PAPER B

Purpose: For Decision

Committee Date Title

LICENSING SUB COMMITTEE MONDAY 9 DECEMBER 2013 TO DETERMINE AN APPLICATION FOR THE VARIATION OF THE PREMISES LICENCE UNDER SECTION 34 OF THE LICENSING ACT 2003 FOR THE STEVE ROSS FOUNDATION FOR ART (QUAY ARTS CENTRE), SEA STREET, NEWPORT, ISLE OF WIGHT, PO30 5BD. BILL MURPHY HEAD OF PLANNING AND REGULATORY SERVICES

Report Author

BACKGROUND 1. A premises licence issued under section 18 of the Licensing Act 2003 authorises the use of premises for the sale or supply of alcohol, the provision of regulated entertainment and the provision of late night refreshment. An application to vary the premises licence for the Steve Ross Foundation for Art (Quay Arts Centre) was submitted to the licensing authority on 14 October 2013. The variation seeks to amend the licence as follows: Plays - 08:00 to 01:30 hours (currently 10:00 to 23:00 hours) Films - 08:00 to 01:30 hours (currently 11:00 to 00:01 hours) Live Music - 08:00 to 23:00 hours (currently 10:00 to 23:00 hours) Recorded Music - 08:00 to 01:30 hours (currently 10:00 to 23:00 hours) Performance of Dance - 08:00 to 01:30 hours (currently 10:00 to 23:00 hours) Late Night Refreshment - 23:00 to 01:30 hours (currently 23:00 to 00:30 hours) Supply of Alcohol - 08:00 to 01:00 hours (currently 11:00 to 00:01 hours) Opening Hours of Premises - 07:00 to 01:30 hours (currently 07:00 to 00:30 hours)

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Please see Appendix A of the report for a full copy of the application. 3. 4. A copy of the current licence can be found at Appendix B of the report. The applicant is required to submit a copy of the application to all Responsible Authorities as defined in the Licensing Act, and to place a notice of the application at the premises and in a local newspaper. Any person may make representations in respect of the application and if these are not resolved the licensing authority must hold a hearing to determine the application. B-1

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CONSULTATION 6. The Licensing Act 2003 prescribes a twenty eight day consultation period, commencing the day after the application has been correctly served. Applicants are required to serve each of the Responsible Authorities with a copy of the application, advertise the application at or on the premises and also in the local newspaper. The application for variation of the premises licence was received on 14 October 2013. The application was advertised in the Isle of Wight County Press, at the premises and on the Councils website. The consultation period ended on 12 November 2013. The outcome of the consultation in respect of this application is as follows: Responsible Authorities Childrens Services Environmental Health Fire and Rescue Service Trading Standards Service Planning Services Police NHS Licensing Authority Environmental Health 9. Environmental Health is proposing that new conditions are added to the premises licence in order to address the licensing objective for the prevention of public nuisance. The memo containing the full representation from Environmental Health can be found at Appendix C. Police 10. Police state that there is no evidence or statistics to indicate that crime and disorder is an issue within the location of the premises and that they would not seek to place severe restrictions on a well performing premises such as the Quay Arts Centre. Conditions have been agreed with the applicant in order to promote the licensing objectives for the prevention of public nuisance and crime and disorder. The full police representation with agreed conditions can be found at Appendix D of the report. No Representation made Representation made conditions recommended No Representation made No Representation made No Representation made Representation made conditions recommended No Representation made No Representation made

