Cabinet_Report

Purpose of Report

1 To present the facts and relevant representations received in respect of an application for a premises licence for Nam Taco Bar, 8 Newbury Street, Wantage, OX12 8BS, to the Licensing Acts Panel in order that it can determine the application under Section 18 of the Licensing Act 2003.

Strategic Objectives

2 The relevant strategic objectives are ‘Working in an open and inclusive way’ and ‘Building healthy communities’.

Background

3.1 The Licensing Act 2003 (‘the Act’) established a single integrated scheme for licensing premises which are used for the supply of alcohol, regulated entertainment, late night refreshment or permission to carry on some or all of these activities. In the Act these activities are referred to collectively as the ‘licensable activities’.

3.2 A Licensing Authority must carry out its functions under the Act with a view to promoting the four licensing objectives. The licensing objectives are:

· prevention of crime and disorder

· public safety

· prevention of public nuisance

· protection of children from harm.

In carrying out its functions, the Licensing Authority must also have regard to its statement of licensing policy and any guidance issued by the Secretary of State (section 182 guidance).

3.3 Licences will normally be granted by the licensing officer under delegated powers but in the event of relevant representations being received regarding the grant of a premises licence, and where these representations cannot be resolved through any mediation process, the application is referred to the Licensing Acts Panel to be determined.

3.4 On 28 March 2023 an application for the grant of a new premises licence was submitted by Veve Food Ltd for Nam Taco Bar, 8 Newbury Street, Wantage, OX12 8BS. A copy of the form is attached at Appendix A. The application is for the supply of alcohol (on and off sales), as follows:

Licensable Activity	Proposed Days and Times
Supply of Alcohol	Monday to Sunday 08:00 - 22:30
Hours premises are open to the public	Monday to Sunday 08:00 - 23:00

3.5 No representations have been received from any of the responsible authorities in respect of this application.

3.6 One representation has been received from other persons as follows:

· Concerns of vehicles parking on double yellows and causing noise disturbances with engines left running and music being played loudly as well as causing access issues for emergency vehicles.

· Increase in litter, including cigarette butts.

· Empty glasses being left outside the premises

· Customers leaving at 23:00 posing a risk of causing noise disturbances to residential neighbours.

This representation can be found at Appendix B.

3.7 The applicant has provided a response to the representation which can be found at Appendix D.

3.8 It should be noted that the applicant is able to make use of the Live Music Act 2012 and the Legislative Reform (Entertainment Licensing) Order 2014 exemptions. This means that no licence is required to play live and recorded music in a premises licensed for the sale of alcohol between the hours of 08:00-23:00 where attendance is limited to 500 persons. Any conditions which relate to live music and recorded music will also not have effect between these hours unless these are added by a panel as a result of a review of the premises licence at a later stage.

3.9 A map showing the location of the premises is attached at Appendix E. This map indicates the approximate residential location of any other persons who have made representations as indicated in the above paragraph(s).

Policy and guidance

4.1 The relevant sections of the council’s statement of licensing policy are as follows:

Operating schedule and conditions

3.11 Conditions attached to various authorisations will be focused on matters which are within the control of licence holders, and will focus primarily on the direct impact of any activities taking place at those premises on those living, working, or otherwise engaged, in the area concerned.

3.13 Conditions shall be appropriate and proportionate to achieve the promotion of the licensing objectives, and shall be tailored to suit the circumstances and premises. Conditions will not be attached where adequate legislative control exists.

Prevention of public nuisance

6.1 Public nuisance is a broad concept, which concerns how the activity of one
person (or business) affects the amenity of other persons living and working in
the area of the licensed premises, for example, how noise from playing music
interferes with another person’s right to sleep, or adverse impacts from light or
odour.

6.2 The Act requires, and the Licensing Authority expects, applicants to
demonstrate within their operating schedule how they intend to prevent public
nuisance arising. This will be of particular importance where there are
residential properties in the vicinity of the licensed premises.

6.3 When appropriate on application or review the Licensing Authority will consider the adequacy of proposed measures to remove or effectively manage the potential for public nuisance, anti-social behaviour and other crime which may impact on the promotion of the licensing objectives.

