Agenda item

The Chairman reported that the decision (below) would follow within five days.

 

This is an application for a new premises licence made under section 17 of the Licensing Act 2003 in relation to The Spirited Club, 33 Linden Lea, London N2 0RF (the “Premises”). 

 

The application is to allow the sale of alcohol for consumption off the premises only from 09:00 hours until 17:00 hours Monday to Friday and for the Premises to be open to the public between 09:00 to 17:00 Monday to Sunday.

 

The Premises are a residential property.  The Premises are not currently licenced and the panel notes that the licence application includes a plan of the Premises, shown at page 33 of the Report.  This appears to show the layout of the Premises and a locked cupboard located on the 2^nd floor of the Premises wherein the alcohol will be stored.

 

The validity of the Notice of Application (“the Notice”) displayed outside the Premises has been brought to the attention of the panel. The Notice was exhibited properly outside the Premises but upon inspection, within the consultation period, the Notice:

 

(i)        refers to the applicant as Sager Enterprises yet the application has been made by Richard Sager. 

 

(ii)       states that the register of licensing applications can be inspected at Building 4, North London Business Park, Oakleigh Road South, London N11 1NP. 

 

(iii)     was amended by the Applicant on 19^th July 2018 by deleting any reference to “collection”. 

 

Regulation 26(4) of the Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005/42 details what must be included in a notice. Looking at the notice as a whole, the non-compliance aspects relate to the name of the applicant and the register location both of which have been resolved.  

 

Name of Applicant

 

The Applicant confirmed to the Panel that he is the sole director of Sager Enterprises and was set up for the purposes of working as a self-employed consultant following redundancy in 2017.  The Applicant and Sager Enterprises are one of the same person.

 

Register of Licensing Applications

 

Due to a change in location, the register is no longer kept at this address and the notices were not changed to reflect this. The Panel were advised that this has now been rectified.  Nevertheless, the Notice states that appointments to inspect the register can be made by telephoning 020 8359 7995 during office hours. The individual requesting to inspect the register was subsequently provided with all of the relevant information held on the register. 

 

The Licensing Act 2003 and the Licensing Act 2003 (Licensing authority’s register) (other information) Regulations 2005 (“2005 Regulations”) stipulate that the Council has to keep a register of licensing applications. However, the regulations are silent on the prescribed form and manner in which the register must be kept. The 2005 Regulations do not specify the form or the manner only that a record of the information should be contained in the register.  In any event, the information contained on the register was provided prior to the hearing and no prejudice has been caused. 

 

It is unfortunate that the Notice states that it is possible to inspect the application at North London Business Park, when the register is no longer kept there.  However, the Notice does state that appointments to inspect the register can be made by telephoning 020 8359 7995 during office hours. 

 

Neither the Licensing Act nor any subsequent guidance indicates the effect of any non compliance. The case of R (on the application of Akin) v Stratford Magistrates Court is analogous to this case. The case concerned an alleged irregularity in a licensing procedure and the test set out in the earlier immigration case of R v Secretary of State for the Home Department Ex Parte Jeyeanthan was followed. The test was threefold:-

 

1. Was there substantial compliance?
2. Was the non compliance capable of being waived?
3. If not, the consequences of non compliance.

 

The Panel are satisfied that there has been substantial compliance with regulation 26(4).  The Notice has informed residents of the proposed application for a premises licence and the representations were received after the amendment to the Notice and are specific to the issue of collection.    Furthermore, the non-compliance is capable of being waived, the information contained in the register was provided and the Applicant has addressed the Panel on the issue of the name of the Applicant.

 

Neither the Licensing Act 2003 or the 2005 Regulations specify the consequences of non-compliance and it is not Parliament’s intention to invalidate a notice following procedural failure.   The Panel finds that no prejudice has been caused to those wishing to make representations as the purpose of the Notice was to inform interested persons of the intended application for a premises licence and to ensure that all interested persons were heard. Applying the three-fold test as set out above the Panel does not find that the Notice was invalid.

 

Amendment to the Notice

 

The Applicant confirmed that he was advised to amend the Notice by the Licensing Officer so that it read to allow collection from the Premises by couriers.  The amendment is purported to have taken place on 19^th July 2018, before 26^th July 2018 the final date for the advertisement period.  Furthermore, the inspection of the notice could not have taken place without knowledge of the application. All of the representations were received on or around 24^th July 2018, after the amendment to the notice and relate specifically to the issue of collection of alcohol from the Premises.