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Other Persons 11. 17 valid representations have been received from other persons relating to one or more of the licensing objectives. These can be found at Appendix E of the report. It is claimed that by permitting an extension to the hours in which the premises are able to carry out licensable activities, such activities will have an adverse impact on the surrounding residential area by negatively impacting on one or more of the four licensing objectives. In respect of public nuisance, concerns have been raised that noise levels from music and from customers when entering, remaining on and leaving the premises will disturb residents. Customers will be able to enter and exit the premises via the Little London entrance located to the northern most corner of the external terraced area. Concerns have been raised in relation to the use of this route as it is claimed that noise from music and customers already escapes through the doors used when entering and exiting the internal part of the building via the terraced area. Photographs detailing the proposed route by which customers will enter and exit the internal building (via the external terraced area) can be found at Appendix F (photographs 2 & 3) of the report. Residents have raised concerns in relation to the hours in which the external terraced area will be used for permitted licensable activities and the impact from a nuisance perspective that this will have. It is alleged that noise nuisance is already a problem within this area prior to 23:00 hours. It is claimed Mr Miles is unable to show how customers entering and exiting via the route as described in point 13 of this report serves a better purpose than the method allegedly recommended by Council Officers and approved by Council Members. The recommended method relates to the entrance/exit detailed within Appendix F (photo 5) of the report. Mr & Mrs Rushton are opposed to the variation of conditions 5, 37 and 38 of annexe 2 within the current premises licence as they feel that by granting these variations the licensing objective relating to public nuisance will be undermined. It is proposed that conditions are added in order to promote further the licensing objective relating to prevention of public nuisance. Mr Dodd has raised concerns relating to the behaviour of young or pre teen individuals, who enter and exit the premises via the Little London entrance as described in point 13 of the report. It is claimed that these individuals shout, scream and run around nearby streets. It is perceived that this issue is the result of inadequate supervision during events that take place on the premises. Further to the above, concerns have been raised that the pavement outside the premises within Little London is regularly obstructed by teenagers and adults who exit via this area. It is claimed that the anticipated increase in activity and extension to premises operating hours will exacerbate these issues further. Mr Dodd further states that he is concerned with regards to the surrounding residential area and that he opposes to any extension in licensable activities beyond midnight and wished to exclude any such activities from being permitted on Sundays. B-3

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Mr & Mrs Knight have raised concerns relating to the use of the area directly outside the entrance as described in point 13 of the report. It is claimed that smokers already congregate within this area and that nuisance through the way of noise is already an existing issue. The distance between this area and the nearest residential properties within Little London is approximately 12 metres. Details of this area can be found at Appendix F (photograph 7). A response to all the representations submitted by the applicant can be found at Appendix G of the report. FINANCIAL/BUDGET IMPLICATIONS

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Broadly, Council expenditure on licensing matters, and specifically those administered and enforced through Planning and Regulatory Services, balances income generated from fees.

LEGAL IMPLICATIONS 22. The 28 day consultation period ended on 12 November 2013. Schedule 1 of the Licensing Act (Hearings) Regulations 2005 states that the application must be determined within 20 working days of the end of the consultation period.

National Guidance 23. The following sections from the national guidance issued under section 182 of the Licensing Act 2003 are considered relevant to this application: Each application on its own merits 1.17 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.

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Proportionality 10.10 The 2003 Act requires that licensing conditions should be tailored to the size, type, location and characteristics and activities taking place at the premises concerned. Conditions should be determined on a case by case basis and standardised conditions which ignore these individual aspects should be avoided. Licensing authorities and other responsible authorities should be alive to the indirect costs that can arise because of conditions. These could be a deterrent to holding events that are valuable to the community or of the funding of good and important causes. Licensing authorities should therefore ensure that any conditions they impose are only those which are appropriate for the promotion of the licensing objectives. B-4

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Hours of trading 10.11 The Government acknowledges that different licensing strategies may be appropriate for the promotion of the licensing objectives in different areas. The 2003 Act gives the licensing authority power to make decisions regarding licensed opening hours as part of the implementation of its licensing policy statement and licensing authorities are best placed to make decisions about appropriate opening hours in their areas based on their local knowledge and in consultation with responsible authorities. However, licensing authorities must always consider each application and must not impose predetermined licensed opening hours, without giving individual consideration to the merits of each application. 10.12 Where there are objections to an application to extend the hours during which licensable activities are to be carried on and the licensing authority determines that this would undermine the licensing objectives, it may reject the application or grant it with appropriate conditions and/or different hours from those requested.

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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. 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. Conditions relating to noise nuisance will normally 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 B-5

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expensive to purchase and install and are likely to be a considerable burden for smaller venues. 2.21 As with all conditions, those relating to noise nuisance may not be appropriate in certain circumstances where the provisions of the Environmental Protection Act 1990, the Noise Act 1996, or the Clean Neighbourhoods and Environment Act 2005 adequately protect those living in the area of the premises. But as stated earlier in this Guidance, the approach of licensing authorities and responsible authorities should be one of prevention and when their powers are engaged, licensing authorities should be aware of the fact that other legislation may not adequately cover concerns raised in relevant representations and additional conditions may be appropriate. Where applications have given rise to representations, any appropriate conditions should normally focus on the most sensitive periods. For example, music noise from premises usually occurs from mid-evening until either lateevening or early-morning when residents in adjacent properties may be attempting to go to sleep or are sleeping. In certain circumstances, conditions relating to noise immediately surrounding the premises may also prove appropriate to address any disturbance anticipated as customers enter and leave. 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.

