Agenda item

Summary:	This application is to review an existing Premises Licence
Conclusions:	That Members consider and determine the case from the written and oral information provided.
Recommendations:	That Members consider and determine this case
Cllr P Butikofer – Chairman Licensing Committee		Ward(s) affected: Cromer
Contact Officer, telephone number, and e?mail:		Lara Clare 01263 516252 lara.clare@north-norfolk.gov.uk

 

The Chairman, Members of the Panel and Officers introduced themselves.

 

The Legal Advisor outlined the purpose of the hearing and explained the procedure for the meeting, and confirmed that the decision notice would not be issued that day, but would be supplied within 5 working days by email.

 

The Licensing Enforcement Officer presented the report, and affirmed that a valid application for review to the premises license had been received from the Environmental Protection Team, details of which were contained in Appendix A, Pages 23 -26 of the Agenda Pack. She informed Members that grounds for the review were based on the playing of amplified music to excessive levels, statutory nuisances which had been witnessed, and a breach of an abatement notice. A copy of the abatement notice was available on page 38 of the Agenda Pack. The Licencing Officer confirmed that the author of the review, the Environmental Health Officer was present for meeting, as was PC Brooks of the Police Licensing Team who had supported the review.

 

The Licensing Officer affirmed the current permitted operation times as allowed under the premises license and that the license permitted for films, indoor sporting events, live music, recording music, entertainment similar to live and recorded music, as well as the selling of alcohol on and off the premises.

 

The Licensing Officer stated that the license was subject to the mandatory conditions as listed on pages 4-6 of the Agenda Pack. The license was also subject to conditions relevant to its operating schedule as detailed on pages 6-8 of the Agenda Pack, including that the designated premises supervisor or the licensee shall ensure that no nuisances caused by noise emanating from the premises or by vibration transmitted through the structure of the premises, external windows and doors must be kept closed, prominent clear notices shall be displayed at all exits requesting customers respect the needs of local residents and to leave the premises and area quietly. The premises license permitted additional hours for specific dates including New Year’s Eve, Burns Night, Valentine’s day and others.

 

The Licensing Officer advised that comments had been received from responsible authorities as detailed in Appendix B, and that the Police’s representation could be seen on page 50 of the Agenda Pack. Representations from other interested parties had also been received which were detailed on pages 53 and 54 of the Agenda Pack.

 

She stated that the Authority had properly discharged its responsibility for advertising the review, and that the public notice had been displayed on the premises until 15th February 2022, which was the end of the public consultation period whereby the Authority could accept representations in support or in objection of the review.

 

The Licensing Officer advised Members the options available to them in determining the application, such options included revoking of the license, removal of licensable activities from the license in order to promote the licensing objectives, subjecting the license to further conditions to promote the licensing objectives, refusal of the review application and to take no further action, or any other action which the sub-committee deems necessary.

 

The Chairman confirmed if the attending Officers or Committee Members had any questions, before inviting Mr Hubbard, the Premises Owner to speak.

 

Mr Hubbard reflected on the Police Report supporting the review and noted the incident which occurred on 24^th October 2020. He disputed that the events detailed had anything to do with his business and considered the fight to be an overspill from the Wellington Public House. He affirmed that after the fight broke out that he closed his doors and sent his staff home so that they would not be involved. Mr Hubbard stated that he spoke with the Police that evening, who asked to see his CCTV. Mr Hubbard advised the Panel that his property is located by the North Sea and that the weather affects the reliability of his cameras, he affirmed that the camera footage requested was unavailable for the 24^th October. He stated that on average, 4 days out of 7 the CCTV cuts out, and that the CCTV was wired in 12 years ago and so was not up to spec. Mr Hubbard stated that this was explained to the Police 5 times over the course of several days, and that he did not wish to act as a witness as the events did not concern him or his business. Mr Hubbard acknowledged that conversations did get heated with the Police, and whilst he did become vocal, he considered that the Police Report was inaccurate and did not reflect that the Police had pinned a member of his staff in the corner by the CCTV recorder, requesting access to footage. Mr Hubbard advised he asked the Police to leave his property, and stated that they did not have a warrant for his CCTV, and he was not under investigation for this.

 

Mr Hubbard noted the events of 20^th November 2021 in which an incident took place on the premises. He affirmed that he and his brother had escorted ‘Polish’ away from the property and that he did not call the Police at the time, as he considered the matter dealt with. Mr Hubbard stated that the events which occurred 3 hours later had nothing to do with his business, as the overspill event was not near his premises and therefore this incident should not be considered in reviewing his premises license. He commented that he had discussed these events with the Police and invited them to view his CCTV which was available for 14 days, but that the Police had failed to attend within that 14 day period. Mr Hubbard considered that a public CCTV system was needed within Cromer Town, but that the responsibility should not fall on individual businesses to provide this.

