Report to:

Licensing Sub-Committee

Date:

30th June 2022

Title:

Application for a new Premises Licence at Venus Café, Ferry Steps, Millbay Road, East Portlemouth, TQ8 8PU

Portfolio Area:

Customer First

Wards Affected:

Stokenham

Relevant Scrutiny Committee:

 

Urgent Decision:

N

Approval and clearance obtained:

Y

 

 

 

 

Author:

Mollie Deimert

Role:

Licensing officer

Contact:

01822 813404 / Mollie.deimert@swdevon.gov.uk

 

 

 

Recommendations:  

That the Sub-Committee consider the application for a new Premises Licence and make determinations in respect of this application, namely to:

 

 i)             grant the application as submitted, subject to any Mandatory Conditions required;

ii)             modify the conditions of the licence;

iii)            exclude any of the licensable activities to which the application relates;

iv)            to refuse to specify a person in the licence as the premises supervisor:

v)             reject the application,

 

and for this purpose the conditions of the licence are modified if any of them is altered or omitted or any new condition is added.

 

The decision must be in line with the licensing objectives contained within the Licensing Act 2003.

 

 

1.        Executive summary

 

1.1     The purpose of the Licensing Sub-Committee meeting is to determine an application for a new Premises Licence at Venus Café, Ferry Steps, Millbay Road, East Portlemouth, TQ8 8PU in accordance with Section 18 of the Licensing Act 2003.

 

1.2     The Licensing Authority received an application from Venus Company Limited for a new Premises Licence on 10th May 2022. The purpose of the application is for supply of alcohol for consumption on the premises Monday to Sunday 10am to 5.30pm. A copy of the application is attached at Appendix A.

 

1.3     The premises is intended to be used as a cafe, with a small seating area outside for alcohol and food consumption. A copy of the plan of the premises is attached at Appendix B.

 

2.        Background

 

2.1     The premises is located at the top of ferry steps overlooking the estuary. A map of the location is attached at Appendix C.

 

2.2     During the consultation period, sixteen relevant representations were received from local residents and Town/Parish Council’s in objection to the application. No representations were received in support of the application. No representations were received from any of the Responsible Authorities. Copies of the representations are attached at Appendix D.

 

2.3     Concerns have been raised in relation to all four of the licensing objectives; prevention of crime and disorder, prevention of public nuisance, public safety, and protection of children from harm, with particular concern about issues arising from customers taking alcohol from the premises to consume on the beach. There is also concern about the potential increase in litter and noise nuisance.

 

2.4     The Licensing Team have consulted with the Police regarding the application and they have confirmed with the applicant conditions they would like imposed, to which the applicant has agreed. A copy of the Police’s comments is attached at Appendix E.  

 

2.5     Any reference within the representations to the ‘need’ for the supply of alcohol at the premises cannot be taken into consideration.

 

2.6     As relevant representations in respect of this application have been received, which have not been withdrawn and mediation has not been possible, the Licensing Sub-Committee acting on behalf of the Licensing Authority must make a determination on this application. When coming to a decision, the Licensing Sub-Committee must give consideration to the Council’s Statement of Licensing Policy (the Policy) and Home Office guidance issued under Section 182 Licensing Act 2003 (revised April 2018).

 

2.7     Section 3.1 of the Policy states: The Licensing Authority has a duty under the Act to carry out its licensing functions with a view to promoting the four licensing objectives.  (These objectives are the only matters to be taken into account in determining the application and any conditions attached must be appropriate to achieve the licensing objectives).

 

2.8     The four licensing objectives are:

- The prevention of crime and disorder

- Public safety

- The prevention of public nuisance

- The protection of children from harm

 

2.9     Section 3.2 of the Policy states:  A licence (or club premises certificate) will only be granted where the Licensing Authority is satisfied that these objectives have been met.

 

2.10 Section 2.4 of the Policy sets out additional legislation, strategies, policies and guidance to which the Licensing Authority will have regard.

 

2.11 The Guidance issued under Section 182 of the Licensing Act 2003 which was revised and re-published in April 2018 state: The Licensing Authority may not impose conditions unless its discretion has been engaged following receipt of relevant representations and it is satisfied as a result of a hearing (unless all parties agree a hearing is not necessary) that it is appropriate to impose conditions to promote one or more of the four licensing objectives (paragraph 10.8 of the guidance).