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Implications under the Crime and Disorder Act 1998 28. Members are advised that without prejudice to any other obligation imposed on it, it shall be the duty of each authority to which this section applies to exercise its functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to prevent, crime and disorder in its area. Human Rights 29. Members are advised that this application must be considered against the background of the implications of the Human Rights Act 1998. There are three convention rights, which need to be considered in this context: Article 6 - Right to a Fair Trial In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. B-6

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It has been held that the fact that there is a right of appeal to the Magistrates Court from any decision of the Licensing Authority is sufficient to make the Councils licensing system compliant with the convention rights. Article 8 - Right to Respect for Private and Family Life Everyone has the right to respect for his private and family life, his home and his correspondence. In the case of article 8 there shall be no interference by a public authority with the exercise of this right except as such in accordance with the law and is necessary on a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder and crime, for the protection of health or morals or for the protection of the rights and freedoms of others. Article 1 - First Protocol Protection of Property Every natural or legal person is entitled to the peaceful enjoyment of his possessions. In the case of Article 1 of the first protocol it states that no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law. The preceding provisions (of which articles 6 and 8 are but two) shall not however in any way impair the right of the state to enforce such laws as it deems necessary to control the use of the property in accordance with general interest or to secure the payment of taxes or other contributions or penalties. 31. The Licensing Authority acknowledges the right of businesses in its area to operate, but equally acknowledges the fact that this must be balanced against the rights of residents not to be disturbed by unreasonable noise and nuisance caused by licensed premises. The Sub-Committee needs to be clear as to the rights granted and the need to ensure that the reasons given for any interference are proportionate and in accordance with the Councils legitimate aim. It is considered that the following paragraphs from the Licensing Authoritys Statement of Licensing Policy 2011 2014 have a bearing upon the application. Members attention in respect of this particular application is drawn to: Paragraph 1 Paragraph 2 Paragraph 3 Paragraph 4 Paragraph 5 Paragraph 6 Paragraph 7 Paragraph 8 Paragraph 9 Introduction Licensing Objectives Licensable Activities Integration of Strategies and Other Legislation Approach to Licensing Applications Cumulative Effect Representation, Reviews, and Appeals Enforcement Operating Schedules All All All All All N/A 7.1, 7.4, 7.6-7.8 N/A 9.1-9.3, 9.5-9.7, B-7

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9.11-9.17, 9.20-9.24 EQUALITY AND DIVERSITY 33. The council as a public body is subject to general and specific duties under equality and diversity legislation and as such has a duty to go beyond prohibition and publish and promote service improvements by engaging with the local community to assess the impact of any decision on the local community. As a requirement under the Equality Act 2010 and further improvements to diversity legislation all local authorities are required to impact assess their services, policies/strategies and decisions with regard to diversity legislation race, disability, gender, age, sexual orientation and religion/belief. (NB: this list is not exhaustive, it does cover current legislation but future development could also include poverty and social inclusion as an example). There is no requirement for an equality impact assessment to be carried out.

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OPTIONS Option 1: Option 2: Vary the licence as per the application. Vary the licence as per the application with any additional conditions that the Sub-Committee deem reasonable and proportional to promote the licensing objectives Refuse the whole or part of the application.

Option 3:

RISK MANAGEMENT 35. With regard to Option 1: To grant the licence as per the application may not adequately mitigate the risk of a nuisance arising from regulated entertainment, and associated nuisance and disorder from the customers of the event; should the SubCommittee deem this to be a likely outcome. The decision not to address the concerns raised may subsequently be appealed by those parties who have made representations. With regard to Option 2: The risk of crime and disorder or nuisance being attributed to the premises could be reduced by attaching conditions to the licence to promote the licensing objectives. Conditions must be appropriate and proportionate. Any decision to attach additional conditions may be appealed by all parties if they believe the conditions do not adequately promote the licensing objectives. With regard to Option 3: If the Sub-Committee decides to refuse all or part of the application, the decision may be appealed by all parties.