 

The Panel acknowledges the concern that the deletion of the word collection is a material amendment and potentially individuals who may have looked at the notice prior to the amendment may not have made representations on the issue of collection due to not being aware of the amendment.  Notwithstanding, these concerns, the Panel notes that the amendment was made on 19^th July 2018, seven days before the consultation period ended.  Looking at the representations received from members of the public, six in addition to a petition signed by 12 individuals, all were received on or after 24^th July 2018, after the amendment. Furthermore, all representations were received from residents of either Linden Lea or Rowan Walk and within close proximity to the Premises and are specific to the issue of collection.  

 

Neither the Licensing Act nor subsequent regulations indicate the effect of an amendment at such a late stage.  The Notice of Application was affixed to a tree in the front garden of 33 Linden Lea for 28 days.  The case of R (on the application of Clarke) v Bristol City Council [2013] EWHC 4530 (Admin) is comparative to this case.  The advertising requirements of a local authority’s application for a review of a licence were questioned in that the notice of the review was not on display for the entire four-month period.  The notice was absent from outside the premises for three days. The Judge held on appeal that “the purpose of the notice is to allow preparation of responses to review of the licences.  The intention of Parliament here is plainly to ensure that those who have an interest in premises have a chance to make representations.  A defective notice will not always thwart any review.” 

 

Subsequently, the Panel is satisfied that members of the public were given an opportunity to make representations regarding this application.  There was no injustice caused by the amendment given that all representations received were from residents of either Linden Lea or Rowan Walk, within direct proximity to the Premises, and the concerns raised were specific to collection.  

 

Following discussions between the Applicant and the Metropolitan Police, the Applicant has agreed to include additional conditions in his application, which are set out in Annex 2 to the Report. 

 

No representations were received from any of the responsible authorities however a number of objections have been received from members of the public, namely residents of Linden Lea and Rowan Walk. Those representations relate to the licensing objectives of public safety, the prevention of public nuisance and the protection of children from harm.

 

The residents make, near identical representations which are:

 

(a)        the Premises is in a highly populated residential area with many families walking in the streets after school hours and particularly between 17.00hrs and 19.00hrs.

 

(b)        the increase in traffic congestion from the deliveries of alcohol by vans or larger vehicles will endanger the safety of pedestrians and residents who frequently use Linden Lea as a pathway to access Lyttleton playing fields.

 

(c)        there is a primary school within close vicinity of the Premises.

 

(d)        increase in road traffic and parking is likely to lead to more accidents and heighten the risk to children using the pavements and roads.  Parking is limited on Linden Lea and already congested.

 

(e)        the collection of alcohol purchased online by unknown numbers of customers either on foot or in vehicles.

 

(f)          no guarantee that the consumption of alcohol will not take place within the vicinity of the Premises, namely on benches or the entrance to Lyttleton playing fields.

 

(g)        the sale of alcohol from a residential property sets a terrible example to children and teenagers.

 

(h)        granting a licence would alter the character of Hampstead Garden Suburb to its detriment and set an unwelcome precedent.

 

(i)          the Premises is within Hampstead Garden Suburb Trust area and is bound by the original Lease Agreements of the Trust.  Houses are to be used for residential purposes only and may not carry out any commercial practice.

 

In addition to the above, the Panel heard from two members of the public regarding the potential fire hazard due to the volume of alcohol being stored in the Premises and the potential expansion of the business.  Concerns were raised that this venture is a business rather than a hobby. 

 

It was highlighted that Barnet Council’s Licensing Policy is silent on whether premises licences can be granted in respect of residential property for the sale of alcohol.  The Licensing 2003 Act makes no distinction between residential and commercial premises and therefore there is no requirement to do so. For the purposes of this case, under s.1 (6) of the Licensing Act 2003, “premises are used for a licensable activity if that activity is carried on or from the premises”. Furthermore, s.193 of the Licensing Act 2003 defines premises as “any place and includes a vehicle, vessel or moveable structure”.  The Licensing Act 2003 does not recognise a premises as a pub or a shop it only looks to define the licensable activities.

