Your Councillors

Report Title:

SUMMARY REPORT INTENDED TO PROVIDE THE READER WITH A GOOD UNDERSTANDING OF THE ISSUE.  IDEALLY THIS SUMMARY SHOULD BE KEPT TO ONE PAGE, BUT THIS WILL NOT ALWAYS BE POSSIBLE

Agenda Item No:

 

1 - Summary of Report

Licence Reference

19/00380/LAPRE

Report To:

 

Committee Name

Licensing SUB – Committee

(UNDER THE LICENSING ACT 2003)

Date:

 

Committee Date

7 March 2019                           

Report Title:

 

The title of the report

HUSH HEATH WINERY, HUSH HEATH ESTATE, FIVE OAK LANE, STAPLEHURST,  KENT , TN12 0HT

 

Application for:  A premises licence to be varied under the                            Licensing Act 2003

 

Report Author:

 

The name of the report author

Lorraine Neale

 

Summary:

 

 

No more than approximately 100 words setting out the nature of the report.  Please note that this will appear as a ‘pop up’ summary on the website.

1.    The Applicant –  Mr Richard Balfour-Lynn

2.    Type of authorisation applied for: To vary a premises licence under the Licensing Act 2003. (Appendix A)

3.    Licensable Activities and hours:

 

 

 

Current Hours

Hours: New Application

E)

Live Music

(Indoors & Outdoors)

Mon - Sun

10:00- 17:00 save for 12 occasions per year. On those 12 occasions indoors only after 23:00 and to cease at 23:45.

No Change

No Change

F)

Recorded Music

(Indoors & Outdoors)

Mon - Sun

10:00-17:00 save for 12 occasions per year. On those 12 occasions indoors only after 23:00 and to cease at 23:45.

No Change

No Change

L)

Late Night Refreshment (Indoors)

Mon - Sun

23:00-24:00 on 12 occasions per year only.

No Change

No Change

M)

Supply of alcohol

(On & Off the premises)

Mon-Sun

 

10:00-24:00

Mon – Sun

Off sales online and 12 events per year

 

Mon –Sun

On  sales at the premises

10:00-24:00

 

 

 

 

 

 

10:00-19:00

O)

Opening Hours

 

Mon - Sun

10:00-24:00

No Change

No Change

 

 

The variation seeks to remove the condition “The supply of alcohol on the premises will be limited to tasting samples only.” from the operating schedule to enable on-sales to be made at the premises. The time requested for on sales at the premises are 10:00 – 1900 Monday to Sunday however the application further explains that on-sales will take place between 10:00 – 17:00 November to March and between 10:00 -18:00 April to October with sales made until 19:00 being the exception rather than rule.  These hours will not apply to the 12 Events per year agreed by Licensing Sub Committee on 3 September 2018 the hours for those events being 10:00 – 24:00 or to the online off-sales.

 

The application states quite clearly that Hush Heath is a winery which will only sell its own products which include sparkling and still wine, cider and beer. The supply of on sales alcohol is to be ancillary to the production of wine beer and cider and not to constitute use of the premises primarily as a public house or restaurant.

 

The application also asks  for a condition at  Annex 4  to be amended to read "supply of alcohol (by way of on-sales) will be permitted on all other occasions Monday to Sunday inclusive between the hours of 10.00 and 19.00 (this does not affect the 12 events allowed or off-sales under the current licence).  (Consequently the premises will continue to be licensed until 12 midnight for off-sales which is required for online orders that are processed) and for a maximum of 12 events per year).

The remainder of Annex 4 to continue.

 

The Police requested clarity from the applicant on this point as it was unclear which condition at Annexe 4 this was replacing.

 

Gullands the solicitor representing the applicant responded and clarified that the condition should be an additional condition to Annex 3 rather than an amendment of any condition at annex 4 of the existing licence  Appendix B

 

 

 


Affected Wards:

 

All those wards affected by the proposal.