 

Mr Hubbard informed Members that he worked 7 days a week, across all areas of his business, and that he was a very hard working individual. He stated that he felt victimised by the inclusion of the Police reports, and disputed their accuracy which did not include the 4 times when he had offered assistance to Norfolk Constabulary. He affirmed that he did not have the money to upgrade his CCTV, and that this would be very expensive.

 

Cllr G Perry-Warnes asked Mr Hubbard for his comments on the noise issues and the abatement notice served in 2018.

 

Mr Hubbard confirmed that the rules had been considerably broken, and that he worked with the Environmental Health Officer and had accepted a caution. He reflected that the incident which took place in October 2021 was when he was away for the weekend, and that it was his staff who had broken the rules which he was made aware of on his return. He confirmed that the member of staff was fired for these events.

 

He confirmed that Lily-Mai’s Bar and Grill was a family friendly business, and it was not a nightclub or pub. He stated that reports of noise disturbances from 5pm for 10 days straight were incredibly incorrect, and that he evidence of his staff’s signing in times which would corroborate this. He reflected that he had not had a live band or a DJ play at the property for years and did not consider his music system to be so loud which it would result in the shaking of walls above, and that this would run counter to the family friendly environment he had worked to create.

 

Mr Hubbard reflected on the complaints received from members of the public, and affirmed that he was familiar with the authors and had a history with them. He stated that one of the complaints came from a neighbouring resident who does not live in the building, but a nearby building, and that she was a very unpleasant individual. Mr Hubbard commented that he had worked with NNDC Officer Richard Crabb about issues relating to the bins, and that he and his staff pressure wash the area every Friday after the bins were emptied, and that these bins are used by his business, and the nearby ice cream shop and residents. Mr Hubbard commented that he also cleans the windows of the complainant, but that the author had failed to note this. He stated that the individual had been verbally abusive to him and his staff, and that if he had raised his voice at her, it was simply in defence of his young staff who had been left in tears by the way in which they had been spoken too. Mr Hubbard considered the incident of criminal damage which took place in September, and in which his time and money remedied the problem, and that he was helping the community. He considered that the individual did not wish to move with the times and that their complaint should be disregarded as it had nothing to do with the noise or nuisance and it was simply a personal vendetta against himself. 

 

Cllr G Perry-Warnes asked if the individual had ever threatened to close down the business. Mr Hubbard advised that she had never stated this directly and her wording was ‘a wish’ that the business closed down, and that he would ‘disappear’.

 

Cllr P Fisher asked for a representation from PC Brooks further to his report.

 

PC Brooks advised he as licensing officers only deals with premises reports and cannot answer questions about other Cromer that may or may not have been committed in Cromer. PC Brooks confirmed with Mr Hubbard the irregularities with his CCTV. PC Brooks commented on the incident which took place on 20^th November 2021, and affirmed that Mr Hubbard understood the four licensing objectives, one of which is assist the police prevent crime and disorder, that Mr Hubbard had offered assistance with CCTV prior, and had a good working relationship with PC Smith and PC Mezetti. PC Brooks advised that the Police would like to see the CCTV condition added would be to provide a level of consistency of the support to help promote the crime and disorder licensing objective. He advised that the CCTV whilst it was provided often, it was only when it suited.

 

Mr Hubbard disputed PC Brooks assessment and stated that he would only involve himself it affected him or his staff, and he did not wished to get dragged into other matters as it could get messy.

 

PC Brooks advised that it is was expected that as a license holder to help promote the crime and disorder licensing objective, irrespective if inside or outside the premises, and it was about keeping the peace in Cromer. 

 

Mr Hubbard affirmed that Cromer Town should look at having a CCTV, and that it would around £5,000 for his business to upgrade their CCTV infrastructure to the level requested by Norfolk Constabulary.

 

PC Brooks advised in the reports provided to him that Mr Hubbard had been inconstant in his approach to providing CCTV. Mr Hubbard advised there had only been one occasion in 12 years where he refused to provide CCTV to Norfolk Constabulary.

