LICENSING COMMITTEE – 2 OCTOBER 2012

Applicant: Mr Kanavathipillai SURESHKUMAR

Application Premises:16 The Parade, Delta Gain.

Application address: 16 The Parade, Delta Gain, Carpenders Park, WD19 5BL

Type of Application:New premises licence

Date of Application: 8th August 2012

Date by which a hearing must be commenced:3rd October 2012

Valid application made: Yes

1.Summary of application sought:

The application is for the supply of alcohol for consumption off the premises only on Monday to Sunday from 08:00 – 23:00 hours, with no seasonal variations or non-standard timings.

Summary of premises history:

This is a new premises and there is no history of it as a licensed premises.

2.List of Objectors / Representations

Responsible Authorities: One(1)

Other Persons: Three (3)

3.Summary of Objections / Representations (the 4 Licensing Objectives)

Responsible Authorities:

This application seeks a premises licence to allow the supply of alcohol Monday to Sunday 0800 – 2300hrs.

The area in which the premises are located is known within local policing area as a ‘hotspot’ for anti-social behaviour. This is an area where groups of young people are known to gather in front of and behind the parade of shops. Incidents of anti-social behaviour include criminal damage, drug use, street drinking, and attempted burglary. A CCTV camera was erected by the community safety partnership on the 14th June 2012 in response to these issues.

Retail premises in the area have also been subject to large amounts of shoplifting. It is known that alcohol dependants from South Oxhey travel to Carpenders park to obtain alcohol from this area.

In light of the location of the premises and the anti-social behaviour issues it is the belief of the police that the proposed licensing hours could potentially lead to an increase in nuisance and disorder and affect the quality of life of local residents.

The police put forward suggested supply of alcohol hours as 0800 – 2200hrs Monday to Saturday and 1000 – 2200hrs Sunday.

Other persons:

  1. If granted will result in a fundamental change and deterioration of character of the estate.
  2. The area in front of the shops is already a place where youths congregate and cause public nuisance, with an extra licensed premises there, it would make matters worse.
  3. We already have problems in the area of underage drinking, crime and anti-social behaviour and this will just exacerbate the problems.
  4. Young people already hang about in the parade making it difficult to get a good nights sleep.

Relevant representations from “other persons”:

“Other person” is defined in section 17(5) Licensing Act 2003 as amended by the Police Reform & Social Responsibility Act 2011 as being:-

  • “Persons who live, or are involved in a business, in the relevant Licensing Authority’s area and who are likely to be affected by it.”

4.Statutory Guidance (as from April 2012))

The Licensing Objectives and Aims

Paragraph 1.2

The legislation provides a clear focus on the promotion of four statutory objectives which must be addressed when licensing functions are undertaken.

The Licensing Objectives:-

  • The prevention of crime and disorder;
  • Public safety;
  • The prevention of public nuisance; and
  • The protection of children from harm.

Paragraph 1.3

Each objective is of equal importance. It is important to note that there are no other licensing objectives, so that these four objectives are paramount considerations at all times.

Paragraph 1.4

But the legislation also supports a number of other key aims and purposes. These are vitally important and should be principal aims for everyone involved in licensing work. They include :

  • The necessary protection of local residents, whose lives can be blighted by disturbance and anti-social behaviour, associated with the behaviour of some people licensed premises of entertainment.
  • The introduction of better and more proportionate regulation to give business greater freedom and flexibility to meet customer expectations.
  • Greater choice for consumers, including tourists, about where, when and how they spend their leisure time.
  • The encouragement of more family friendly premises where younger children can be free to go with the family.
  • The further development within communities of our rich culture of live music, dancing and theatre, both in rural areas and in our towns and cities and
  • The regeneration of areas that need the increased investment and employment opportunities that a thriving and safe night-time economy can bring.

Prohibition of alcohol sales at service areas, garages etc.

Paragraph 5.23

Section 176 Licensing Act 2003 prohibits the sale or supply of alcohol from premises that are used primarily used as a garage, or are part of a premises used primarily as a garage.

Section 176(4)(c) of the Act defines a garage as premises that are used for one or more of the following:-

1. the retailing of petrol,

2. the retailing of derv,

3. the sale of motor vehicles,

4. the maintenance of motor vehicles.

Paragraph 5.24

The Licensing Authority must decide whether or not any premises is used primarily as a garage. The approach endorsed so far by the courts is based on the intensity of use to establish primary use. For example, if a garage shop in any rural area is used more intensely by customers purchasing other products than by customers purchasing non-qualifying products or services, it may be eligible to seek authority to sell or supply alcohol.

Paragraph 5.25

Where there is insufficient evidence to establish primary use, it is for the Licensing Authority to decide whether to grant the licence and deal with any issues through enforcement action or to defer granting the licence until the primary use issue can be resolved to their satisfaction.

Licensing Hours.

