Agenda item

Applicant: Co-operative Group Food Ltd, represented by Richard Arnot (Ward Hadaway Solicitors) and Angela Bain (Operations Manager)

Other Persons: Patricia Griffin (Foxhill Point Community Group) and Mr and Mrs Cogdell (local residents)

The parties confirmed that they had received and understood the licensing procedure.

The Senior Licensing Officer summarised the application. She explained that the applicant was seeking an additional hour for the sale of alcohol on Mondays to Saturdays and an additional 3½ hours on Sundays. The applicant was also seeking the removal of embedded Licensing Act 1964 conditions and the removal of any existing conditions that conflicted with the application. No new opening hours to replace those on the current licence of 08:00 – 20.00 had been specified.

Representations had been received from the Foxhill Point Community Group and local residents relating to the licensing objectives of the prevention of crime and disorder and the prevention of public nuisance.  Additional information had been circulated since the publication of the agenda, namely a petition organised by the Foxhill Point Community Group, a copy of the judgment in the case of Matthew Taylor v Manchester City Council and TCG Bars Limited and a copy of an email from a Bath and North East Somerset Environmental Health Officer provided by the applicant.

Mr Arnot stated the case for the applicants. He said the Co-operative Group owned 3,900 local stores and had long experience in the sale of alcohol. Each region of the Group had a risk manager, who liaised with local communities. He stated that if the Group acted outside its policies with regard to age-related products this would constitute a risk for the Group, and so one of the risk manager’s responsibilities was to ensure that stores followed the procedures laid down for these products. He stated that there was a rigorous staff training programme and that all staff had two refresher courses per year regardless of their length of service. All staff received basic training and some were personal licence holders. There was a “buddy” system for mentoring new staff and a “lock down” facility on tills, so that individual members of staff could be prevented from selling alcohol. There was a Challenge 25 policy in force and, whenever the bar code for an age-restricted product was scanned at the till, the sales assistant was required to certify that the customer was over 25. The identity of the sales assistant was recorded, so that the stores supervisor could monitor the pattern of sales for each member of staff.

He stated that the store in Bradford Road had traded for so many years that it was difficult to ascertain when it had commenced trading, that the store had only one entrance and exit and that spirits and high-value alcoholic products were stored behind the counter; wines and beers were stored at the left side of the counter on the side of the store furthest away from the door.

He stated that it was natural for a convenience store to want longer trading hours, because people were working longer hours and wanted somewhere where they could shop before and after work. He submitted that the question which had been asked by Patricia Griffin as to “Why do people need to buy alcohol early in the morning?” was not legally relevant. He stated that the applicant did not want to have to tell customers that alcohol could not be sold early in the morning and that they would have to come back later.

He stated that the store was currently trading till 20.00, but this might be reviewed.

He noted that the Police had made no representation to the application and referred to the email from the Environmental Health Officer, in which the EHO had stated that there had been only three reported incidents relating to the store since 2005: two incidents of an alarm sounding, both of which had been rectified, and one report of noise from a banging door, which had not been substantiated.

He then turned to the representations made by the Other Persons. He said that they mentioned noise disturbance to residents living above the shop and other local residents, but submitted that this was not borne out by the information provided by the EHO. The representations also referred to the blocking of access by delivery vehicles which, he submitted, was not relevant to a licensing application. In fact the number of deliveries to the store had been reduced following the establishment by Co-operative Group of a new delivery depot in the South West in an effort to minimise their environmental footprint.

The representations also expressed concern that the increased hours for the purchase of alcohol would lead to an increase in rough sleeping and street drinking. However, as far as he knew, there was only one local rough sleeper, who had been barred from the store, but loitered in the vicinity.

He confirmed that there had been only seven incidents of shop lifting and all waste was put into a bin at the rear of the store. He submitted that the case of Daniel Thwaites plc v Wirral Borough Magistrates’ Court [2008] had established that licensing decisions had to be based on evidence, not speculation.

The Other Persons were invited to put questions to the applicant. Patricia Griffin asked what the definition of a convenience store was. Angela Bain replied that it was a store situated in a local community, which people could visit before and after work, but at which they did not do their main shopping.

Members put questions to the applicant’s representatives. In reply, Ms Bain explained that “lock down” meant that that the till could be set to prevent an individual member of staff making sales of age-related products. When such a product was scanned at the till the supervisor, or another member of staff authorised to make such sales, would have to be called to complete the transaction and take responsibility for it. She also stated that there was not a problem with some staff being more inclined to make sales to minors, because all staff received alcohol training and took exams on licensing law and Group procedures.  The “lock down” was designed to prevent any individual member of staff about whom there were doubts from making alcohol sales at all. She said that security staff were only ever employed by the Group when there was a concern about possible damage to assets or injury to staff. No security staff were employed at the Bradford Road store. No incidents had been reported when she had visited the store the previous week, though she had been told about the rough sleeper.