 

The Chairman invited the applicant, the Environmental Health Officer to make their representation, who advised that incidents had been witnessed by Council Officers, and determinations were made not solely on the submissions made by members of the public. He noted that there had been errors made with respect of call handling in late 2021 which had resulted in being unable to prove timings of specific events. He advised that an abatement notice had been served in 2018 following a series of incidents which he had witnessed and that there had been an opportunity for the license holder to develop a scheme with the Council in 2018 to mediate issues, however the license holder did not follow this up and no formal written agreement was ever made. As such the abatement notice was still in effect.

 

Mr Hubbard agreed with the Environmental Health Officer representation, and commented that he did not follow up on the matter as work got in the way and it had slipped his mind and stated he took the caution on the chin.

 

The Chairman asked Mr Hubbard about his capacity for seating. Mr Hubbard affirmed that he could accommodate 130 people at any one time and this figure also included staff, for events he could accommodate 80 people including staff. Mr Hubbard questioned why those figured were varied. The Licensing Officer advised figures would have been determined from the fire risk assessment, and that the one in place when the license was agreed was dated from 2005. She advised the License Holder that figure would be valid until such time that it had been requested to be varied or removed, and had been subsequently reviewed. In response to further questions from the Chairman, Mr Hubbard affirmed he had not received any questions from Norfolk Constabulary about the premises capacity. PC Brooks confirmed that to his knowledge the capacity at Lily-Mai’s had not been an issue.

 

Cllr G Perry-Warnes asked how it could be determined that the noise was originating from Lily-Mai’s and not from neighbouring properties which have licensable activities. The Environmental Health Officer noted that the most vocal complainant lived within the same building and confirmed that when Officers had attended in 2016, 2018 and 2020 that the noise was originating from the premises, and that vibrations had also been felt by Officers in attendance.

 

The Legal Advisor stated that she understood Mr Hubbard’s frustrations regarding the noise complaints and affirmed that only evidence which had been provided to the Council could be considered by the sub-committee and form part of their determination. She asked Mr Hubbard to confirm how many nights a week was music played. Mr Hubbard advised that ambient music was played 7 days a week, from the time the business opened and closed, and that previously there had been music played on Friday and Saturday nights till 1pm, but not since November following receipt of the caution. He stated that his business closed around 11.30-12.00pm every weekend and that this had a knock on affect to his business.

 

The Legal Advisor enquired what other recommendations the Environmental Health Officer had which would cost effective, taking into account the size and location of the business which would reduce the noise emitting from the premises. The Environmental Health Officer confirmed that an agreed noise level for music could be set formally as a condition of a license.  That the venue could have their hours reduced; though accepted that this had appeared to have been addressed informally by the premises holder already, and that a reduction in hours would decrease opportunity for disturbances. He considered it would be justifiable placing a condition setting what time music could be played at the venue to around midnight, which live music being reduced to 11.00pm. He stated that the recommendations presented to the sub-committee were as a result of this matter occurring on and off over the course of 6 years and it was a balance between meeting the needs of the business and the residents. The Environmental Health Officer affirmed he did not want the business to close, or to remove the license. He recommended a reduction in special days in which additional hours were permitted, but that New Year’s Eve should remain, which would help find the balance with the residents and the business.

 

The LA asked what sound proofing measures and technology could be introduced internally which would reduce noise. The Environmental Health Officer stated that there were various methods which could be introduced including sound proofing following analysis from an acoustic expert, relocation of speakers to ensure they were not attached to structural elements of the building, and a reduction in the bass level.

 

The Chairman asked the License Holder about their clientele around evening meal and up till 9pm. Mr Hubbard commented for the bar area that the average age of his customers was between 20-40 years old, but that his bar was very quiet between 9 – 11pm as individuals were often at other venues nearby which had a live band

 

The Chairman reflected that in many instances it was the thumping bass which was most problematic and that an agreement needed to be reached on this matter. Mr Hubbard stated that the speakers in Lily-Mai’s had been relocated in 2017, following advice from the Environmental Health Team and the bass turned down. He stated that in January 2022 a new sound system was in place. He commented that there had only been one complaint about noise which exceeded the permitted time, and that the two residents who had complained have relocated or will soon be relocating.

 

The Environmental Health Officer stated that the Council only would respond to events following a complaint, and that the last complaint received by the Council was in December 2021 about the noise. He affirmed that if there were no further complaints, there would be no further investigation. He advised that the Enforcement Action was based on what the Environmental Health Team had observed, and that even if the residents left it should not be assumed that this matter was concluded there was a potential that that this may occur again. The Environmental Health Officer stated timing did not necessarily come into nuisance legislation, and just because a noisy event occurred within licensed hours, does not supersede the fact a nuisance was caused. 