Paragraph 13.40:-

With regard to Licensing hours, the statement of Policy should generally emphasise the consideration, which will be given to the individual merits of an application. The Government strongly recommends that statements of policy should recognise that, in some circumstances, flexible licensing hours for the sale of alcohol can help to ensure that the concentrations of customers leaving premises simultaneously are avoided. This can help to reduce the friction at late night fast food outlets, taxi ranks and other sources of transport which lead to disorder and disturbance.

Hours of trading:-

Paragraph 10.19

In some town and city centre areas where the number, type and density of premises selling alcohol for consumption on the premises are unusual, serious problems of nuisance and disorder may arise outside or some distance from licensed premises. For example concentrations of young drinkers can result in queues at fast food outlets and for public transport, which may in turn lead to conflict, disorder and anti social behaviour. In some circumstances, flexible licensing hours may reduce this impact by allowing a more gradual dispersal of customers from premises.

Paragraph 10.20

However, there is no general presumption in favour of lengthening licensing hours and the four licensing objectives should be paramount consideration at all times. Where there are objections to an application and the committee believes that changing the licensing hours would undermine the licensing objectives, they may reject the application or grant it with appropriate conditions and/or different hours from those requested.

Paragraph 10.21

Shops, stores and supermarkets should normally be free to provide sales of alcohol for consumption off the premises at any times when the retail outlet is open for shopping unless there are good reasons, based on the licensing objectives, for restricting those hours. For example, a limitation may be appropriate following Police representations in the case of some shops known to be a focus of disorder and disturbance because youths gather there.

9. Determining Applications

Paragraph 9.1 General.

When a Licensing Authority receives an application for a new premises licence or an application to vary an existing premises licence, it must determine whether the application has been made in accordance with section 17 of the Licensing Act 2003, and in accordance with regulations made by the Secretary of State under sections 17(4), 17(5), 54 and 55 of the Act. This means the Licensing Authority must consider amongst other things whether the application has been properly advertised in accordance with the regulations.

Paragraph 9.2 Where no representations are made.

A hearing is not required where an application has been lawfully made and no responsible authority or other person has made a representation. In these cases the Licensing Authority must grant the application in the terms sought, subject only to conditions which are consistent with the operating schedule and relevant mandatory conditions in the Act. This should be undertaken as a simple administrative process by the Licensing Authority’s officials, who should translate the proposals contained in the operating schedule to promote the licensing objectives into clear and understandable conditions.

Paragraph 9.3:- Where representations are made.

Where a representation concerning the licensing objectives is lodged by a responsible authority about a proposed operating schedule, it is relevant and the Licensing Authority’s discretion will be engaged. It will also be engaged if an “other person” makes relevant representations to the Licensing Authority, i.e. those which are not frivolous or vexatious and which relate to the licensing objectives. Representations can be made in opposition to, or in support of, an application.

See also paragraph 8.16 of the Guidance re Responsible Authorities.

Paragraph 9.8 :- Relevant, Vexatious and Frivolous Representations

A representation would only be “relevant” if it relates to the likely effect of the grant of the licence on the promotion of at least one of the licensing objectives. For example a representation from a local businessman which argued that his business would be commercially damaged by a new licensed premises, would not be relevant. On the other hand, a representation that nuisance caused by the new premises would deter customers from entering the local area and the steps proposed by the applicant to control that nuisance were inadequate would be relevant. There is no requirement for an interested party or responsible authority to produce a recorded history of problems ata premises, to support their representations; and in fact this would not be possible for new premises.

5.Licensing Policy (2011-2014) Guidance

LP1 - Fundamental Principles

LP1.1In carrying out its licensing functions the Licensing Authority will promote the Licensing Act’s four licensing objectives, which are:

  • the prevention of crime and disorder;
  • public safety;
  • the prevention of public nuisance; and
  • the protection of children from harm.

LP1.2Each of these objectives is to be considered equally. No one objective carries more importance than another.

LP1.3In determining our policy, we have had regard to the Secretary of State’s Guidance (as amended) (“the Guidance”) issued under section 182 of the Act. We shall give appropriate weight to the views of those we consult. Referring to the Guidance is important for consistency, particularly where licensing authority boundaries meet.

LP1.4While this Licensing Policy sets out a general approach to the making of licensing decisions, it does not ignore nor is inconsistent with the provisions in the Act. For example, nothing in our Policy undermines the right of any individual to apply under the terms of the Act for a variety of permissions and to have any such application considered on its individual merits.

LP1.5Nothing in our Policy will override the right of any relevant person or body to make representations (objections) on an application or seek a review of a licence or certificate where provision has been made for them to do so in the Act. (This means to make a complaint that a premises is not adhering to its licence conditions or is causing problems locally which contravene one or more of the four licensing objectives).

LP1.6Conditions attached to various licences will be focused on matters which are within the control of individual licence holders and others granted relevant authorisations. Accordingly, these matters will centre on the premises and places being used for licensable activities and the vicinity of those premises and places. Whether or not incidents can be regarded as being in the ‘vicinity’ of licensed premises or places is a question of fact and will depend on the particular circumstances of each case.

In cases of dispute, the Magistrates’ Court will ultimately decide the question.