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EVALUATION 38. The applicant has applied to extend the times for the activity of live music to take place between the hours of 08:00 to 23:00. Under the Live Music Act 2012 this activity has been deregulated. There is an exemption within the Act for a premises open for the sale of alcohol and where there are less than 200 people in the audience to hold live music between the times stated above. B-8

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Concerns have been raised that by granting the variation to the premises licence, the licence holder will be able to hold other types of events such as private functions and weddings. A premises licence does not dictate the type of event that can take place within the area that it is applicable to. The licence will permit the types of activity that are able to take place within the designated area that form part of the licence. With reference to the concerns raised in paragraph 12, 13 & 14 no noise nuisance complaints have been received by the Environmental Health section since 2007. Environmental Health are recommending that the following conditions be attached to meet the licensing objective for the prevention of public nuisance. a) During the provision of regulated entertainment the noise, including any DJ announcements shall be contained within the premises, or be at a limit which will be barely audible at the boundary of the nearest residential premises. *Barely audible is defined as at a level that, whilst it may be audible (heard), is so low in volume that distinct lyrics, tunes, musical instruments and any bass beat cannot be discerned at the boundary of the noise sensitive premises. A noise management plan, detailing the scheme adopted to comply with this condition, shall be submitted to, and agreed by the local licensing authority prior to the provision of regulated entertainment. This plan should include the annual maintenance records of any sound limiting device (if used). b) No regulated entertainment authorised by this licence shall be permitted outside the premises shown on the plan accompanying this application after 23:00 hours. c) The entrance/exits to the premises shall be supervised from 23:00 until the premises closes to ensure that all customers leave the vicinity of the premises quickly and quietly. d) Prominent, clear and legible notices shall be displayed at all exits requesting customers to respect the needs of local residents by leaving the premises and the area quietly.

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Police have stated that there is no evidence to indicate that crime and disorder is a concern within the location of the premises or that the management of the premises is acting irresponsibly. All conditions have been agreed by the applicant to ensure the promotion of the objectives of the prevention of public nuisance and the prevention of crime and disorder. There are parts of representations received by other persons that have been deemed irrelevant due to being of a historical nature or not relating to one of more of the four licensing objectives, therefore have been removed from the report. Please refer to Appendix E for details of redacted representations. Part of Mr Rushtons representation details email correspondence between himself and the Quay Arts Centre management between the date of 24 September 2011 and 19 October 2013. It is for the Committee to determine the B-9

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relevance of this information and to apply appropriate weight to such when determining the current application to vary the premises licence for the Quay Arts Centre. 44. Mrs Rushton also claims that the entrance/exit that was installed within the caf area of Quay Arts Centre was specifically provided for the purpose of preventing disturbance and of which was recommended by Council Officers and approved by Council Members. Please see Appendix F (photographs 5 & 6) of the report of which details this entrance/exit. Planning Services have confirmed that an application to install this entrance/exit was received, however it was not on the recommendation of a Council Officer. An application was submitted and approved, following the standard process for this type of application. Due to the time period since the planning application was submitted all paper files relating to the application have been destroyed, with the exception of supporting documentation. This was submitted by Quay Arts on 18 January 1995 and can be found at Appendix H of the report. The supporting documentation does state (paragraph 4) that the entrance/exit would negate the need for users of the centre to pass the two cottages within Little London, therefore minimising potential disturbance to these two residences. This point however was not upon advice or recommendations given by the Planning Authority and did not form part of the officer justification for approval of the application. Please see Appendix I of the report for confirmation of this point. Mr & Mrs Rushton have alleged that breaches have taken place with regards to conditions on the current licence. Upon searching the Licensing sections database, one formal complaint has been received on 8 October 2013, alleging that the acoustic lobby door was propped open, allowing music from an event that took place on 5 October 2013 to escape, causing a nuisance to the immediate locality. Further concerns relating to the management of the premises were discussed on 20 October 2013 during a meeting between Mr Rushton and an officer of the Licensing Authority, however no formal complaint was submitted. Issues relating to non compliance of licence conditions are an enforcement issue and will be addressed in line with the Regulatory Services Enforcement Policy and as such are not relevant to this hearing. Mr and Mrs Rushton state that they are opposed to the variation of conditions 5, 37 and 38 of the current licence. Condition 5 current states that the use of the external terrace will cease at 23:00 hours. It is being proposed to vary this to the use of the external terrace will cease at 23:00 hours, except for access and egress to/from the premises. Mr & Mrs Rushton have raised concerns that disturbance would be caused if customers were permitted to enter or exit via the external terraced area. To date no formal complaints have been received prior to 23:00 hours and in order to mitigate any potential disturbance that may occur after 23:00 hours, the applicant has agreed conditions with Environmental Health and Police which will assist in promoting the Licensing objective relating to the prevention of public nuisance. Please see Appendix C & D of the report for these specific conditions. Condition 37 states that no public entertainment shall take place with the external doors and windows being kept open, so as to provide ventilation. Mr & Mrs Rushton have raised concerns that noise nuisance is taking place prior to 23:00 hours and that after this time music will escape from the internal part of the B - 10