Patricia Griffin stated her case. She said that she thought the application to extend the hours was based on economic considerations and fear of competition from Tesco’s. She stated that, particularly in the summer, young people congregated in the area and tried to purchase alcohol and that delivery vehicles caused obstruction. Mrs Cogdell said that she and her husband lived above the store. They were concerned that there would be more noise if the store stayed open longer. She stated that there was already nuisance caused by youths congregating, drinking and urinating near her and other people’s homes.  She stated that youths were in the habit of congregating in the area and asking adults to buy alcohol for them; there were several stores in the area selling alcohol and there was a McColl’s right next to the Bradford Road Co-op.

A Member asked her about the number of rough sleepers in the area, recalling that the applicant had stated that they only knew of one. She replied that she feared that there would an increase in rough sleepers if alcohol was available for longer hours. The parties were invited to sum up. Mr Arnot said that the Secretary of State’s Guidance acknowledged that licensed premises could have no control over customers when they had left the premises. He referred to statements in paragraphs 77 and 78 of the judgment in Matthew Taylor v Manchester City Council and TCG Bars Limited about the nature of variation applications and a about a licensing authority’s powers in relation to them.

The Senior Legal Adviser asked Mr Arnot to comment on the application to remove the Licensing Act 1964 embedded conditions. He replied that there were conditions in the current licence which had been transferred when it had been converted that would not be mandatory under the current law.

Ms Griffin said that residents simply wanted their concerns to be taken into account. They did not want the premises to be allowed extra hours, because they felt there were enough problems in the area already.

The Senior Legal Adviser referred to the statement in paragraph 93 of the Taylor judgment that licensing authorities could not extend the scope of a licence beyond the extant licence and the proposed variation and noted that the applicant sought no change to the current opening hours of 08:00 to 20:00 although the hours sought for the sale of alcohol were 07:00 to 23:00.

The Senior Licensing Officer suggested that the applicant’s proposal to remove any other condition that conflicted with the application, was an indirect means of securing a change to the opening hours. She pointed out that there was no offence of breach of opening hours and that opening hours were only enforceable if they were considered a condition of the licence.

Following an adjournment, the Sub-Committee RESOLVED to grant the application as applied for. Authority was delegated to the Licensing Officer accordingly.

REASONS

Members have today determined an application for the variation of a Premises Licence for The Cooperative, 79-81 Bradford Road, Combe Down, Bath. 

In doing so they have reminded themselves of the Licensing Act 2003, Statutory Guidance, the Council’s Statement of Licensing Policy and the 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 must only do what is appropriate and proportionate to promote the licensing objectives based on the evidence before them.

Members took account all of the relevant oral and written representations from the applicant Company, including its Training Guide, its solicitor, and the Other Persons and were careful to balance their competing interests.

Members noted that the relevant representations, made by members of the Foxhill Point Community Group, expressed concern that the applicant’s proposal would undermine the licensing objectives of the prevention of  crime and disorder and the prevention of public nuisance.

Their concerns were based on the perceived increase in noise experienced by residents both living above the shop and at the back of the premises, that delivery lorries for the premises would cause increased difficulties for other delivery vehicles in accessing the other shops in Bradford Road, that there would be an increase demand for litter and cleansing services, that the variation would have the effect of encouraging rough sleepers, street drinking, proxy purchasing, under-age drinking and increased shop lifting. 

A petition had also been submitted by the Community Group and sent to the parties as additional information in support of the representations made.  Members attached no weight to this as it did not relate to any specific evidence

Members were aware that once patrons were away from the premises they were no longer in the control of the applicant and that any problems caused by patrons in this respect could be controlled by other means such as informing the Police with regard to anti-social behaviour.

Members noted that no representations to the application had been made by the Police or Environmental Health Officer.

They noted that there were problems associated with the area but were not related to the Co-op and that the Co-op itself had issues but these were not related to the licensing objectives.

Members also noted that part of the application related to the removal of the embedded conditions which were transferred from the licence on transition from the Licensing Act 1964 to the 2003 Act.

They considered the merits of the application and considered that the evidence they had been presented with in respect of the Co-op’s policies and practices would uphold the licencing objectives especially with respect to under-age drinking and that the removal of all of the embedded conditions would not have a detrimental effect on the promotion of the licensing objectives.  They were satisfied that the proposed conditions in the Operating Schedule would control the sale of alcohol.  Further that deliveries were becoming less frequent and did not affect other stores in the street.

Members therefore granted the licence as applied for and imposed the conditions consistent with the Operating Schedule in addition to those already on the Premises Licence and removed the embedded conditions in their entirety.

Authority was delegated to the Licensing Officer to issue the licence accordingly.