 

Mr Hubbard sought confirmation that there had been no complaint made about New Year’s Eve 2021, as he had an altercation with a local resident about noise. He affirmed his business was shut and that the noise would have come from the Wellington Public House. He expressed his concern having received a caution that his business would be subject to petty complaints from residents. He commented that the music coming from the Wellington was so aggressively and excessively loud that he could feel the walls of his office shake, but that he did not bat an eye lid at such events. He was frustrated that events were attributed to him which were not coming from his business.

 

The Environmental Health Officer commented that the complaint about NYE had been referred to by Mr Hubbard and that no one else had contacted the Council. He stated that the Council could not stop individuals from submitting complaints, and that the public were entitled to do so. The Environmental Health Officer re-iterated that enforcement action would only be taken based on evidence. If it were considered that the complaints were vexatious and may be considered as harassment, this would be matter for Norfolk Constabulary. The Environmental Health Officer noted that once an abatement notice had been served, a single complaint would be enough to warrant investigation. Without an abatement notice, before 11pm 5 calls would be required, after 11pm, only 3 calls were required.

 

The Chairman asked the License Holder when his business was most busy. Mr Hubbard advised this was around 10.45 – 11.00pm when individuals left the Wellington and Kings Head Public House’s as they called last orders. The influx was around 30 -35 people, and that last orders were called around midnight.

 

Cllr G Perry Warne enquired if the Wellington had been investigated on the basis of the complaint. The Environmental Health Officer stated that no formal complaint had been received as such the Wellington had not been investigated. Mr Hubbard commented that he did not wish to submit a formal complaint.

 

The Chairman invited the witnesses to make their representations. The first witness, Michelle commented that mistakes had been made by Mr Hubbard, and that he had owned up to these, but that the complaints against him were both targeted and petty, and considered that officers had been called in for little things. He determined that no other business in Cromer was subject to the same level as scrutiny as Mr Hubbard. She reencountered events which took place outside the Wellington Pub at 11pm on Saturday night where the noise level emitting from the venue was excruciatingly loud, and she sympathised with residents’ complaints about noise.

 

In response to questions from the witness, the Chairman advised that the Licensee was supposed to ensure that individuals attending their premises were not so incapacitated that they could not walk home as a result of consuming alcohol, and that once a person has left the premises and were considered to be okay, but then were involved in a brawl, this was not the responsibility of the Licensee. PC Brooks stated that a License Holder was only responsible for their customers and the curtilage of their building. Allowing customers to get in such a state that they are aggressive and leave the venue and become a problem elsewhere, can come back on the License Holder.

 

The second witness, Mr J Hubbard asked for clarity about what could be considered an ambient noise level. The Environmental Health Officer advised this was considered to be a general background noise and was open to interpretation, certainly if the music could be heard in another premises or would vibrate the walls it was considered to be too loud. A statutory nuisance was not defined at a set decibel level, and each case would be considered on its merits. 30 decibels was considered to be the appropriate maximum noise level for a bedroom, as specified by the World Health Organisation, and that Officers had experience noises well above this level originating from Lily-Mai’s in the bedrooms of neighbouring properties.

 

Mr Hubbard invited the Environmental Health Officer to attend his premises at its busiest time to establish an agreed level of ambient noise which should not be exceeded. He acknowledged this could have been done sooner, but that his previous business model meant that his business was very quiet in the evenings, and this was subject to change. The Environmental Health Officer affirmed that such agreement would need to be agreed with by all parties, which would establish a set limit. He advised that he considered this to be a condition of the License, else it not be tied to a formal agreement.

 

Mr Hubbard expressed his concerns with the other considered conditions set out by the Environmental Health Officer including that or a doorman, which he considered to be an unnecessary cost. The Environmental Health Officer reflected this condition was due to complaints of rowdiness and letters detailing vomiting within the doorway. Mr Hubbard stated that there was no evidence that this originated from his premises and not one of the nearby pubs, and that comments about ‘smashed glass’ could not be attributed to Lily-Mai’s as they had used plastic cups for many years in attempt to cut back costs.

 

Cllr G Perry Warnes asked Mr Hubbard about his challenging interactions with others. Mr Hubbard stated he had tried to work with residents, and wanted to seek common ground and engage with residents, affirming that he was a very fair person. He commented that he had previously had an issue with a member of the environmental health team but had since apologised and not gets on very well with them. He stated that he did not want to lose his business, having spent £155,000 on recent refurbishments. Mr Hubbard acknowledged that he had made mistakes, and that having brought the business at 24 it had been a steep learning curve but that he had both learnt and adapted. He affirmed that he is a good employer and that he had employed many young people from difficult backgrounds, giving them an opportunity to make something of themselves. He stated that he wanted to do the right thing, both by nearby residents and the town, and that he did not consider there would be issues going forward.