6.4 When an operating schedule does not sufficiently address the prevention of
public nuisance the Licensing Authority will consider all reasonable conditions
suggested by responsible authorities in any relevant representation to prevent
public nuisance. In some locations it may be appropriate and proportionate to
limit opening hours, the times of licensable activities or the types of licensable
activities taking place.

6.5 Where considerations apply to late night refreshment premises, they shall only be taken to apply to their operation between the hours when a premises licence would be required.

6.6 Applicants should carefully consider how they intend to promote the prevention of public nuisance objective in their operating schedule. This can include several considerations:

Odour

6.7 The applicant should consider any odour that may be emitted from the premises. This can include the generation of odour from food preparation, waste, bottle storage and/or from smoking areas. Steps should be taken or proposed to be taken by the applicant to prevent odour from the premises causing nuisance. The applicant may need to get advice from specialist air handling engineers about controlling odour from kitchen air extraction systems.

6.8 When designating a smoking area outside it is important to consider who will be affected by the smoke, the possible number of persons using the area and ensuring a facility to safely dispose of lit cigarettes.

6.9 Applicants should also consider the use of such areas in cold or wet weather and how this will affect users of smoking areas. Applicants may also wish to consider taking steps towards supporting the proposed Oxfordshire Smokefree Policy.

Waste and cleansing

6.10 Licensed premises of all types can potentially cause public nuisance from litter and waste. The Environmental Protection Act 1990 and the Clean
Neighbourhoods and Environment Act 2005 impose responsibilities relating to
proper waste collection and disposal, not least of which is the ‘duty of care’ to
ensure any waste is properly contained and controlled while in the operator’s
possession, and that it is collected by a licensed waste carrier. The Act does not duplicate these laws, but licence holders will need to apply good waste
management practice in order to prevent public nuisance.

Noise

6.11 Noise can come either directly or indirectly from licensed premises. Direct
noise, such as that from entertainment activity, will be under the premises’
direct control. Indirect noise, such as that from vehicles and customers coming
to and from the premises may not be under direct control, but the premises can
strongly influence it. Both types of noise will be of more significance in areas
with residential accommodation and will usually, but not exclusively, be of
greater importance between 11pm and 7am. However it must be noted that
noise and disturbance can also cause public nuisance outside these times. The
operating schedule should identify the control measures that will be taken to
minimise the impact of both types of noise on neighbouring residents and
businesses.

Use of outside areas

6.12 It must be noted that there is no legal requirement for licensed premises to
provide an outdoor smoking area. However, premises are encouraged to do so
to minimise congestion on pavements.

6.13 Noise and disturbance from people outside can cause public nuisance even when those people are not behaving badly. The operating schedule should identify the control measures that will be taken to minimise the impact of use of outside areas. This may include noise and disturbance from customers on the premises and customers in outdoor areas such as terraces, beer gardens and smoking areas. It will also include noise, disturbance and obstruction from customers in the vicinity of the premises including customers congregating outside premises to smoke or drink, customers arriving, leaving or queuing outside premises.

4.2 The relevant sections of the Secretary of State’s guidance issued under section 182 of the Licensing Act 2003 are as follows:

1.2 The legislation provides a clear focus on the promotion of four statutory objectives which must be addressed when licensing functions are undertaken.

1.5 However, the legislation also supports a number of other key aims and purposes… They include:

• protecting the public and local residents from crime, anti-social behaviour and noise nuisance caused by irresponsible licensed premises;

2.15 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.

2.16 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 may 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. Public nuisance may also arise as a result of the adverse effects of artificial light, dust, odour and insects or where its effect is prejudicial to health.

2.17 Conditions relating to noise nuisance will usually 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 persons are not permitted in garden areas of the premises after a certain time. More sophisticated measures like the installation of acoustic curtains or rubber speaker mounts to mitigate sound escape from the premises may be appropriate. However, conditions in relation to live or recorded music may not be enforceable in circumstances where the entertainment activity itself is not licensable (see chapter 16). Any conditions appropriate to promote the prevention of public nuisance should be tailored to the type, nature and characteristics of the specific premises and its licensable activities. Licensing authorities should avoid inappropriate or disproportionate measures that could deter events that are valuable to the community, such as live music. Noise limiters, for example, are expensive to purchase and install and are likely to be a considerable burden for smaller venues.

