LICENSING SUB COMMITTEE
24 MARCH 2015
EAST INDIA RESTAURANT
1 BRIGHTON ROAD, SURBITON, KT6 5LX
PREMISES LICENCE PL0170
REVIEW OF A PREMISES LICENCE UNDER THE LICENSING ACT 2003
REPORT BY ENVIRONMENTAL HEALTH MANAGER
(LICENSING AND POLLUTION CONTROL)
PURPOSE
Members are to consider a review of the premises licence relating to East India
Restaurant, 1 Brighton Road, Surbiton KT6 5LX.
DECISION TO BE MADE:
When undertaking a review of a premises licence, the following options are available to
the sub-committee:
modification of the conditions of the premises licence;
exclusion of the sale of alcohol by retail (or other licensable activities) from the
scope of the licence;
removal of the designated premises supervisor from the licence
suspend the licence for a period not exceeding three months.
revocation of the licence.
INTRODUCTION
1.
On 29 January 2015 the Metropolitan Police served on the Authority an application
for the review of the premises licence in respect of East India Restaurant, 1 Brighton
Road, Surbiton KT6 5LX, under the prevention of Crime and Disorder licensing
objective. The application is attached at Annex 1.
2.
On receipt of a review application the Licensing Authority is required to affix a public
notice near to the premise advertising that a review of the premises licence has been
initiated. I can confirm that such a notice was displayed on a lamppost adjacent to
the premises, and officers have checked to ensure that they remained in place for the
consultation period.
3.
I can confirm all Responsible Authorities received a copy of the review application
and no representations have been received.
4.
In addition, and in accordance with the Council’s Licensing Policy, two hundred and
forty five addresses were contacted in writing and advised that a review application
had been received. No representations have been received.
5.
A copy of the current premises Licence is attached for information at Annex 2.
LOCATION OF PREMISES
6. A map showing the location of East India Restaurant is attached at Annex 3.
LICENSING OBJECTIVES
7.
In considering this report the Authority is required to take into account the licensing
objectives of:
a)
b)
c)
d)
The prevention of crime and disorder
Public safety
The prevention of public nuisance
The protection of children from harm
Relevant excerpts from the Secretary of State’s Guidance and the Councils
Licensing Policy are attached as Annex 4.
DECISION
8.
The licensing authority must consider whether or not to take any of the following
steps
the modification of the conditions of the premises licence;
the exclusion of the sale of alcohol by retail (or other licensable activities) from
the scope of the licence;
the removal of the designated premises supervisor from the licence;
the suspension of the licence for a period not exceeding 3 months; and
the revocation of the licence.
ANNEX TO THIS REPORT
Annex 1
Annex 2
Annex 3
Annex 4
Application for Review from the Metropolitan Police
Copy of the current premises licence PL0170
Map of premises location
Secretary of State’s Guidance and Council’s Licensing Policy
BACKGROUND papers are held by Mandy Woodcock - 020 8547 5078
[email protected]
ANNEX 1
ANNEX 2
ANNEX 3
Annex 4
Secretary of States Guidance (October 2014)
1.2
The legislation provides a clear focus on the promotion of four statutory objectives
which must be addressed when licensing functions are undertaken:
1.3
The licensing objectives are:
•
The prevention of crime and disorder
•
Public safety
•
The prevention of public nuisance
•
The protection of children from harm
1.4
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.
1.5
However, 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:
1.17
•
Protecting the public and local residents from crime, anti-social behaviour and noise
nuisance caused by irresponsible licensed premises;
•
Giving the police and licensing authorities the powers they need to effectively manage
and police the night-time economy and take action against those premises that are
causing problems;
•
Recognising the important role which pubs and other licensed premises play in our
local communities by minimising the regulatory burden on business, encouraging
innovation and supporting responsible premises;
•
Providing a regulatory framework for alcohol which reflects the needs of local
communities and empowers local authorities to make and enforce decisions about the
most appropriate licensing strategies for their local area; and
•
Encouraging greater community involvement in licensing decisions and giving local
residents the opportunity to have their say regarding licensing decisions that may
impact upon them.
Each application must be considered on its own merits and any conditions attached to
licences and certificates must be tailored to the individual style and characteristics of the
premises and events concerned. This is essential to avoid the imposition of
disproportionate and overly burdensome conditions on premises where there is no need for
such conditions. Standardised conditions should be avoided and indeed, may be unlawful
where they cannot be shown to be appropriate for the promotion of the licensing objectives
in any individual case.
PUBLIC NUISANCE
2.18
The 2003 Act enables licensing authorities and responsible authorities, through
representations, to consider what constitutes public nuisance and what is appropriate to
prevent it in terms of conditions attached to specific premises licences and club premises
certificates. It is therefore important that in considering the promotion of this licensing
objective, licensing authorities and responsible authorities focus on the effect of the
licensable activities at the specific premises on persons living and working (including those
carrying on business) in the area around the premises which may be disproportionate and
unreasonable. The issues will mainly concern noise nuisance, light pollution, noxious smells
and litter.
2.19
Public nuisance is given a statutory meaning in many pieces of legislation. It is however not
narrowly defined in the 2003 Act and retains its broad common law meaning. It is important
to remember that the prevention of public nuisance could therefore include low-level
nuisance, perhaps affecting a few people living locally, as well as major disturbance
affecting the whole community. It may also include in appropriate circumstances the
reduction of the living and working amenity and environment of other persons living and
working in the area of the licensed premises. Public nuisance may also arise as a result of
the adverse effects of artificial light, dust, odour and insects or where its effect is prejudicial
to health.
2.20
Conditions relating to noise nuisance will usually concern steps appropriate to control the
levels of noise emanating from premises. This might be achieved by a simple measure
such as ensuring that doors and windows are kept closed after a particular time, or more
sophisticated measures like the installation of acoustic curtains or rubber speaker mounts.
Any conditions appropriate to promote the prevention of public nuisance should be tailored
to the type, nature and characteristics of the specific premises. Licensing authorities should
be aware of the need to avoid inappropriate or disproportionate measures that could deter
events that are valuable to the community, such as live music. Noise limiters, for example,
are very expensive to purchase and install and are likely to be a considerable burden for
smaller venues.
2.24 Beyond the immediate area surrounding the premises, these are matters for the personal
responsibility of individuals under the law. An individual who engages in anti-social
behaviour is accountable in their own right. However, it would be perfectly reasonable for a
licensing authority to impose a condition, following relevant representations, that requires
the licence holder or club to place signs at the exits from the building encouraging patrons
to be quiet until they leave the area and to respect the rights of people living nearby to a
peaceful night.
OTHER PERSONS
8.12
As well as responsible authorities, any other person can play a role in a number of licensing
processes under the 2003 Act. This includes any individual, body or business entitled to
make representations to licensing authorities in relation to applications for the grant,
variation, minor variation or review of premises licences and club premises certificates,
regardless of their geographic proximity to the premises. In addition, these persons may
themselves seek a review of a premises licence. Any representations made by these
