|Members gave consideration to determine what action to take in relation to an application for the variation of a premise licence under the Licensing Act 2003 to which there has been representations from a responsible authority and an interested party. |
An application for variation had been received from Victoria Powell, in relation to The Keys, 65-67 High Street, Yarm, Stockton on Tees. The proposed variation was to extend the finishing times and opening hours by one hour, four times annually, the details of which were detailed within the main report.
The Committee gave consideration to the report, the application to vary and the representations received from and on behalf of the Applicant, Environmental Health and Mr Harding (Interested party/objector).
Written representations were set out within the main report, however, it was also noted that an additional statement had been received from Mr Harding which was circulated amongst all attendees at the meeting, none of whom objected to its inclusion.
The Applicant and the Applicants representatives Ms Powell, Ms Monks, Ms Moffit, Mr Close and Mr Goodwin (a sound consultant employed by the applicant), were in attendance at the meeting and were given the opportunity to make representation. The main points discussed could be summarised as follows:
The ability to expand trading activities four times annually may make it financially viable to book "big name DJ acts" since longer trading hours would increase customer turnover and bar receipts. It would not be viable to book such acts by simply having the big name DJ act start at an earlier time since the customers in this market wanted late night entertainment;
Increased customer alcohol consumption was a possibility, however, it was in the interest of the venue to ensure its staff continued to adhere to a strict refusals policy;
Noise levels and the scope for public nuisance were a concern and attempts had been made to limit disturbance to the locality by suspending speakers, using dampening matting and installing sound proofing. Sound checks were also regularly undertaken by management. The applicant also proposed to procure an automated sound limiter which would decrease the maximum potential volume to a lower level during the extended trading activities. Mr Goodwin (a sound consultant employed by the applicant) observed that a decrease of 3dB should be sufficient;
Mr Harding was the only objector to the proposed variation and the venue was aware that Mr Harding was disturbed by its trading activities. It was appreciated that steps could be taken to mitigate disturbance to Mr Harding through enabling property improvement at Mr Harding's property, however, it was considered more prudent to use funds to improve the venue's own physical condition.
The Committee and attendees were reminded that Mr Harding had made written representations but was unfortunately unable to attend the committee hearing. All attendees were afforded another opportunity to read Mr Hardings further written representations. The Committees Solicitor advised that whilst Mr Harding had specified that his representations were relevant to both "prevention of crime and disorder" and "prevention of public nuisance" it was the case that Mr Harding had not attempted to substantiate the ground of "prevention of crime and disorder".
The Environmental Health Unit Manager was invited to make representations and committee members and other attendees sought clarification on several points. The main issues raised could be summarised as follows:
Environmental Health objected to the application and the rationale behind this objection was based on three factors, these were discueed as follows:
- The close proximity of the venue to residential property;
- The continued expansion of the venue;
- The decrease in background noise levels in the vicinity of the venue after 2am.
The Environmental Health Unit Manager noted that the location plan provided as part of the committee papers did not sufficiently enable consideration of the issues in hand and accordingly circulated two further plans amongst all attendees.
Background information was provided in relation to the ownership and physical characteristics of the residential properties on High Church Wynd in close proximity to the venue;
It was noted that residents of High Church Wynd (other than Mr Harding) had previously complained to Environmental Health in respect to the venue's trading activities but not in connection to the "club night";
The properties on High Church Wynd were relatively old properties with little insulation and development restrictions ensuing from conservation area status. In contrast the occupiers of newer residential developments were seemingly not disturbed, probably because the properties benefit from improved insulation;
In addition to its limited insulation Mr Harding's property may be particularly susceptible to the noise emanating from the venue because of its position and also as it was only "single deep" construction meaning Mr Harding's bedroom had windows at the rear and front of the property. The Environmental Health Unit Manager was aware of the specifics of Mr Harding's property because Environmental Health had previously installed noise recording devices within Mr Harding's bedroom to assess alleged statutory nuisance caused by the trading activities at the venue, however, these were not considered to be a statutory nuisance or low level disturbance and, indeed, there was a 10dB difference between recorded noise level and that level which would amount to statutory nuisance.
The applicant had ambitions to expand the venue following acquisition of land to the rear of the venue (i.e. the land and buildings forming (No.6 High Church Wynd) but planning applications (subsequently rejected by planning) had, in The Environmental Health Unit Manager's opinion, increased local sensitivity and awareness to the venue's trading activities. The Environmental Health Unit Manager acknowledged that ambition to expand would fall within remit of development control and was not material to determining this application to vary existing premises licence.
Background noise was a crucial factor in determining the level to which the sound limiter equipment installed at the venue was set so as to ensure that the trading activities did not cause a public nuisance;
The Environmental Health Unit Manager was unaware of the applicant's intention to purchase improved equipment that would allow the limit to be staggered (thereby taking account to lower background noise after 2am); he conceded that concerns may be adequately mitigated against should the sound limiter equipment be set by Environmental Health at a suitable post 2am level be determined by Environmental Health;
It was stressed that settings determined by Environmental Health would not ordinarily be reviewed for some time and it would not be possible to set different levels for each extended opening of the venue having regard to potential background noise at the particular time. This was accepted by the applicant;
Mr Goodwin had previously stated that a 3dB drop in volume would be sufficient, however, The Environmental Health Unit Manager considered a steadily declining drop of 10dB from 2am to 3am would be, in his initial opinion, preferable. Mr Goodwin disagreed with the Environmental Health Unit Manager's initial opinion but all parties agreed that Environmental Health would consider the matter further so as to reach a reasonable but binding decision evidenced by written direction to the applicant.
It was stressed that the post 2am sound limiter setting would be determined in accordance with usual Environmental Health practice paying regard to:
- Existing background noise (in the vicinity of and/or within property known to be particularly susceptible to the trading activities of the venue) after 2am;
- Structural improvements undertaken at the venue to limit scope for public nuisance.
The Committee was sympathetic to Mr Harding and understood why he had objected, however, it was noted that:
- Environmental Health had determined current trading activities did not cause any public nuisance;
- An appropriate solution to post 2am trading activities had been proposed, namely procurement and installation of improved sound limiting equipment which would be set by Environmental Health having regard to, amongst other things, the sensitivity of Mr Harding's property to noise;
- The objection to the application submitted by Environmental Health had been overcome and no other Responsible Bodies had objected to the application;
- The applicant was seeking to extend trading activities on only 4 days per annum;
Accordingly it was considered proportionate to approve the application as summarised within paragraph 1 of the Licensing officer's report subject to a variation limiting scope to Friday and Saturday extended trading activities (a variation to which the applicant agreed verbally). It was also noted that licensing may seek to subsequently revoke or vary the scope for extended trading activities so as to promote the licensing objectives.
The Committee was also mindful of decision compatibility with the existing Premises Licence terms and proposed variation to Annex 3, namely:
- (Prevention of Public Nuisance - paragraph 3) - removal as duplicated at paragraph 4
- (Prevention of Public Nuisance - paragraph 4) - removal and insertion of following wording:
- "All sound systems in operation shall pass through a noise (maximum dB) limiting device configured and operating in accordance with the written direction (from time to time) of the Environmental Health Unit"