Agenda item

To consider an application to vary a premises licence.

The Enforcement Officer gave a summary of the report. The application for variation of a premises licence for The Axe, Ashdon Road, Saffron Walden, was to remove conditions 1,2 3 & 5 of Annexe 3 imposed following the 2014 review hearing. It was proposed they be replaced by 2 new conditions as follows:

·         Drinks shall not be consumed outside the premises after 11.20pm Sunday- Thursday and Midnight Fridays and Saturdays.

·         New Year’s Eve recorded and live music to end at 12.30am and sale of alcohol to end at 01:00am.

 

18 representations had been received from interested parties, primarily local residents, raising concerns based upon the prevention of public nuisance objective, and supporting the views of Environmental Health. Residents are strongly opposed to the removal of some of the Annexe 3 conditions from the Axe's licence. The main reasons relating to their objections are:

·         Music events should be limited in numbers and kept inside the pub, although when music is very loud indoors this noise is also unacceptable.

·         Concerns about the increased frequency of indoor events if the condition pertaining thereto were to be removed. Removing the dB level during events will increase the risk of noise nuisance for residents impacting upon the ability to enjoy their outdoor space.

·         Playing music through outdoor speakers is not acceptable

·         Rowdiness from customers in the garden area and upon leaving the premises, in the car park, and the pavement outside.

·         Strong objections to add a new condition and drinks being consumed outside the premises after 11.20pm.

·         Frequent shouting, swearing and drunken behaviour from patrons in street resulting in bottles and broken glass over the road and pavement falling to resident to clear up.

 

The decisions that the Committee could make in respect of this application were

·         a. Grant the application.

·         b. Modify the application by inserting conditions.

·         c. Reject the whole or part of the application.

 

The applicant, D Hooper said she was trying to do right by her neighbours and her customers. She made sure everyone was out by 11.20 and policed the outside when she had closed up to make sure customers were not hanging around and there was no litter left. She did not allow smoking or drinking out the front, and she had CCTV and an incidents log available to the neighbours. She had grandchildren and used to be a childminder so she did her best to protect customers using bad language around children. She did not intend to have events every weekend, but she did sometimes want to have a musician or a singer, maybe to perform outside in the afternoon.

 

In response to Member questions, D Hooper said the website was incorrect to state that the pub was open later on weekends. She did not currently have any events planned, but she was allowed to hold one more by the terms of the licence. She did not have any outdoor speakers.

 

The District Environmental Health Officer said the Environmental Health Department felt the removal of conditions 1,2 and 3 would increase the risk of noise disturbance.  The Department proposed two additional conditions to replace conditions 4 and 5.

 

S Schiebel said he appreciated the applicant had a business to run. However, there was already noise disturbance. Sound carried significantly in the area and affected surrounding residents.

 

S Burton said his property was near to the beer garden car park and lifting the restrictions would create more noise. Recently he had had to move on different groups from his garden, and was concerned the applicant would not be able to police everything.

 

C Bearton said the Council had previously recognised the impact the pub had on the residents and felt that the attempts to protect residents with restrictions on the licence had proved effective. Removing the conditions would put the area at rick of greater disturbance. 18 residents had already objected to removing the conditions, and the current use of Temporary Event Notices provided effective safeguards to residents in terms of the number of events run.

 

D Hooper said she understood the issues with noise. However she wanted to make The Axe a community pub, and didn’t want to be penalised by the poor work of previous managers.

 

At 4.30, the Committee retired to make its decision.

 

At 17.25, the Committee returned.

 

The decision was read to those present.

 

 

DECISION NOTICE – THE AXE, 60 ASHDON ROAD, SAFFRON WALDEN

 

The application before the Panel today is for a variation in the conditions of a premises licence to remove conditions 1 – 3 & 5 of Annex 3 of the licence. The application is dated May 2019 and is made by The Axe Pub Limited. Representations have been made by the Environmental Health Department of Uttlesford District Council, a statutory consultee, on the grounds of potential noise nuisance, and by 18 local residents (Interested Parties) and accordingly the matter has been referred to us for determination.