Staplehurst

Recommendations:

 

The distinction between a resolution or a recommendation to Council should be clear at the time the Committee is considering the item, this is preferable to the current arrangement where this is determined after the meeting.  Trevor Robertson and his staff will advise on this point. Recommendations should be brief and to the point.

 

 

The Committee is asked to determine the application and decide whether to vary the premises licence.

 

 

Policy Overview:

A short explanation of the policy context for the issues contained in the report, a cross-reference to the Corporate Plan or Community Strategy for example would be appropriate.  If new or revised policy this should be clearly stated.

 

The decision should be made with regard to the Secretary of State's Guidance and the Council's Statement of Licensing Policy under the Licensing Act 2003. Where the decision departs from Policy or Guidance the departure must be directed solely at the attainment of the licensing objectives, and that such departure be supported by proper reasons.

 

Financial Implications:

A summary only please of the implications arising from the recommended action.  This should be agreed in consultation with the accountancy team.

 

Costs associated with processing the application are taken from licensing fee income.

Other Material Implications:

These depend on the report.  Authors are expected to consider:  Environmental, Legal, Human Rights, Staffing and Community Safety Issues.  However, summarise only those that are most relevant, keeping this brief.   The report itself should expand on these issues.

 

HUMAN RIGHTS: In considering this application it is appropriate to consider the rights of both the applicant and other parties, such as “responsible authorities” and\or “other persons” (objectors). The procedure for determining licences has a prescribed format to ensure fair representation of the relevant facts by all parties.

 

LEGAL: Under the Licensing Act 2003 the Licensing Authority has a duty to exercise licensing control of relevant premises.

 

 

Background Papers:

This should list all relevant background documents which support the report.

 

Licensing Act 2003

DCMS Guidance Documents issued under section 182 of the Licensing Act 2003 as amended

Maidstone Borough Council Statement of Licensing Policy

 

Contacts:

e-mail address and telephone number of the report author and/or principal contact

Mrs Lorraine Neale at: lorraineneale@maidstone.gov.uk – tel: 01622 602528


ALWAYS START ON A NEW PAGE AS THIS WILL APPEAR SEPARATELY FROM THE SUMMARY ON THE WEB-SITE

Agenda Item No. 1

 

            Report Title:

 

The title of the report, same as on the summary

Hush Heath Winery, Hush Heath Estate, Five Oak Lane, Staplehurst, Kent , TN12 0HT

 

Application to: Vary a premises licence under the Licensing Act 2003.

 

Use plain sequential paragraph numbering but do not number the paragraph headings

 

Purpose of the Report

This section should be brief and should summarise the reason for the report and the issue it is addressing .

 

The report advises Members of an application to vary a Premises Licence under the Licensing Act 2003,(Appendix A), made by Mr Richard Balfour-Lynn for Hush Heath Winery, Hush Heath Estate, Five Oak Lane, Staplehurst, Kent , TN12 0HT and clarified by correspondence from the Solicitor at Appendix B in respect of which 25 responses have been received from other persons (Appendix   C).  

 

Issue to be Decided

The purpose of this section is to enable all Members to recognise immediately what they are being asked to consider.

 

Members are asked to determine whether to :

Grant the application as applied for,or

Grant the application and modify conditions of the licence, or

Reject all or part of the application

Background

The background section forms an important element of the report.  It should set the scene explaining the circumstances leading up to the report.   It is here that authors should refer to the policy context for the report (what was previously called ‘strategic overview’), ensuring that this is consistent with the summary page.

 

Authors need to be aware, however, that it is pertinent and material information that should be included. If there are large amounts of background information that may be of interest but do not materially affect the decision or recommendations, then these should be made available as Background Information or include the most pertinent as appendices to the report.

 

The background section should not dominate the report.  Use sub-paragraph headings highlighting these in italic script where this will help to identify issues and make the report more readable.

 

1.               The relevant sections are Part 3 S13 and 34 – 36 of The Licensing Act 2003 and             section 4 of The Licensing Act 2003 in particular the Licensing Objectives:

·                         The prevention of crime and disorder;

·                         Public Safety

·                         The prevention of public nuisance; and

·                         The protection of children from harm

2.               The application has been correctly advertised in the local press and  notices        displayed on the premises for the required period.