 

The Chairman invited closing statements from all parties.

 

PC Brooks stated that he understood that incidents reported had been disputed by Mr Hubbard. He advised that the request from the Police for an adequate CCTV provision was to aid with the prevention of crime and public disorder.

 

Cllr G Perry-Warnes enquired why Norfolk Constabulary were asking for 28 days of CCTV be available, and why the 14 presently available was not considered to be sufficient. PC Brooks advised that it was home office guidelines that CCTV footage be available for a month.

 

The Environmental Health Officer reflected on the historic complaints and that issues had been ongoing for 6 years coming in peaks and troughs. He considered that assurances were needed from the Licensee which would balance the needs of the business and neighbouring residents. He affirmed that the Council had not targeted Lily-Mai’s and had been responding to complaints received.

 

The 2nd witness, Mr J Hubbard surmised that the Police had been aggressive and assertive with regards to their interactions about the CCTV. PC Brooks commented that Police requests for CCTV were not on a whim and that there needed to be consistency in the approach. He considered that by having CCTV in place this would serve as a better deterrent in preventing crime and disorder, and serve as a reassurance to staff and customers, than a compared doorman. PC Brooks accepted that Mr Hubbard’s relationship with officers was different depending on the officer.

 

Mr Hubbard concluded that there were many issues with the Police representation, and reiterated that the Police did not obtain CCTV footage for the incident in November 2021 despite it being offered, and that the version of events reported were inaccurate. He affirmed that he did agree with the proposed conditions surrounding CCTV and stated that the Wellington did not have CCTV outside their premises even though they had more altercations outside their business. He did not consider that the burden should fall on him, he commented that there should be CCTV throughout Cromer Town funded by NNDC. Mr Hubbard commented that he did not have the spare funds to spend on upgraded CCTV at this time. He considered that the police had discriminated against him by sending four officers to his premises during opening hours and that this had been based on his gender and appearance, and stated that PC Barnes had been particularly unprofessional towards him and had failed to treat him like a human being during some of their altercations. Mr Hubbard stated if he raised his voice it front of his customers that it was his choice as a business owner, but that he should not expect such behaviour from Police officers who arrive unexpectedly during busy business hours.

 

Cllr G Perry-Warnes asked Mr Hubbard to clarify his statement in refusing to supply CCTV for 28 days, if this were a condition. Mr Hubbard stated that he did not feel it appropriate that cost should be incurred to him. He was happy for his hours to be reduced, and understood that the Sub-Committee may decide to revoke his license and he would need to deal with this.

 

The Licensing Officer reiterated Members were present to review a premises license as set out under the Licensing Act 2003, and that the application was brought by the Environmental health Officer not the Police who had merely supported the application for review.

 

The Legal Advisor explained how the determination of this application would be conducted and her role in assisting with the formulation of facts and reasoning.  She set out the advice she would give to the Sub-Committee to deal with the application impartially and on its individual merits, to consider only the representations that related to the promotion of the four licensing objectives. The Legal Advisor affirmed that significant weight should be given to the representations made by responsible Authorities in this case the Environmental Health Officer and Norfolk Constabulary.

 

 

The Sub-Committee retired at 11.56am.

 

RESOLVED

 

That the following additional conditions be imposed to the Premises License:

Condition 1 - That the Noise Level agreed by the Environmental Protection Team is to be used to control all music at the Premises at all times.

 

Condition 2 - That the residents of 1-10 Regency Flats, Cromer are given a minimum of seven days’ notice of any special event taking place at the Premises. For the avoidance of doubt, a special event will include all notable dates and any event that is advertised as taking place at the Premises.

 

Condition 3 - That an allowance of one additional hour for licensable activities on certain notable dates of the year to include:

1. New Year’s Day (1 January); and

2. Cromer Carnival Weekend (no set date) Friday – Monday inclusive.

 

The Sub-Committee agreed to vary the existing Premise Licence to remove condition LIH007. This being the condition allowing additional hours on certain notable dates of the year.

The Sub-Committee varies the existing Premises License to amend the following licensable activities:

1. To amend the operating schedule for all Licensable Activity on Sunday to Wednesday from 10:00 – 01:30 to 10:00-00:00.

2. To amend the operating schedule for all Licensable Activity on Thursday to Saturday from 10:00 - 02:30 to 10:00 – 01:00.