Agenda item

Applicant: Bath and North East Somerset Council, represented by Piers Warne (TLT Solicitors), Marie Percival (Senior Development Survey, B&NES), Kevin Conibear (Fleurets)

Other Persons: Ian Perkins (The Abbey Residents Association), Ann Robins (The Empire Owners’ Association)

The Chair said that as there was great deal in common between this and the previous application, she would be grateful if the parties focussed on what was specific to this application.

Mr Warne stated the case for the applicant. He said that it was expected that this restaurant would have 150-180 covers. There was a prospective lessee who had expressed great interest and was happy with the conditions proposed.

Mr Perkins stated his case. He urged the imposition of a noise condition. He said that the noise condition proposed by the Other Persons was common on premises licences in Bath, so had at one time been thought enforceable.

Ms Robins supported the imposition of a noise condition. A nearby licensed premises had such a condition on its licence.

The parties were invited to sum up.

Mr Perkins said that he would be concerned if there was no effective means of controlling noise from the premises. The Senior Public Protection Officer said that the obstacle to such a condition is noise attribution. Environmental Health, however, would be able to intervene, if it could be shown that the premises was a source of noise at nuisance levels. Mr Perkins responded that his view the Environmental Protection Act had proved very ineffective for dealing with noise. The Sub-Committee had the power to impose a more effective form of noise control and he urged them to use it.

Mr Warne said that he was unable to agree that procedures under the Environmental Protection Act were ineffective. In conclusion he submitted that it would be appropriate for the Sub-Committee to impose all the conditions that it had imposed on the previous application.

Following an adjournment the application was granted with conditions, as set out in the decision below.

Decision and reasons

Members have determined an application for a new premises licence at Empire Undercroft, Grand Parade, Bath, BA2 4AN. In doing so they took account of the Licensing Act 2003, Statutory Guidance, the Council’s Statement of Licensing Policy and Human Rights Act 1998.

Members are aware that the proper approach under the Licensing Act is to be reluctant to regulate in the absence of evidence and that they must only do what is appropriate and proportionate in the promotion of the licensing objectives based on the information before them. In this case, however, Members noted that the premises are situated in the Cumulative Impact Area and accordingly as the council has a Cumulative Impact Policy a rebuttable presumption is raised that such applications should be refused unless the applicant demonstrates that the application if granted will not undermine the licensing objective and add to the Cumulative Impact being experienced.

In reaching a decision Members took account of all relevant oral and written representations, including additional information and balanced the competing interests of the applicant and interested parties.

The application was for:

1. The sale of alcohol on and off the premises between 09:00 hours and 00:00 hours daily with exception of the morning following New Year’s Eve when an extension until 02:00 hours was sought.
2. Indoor regulated entertainment to allow for both live and recorded music between 11.00 hours and 00:00 hours daily with the exception of the morning following New Year’s Eve when an extension until 02:00 hours was sought.
3. Late night refreshment to be taken both indoors and outdoors between 23:00 hours and 00:30 hours daily with the exception of the morning following New Year’s Eve when an extension until 02.30 hours was sought.

It was also suggested as part of the application that amongst other things, CCTV cameras would be installed and maintained in consultation with the Police Crime Prevention Office, off sales would be in sealed containers only; the premises would be a member of Pubwatch or related scheme and would operate a challenge 21 policy.

On behalf of the Applicant Mr Warne of TLT solicitors addressed the Licensing Sub-Committee. Members noted that Mr Warne relied upon all of the same submissions, Statutory Guidance, Policy and points raised in respect of the previous application for the New Market Undercroft. He informed the Licensing Sub-Committee that there is a very interesting bidder involved and that covers for this restaurant are likely to be 150 to 180 maximum.

Mr Perkins reiterated his desire for a condition to address noise. Mrs Robbins noted that these premises will be closer to the Empire and a proposed noise condition would be even more appropriate in these circumstances and wanted to ensure that it was minuted that this should be reflected in the lease.

In summing up Mr Perkins said that he was concerned that there should be protection for noise nuisance. He contended that the Licensing Authority needs to hold some powers in its hand when other legislation fails to do what it should. Mr Perkins acknowledged that the Licensing Act does not permit Licensing Authorities to impose conditions where such matters are covered by other law.

Members noted that in summing up Mr Warne informed the LSC that the proposed lease does include clauses in respect of noise abatement. He does not necessarily accept that noise abatement notices are ineffective. He contends for the imposition of the same additional/amended conditions as per previous application.

Members noted that no representations were received from Responsible Authorities.

Members had regard to the Cumulative Impact policy and did feel that there was likely to be an impact but considered the premises were unlikely to add significantly to the Cumulative Impact and that conditions would be effective. Further members considered the premises were unlikely to have a detrimental effect on the licensing objectives.

The licence shall be granted as applied for with conditions consistent with the operating schedule save for the following additions and amendments:

(1)  In relation to outside areas as marked on the licensing plan cessation of licensable activities at 23:00 hours with outside areas to be clear at 23:30 hours.

(2)  On Sundays all licensable activities to cease at 23:00 hours with areas to be clear at 23:30 hours save for Sundays immediately prior to Bank Holiday Mondays when the originally requested licensing hours will apply.

(3)  Customers will not be permitted to leave the premises (premises to include the outside area as marked on the licensing plan for licensable activities) with glass containers save for sealed or re-sealed containers only.

(4)  All doors and windows to be closed (except for access and egress) after 23:00 hours when regulated entertainment takes place.

(5)  A dispersal policy will be drawn up and implemented to ensure that customers leaving the premises (in particular at the close of the premises for licensable activities) do so without causing disturbance to local residents.

(6)  The premises manager will ensure that staff clear litter from around the entrance/exits at the close of business.

Members noted concerns in relation to noise but did not feel any conditions were put forward which were sufficiently precise and/or enforceable, and they were mindful of the Statutory Guidance in this regard. Members however welcomed the offer that this could potentially be addressed in other ways.

Authority was delegated to the Senior Public Protection Officer to issue the licence.