2.18 As with all conditions, those relating to noise nuisance may not be appropriate in certain circumstances where provisions in other legislation 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.

2.19 Where applications have given rise to representations, any appropriate conditions should normally focus on the most sensitive periods. For example, the most sensitive period for people being disturbed by unreasonably loud music is at night and into the 10 | Revised Guidance issued under section 182 of the Licensing Act 2003 early morning when residents in adjacent properties may be attempting to go to sleep or are sleeping. This is why there is still a need for a licence for performances of live music between 11 pm and 8 am. In certain circumstances, conditions relating to noise emanating from the premises may also be appropriate to address any disturbance anticipated as customers enter and leave.

2.21 Beyond the immediate area surrounding the premises, these are matters for the personal responsibility of individuals under the law. An individual who engages in antisocial 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, or that, if they wish to smoke, to do so at designated places on the premises instead of outside, and to respect the rights of people living nearby to a peaceful night.

9.37 As a matter of practice, licensing authorities should seek to focus the hearing on the steps considered appropriate to promote the particular licensing objective or objectives that have given rise to the specific representation and avoid straying into undisputed areas.

10.8 The licensing authority may not impose any conditions unless its discretion has been exercised 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.

1.16 Licensing conditions must be tailored to the individual type, location and characteristics of the premises and events concerned. They should be proportionate, justifiable and be capable of being met.

4.3 East Lindsey District Council v Abu Hanif (t/a Zara’s Restaurant) 2016. The significance of the case is that it reaffirms the principle that Responsible Authorities need not wait for the licensing objectives to actually be undermined before objecting to a licence being granted. This case would be most relevant when opposing a grant application.

R (on application of Hope and Glory Public House Ltd) v City of Westminster Magistrates’ Court and Others (2011) EWCA Civ 312 also states how licensing authorities should approach licensing decision making:

“They involve an evaluation of what is to be regarded as reasonably acceptable in the particular location. In any case, deciding what (if any) conditions should be attached to a licence as necessary and proportionate to the promotion of the statutory licensing objectives is essentially a matter of judgment rather than a matter of pure fact.”

Sourced from: https://www.gov.uk/government/publications/alcohol-licensing-using-case-law/alcohol-licensing-using-case-law

Options

5.1 In determining the application the authority must give weight to:

· representations received from responsible authorities

· relevant representations received from other persons

· the Secretary of State’s guidance issued under Section 182 of the Licensing Act 2003

· the council’s statement of licensing policy and

· the steps appropriate to promote the licensing objectives

5.2 In view of the above, the panel is requested to consider the application for a premises licence and decide whether to:

(a) grant the licence as applied for

(b) grant the licence after modifying any conditions to such extent as the authority considers appropriate for the promotion of the licensing objectives

(d) refuse to specify a person in the licence as the premises supervisor, and/or

(e) reject the application.

Financial Implications

6 Should the applicant or any other person wish to appeal against a decision of the council, they may do so to the magistrates’ court. The council would incur costs should this occur, although the court may decide to award costs if the council’s decision was upheld.

Legal Implications

7.1 The Human Rights Act 1998 requires public bodies to ensure everything they do is compatible with Convention Rights and makes it unlawful for a public authority to act incompatibly with those rights. When determining whether to grant the application the panel will be aware of human rights considerations, specifically Part 1, Article 6, the right to a fair trial, Part 2 and Article 8 the right to respect for private and family life for those making representations.

7.2 The hearing of all applications is subject to the principles of natural justice.

7.3 Section 17 of the Crime and Disorder Act 1998 states, ‘without prejudice to any other obligation imposed on it, it shall be the duty of each authority to exercise its various functions with due regard to the likely effect of those functions on, and the need to do all that it reasonably can to prevent crime and disorder in its area’.

7.4 Under Schedule 5, Part 1 of the Licensing Act 2003, any person aggrieved by the decision in respect of the application may appeal to a Magistrates’ Court within 21 days of the date of the decision.