 

We have had sight of a detailed report and have considered the extensive background papers, including:-

 

Variation application form.

Current licence

Representation from Statutory consultee (Environmental Health)

Bundle of letters and emails from Interested Parties.

Plan of premises

Location map of premises

 

Our attention has also been drawn to the Home Office Revised Guidance issued under section 182 of the Licensing Act 2003 and to Uttlesford District Council’s Statement of Licensing Act 2003 Policy 2017-22.

 

By way of background facts, we note that the Axe is located on the northern side of  and facing Ashdon Road, Saffron Walden. There are residential dwellings situated on all four sides of the pub, and some at least of these post-date the grant of the first licence (by the Magistrates) to the premises, which  is a two storey building with a single storey range to the rear. Access is onto Ashdon Road adjacent to Mill Lane with the pub garden and parking to the rear.  There is a brick and flint wall adjoining the eastern boundary with Mill Lane.

 

The original application for a licence from UDC was submitted in 2005 during the transitional period.  Representations were received which required a hearing and the licence was granted subject to conditions on 23 August 2005. On 20 March 2013 the licence was transferred from Greene King Ltd to Axe Pub Ltd of Unit 3 Ashdon Road Commercial Centre, Saffron Walden, Essex, CB10 2NH. This company still holds the premises licence.   On 6 October 2014 a review of the premises licence took place resulting in  additional conditions being imposed by the Licensing and Environmental Health Committee. These conditions are set out in Annexe 3 of the licence. Since then, there have been four changes of premises supervisor and the current post holder is Karen Storey who has been there since 4 June 2019, taking over from Jeffrey Stell.

 

The current premises licence permits Indoor sporting events, and live and recorded music (indoors only) from 7pm to 12.00 midnight Monday to Sunday. It also permits the sale of alcohol both on and off the premises from 10am until 12.00 midnight Monday to Sunday; and finally, the  permitted opening hours of the premises are Monday to Sunday, 10am to 12.00 midnight.

 

The variation application before us today is to remove conditions 1,2 3 & 5 of Annexe 3 to the licence imposed following the 2014 review hearing.,  The following replacement conditions have been put forward for our consideration:-

Drinks shall not be consumed outside the premises after 11.20pm Sunday- Thursday and Midnight Fridays and Saturdays.

New Year’s Eve recorded and live music to end at 12.30am and sale of alcohol to end at 01:00am.

 

Copies of this application have been served on all statutory bodies and  a representation from Environmental Health has been received, based upon the ground of noise nuisance. A copy of this representation is before us.

 

An email from the Essex Police Licensing Officer dated 19 June (statutory consultee for crime and disorder issues), states that they have no objections to this variation application, and an email dated 4 June 19 from the Essex County Council Children’s Safeguarding Service similarly confirms they have no objections in relation to the Child protection/safeguarding element of this licence application.

 

However, eighteen representations have been received from interested parties, primarily local residents, raising concerns based upon  the prevention of public nuisance objective, and hence they  support the views of Environmental Health.. Residents are strongly opposed to the removal of the current  Annexe 3 conditions from the Axe's licence.

 

The main reasons for their objections and their preferred outcomes are:

That music events should be limited in numbers and kept inside the pub, (although when music is very loud indoors this noise is also unacceptable).

They have concerns about the increased frequency of indoor events if the condition pertaining thereto were to be removed. Removing the dB level during events will increase the risk of noise nuisance for residents impacting upon their ability to  enjoy their gardens.

Playing music through outdoor speakers is not acceptable

Rowdiness from customers in the garden area and upon leaving the premises, in the car park, and the pavement outside.

Strong objections to the adding a new condition and to drinks being consumed outside the premises after 11.20pm.

Frequent shouting, swearing and drunken behaviour from patrons in street resulting in bottles and broken glass over the road and pavement falling to residents to clear up.