 

2.12 The following responsible authorities are statutory consultees under the Licensing Act 2003:

·         Devon and Cornwall Police

·         Devon and Somerset Fire and Rescue Service

·         Devon Safeguarding Children’s Board

·         Devon County Council Trading Standards

·         Devon Drug and Alcohol Action Team, NHS Devon

·         South Hams District Council Planning Department

·         South Hams District Council Environmental Health (Health & Safety)

·         South Hams District Council Environmental Health (Pollution Control)

 

2.13     Two representations have been received from East Portlemouth Parish Council and Salcombe Town Council.

 

2.14     In addition to the above responsible authorities, any person may make a representation in relation to a premises licence application.

 

3.        Outcomes/outputs

 

3.1        When determining an application for a premises licence, particularly when considering appropriate conditions and operating hours, the following sections of the Statement of Licensing Policy (the policy) and Section 182 Guidance (the guidance) are especially relevant:

 

3.2        Where applications have given rise to representations, any appropriate conditions should normally focus on the most sensitive periods. 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 (paragraph 2.19 of the guidance).

 

3.3        Sections 5.5.1 and 5.5.1 of the policy states:  The Licensing Authority will deal with the issue of licensing hours on the individual merits of each application. When the Authority’s discretion is engaged, consideration will be given to the individual merits of an application but the presumption will be to grant the hours requested unless there are objections to those hours raised by Responsible Authorities or other persons on the basis of the licensing objectives. However, when dealing with licensing hours beyond midnight it is more likely that relevant representations will be made unless there are higher standards of control within operating schedules to promote the licensing objectives, especially for premises which are situated near residential areas or in areas where anti-social disorder takes place.

 

3.4        Section 5.5.5 of the policy states: The terminal hours will normally be approved where the Applicant can show that the proposal would not adversely affect the licensing objectives unless, after hearing relevant representation the Licensing Authority believe it necessary, proportionate and reasonable to restrict the hours required. The Licensing Authority may set an earlier terminal hour where it considers this is appropriate to the nature of the activities and the amenity of the area.

 

3.5        Section 3.8.1 of the Policy states: The Licensing Authority recognises the great variety of premises for which licences may be sought.  These will include theatres, cinemas, restaurants, pubs, nightclubs, cafes, takeaways, community halls and schools.  Access by children to all types of premises will not be limited unless it is considered necessary to do so in order to protect them from harm.

 

3.6        Section 3.8.6 of the Policy states: When deciding whether or not to limit access to children the Licensing Authority will judge each application on its own individual merits.  Examples which may give rise to concern and warrant restrictions in the operating schedule include premises: -

 

q  where entertainment of an adult or sexual nature is provided

q  where there is a strong element of gambling taking place

q  with a known association with drug taking or dealing

q  where there have been convictions of the current management for serving alcohol to minors

q  with a reputation for allowing underage drinking

q  where the supply of alcohol for consumption on the premises is exclusive or primary purpose of the services provided at the premises.

 

3.7        The desired outcome is a determination of the application with reasons provided which relate to the four licensing objectives and when conditions are imposed, that these are appropriate to address the licensing objectives.

 

4.        Options available and consideration of risk

 

4.1        The Licensing Authority may decide to impose additional conditions to address the four licensing objectives, or to amend or remove requested licensable activities. When coming to their decision the Licensing Sub-Committee must give consideration to the Section 182 Guidance and the Statement of Licensing Policy. Reasons must be given which relate to the licensing objectives for any decision made.

 

4.2        The Sub-Committee will need to consider the hours of operation proposed, the effectiveness of the operating schedule proposed by the applicant, the representations received, the location of the premises in relation to residential properties, the history of the management of the premises (if applicable), the evidence provided of any problems in the past, the likely impact of any extension of hours and activities, public transport, taxi availability, the right the applicant has to operate a business and balancing the rights of residents to the quiet enjoyment and privacy of family life.  The South Hams relies on tourism, with the population in the district doubling in the summer months with holidaymakers both from this country and international visitors who are, in the main, families with young children and retired people – the very segment of society who would perhaps be deterred by anti-social behaviour. These, and any other relevant issues, may be explored at the hearing in so far as it reflects the four licensing objectives.

 

4.3        A decision made by the Licensing Sub-Committee may be appealed by the applicant or any person who has made relevant representations. The right of appeal is to the Magistrates’ Court by virtue of Section 181 and Schedule 5 of the Licensing Act 2003. The Magistrates’ Court may dismiss the appeal, or substitute its own decision, or send back the case to the Licensing Authority with directions as to how the case is to be dealt with.  The Magistrates’ Court may make any costs order it thinks fit.

 

4.4        The Licensing Act 2003 contains a provision which enables a responsible authority or any other person to apply to this Licensing Authority for a review of the premises licence once granted.  A hearing follows which enables the Sub-Committee to use the normal powers available, but also to suspend the licence for a period of up to three months or to withdraw it.