Conclusion

8 This report provides information submitted by the applicant and other persons. The panel should determine this application with a view to promoting the four licensing objectives. It must, having had regard to all the relevant representations and the evidence it hears, determine the application using the options outlined in section 5 of this report.

Background Papers

Appendix A - Application

Appendix B - Representation from Mr Waring

Appendix C - Proposed conditions from operating schedule

Appendix D - Applicant response to representation

Appendix E - Map showing location of the premises

Appendix A - Application

Appendix B – Representation from Mr Waring

From: Mike Waring
Sent: 18 April 2023 09:13 AM
To: Licensing Vale <Licensing.unit@whitehorsedc.gov.uk>
Subject: 8, Newbury Street - Nam Taco Bar's Application for a Premises Licence (Section 17 Licensing Act 2003)

Dear Sir or Madam,

I would like to make an objection to the premises licence application for 8 Newbury Street, Wantage against the licensing objective of prevention of public nuisance.

Whilst I accept that owning a property in the centre of town means that I have to be willing to tolerate some additional noise, the above premises has a door directly opposite our front door (see attached photograph: my doorway on the left, 8 Newbury Street on the right) and has previously been an art gallery, music shop and hairdressers, all of which we have had a good relationship with - and none has caused a disturbance in the evenings. I understand that the conversion of this Grade 2 Listed property has currently been halted by VWHDC's Planning Department, as the proprietor has failed to apply for permission for change of business use and I am not aware that that any application has yet been submitted.

I believe that if this application was granted it would lead to people standing around outside our property while waiting for take-aways perhaps late into the evening; an increase in the already large amount of delivery drivers parking on double yellow lines in Newbury Street and Church Street, some of whom already leave their car engines running and play loud music, and the associated problems experienced by the emergency services in terms of blocked access; litter and empty glasses being left on our window sills (we already have this from the pubs and take-aways further down the street); people smoking and leaving cigarette butts outside our property, perhaps sitting on our doorstep (again, something we already experience on occasion); not to mention the extra cooking smells created. Although the sale of alcohol would end at 10:30pm, those eating-in could, potentially, not leave until 11pm creating further noise and disturbance.

I have taken the liberty of copying in our local councillors and clerk to Wantage Town Council, who may not be aware of this application.

Yours faithfully,

Mike Waring

Newbury Street

Wantage

Oxon

Appendix C - Proposed conditions from operating schedule

1. A digital CCTV system shall be installed and maintained in accordance with current Home Office Guidelines relating to UK Police Requirements for Digital CCTV Systems. The system shall ensure all licensed areas of the premises (except toilet facilities) are monitored, including all entry and exit points and external areas, and should ensure frontal identification of every person entering and in any light condition. All cameras shall continually record whilst the premises are open to the public and the recordings shall be kept and available for a minimum of 31 days with accurate time and date stamping. Any breakdown or system failure shall be notified to Thames Valley Police immediately and remedied as soon as practicable. A member of staff trained in data retrieval and viewing from the CCTV system shall be available at all times when the premises is open to the public. Recordings shall be made available to an authorised officer of Thames Valley Police or an authorised officer of the council together with facilities for viewing. The recordings for the preceding two days shall be made available immediately on request. Recordings outside this period shall be made available within 48 hours. Any request from Thames Valley Police, Trading Standards or the council for a copy of the CCTV recording to be made for evidential purposes must be carried out within 48 hours.

2. Signs shall be placed in prominent positions on the premises notifying customers that CCTV is in operation.

3. Any incident at the premises which impacts any of the four licensing objectives shall be recorded in a register kept at the premises and shall contain the following information:

a) time and date

b) exact location

c) nature of incident

d) name of staff members or door supervisors involved

e) name of any offender (where known)

f) action taken as a result of the incident

g) name of member of staff recording the incident

This record must be retained at the premises for a period of not less than six months and be available on request by any authorised officer of the council or Thames Valley Police. The record should be signed off by the DPS or a nominated representative at least once a week.

4. All staff employed (whether paid or unpaid) in the sale of alcohol shall be trained in respect of the law relating to the sale of alcohol, proxy purchases, identification checking, the company’s proof of age policy and the procedure on handling and recording refusals. Refresher training shall be carried out every six months. Such training sessions are to be documented and records shall be kept for a minimum of one year and be made available upon request to an authorised officer of the council, Trading Standards and Thames Valley Police.