 

The Licensing Authority has no statutory obligation to notify local residents of applications of this type, but as a matter of courtesy UDC does contact the occupants of the properties most closely adjacent to the premises: Applicants, however, are obliged to a) place a statutory notice on the premises for 28 days and b) to place a notice in a local paper circulating in the area in which the premises are situated.

In carrying out its statutory functions, the Licensing Authority must promote the licensing objectives as defined in the Licensing Act 2003:-

The prevention of crime and disorder

Public safety

The prevention of public nuisance

The protection of children from harm

 

There is no hierarchy of objectives and all have equal weight/importance.

 

The decisions available to the Committee in respect of this application are to:

Grant the application

Modify the application by inserting conditions

Reject the whole or part of the application

 

When determining an application we have to give due regard to the Council’s Licensing Policy.  The relevant parts thereof state, inter alia,

5.1 Licensed premises have a significant potential to adversely impact on communities through public nuisances that might arise from their operation.  The Licensing Authority wishes to proactively maintain and protect the amenity of residents and other businesses from the potential consequence of the operation of licensed premises whilst recognising the valuable cultural, social and business importance that such premises provide.

5.2 The Licensing Authority intends to interpret “public nuisance” in its widest sense, and takes it to include such issues as noise, light, odour, litter and anti-social behaviour, where these matters impact on those living, working or otherwise engaged in normal activity in an area.

5.3 Applicants need to be clear that the Licensing Authority may apply stricter conditions, including controls on licensing hours, where licensed premises are in or near residential areas and where relevant representations have been received. Conversely, premises which can demonstrate that they have effective controls and measures in place or proposed to prevent public nuisance, may be suitable for 24-hour opening.

5.6 If representations are made applicants will be expected to demonstrate in their operating schedule that suitable and sufficient measures have been identified and will be implemented and maintained to prevent public nuisance, relevant to the individual style and characteristics of their premises and events. 

5.7 When addressing the issue of prevention of public nuisance, the applicant should consider those factors that impact on the likelihood of public nuisance. These may include:

the location of premises and proximity to residential and other noise sensitive premises, such as hospitals, hospices and places of worship

the hours during which the licensable activities will be carried out particularly between 23.00 and 07.00

A “wind down period” between the end of the licensable activities and closure of the premises the nature of activities to be provided, including whether those activities are of a temporary or permanent nature and whether they are to be held inside or outside premises

the design and layout of premises and in particular  the presence of noise limiting features

the occupancy capacity of the premises

the availability of public transport

A last admission time

 

We must also consider the Home Office Guidance issued under S182 Licensing Act 2003. The most recent edition of this is dated April 2018, and the relevant sections of that Guidance state as follows :

2.15 The 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 littler.

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 is important to remember that the prevention of public nuisance could therefore include low-level nuisance, perhaps affecting a few people living locally, as well as major disturbance affecting the whole community .It may also 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 the premises. This might be achieved by a simple measure such as ensuring that doors and windows are kept closed after a particular time, or more sophisticated measures like the installation of acoustic curtains or rubber speaker mounts. Any conditions appropriate to promote the prevention of public nuisance should be tailored to the type, nature and characteristics of specific premises. Licensing authorities should be aware of the need to avoid inappropriate or disproportionate measures that could deter events that are valuable to the community, such as live music. Noise limiters, for example, are very expensive to purchase and install and are likely to be a considerable burden on 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 where 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, music noise from premises usually occurs from mid-evening until either late-evening or early morning when residents in adjacent properties may be attempting to go to sleep or are sleeping. In certain circumstances, conditions relating to noise immediately surrounding the premises may also prove appropriate to address and 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 anti-social 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 and to respect the rights of people living nearby to a peaceful night.     

 

If this Committee in its discretion wishes to impose conditions, the only conditions that can be imposed are those that are appropriate and proportionate to promote the licensing objective relative to the representations received, in this case public nuisance.  We cannot, however, impose conditions that duplicate the effect of existing legislation and we bear this in mind in considering some of the representations that have been made to us this afternoon.

