean that customers would leave gradually over a longer period of time in smaller groups which would reduced the noise, but the reality would be that the noise would continue even later than at present.

36.8    Mr Scoble said that an extension to the hours would impact on nearby residents’ peaceful enjoyment of their properties. At the moment the disturbance from customers leaving nearby premises was affecting people and depriving them of sleep. Currently there was a bottle collection at 5am which was particularly disturbing. He asked that if the application were granted that there be a condition that the outside of the premises were cleaned on a regular basis and that any bottle collection was not done before 9.00 am.

36.9    The Chair asked for questions, but there were none.

            Representation from the Applicant

36.10  Ms Eames said that the premises had been owned by Stonegate Pub Company Limited for five years, and the company had other venues both locally and nationally. The previous licence was outdated, with a reduced number of standard hours, and had Conditions which needed to be reviewed. As the premises were within the Cumulative Impact Zone it was considered preferable to apply for a new licence rather than request numerous changes to the current licence. The key changes would be an extension of the licensable activities, which would only be a further six hours a week, a revision of the Conditions and better management of smokers in Charles Street. Ms Eames said that the application had not been sought ‘to reduce homophobic incidents’. The application would not add to the cumulative impact in the area, but would in fact reduce noise. As the premises closed early than nearby venues, there was evidence to show that customers left this venue and then went to another place, which resulted in ‘double migration’. If the premises were open later, customers were likely to not move elsewhere. There was no evidence of crime and disorder at the premises. The company had a number of premises across the country and were well run, with staff fully trained, members of BCRP and the manager was the Vice Chair of Pubwatch. The venue was popular and good for the local economy. If the new licence were granted the company would invest in the business and improve the premises. The company would work with the local community to ensure any disturbance was kept to a minimum. Drinks promotions had been carefully operated over the last five years with no major incidents. The offer the Police referred to was on bottle of beers and Sour Shots, (which was a low alcohol drink). All promotions were reviewed on a regular basis. If the Police were particularly concerned, the company would remove the drinks promotion. With regard to bottle collection, that would be reviewed with an undertaking that it was not done before 7.00 am. The application had been made as it was not felt that the current licence was fit for purpose, and the new licence would support the Licensing Objectives. With regard to the two homophobic incidents the Police referred to, the first were not made by customers of the premises, but people who wanted to enter and staff refused them entry which showed good management of the premises. The second incident took place inside the venue where a customer got into an agreement with another person and tried to remove their remove their wig; both parties were ejected from the premises. Ms Eames concluded by saying that there was no evidence that a change to the licence would impact on Crime and Disorder in the area.

36.11  The Chair invited questions for the applicant.

36.12  The Chair why a variation to the current licence had been made, rather than applying for a new licence. Ms Eames said that it was felt that the current licence, particularly the Conditions were out of date and not fit for purpose and therefore it was tidier to apply for a new licence.

36.13  The Police noted that it had been stated that if the new licence were granted that the company would invest further in the business and suggested the premises should be maintained regardless of the outcome of the application. Ms Eames said that the premises would certainly be maintained, but an extension of hours would lift the business and justify a refurbishment of the venue. The Police noted that Challenge 21 would be enforced and asked why that would not be Challenge 25. Ms Eames said they would be happy for that to be applied. The Police asked whether ID Scanners would be used, but Ms Eames said that she didn’t think it would be warranted. The Police suggested that the application was only being made for commercial reasons. Ms Eames said the company wanted to operate a good business in the city which in turn would ensure jobs for local people. Mr Ventum said that application asked for an extension of time on notable days and suggested that granting that would be a means of circumventing applying for a TEN.

36.14  Councillor Noonan noted the argument that a later closing time would alleviate double migration, and suggested that having the same closing time as other nearby venues would mean more people leaving at the same time and so possibly increase the possibility of antisocial behaviour. Ms Eames said that a later closing time could lead to people only leaving the one premises, rather than two. There were bus stops and taxi ranks nearby and so customers would b able to disperse quickly and efficiently.

36.15  Dr Thomas questioned the rationale behind creating a smoking area to reduce noise. The applicant said that currently smokers were outside the premises, with no limit on how many people there could be. With a designated smoking area limited to 15 people, would ensure that there would be fewer people, away from the public area and therefore there would be less noise.

36.16  Mr Scoble asked what interaction the company had with local people. Ms Eames said that the company had liaised with the Licensing Authority, Environmental Health and had written to local residents to advise them of the application. Mr Scoble asked if the company had spoken to LACs, and was advised they hadn’t.

Final Observations/Summing up

36.17  Mr Ventum said that the Police were concerned that the application asked for a closing time of 05.00 which was after Operation Marble ended, that the premises were located within the Cumulative Impact Zone and that people drinking later would only add to the cumulative impact. He asked that Panel that if they were minded to grant the licence that they be consulted on possible conditions.

36.18  Dr Thomas said that the proposals did not show that there were exceptional circumstances to grant the new licence. She added that the venue was enjoyed by friends and she hoped it remained, but not with an extension to its hours.

36.19 Ms Eames said that a new licence would better promote the licensing objectives, smokers would be contained in one area, there was no evidence that longer hours would lead to Crime and Disorder, there was concern at speculation at what might happen if the new licence were granted but that was not justified. The company wanted to secure a viable and good business within the Cumulative Impact Zone. Ms Eames said that if the Panel were not minded to grant the new licence that they look at the suggested new Conditions particular with regard to smokers.