 

The Applicant addressed the representations made in view of promoting the licensing objectives. He clarified that there will be no increase in vehicular traffic be it from parking, on foot or from deliveries.  Deliveries will be made either by the Applicant directly to his friends off site or via the Royal Mail or courier with the Applicant stating that he would take deliveries to his local post office for onward distribution.  Deliveries to the Premises will be of six cases, containing thirty-six bottles, in total, every two weeks from a van within office hours. 

 

The Applicant clarified that the club is called the Spirited Club and not the Spirit Club.  It is a fun name in recognition of nature of the group.  It is made up of seven of his close friends and purpose of the club is not to generate incremental income, it is solely a not for profit hobby. There will be no advertisement of the hobby or physical consumption of alcohol or collection from the Premises.  Sales will be to his friends who are members of the Spirited Club and not to members of the public. 

 

In respect of the storage of alcohol, the Applicant clarified that the bedroom where the storage room is located is not currently used as bedroom.  He further explained that there is a large heavy table in front of the door to the storage area, preventing children from being able to access the cubby hole.  The Applicant stated that he is aware of other residents, within the Suburb, having large alcohol collections which are stored within their property.

 

To alleviate concerns regarding the storage of flammable liquids, the Applicant suggested further conditions on the licence namely to store a maximum of one hundred 700ml bottles of whiskey/spirits at any one time and no more than two deliveries in any four-week period in order to address the concerns raised by the residents.

 

In respect of the specific representations made by the objectors the Sub-Committee concluded that:

 

1. Although the Premises is in a residential and highly-populated area the nature of the business meant that it was unlikely to
   1. lead to harm to those walking within the vicinity of the Premises.
   2. increase traffic congestion from deliveries by vans or larger vehicles thereby endangering the safety of pedestrians and increase the risk of road traffic accidents

There was no evidence that could support a conclusion that it might.

 

2. Customers will be members of the Spirited Club and purchases will not be collected in person at the Premises. Therefore there is no risk of consumption of alcohol within the vicinity of the Premises.

 

3. The volume of alcohol has been limited to a maximum number to address the concerns raised regarding the potential for this business to grow.

 

4. The concerns regarding the impact on the character of Hampstead Garden Suburb and potential planning implications, whilst of concern to those making representations, are outside the remit of this licensing sub-committee and alternative recourses are available to those concerned.

 

 

The Sub-Committee has considered all the written and oral representations, as well as the relevant statutory legislation, the statutory guidance and Barnet’s Licensing Policy.

 

Taking all things in to account, the Panel has decided to grant this application together with the conditions agreed with the Metropolitan Police, namely:

 

(a)  All sales of alcohol will only be made to persons who have become a member. Becoming a member will be done by completing a questionnaire/personal information form which will be accompanied by debit/credit card payment details (card details will be stored with an appropriate financial services company).

 

(b)  Customers collecting purchases of alcohol from the Premises will be asked to produce ID to ensure they are over 18 if the seller is in any doubt of their age. Applying a ‘challenge 25’ style policy will help prevent accidental supply to those underage. If the person appears under 25, they should be asked to produce ID to prove they are over 18.

 

(c)   Sales of alcohol to be delivered will be paid for by card to ensure an age verification process takes place at the point of payment. The delivery will be signed for and the person signing for the delivery must be able to prove they are over 18 if it is not the person named on the card used for payment.

 

(d)  There will be no consumption of alcohol purchased on the Premises. Persons residing at the premises and their private guests are exempt from this.

 

(e)  In the event that the licence holder moves from the Premises, the licence will be surrendered.

 

and the following additional conditions:

 

(i)    The Premises to store a maximum of one hundred 700ml bottles of whiskey/spirits at any one time.

(ii)   There be no more than two deliveries to the Premises in any 4-week period and

(iii) No customers are permitted to collect purchases from the Premises.

 

Due to the Applicant confirming that there will be no collection of purchases from the Premises, condition (iii) supersedes the agreed police condition (b) above and is thereby redundant.

 

The Sub-Committee considered that these additional conditions were appropriate in order to support the promotion of the licensing objectives.

 

Right to Appeal

 

Any party aggrieved with the decision of the Licensing Panel on one or more grounds set out in schedule 5 of Licensing Act 2003 may appeal to the Magistrate’s Court, 448 High Road, London England NW10 2DZ within 21 days of this decision.