LP1.7The Licensing Authority will primarily focus on the direct impact of the activities taking place at licensed premises on members of the public living, working or engaged in normal activity in the area concerned. Licensing law is not a mechanism for the general control of anti-social behaviour by individuals once they are away from the premises and, therefore, beyond the direct control of the individual, club or business holding the licence, certificate or authorisation concerned. Nonetheless licensing law is key to providing a holistic approach to the management of the evening and night-time economies of town centres.

The expectation is that Licensed premises will take responsibility for managing the quiet dispersal of their customers to the best of their ability.

LP1.8The Licensing Authority is committed to avoiding duplication with other regulatory regimes as far as possible. For example, legislation governing health and safety at work and fire safety places a range of general and specific duties on employers and operators of venues both in respect of employees and of the general public when on the premises in question. Similarly, many aspects of fire safety will be covered by existing and future legislation.

LP1.9Conditions in respect of public safety will only be attached to premises licences and club premises certificates that are necessary for the promotion of that licensing objective i.e. if already provided for in other legislation, conditions cannot be considered necessary in the context of licensing law. Where no such legislation exists licence conditions will be used as appropriate.

LP1.10Upon receipt of an application for a new premises licence or club premises certificate, or an application to varya premises licence or club premises certificate, the licensing officer will determine the location of the nearest 30 premises to the boundary of the application site. The occupiers of these premises will be advised of the facts of the application, and where the full application may be viewed.

LP8CUMULATIVE STRESS

LP8.1The Licensing Authority proposes to reserve its right to adopt a Cumulative Stress Policy (CSP) as provided for by the Secretary of State’s Statutory Guidance. If this is ever applied, it might lead the Licensing Authority in turn to consider the question of whether the grant of any further premises licences or club premises certificates would undermine one or more of the licensing objectives.

LP9 – TRADING HOURS

LP9.1With regard to Trading Hours the Licensing Authority proposes that proper consideration will always be given to the individual merits of an application. The Government strongly recommends that statements of licensing policy should recognise that longer licensing hours with regard to the sale of alcohol are important to ensure that concentrations of customers leaving premises simultaneously are avoided, and the Licensing Authority supports this view in principle.

LP9.2The Licensing Authority recognises the potential for additional crime and disorder and / or public nuisance arising from extended licensing hours. Consequently the Licensing Authority will scrutinise very carefully applications for extended licensing hours and, if determined appropriate, will seek to attach any necessary licence conditions for the promotion of the licensing objectives. For example, stricter conditions with regard to noise control will be expected in areas where the venue in the vicinity of people’s homes, but this should not unduly limit opening hours without regard to the individual merits of any application.

LP9.3With regard to shops, stores and supermarkets, the normal scenario will be for such premises to provide sales of alcohol for consumption off the premises at any time when the retail outlet is open for shopping, unless there are very good reasons for restricting those hours.

LP9.4In the interests of reducing crime, disorder and anti-social behaviour, the Licensing Authority will prefer applications from public houses, night-clubs, off-licenses and clubs that show in their operating schedules a responsible approach to alcohol sales by:

  • Ending alcohol sales at a designated time before they close, i.e. a closing time later than “a last orders” time for alcohol sales;
  • Specifying a time by which the premises will be emptied of patrons and closed;
  • Not taking part in discounted drinking promotions.

LP11PREVENTION OF PUBLIC NUISANCE

LP11.1 With regard to the prevention of public nuisance, the Licensing Authority will determine all new or varied licence applications considering all relevant factors, including:

  • The nature of the activities at the premises;
  • The hours of opening;
  • Proximity to residential premises;
  • Management of the premises ;
  • The history of the premises’ effect on neighbours and others in the vicinity;

LP11.2 The Licensing Authority will consider all proposed control measures, including;

  • Effective and responsible management;
  • Staff training;
  • Adoption of best practice on noise control;
  • Installation of suitable acoustic control measures;
  • Where relevant, Door supervision and management of customers as they enter and leave the premises.

LP11.3 Three Rivers has very many licensed premises that are close to or even enclosed by residential areas. Most of these are traditional community public houses and currently tolerated as the terminal hour is well established and neighbours know when they might expect any disturbances causing public nuisance to end.

It follows that operators of licensed premises that are in the vicinity of domestic premises (and in the vicinity of business/commercial premises, places of learning and places of worship) may find that applications for variations seeking;

  • Extended hours of opening or trading
  • The provision of regulated entertainment
  • The provision of late night refreshment
  • The supply of alcohol

may be subject to representations from such neighbours, their representative(s) and/or the Environmental Health Officer on the grounds that public nuisance might be caused by the intended activity. In most cases such representations will result in a local hearing, conducted by the Licensing Sub-Committee.

To try to avoid the need for any Hearing the Licensing Authority strongly encourages applicants to seek early discussions with the local Environmental Health Officer (or the responsible officer for pollution) with the aim of resolving how potential public nuisances might be effectively controlled, so that agreed measures might be built into the operating schedule as mutually acceptable conditions. In this way representations from the Environmental Health Officer may be avoided. The Council also encourages local mediation in certain situations that might be amenable to such a solution.