3.               There were no representations received from responsible authorities.

4.               25 responses were received from other persons.

5.               The table below illustrates the relevant responses which have been received in    order of receipt for objections and order of receipt for support

 

Other Persons

 

Licensing Objective

Associated Documents

Appendix

 

Objections

 

 

 

1

Mr Paul Stanley submissions on 7, 21 & 25/2                                            

Crime & Disorder

Public Nuisance

Public Safety

Children from Harm

E-mail

C

 

2

Natasha Davidson -Houston

Public Nuisance

Public Safety

E-mail

C

3

Richard Davidson-Houston

Public Nuisance

Public Safety

E-mail

C

4

Gill and David Ewbank

Public Nuisance

Public safety

 

C

5

Richard Crumpling

Public Nuisance

Public Safety

E-mail

C

6

Alison Martin-Clark and Jill Clark

Public Nuisance

Public Safety

Children from Harm

E-mail

C

7

Sally Humphrey         

Public Nuisance

Public Safety

E-mail

C

8

Shirley Stallman

Public Nuisance

Public Safety

E-mail

C

9

Andrea Hodgkiss and Angus Codd      

Public Nuisance

Public Safety

E-mail

C

10

Malcolm Buller

Public Safety

E-mail

C

11

Polly Hardwick and Miss Tess Lamming

Public Nuisance

Public Safety

E-mail

C

12

Richard Edmondson

Public Nuisance

E-mail

C

13

Kim Humphrey

Public Nuisance

Public Safety

E-mail

C

14

David Twyman

Public Nuisance

E-mail

C

15

Julian and Lynn Eccles

Public Nuisance

Public Safety

E-mail

 

16

Nicola Feakin and David Taylor

Crime & Disorder

Public Safety

E-mail

C

17

Mr. & Mrs K Vesma

Public Nuisance

Public Safety

E-mail

C

18

Alan Beevor

Public Nuisance

Public Safety

Letter

 

19

Marcus Rennick

Public Nuisance

Public Safety

E-mail

C

20

Amanda Tipples

Public Nuisance

Public Safety

E-mail

C

21

Anne Tipples

Public Safety

E-mail

C

 

 

 

 

 

 

Support

 

 

 

 

 

 

 

 

22

Visit Kent - David Curtis-Brignell

 

Letter

C

23

Councillor Malcolm Greer

 

E-mail

C

24

Helen Grant - Member of Parliament for Maidstone and The Weald

 

E-mail

C

25

Councillor’s  John  Perry

&  Louise Brice

Ward Members for Staplehurst

 

E-mail

C

 

The majority of the objections received refer in large part to planning matters. The main matters related to promotion of the licensing objectives are that permitting alcohol to be served freely at the premises would create public nuisance and be a risk to public safety, because the roads in the area are not appropriate for further traffic created by increased visitor numbers . The increase in traffic and the nature of the roads in the area would lead to increased noise pollution and endanger riders, joggers and the general public who use the roads other than driving cars. Also the lack of public transport links in the area could encourage visitors to drive under the influence of alcohol, again endangering the general public and other road users. The increase in visitors at the Winery and the noise emitted by   them could have a significant adverse effect on nearby residents because of disturbances visitors may cause.

One of the Objectors (Amanda Tipples at 20 of Appendix C, at  page 40, conclusion, other points), does suggest the following condition be added to the Licence  “for the period between 23:00 and 23:45 music noise should not be audible within noise sensitive premises with windows open in a typical manner for ventilation”.  it is not clear if it is in addition or replaces the  condition addressing noise on the current licence which states “After 23:00 hours live and recorded music and late night refreshments will be indoors only and windows and doors will be closed save for entry and exit.”

There have also been representations submitted in support of the application where it is stated that the Winery is an asset for Staplehurst and the grant of the licence does not pose a threat to the tranquillity or safety of the neighbouring area. It is believed that the Winery promotes local employment and tourism which assists the local economy and exports.