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building if customers are permitted to exit via the external terrace onto Little London as the doors (please see photos 2 & 3 of appendix F) will open as customers enter/exit via this area. To date there have been no formal complaints reported to Environmental Health in relation to nuisance emanating from the external terrace with the exception of the complaint dated 8 October 2013. It is reasonable to accept that the doors, when customers enter or exit via this route will open for a short period of time, however the condition prevents these or any other doors from being propped open for an indefinite period of time increasing the potential for nuisance to occur. Agreed conditions such as the supervision of the entrance/exit which permits customers to enter or leave via this route after 23:00 hours and prominent and clear signage, requesting customers to respect the needs of local residents will further assist in promoting the licensing objectives relating to the prevention of public nuisance and the prevention of crime and disorder. 49. Condition 38 states that no entertainment shall take place on any external areas of the premises without prior permission from the Licensing Authority. The variation, if granted, will allow this condition to state No regulated entertainment authorised by this licence shall be permitted outside the premises shown on the plan accompanying this application after 23:00 hours . Mr and Mrs Rushtons concerns state that such activities will cause noise nuisance to nearby residents. The variation does not seek to increase the period in which licensable activities are able to take place and no formal complaints regarding such activities has been received by Environmental Health or the Licensing Authority in relation to nuisance. Environmental Health have not raised concerns regarding the variation to this condition but has submitted an agreed condition with the applicant which can be found at Appendix B of the report. Mr Dodd has raised concerns in relation to the behaviour of young or pre teen individuals who enter and exit the premises and who cause nuisance to the areas surrounding the premises. To date no complaints relating to nuisance, in particular the behaviour of premises users has been reported to Environmental Health. Police have also stated that there are no evidenced based statistics to support the claim that disorder is taking place within the location of the premises. Mr Dodd raises further concerns regarding the effect that the extension to licensable activities will have on the residential community around the premises. To date the Police and Environmental Health have received no formal complaints in relation to nuisance or crime and disorder to support the concerns of Mr Dodd in that the extension of licensable activities and operating hours will exasperate such issues. The applicant states that the operating hours and times permitted for licensable activities of nearby licenced premises such as The Bargemens Rest, The Medina Railway Tavern and the Riverside Centre are consistent with the hours in which the licence holder is applying to vary their operating hours and licensable activities to. It is claimed that they are all within audible distance of the Quay Arts Centre and surrounding area. Mr & Mrs Knight have raised concerns relating to noise emanating from groups of smokers who they state congregate outside of the premises entrance/exit within Little London (photo 6, Appendix E). The applicant in their response does not feel that their client base poses a problem in relation to noise and disorder, however with more stringent supervision arrangements following agreement to the proposed condition regarding the supervision of access/egress to the premises via this area, will enable B - 11

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any potential noise or disorder issues from 23:00 hours onwards to be addressed, should they arise. To date Police have no concerns with regards to disorder within the surrounding area of the premises. 53. The Committee should determine the application in accordance with section 52 of the Licensing Act 2003 and The Licensing Act (Hearings) Regulations 2005 and with a view to promoting the licensing objectives, which are: 54. The Prevention of Crime and Disorder The Prevention of Public Nuisance Public Safety The Protection of Children from Harm

In making its decision, the Committee is also obliged to have regard to national guidance and the Councils own Statement of Licensing Policy. The Committee must have regard to all of the representations made and the evidence it hears.

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RECOMMENDATION 56. Members should determine the application in accordance with section 35 of the Licensing Act 2003 and The Licensing Act (Hearings) Regulations 2005.

APPENDICES ATTACHED Appendix A Application for a variation of the premises licence under section 34 of the Licensing Act 2003 Appendix B Current Premises Licence for Quay Arts Centre Appendix C Environmental Health Representation Appendix D Police Representation Appendix E Other Persons Representations Appendix F Quay Arts Premises Photographs Appendix G Applicants Response to Representations Appendix H Planning Documentation Appendix I Planning Response

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BACKGROUND PAPERS Isle of Wight Council Licensing Authority Statement of Licensing Policy 2011 2014. http://www.iwight.com/azservices/documents/1941-LICENSING-POLICY2011-2014.pdf

Contact Point: Mr Shane Batchelor, Licensing Officer, 823159 ext 6152 e-mail shane.batchelor@iow.gov.uk BILL MURPHY Head of Planning and Regulatory Services

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