 

5.        Proposed Way Forward

 

5.1        That the Sub-Committee consider the application for a new Premises Licence and make a determination in respect of this application, namely to:

 

i)     grant the application as submitted, subject to any Mandatory Conditions required;

ii)   modify the conditions of the licence;

iii)  exclude any of the licensable activities to which the application relates;

iv)  to refuse to specify a person in the licence as the premises supervisor;

v)   reject the application, in line with the licensing objectives (Section 4) contained within the Licensing Act 2003.

 

6.     Implications

 

Implications

 

Relevant
to
proposals
Y/N

Details and proposed measures to address

Legal/Governance

 

Y

The Licensing Act 2003 gives Licensing Authorities the responsibility for determining applications submitted under this provision. This is a statutory obligation.

 

As there have been relevant representations in respect of this application which have not been resolved, this hearing must be held.  Relevant representations are about the likely effect of the grant of the application on the promotion of the licensing objectives, by responsible authorities or any other person.  The Licensing Sub-Committee must disregard any information or evidence not relevant to the licensing objectives.

 

The Licensing Sub-Committee must consider this application in accordance with Section 4 of the Licensing Act 2003, which requires that licensing functions must be carried out with a view to promoting the four licensing objectives.  The Licensing Authority must also have regard to its own licensing policy and the Secretary of State’s guidance, but may depart from both if it has good reason to do so.  Those reasons should be stated.

 

The Act requires (Section 18) that in dealing with a new premises licence application, the committee takes any of the following steps which are appropriate for the promotion of the licensing objectives:

(a) to grant the licence subject to:-

i)  the conditions mentioned in section 18 (2)(a) [ie as applied for] modified to such as extent as the authority considers necessary for the promotion of the licensing objectives, and

ii)  any conditions which must under section19, 20 or 21 be included in the licence;

(b) to exclude from the scope of the licence any of the licensable activities to which the application relates;

(c) to reject the application

 

The Sub-Committee must give its reasons for its decision to take any of these steps.  Similarly, if the application is rejected, the Sub-Committee must give its reasons.

 

The applicant or any person who has made relevant representations has the right to appeal a decision made by the Licensing Sub-Committee to the Magistrates’ Court by virtue of Section 181 and Schedule 5 of Licensing Act 2003.

 

On appeal, the Magistrates’ Court may:

a)   dismiss the appeal;

b)   substitute for the decision appeal against another decision which could have been made by the Licensing authority;

c)   remit the case to the Licensing Authority to dispose of it in accordance with the direction of the court.

Financial

 

N

There are no direct financial implications to the Council from this Report. However, should a decision be challenged this could result in the Council facing an appeal to the Magistrates Court with the risk of costs being awarded against the Council.

Risk

Y

The Licensing Authority must follow strict legislation in accordance with the Licensing Act 2003 and adhere to the statutory instruments contained with the Act.

 

All decisions must be taken in consideration of the four licensing objectives (section 2.3). These objectives are in place to give protection to the public from the potential negative impacts caused by licensed premises.

 

Decisions may be appealed (see financial and legal/governance sections above).

Comprehensive Impact Assessment Implications

 

Equality and Diversity

 

Compliance with the Human Rights Act 1998 – Article 6: right to a fair trial.

Safeguarding

 

 

All decisions must take into consideration the ‘protection of children from harm’ licensing objective.

Community Safety, Crime and Disorder

 

Section 17 Crime and Disorder Act 1998 applies. Decisions made must relate to the four licensing objectives as detailed in section 2.3 of this report.

Health, Safety and Wellbeing

 

All decisions must take into consideration the four licensing objectives, including ‘public safety’ and ‘protection of children from harm’.

Other implications

 

 

 

 

 

Supporting Information

 

Appendices:

 

Appendix A – premises licence application

 

Appendix B – plan of premises

 

Appendix C – map of location

 

Appendix D – representations

 

Appendix E – Police email

 

Background Papers:

 

[under provisions of the Local Government Act 1972]

 

The Licensing Act 2003

 

Guidance issued under Section 182 of the Licensing Act 2003

 

South Hams District Council’s Statement of Licensing Policy

 

Responses to Notices of Hearing

 

Consent to be DPS form

 

Process checklist

Completed

Portfolio Holder briefed

Yes/No

SLT Rep briefed

Yes/No

Relevant  Exec Director sign off (draft)

Yes/No

Data protection issues considered

Yes/No

If exempt information, public (part 1) report also drafted. (Committee/Scrutiny)

Yes/No