Staplehurst Parish Council discussed this application at a meeting on Monday 18 February 2019. They heard representations from local residents and from  representatives of Hush Heath Winery and submitted a description of the discussion which is attached as Appendix D. Two of the objectors attended that meeting and make reference to it in their objections. They are 7. Sally Humphrey and 20.Amanda Tipples who refers to the meeting at number 41 in her papers.

Mr Balfour Lynn, the applicant, in response to the objections and in an effort to clarify matters e-mailed the Licensing Department on 24.2.19 where he addressed the concerns raised, those clarifications can be found at Appendix E.

Sara Easton, the Manager at Hush Heath Winery e-mailed the Licensing Department on 26.2.19, her purpose stated as to correct inaccuracies found at pages 13 &14 of the representation submitted by 20. Amanda Tipples relating to the variation application and discussed at the meeting held by Staplehurst Parish Council on 18.2.19. Appendix F.

The premises has a current licence, Appendix G and current plans Appendix H. The current licence holder is the applicant

6.         The current licence hours are as per the licence attached at appendix G show some inaccuracies and does not fully reflect the conditions imposed at the last hearing on 3.9.18. The conditions are attached by way of annex 4 rather than reflected within the times section of the licence. The current premise licence will be amended to reflect the correct hours which are set out at 3 of the summary above. The application asks that the condition “The supply of alcohol on the premises will be limited to tasting samples only” be removed from annex 3 and the following added “supply of alcohol (by way of on-sales) will be permitted on all other occasions Monday to Sunday inclusive between the hours of 10.00 and 19.00 (this does not affect the 12 events allowed or off-sales under the current licence).  (Consequently the premises will continue to be licensed until 12 midnight for off-sales which is required for online orders that are processed) and for a maximum of 12 events per year).”

 

7.               Members are advised that applications cannot be refused in whole or in part,        or conditions attached to the licence unless it is appropriate to do so to        promote the licensing  objectives.;

8.               Relevant sections of The Guidance issued under section 182 of The Licensing         Act 2003;

9.               Chapter 2, Licensing Objectives

              Chapters 8 (8.41 onwards) & 9 Premises Licences & Determining     Applications

             
              Chapter 10 Conditions.

 

              Relevant policy statements contained in the Licensing Authority’s Statement         of Licensing Policy:

            Relevant policy statements contained in the Licensing Authority’s Statement of            Licensing Policy:

            17.9 Crime and Disorder

            17.16 Public Safety

            17.19. Prevention of Public Nuisance

            17.23 Children from Harm

 

17.9    CONDITIONS TO PROMOTE THE PREVENTION OF CRIME AND DISORDER.

Under the Act the Licensing Authority has a duty to promote the licensing objectives, and, a further duty under the Crime and Disorder Act 1998 to do all it reasonably can to prevent crime and disorder in the borough. 

17.10 The applicant will be expected to detail in their operating schedule how they will                       prevent crime and disorder on and close to the premises.  Such detail should                              reflect the licensable activities on offer, location and character of the area, the              nature of the premises use and the range of customers likely to use the                              premises.

These may include, but are not limited to, the following:

•         Prevention of disorderly conduct and anti-social behaviour

•         Prevention of underage drinking

•         Prevention of sales of alcohol to intoxicated customers

•         Prevention of drunkenness both on and in the vicinity of the premises

•         Prevention of drug use and drug dealing

•         Restriction to responsible drinks promotions

•         Use of safety glass

•         Inclusion of a wind-down time following alcohol sales period

•         Adequate seating to discourage “vertical drinking”

•         The offer of food and snacks or other entertainment or occupation to discourage persistent drinking

17.11  In busier premises the Licensing Authority would usually expect to see a short             (e.g.30 mins)  ‘wind down’ or ‘drinking up’  period allowed for after the cessation        time of entertainment and alcohol sales as this is effective in assisting in a    reduction in noise and exuberance of customers before leaving the premises.