persons must be ‘relevant’, in that the representation relates to one or more of the licensing
objectives. It must also not be considered by the licensing authority to be frivolous or
vexatious. In the case of applications for reviews, there is an additional requirement that the
grounds for the review should not be considered by the licensing authority to be repetitious.
Chapter 9 of this guidance (paragraphs 9.4 to 9.10) provides more detail on the definition of
relevant, frivolous, vexatious and repetitious representations.
REVIEWS
11.19 Where the licensing authority considers that action under its statutory powers is
appropriate, it may take any of the following steps:
• to modify the conditions of the premises licence (which includes adding new conditions or
any alteration or omission of an existing condition), for example, by reducing the hours
of opening or by requiring door supervisors at particular times;
• to exclude a licensable activity from the scope of the licence, for example, to exclude the
performance of live music or playing of recorded music (where it is not within the
incidental live and recorded music exemption);
• to remove the designated premises supervisor, for example, because they consider that
the problems are the result of poor management;
• to suspend the licence for a period not exceeding three months;
• to revoke the licence.
. 11.20 In deciding which of these powers to invoke, it is expected that licensing authorities should
so far as possible seek to establish the cause or causes of the concerns that the
representations identify. The remedial action taken should generally be directed at these
causes and should always be no more than an appropriate and proportionate response.
11.21 For example, licensing authorities should be alive to the possibility that the removal and
replacement of the designated premises supervisor may be sufficient to remedy a problem
where the cause of the identified problem directly relates to poor management decisions
made by that individual.
11.22 Equally, it may emerge that poor management is a direct reflection of poor company
practice or policy and the mere removal of the designated premises supervisor may be an
inadequate response to the problems presented. Indeed, where subsequent review
hearings are generated by representations, it should be rare merely to remove a
succession of designated premises supervisors as this would be a clear indication of
deeper problems that impact upon the licensing objectives.
11.23 Licensing authorities should also note that modifications of conditions and exclusions of
licensable activities may be imposed either permanently or for a temporary period of up to
three months. Temporary changes or suspension of the licence for up to three months
could impact on the business holding the licence financially and would only be expected to
be pursued as an appropriate means of promoting the licensing objectives. So, for instance,
a licence could be suspended for a weekend as a means of deterring the holder from
allowing the problems that gave rise to the review to happen again. However, it will always
be important that any detrimental financial impact that may result from a licensing
authority’s decision is appropriate and proportionate to the promotion of the licensing
objectives. But where premises are found to be trading irresponsibly, the licensing authority
should not hesitate, where appropriate to do so, to take tough action to tackle the problems
at the premises and, where other measures are deemed insufficient, to revoke the licence.
11.24 A number of reviews may arise in connection with crime that is not directly connected with
licensable activities. For example, reviews may arise because of drugs problems at the
premises; money laundering by criminal gangs, the sale of contraband or stolen goods, or
the sale of firearms. Licensing authorities do not have the power to judge the criminality or
otherwise of any issue. This is a matter for the courts. The licensing authority’s role when
determining such a review is not therefore to establish the guilt or innocence of any
individual but to ensure the promotion of the crime prevention objective.
11.25 Reviews are part of the regulatory process introduced by the 2003 Act and they are not part
of criminal law and procedure. There is, therefore, no reason why representations giving
rise to a review of a premises licence need be delayed pending the outcome of any criminal
proceedings. Some reviews will arise after the conviction in the criminal courts of certain
individuals, but not all. In any case, it is for the licensing authority to determine whether the
problems associated with the alleged crimes are taking place on the premises and affecting
the promotion of the licensing objectives. Where a review follows a conviction, it would also
not be for the licensing authority to attempt to go beyond any finding by the courts, which
should be treated as a matter of undisputed evidence before them.
11.26 Where the licensing authority is conducting a review on the grounds that the premises have
been used for criminal purposes, its role is solely to determine what steps should be taken
in connection with the premises licence, for the promotion of the crime prevention objective.
It is important to recognise that certain criminal activity or associated problems may be
taking place or have taken place despite the best efforts of the licence holder and the staff
working at the premises and despite full compliance with the conditions attached to the
licence. In such circumstances, the licensing authority is still empowered to take any
appropriate steps to remedy the problems. The licensing authority’s duty is to take steps
with a view to the promotion of the licensing objectives in the interests of the wider
community and not those of the individual licence holder.
Kingston’s licensing policy (v3.1 July 2014)
9.
Through consideration of this policy and the implementation of the principles of the Act, the
Licensing Authority will seek to protect the amenity of local residents in so far as the Act
permits.
10.
The Licensing Authority recognises that its powers under the Act are only one means by
which the licensing objectives may be promoted. As such, the Authority recognises that the
Act must not be regarded as the only method for remediating problems or concerns that may
arise from the use of premises for licensable activities.
11.
In making decisions on licence applications, the Licensing Authority will take into
consideration the availability of other powers and responsibilities exercised by the wider
Council, the Police and other designated authorities.
12.
It is recognised that the control of nuisance and anti-social behaviour by individuals once
they are away from a licensed premises is beyond the direct control of licence holder.
However, the Authority recognises that the control of licensing law forms part of a holistic
approach to the management of the Boroughs busy evening and night-time economy.
24.
The Authority will only apply conditions to authorisations that focus upon matters within the
control of the licence holder or other relevant person.
49.
There is a clear distinction between the roles and responsibilities of the Council in relation to
its planning and licensing functions, and any approval or rejection under either regime does
not imply or lead to a similar decision under the other.
50.
However, the Authority expects that applications for licences should normally be for premises
with appropriate planning consent for the activities concerned. It is recognised that there is
nothing in the legislation which prevents applications made under the licensing regime from
being granted in the absence of appropriate planning permission.
89.
The Licensing Authority will carry out its licensing functions so as to promote the prevention
of crime and disorder, by ensuring that Licence Holders take measures to regulate the
behaviour of persons on the premises and patrons who are in the vicinity.
NEIGHBOURHOOD SPECIFIC POLICIES ON THE PROMOTION OF THE LICENSING
OBJECTIVES
SURBITON
1.
The Neighbourhood of Surbiton comprises a highly sought after residential area and
a busy shopping centre, providing a real mix of individually owned shops co-existing
alongside smaller chain store outlets. Bar and café culture is also a growing feature
of the centre, and whilst the Licensing Authority recognises that licensed premises
do not impact significantly upon the issues incorporated within the licensing
objectives, applicants wishing to provide licensable activities in this area will need to
consider in particular:

Conditions on licences identifying the need to provide door supervisors on
certain days of the week, or for certain types of event

The provision of CCTV systems

Whether capacity limits might be appropriate for certain venues

Areas of good management practice, including noise management policies,
undertaking periodic noise assessments outside nearby residential
properties, policies to respond to complaints from residents and
commitments to make all staff aware of licence conditions regarding noise.

In certain premises consideration should be given to conditions to ensure
that noise or vibration does not emanate from the premises. This could be
achieved through a requirement to keep doors and windows closed, for
example, or perhaps to require use of noise limiters on amplification
equipment.

It may also be necessary to restrict the use of gardens or other external
drinking areas after certain times to reduce the level of noise likely to be
generated. For example, conditions may restrict the use of such areas after
by preventing the taking of drinks or food into the areas after a given time,
but thereby still providing facilities for smokers.

The disposal of refuse or recycling generated by the operation of a licensed
premises can, when undertaken at the wrong time of day, cause significant
noise particularly in respect of the moving and disposal of glass bottles. It
may therefore be necessary to condition that undertaking of such activities
will take place at times that will minimise disturbance.

It may be necessary to use conditions to place controls on the use of
external lighting operated in conjunction with licensable activities. For
example, floodlighting to gardens and smoking areas should only illuminate
intended areas.

Participation in local pubwatch / shopwatch schemes

Whilst all applicants should assess whether the provision of door staff is
necessary for their business, the Authority expects that all Pubs, Bars,
Nightclubs and premises offering Late Night Refreshment to provide door
supervisors. The number of door supervisors should be identified through
risk assessment and with due consideration to the health and safety of door
supervisors, staff and the public.