36.20  The Licensing Officer said that this was an application for a new premises licence for Charles Street & Envy, 8 Marine Parade, Brighton. The application sought to trade 7 days a week with alcohol for consumption on and off the premises from 11.00 hours to 02.00 hrs Sunday to Wednesday and from 11.00 hrs to 05.00 hours Thursday to Saturday. The same hours wee also requested for the licensable activities of Films (start time of 07:00 hours), indoor sporting events, live music, recorded music, performance of dance, anything of a similar description and late night refreshment.  The application states the opening hours will be half an hour after the terminal hour each day so 02.30 hrs Sunday-Wednesday and 05.30 hours Thursday to Saturday.

The representations were asking you to consider refusing the application in regards to the licensing objectives of the Prevention of Crime and Disorder, Cumulative Impact and the Prevention of Public Nuisance.  You have heard from all the parties present.

The premises fell within the Cumulative Impact Area and this Special Policy would only be overridden in exceptional circumstances. The effect of this Special Policy was that applications which were likely to add to the existing Cumulative Impact, would be refused following relevant representations. This presumption could be rebutted by the applicant if they could show that their application would have no negative Cumulative Impact.

The question for the Panel was whether they considered that the application was likely to add to the existing Cumulative impact and/or had the applicant demonstrated that their application would not have a negative impact?

If it is was unlikely to add to the Cumulative Impact or the applicant had demonstrated that it would not impact then the Panel should consider granting the application, and any conditions to meet Licensing Objectives and to control cumulative impact should be clear, precise and enforceable. The penalties for breaching conditions were severe, with a maximum fine of £20,000 and/or 6 months imprisonment, so this was particularly important.

The Licensing Guidance stated that:  In determining the application with a view to promoting the licensing objectives in the overall interests of the local community, the licensing authority must give appropriate weight to:

• the steps that were appropriate to promote the licensing objectives;

• the representations (including supporting information) presented by all the parties;

• the Guidance;

• its own statement of licensing policy

It was important to note that each application would be given individual consideration on its own merits. 

If the panel believed the application would add to the existing Cumulative Impact and the applicant had failed to demonstrate how they would counteract that negative impact then the Panel should consider refusal. If the Panel decided to refuse, it would need to demonstrate that granting would undermine a Licensing Objective and conditions would be ineffective in preventing problems.

36.21 The Chair advised that the hearing was now concluded, and the Panel would advise all parties of their decision in due course.

36.22  For the record the Panel’s decision, which was sent to all parties after the hearing was as follows:

The panel has read all the papers including the report, relevant representations, evidence bundle of the Applicant and papers from the Police. The panel has listened carefully to all the submissions and arguments put forward at the hearing. 

This is an application for a new premises licence within the Cumulative Impact Zone (CIZ) and therefore subject to the special policy on cumulative impact as set out in the Statement of Licensing Policy. The panel notes that there is an existing licence in respect of the same premises. The Applicant seeks to replace this licence with a new licence with updated conditions, in particular in relation to the smoking area, and an extension of hours for the sale of alcohol and other licensable activities until 05.00 hours on Friday and Saturday, with a closing time of 05.30.

Our policy states that applications for new premises licences, or variations which are likely to add to cumulative impact, will be refused following relevant representations. This presumption can be rebutted by the applicant if they can show that their application will have no negative cumulative impact.  The special policy will only be overridden in exceptional circumstances. The Policy is not absolute. We must consider each application on its merits. We must consider whether there are exceptional circumstances to warrant a departure from our policy. The fact that a premises will be exceptionally well managed with a well-qualified applicant will not be considered exceptional under the policy.

The panel has considered the individual circumstances and merits of this application as put forward by the applicant. The Applicant’s case is that their customers wish to stay in the premises for the duration of their night out, rather than have to leave go to other later opening venues in the area. Extending the terminal hour to 05.00 will thus, they claim, prevent double migration of customers leaving their premises and another premises later on, as opposed to keeping their customers within their premises, who will then disperse gradually to their homes. They have conducted customer exit surveys which support this. It is argued that there will therefore be no negative cumulative impact and even a positive impact and that thus the application should be considered as an exception to the policy.  The panel notes that the Licensing authority and the Environmental Heath team representations have been withdrawn on the basis that they are satisfied that it is exceptional and will not add to problems of cumulative impact.

The panel has considered the submissions made on behalf of the police and local residents who all contend that later hours on Friday and Saturday will increase problems in the area especially in relation to public nuisance but also crime and disorder because more people will be dispersing later and that further this will create operational challenges for the police as operation Marble ends at 4am.

In carefully weighing up the arguments the panel are not convinced by the case of the applicant. When questioned there were few details given of the customer exit polls conducted and they have not been produced. The panel consider that later hours will attract more people into the premises who will disperse later into the night having consumed more alcohol into an already saturated and challenging area thus adding to existing problems. In this respect the panel share the concerns of the police and local residents. The panel recognise the many excellent practices of the premises and have considered the last entry time proposed of 3am but do not consider these will mitigate the likely negative cumulative impact when customers leave the premises. This is the essence of cumulative impact and of the policy.

Upon the suggestion of the applicant at the end of the hearing, the panel has decided to grant the application in part. The new operating schedule conditions (at page 37 of the paginated applicant’s bundle) with the exception of condition 7 relating to last admission, the imposition of Challenge 25 (rather than 21) but including those relating to the smoking area, are accepted and attached. The panel consider these will promote the licensing objectives.  However the licensable activities and opening hours and times for those (apart from Film which is granted from 07.00 hours), are to remain as per the existing licence including the non-standard timings. This is because, as explained above, the panel consider allowing later hours for such activities is likely to add to existing cumulative impact and undermine the licensing objectives.