17.12  Applicants will be expected to seek advice from the Police and the Licensing   Authority will give appropriate weight to requests by the Police for premises to be protected by SIA registered door staff subject to the provision of relevant   evidence. Where the Licensing Authority determines after consultation with the             police that a premises is one that warrants additional security and monitoring it         would expect applicants to include the provision of SIA approved door staff at the      premises at appropriate times.  Relevant premises are usually those used mainly             for drinking alcohol, have later opening hours and are situated within the Town            Centre night time economy area. 

17.13  Where appropriate, applicants for licences in the Town Centre areas providing            mainly alcohol, music and dancing would be expected to consider  inclusion of  a          provision of safety glasses to prevent a risk of injury on the rare occasion that a     glass may be used as a weapon.

17.14  The use of CCTV should be considered where appropriate or on the advice and            recommendations of the Police and to a quality and standard approved by the       Police for evidential  purposes.  Licensees will be expected to fully comply with      the requirements of the Information Commissioners Office and the Data             Protection Act 1998 in respect of any surveillance equipment installed at a      premises.

17.15  In any application resulting in hearing  the sub-committee will consider each   application on its individual merits and determine the imposition of conditions      that are appropriate to promotion of  the licensing objectives.

 

17.16    CONDITIONS TO PROMOTE PUBLIC SAFETY. 

The applicant will be expected to show how the physical safety of persons attending the premises will be protected and to offer any appropriate steps in the operating schedule to promote this.

17.17    Such steps will not replace the statutory obligation on the applicant to comply with all relevant legislation under the Health and Safety at Work etc.  Act 1973 or under the Regulatory Reform (Fire Safety) Order 2004.

17.18    Applicants will be expected to have carried out the necessary risk assessments to ensure safe occupancy levels for the premises.  Where a representation from the Fire Authority suggests that for the promotion of the Public Safety objective a maximum occupancy should be applied, the Licensing Authority will consider adding such a limit as a licence condition.

Where appropriate an operating schedule should specify occupancy limits for the following types of licensed premises:

(i)            High Volume Vertical Drinking  e.g. premises that provide mainly stand up drinking facilities with limited seating/table space and the primary  activity is the sale of alcohol

(ii)          Nightclubs

(iii)         Cinemas

(iv)         Theatres

(v)          Other premises where regulated entertainment is likely to attract a large number of people.

(vi)          Where conditions of occupancy have arisen due to representations received.

 

17.19   CONDITIONS TO PROMOTE THE PREVENTION OF PUBLIC NUISANCE

            The applicant will be expected to detail any appropriate and proportionate steps to             prevent nuisance and disturbance arising from the licensable activities at the premises and from the customers using the premises.

17.20   The applicant will be expected to demonstrate that they have considered the         following and included steps to prevent public nuisance:

            (i)         Proximity of local residents to the premises

            (ii)        Licensable activities proposed and customer base

            (iii)        Hours and nature of operation

            (iv)       Risk and Prevention of noise leakage from the premises from equipment,                                      customers and machinery

            (v)        Prevention of noise from customers leaving the premises and customer                                         pick up points outside premises and from the Car Park.

            (vi)       Availability of public transport to and from the premises

            (vii)      Delivery and collection times and locations.

            (viii)      Impact of external security or general lighting on residents.

            (ix)       History of management of and complaints about the premises.

            (x)        Applicant’s previous success in preventing Public Nuisance.

            (xi)       Outcomes of discussions with the relevant Responsible Authorities.

            (xii)      Impact of location, noise and contamination from outside smoking areas                                        on neighbours and other customers

            (xiii)      Collection of litter arising from the premises

17.21   Steps to prevent public nuisance may include a range of options including noise    limiting devices, sound insulation, wind down periods, acoustic lobbies,        management of smoking areas etc.

17.22   Steps will differ depending on the individual premises and activities and it is for      the applicant to ensure that reasonable, effective and appropriate steps are             included within the operating schedule.