 

We have heard today from Mr Chamberlain, the Enforcement Officer, and from Janet O’Boyle, the Council’s Environmental Health Officer.  We invited the Interested Parties to elect spokespersons, and we have listened carefully to what Messrs Schiebel, Burton and Bearton have had to say. Finally,  an employee, Deborah Hooper, has addressed us on behalf of the applicant company; we note that neither Mr Stringer, the sole director of the Axe Pub Ltd nor Karen Storey, the DPS, have appeared before us today.

 

In considering this application we have to bear in mind that these are long established licensed premises and that the majority of the residents knew there was a pub in that location when they purchased their properties.  In that respect they chose to “come to the nuisance”. We also note that they none of them have any complaint about the current management of the premises and they acknowledge that Ms Hooper is doing her best, without, it must be said, very much support from the premises licence holder. We observe that her aspirations for the future of the premises are relatively modest and it is our view that these could be fulfilled without the removal of the Annexe 3 conditions requested today. We are mindful of the right of the neighbours to the peaceful occupation of t6heir homes but also note that none of them use the pub so dialogue has been somewhat limited; however there is some, and we applaud this and hope all concerned can arrive at a modus vivendi acceptable to them all.

 

To recap, the options available to us today are as follows:

Grant the application as asked.

To reject the whole or part of the application

To modify the application by inserting conditions.

 

Having debated the matter carefully among ourselves, our view is that we should refuse the application as asked but modify the existing conditions of the Annexe as suggested by Environmental Health. Accordingly, our decision is as follows:-

 

Conditions 1 – 3 of Annexe 3 shall remain in force.

 

Condition 5 will be deleted; the level of sound permitted thereby is unreasonably low being below background level and as we understand it was imposed following a misunderstanding as to legislative wording.

 

Condition 4 shall be amended as hereinafter appears –

A noise management plan shall be submitted to the Licensing Authority within 28 days from the date hereof for approval by the Licensing Authority. No event involving amplified music shall take place without Licensing Authority approval of the noise management plan.  The noise management plan shall include details on measures, controls and actions to ensure that the playing of amplified music does not cause a public nuisance. Measures, controls and actions will include an approach to monitoring that also assesses the impact of any noise on neighbouring premises at the start of the regulated entertainment and periodically throughout the regulated entertainment and take any action to ensure compliance with the management plan. The management plan shall ensure a telephone number is made available for local residents to contact in the case of disturbance from noise or anti-social behaviour by persons or activities associated with the premises. The telephone number will be a direct number to the management who are in control during opening hours. A record will be kept by management of all calls received, including the time, date and information of the caller, including action taken following the call. Record will be made available for inspection either by any relevant responsible authority throughout the trading hours of the premises. The Premises License Holder must comply with the agreed noise management plan at all times during regulated entertainment.

The Premises Licence Holder shall within 28 days of receiving instructions by the Licensing Authority install a noise limiting device to the approval and satisfaction of the Licensing Authority. A noise limiting device (the specification and design to be agreed with Uttlesford District Council’s Environmental Health Service) shall be fitted so that all regulated entertainment is channelled through the device(s). The maximum noise levels will be set by agreement with Uttlesford District Council’s Environmental Health Service and will be reviewed from time to time as appropriate.  The noise limiting device shall be kept at the settings approved by the Council through an authorised officer of the Uttlesford District Council’s Environmental Health service. The Premises Licence Holder or nominated person shall ensure that the noise limiting device is sealed after commissioning so that sound operators cannot override the system during the performance of live and recorded music. If deemed necessary the noise limiting device shall only be reset to a level approved by the Council through an authorised officer of the Uttlesford District Council’s Environmental Health Service within 7 days of notification.

 

For the avoidance of doubt these requirements are sequential and if the noise management plan is efficacious then the noise limiting device will not be required. It is therefore up to the applicant to make this work.

 

All parties have a right of appeal against this decision to the Magistrates Court. This must be exercised within 21 days of the date of service of this decision notice, hence the appeal window will close on 15^th August.  All parties will receive notification from the Legal Department explaining this.