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.
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