17.23 CONDITIONS TO PROMOTE THE PROTECTION OF CHILDREN FROM HARM. 

Applicants will be expected to detail any appropriate and proportionate steps to protect children at the premises from any harm. The Licensing Authority recognises the right of licensees (serving alcohol) to allow accompanied children into their premises.  The Licensing Authority would not seek to restrict access by children (above that specified in the Act) unless it is necessary for the prevention of physical, moral or psychological harm.

17.24   Steps to protect children from harm must be carefully considered for inclusionwhere:

(i)            There is entertainment or services of an adult nature provided.

(ii)           There have been previous convictions for under age sales of alcohol.

(iii)          There has been a known association with drug taking or dealing.

(iv)         There is a significant element of gambling on the premises.

(v)          There is a presumption that children under 18 should not be permitted entry such as to nightclubs (apart from when specific events are held for under 18’s).

(vi)         Outcomes of discussions with relevant Responsible Authorities suggest such steps are applicable.

17.25 Nothing in the Licensing Act prevents licensees from excluding children from a       licensed premises and no condition can be added to require the admission of   children. 

17.26 Where there are no matters that give rise to concern in respect of children at           premises the Licensing Authority would expect to see the relevant box on an           application form completed to specify NONE.

10.            Options

              Legal options open to members -

              Grant the variation application as applied for., or

              Grant the variation and modify conditions of the licence, or

              Reject all or part of the application.

               

              Members of the Licensing Act 2003 – Licensing Sub – Committee are reminded of                     their duty under section 17 of the Crime and Disorder Act 1998 to consider the                                  crime and disorder implications of their decisions and the Licensing Authority’s                          responsibility to co – operate in the reduction of crime and disorder in the Borough



          Section 17 of the Crime and Disorder Act 1988 states:

          "Without prejudice to any other obligation imposed on it, it shall be the duty of each authority to which this section applies to exercise its various functions with due      regard to the likely effect of the exercise of those function on, and the need to do all      that it reasonably can prevent, crime and disorder in its area”.

12.         Implications Assessment

          The decision should be made with regard to the Secretary of State’s Guidance and             the Council’s Statement of Licensing Policy under the Licensing Act 2003.  Where the    decision departs from either the Guidance or the policy clear and cogent reasons      must be given.  Members should be aware that if such a departure is made the risk of appeal/challenge is increased.

13.         Human Rights

          While all Convention Rights must be considered, those which are of particular          relevance to the application are:

·                         Article 8 – Right to respect for private and family life

·                         Article 1 of the First Protocol – Protection of Property

·                         Article 6(1) – Right to Fair Hearing

·                         Article 10 – Freedom of Expression

              The full text of each Article is given in the attached Appendices

 

14.         Conclusion

          Members must ensure that the application is considered on its merits, as well as      against the relevant guidance, policy and statutory framework.

15.         List of Appendices



            Appendix A     Application Form
            Appendix B     Gullands letter

            Appendix C     Representations –Other persons

            Appendix D     Staplehurst Parish Council e-mail

            Appendix E      Richard Balfour Lynn e-mail

            Appendix F      Sarah Easton e-mail

            Appendix G     Current Premises Licence

            Appendix H     Plan of Premises

                         Appendix I       Plan of area

            Appendix J      Human Rights Articles

            Appendix K      Order of Proceedings
           

 

16.         Appeals

The applicant or any other person(objector) may appeal the Licensing Act 2003 Sub Committee’s decision within 21 days beginning with the day on which the Appellant is notified.  All/any appeals must be lodged with the Magistrates’ Court.  Parties should be aware that they MAY incur an Adverse Costs Order should they bring an appeal.
This section sets out the matters which need to be understood when making a decision on the issue.  These may include any legislative, financial, human rights, staffing, environmental, or community safety issues but only if

Use sub-paragraph headings to identify these issues and tables to summarise any financial implications where this will aid understanding.

 

Refer to any implications for current council polices particularly if the report suggests a change in policy or a new approach to an issue.

 

Report authors will be expected to have taken advice from the appropriate people and to agree the wording of implications with those advisors.

 

Contact:

Email:

 

 

Senior Licensing Officer

lorraineneale@maidstone.gov.uk