5. The licence holder or their nominated representative shall devise, implement and maintain a Challenge 25 policy as part of their policy relating to alcohol sales. Clear signage relating to the policy shall be displayed at the premises. Only a valid driver’s licence showing a photograph of the person, a valid passport, national identity card or proof of age card showing the “PASS” hologram are to be accepted as identification.

6. A refusal register (written or electronic) shall be maintained at the premises to record sales of age restricted products that have been refused. The register is to be made available upon request by Thames Valley Police, Trading Standards Officers and Licensing Officers. The register should include details of the time, date, member of staff refusing the sale, reason for refusal (for example intoxication or underage) and a brief description of the person refused.

7. Deliveries of alcohol shall only be made to residential dwellings or a place of work with a recognisable postcode. The delivery shall only take place only if the person receiving the alcohol is inside the property, or inside a communal doorway, and able to prove to the person delivering the alcohol they are a resident or employee at the premises. Alcohol shall not be delivered to a person who is in a public place e.g. in a street, a park etc. and no sales shall take place directly from the delivery vehicle.

8. All payments for alcohol to be delivered shall be made by credit card only. Upon receipt of an order including alcohol to be delivered, the customer shall be clearly advised that the delivery shall only be made to the person named on the credit card and that if they appear to be under the age of 25 they shall be required to produce an approved form of identification, the name of which corresponds with the name on the credit card. Failure to provide the requested identification and or credit card shall result in non-delivery of the alcohol and a refund in respect of that part of the order which relates to the alcohol only.

9. For every delivery a customer shall sign a delivery note which shall contain:

a) Date & time

b) Name of person making order

c) Address of delivery

d) Details of ID provided if Challenge 25 policy applies

e) Items delivered

f) Member of staff making delivery

Delivery notes shall be kept and made available for inspection by Thames Valley Police or authorised officer of the council for 6 months from the date of delivery.

Appendix D – Applicant response to representation

From: James Bradshaw
Sent: 21 April 2023 13:35
To: Peachey, Ashley <Ashley.Peachey@southandvale.gov.uk>
Subject: Re: Representation: Veve Food Ltd Nam Taco Bar Premises Licence Application

Hi Ashley,

Thank you very much for you email. Apologies for the late reply.

Regarding the objection. I would like to communicate this to the objector if that’s okay.

Firstly, despite naming the restaurant a Taco Bar. It’s not at all a drinking bar. We’re aiming to do a tapas restaurant, though all the food is eaten as finger food. On top of that, the branding of NAM taco restaurant, doesn’t sound as clean as NAM taco bar. In the same way tapas bar, is mostly used instead of tapas restaurant.

For alcohol, we’ll be mostly wine as the alcohol of choice, and there’s no draft beer. Our closing time is 10:30 and last orders is at 10pm. As it’s primarily a restaurant so number are relatively thin by 9:30 even on the weekends.

Effectively we’ll be running very similar to the two restaurants we’re sandwiched in between. And I’m not doing take aways so there won’t be any more people hanging around outside.

We don’t have any extraction units being installed. We don’t have any deep frying.

I’ve had 4 restaurants open in the past. All in residential areas. The businesses never received a single complaint to the police.

I keep my mobile number (and the managers) available to all neighbours and welcome them to call or text in the unlikely even that we make any disturbance. In all that time, I’ve had only one message from one of our upstairs neighbours around midafternoon, asking jokingly “if I could ask the idiot dancing and singing outside to shut up”. Which I happily obliged.

I’m from Wantage, live in Wantage. I’m certainly not some smug businessman who cares about nothing but money. Upsetting anyone is not an option for me, and in my opinion, not a good business practice.

As a character reference, Andrea from the hairdressers is a close family friend and has known me all my life. I can ask her for a memo if that would help. Or if there’s anything else I can do to ease your concerns. I would massively appreciate the opportunity to meet up with them before we go to a hearing.

Thanks for you concern,

James

BTW I've attached send a copy of the menu to help demonstrate that we truly are food orientated. The final menu will 90% similar to this draft.