The Licensing Sub Committee met to discuss an application for a new premises licence for Morrisons Daily, 239 High Street, Gateshead, NE8 1EP. The committee decided to grant the application subject to conditions consistent with the operating schedule and additional conditions agreed with Northumbria Police. Public Health withdrew their representation in light of the agreed conditions.

Morrisons Daily, 239 High Street, Gateshead, NE8 1EP - Premises Licence Application

Kulasingam Chandramohan, represented by Mike Thorpe from MRT Licensing Services, applied for a new premises licence for Morrisons Daily, 239 High Street, Gateshead, NE8 1EP. The applicant sought to bring an empty commercial property into use as a general convenience store, with alcohol sales making up a small percentage of the overall range of goods. The applicant also intended to offer hot drinks from a vending machine and some heated food items.

The Sub-Committee heard that the applicant had over 25 years of retail experience and had held a personal licence since the Licensing Act 2003 was first brought in. He had managed and owned many convenience stores and had an outstanding record of turning dilapidated buildings into community assets.

The application was accompanied by a comprehensive operating schedule, which had been amended following mediation with Northumbria Police. The applicant had also provided an impressive set of supporting documents including policies and registers to be implemented should the application be granted.

The Sub-Committee also heard a representation from Mr Ayodele Akin, who works on the High Street and operates a homeless soup kitchen. Mr Akin expressed concerns about the challenges faced in the area and believed that granting a 24-hour licence would increase the amount of pressure and alcohol-related issues on the High Street.

The Sub-Committee noted that Northumbria Police and Public Health had withdrawn their representations, and that the applicant had a strong operating schedule and had agreed to conditions to address concerns about crime and disorder.

The Sub-Committee resolved to grant the application subject to conditions consistent with the operating schedule and the following additional conditions agreed with Northumbria Police:

1. There shall be no beer, lager or cider with an ABV¹ of above 6.0% sold at the premises, other than artisan/craft beer, lager or cider.
2. There shall be no sale of single cans of beer, lager, cider or perry from the premises.
3. There shall be no sale of alcohol spirits in vessels smaller than and including 10CL.
4. A CCTV system shall be designed, installed and maintained in proper working order, to the satisfaction of, and in consultation with, Northumbria Police and the Licensing Authority. Such a system shall:
   • Be operated by properly trained staff;
   • Always be in operation whilst the premises are open.
   • Ensure coverage of all public entrances and exits, till areas and other areas as required by Northumbria Police & other responsible authorities
   • Have a member of staff present and trained in the retrieval of CCTV footage
   • Cover the inside and the area immediately outside of the premises.
   • Be capable of recognition of all persons entering the premises.
   • Provide continuous recording facilities for each camera to a high standard of clarity. Such recordings shall be retained on tape/disc/hard drive or otherwise for a minimal period of 28 days and shall be supplied to an authorised officer or Police Officer on request for evidential purposes and in accordance with data protection legislation. Images recorded are to be retained in an unedited format and the CCTV system must continually record whilst the premises is open to the public.
5. The Premises Licence holder and Designated Premises Supervisor shall co-operate with crime prevention initiatives which are considered appropriate and necessary to promote the licensing objectives, as promoted by the Licensing Authority or Northumbria Police
6. Upon receipt of a request of a Police Officer of the rank of Inspector or above or by a Police Licensing Officer and having regard to local initiatives, if concern is raised about a particular product on sale and evidence provided that the sale of this product was undermining one or more of the Licensing Objectives, management will take steps to remove the product or take other reasonable steps to address the Licensing Objectives.
7. The premises shall operate a Challenge 25 scheme² and all members of staff at the premises shall seek credible photographic proof from any person who appears to be under the age of 25 and is seeking to purchase alcohol. Such credible evidence shall include a photograph of the customer which will either be a passport, photographic driving licence or proof of age carrying a PASS logo. Challenge 25 posters shall be displayed at the entry point to the premises, adjacent to the alcohol display and adjacent to the till area.
8. The Premises Licence holder shall always ensure that when the premises are open for any licensable activity, there is sufficient, competent staff on duty at the premises for the purpose of fulfilling the terms and conditions of the licence and for preventing crime and disorder.
9. An incident log shall be maintained on the premises (in writing or digitally) to record incidents.
10. A refusals log shall be maintained on the premises (in writing or digitally) and shall be made available to officers of the Licensing Authority or Northumbria Police upon request. Details of the following shall be recorded:
    • All crimes reported to the premises or by the premises to the police
    • Any incidents of disorder
    • Any faults in the CCTV system
    • Details of the staff member completing the report
11. All sales tills shall prompt the cashier making a sale of alcohol to verify that the customer is aged 18 or over (EPOS System)
12. A written record must be available for inspection, upon request by any responsible authority, detailing the names of those members of staff who are authorised by the Designated Premises Supervisor to sell alcohol. This will include details of the person deemed to be in charge at the premises at any specific time.
13. All persons involved in the sale of alcohol who are not the holder of a Personal Licence to sell alcohol will receive initial training and regular refresher training by the Designated Premises Supervisor or training provider with regards to the law in relation to sale of alcohol, age restricted products, vulnerability and proxy sales. Such training must be recorded and up to date training records of all such persons must be maintained at the premises or head office and produced and made available for inspection within 7 days of a request being made. There must be twelve months records retained.

The Sub-Committee noted that should any problems arise in the future, a review application could be made to the Licensing Authority.

Public Health Representation

Julia Sharp, representing Public Health, withdrew their representation following the agreement of conditions between the applicant and Northumbria Police.

Interested Party Representation

Mr Ayodele Akin, assisted by David Odumade, raised concerns about the potential increase in alcohol-related issues on Gateshead High Street, citing his experience working with a homeless soup kitchen since 2013 and being part of the Gateshead Town Watch. He expressed disappointment with the police withdrawing their representation and proposed restricting the licence times.

Considerations

The Sub-Committee confirmed that it had regard to the Licensing Officer's report, the Addendum Report, the Licensing Act 2003, the Home Office Guidance issued under Section 182 of the Act, the Council's Statement of Licensing Policy, the relevant representations received from the interested parties, and the submissions made by the parties at the hearing.

The Sub-Committee was mindful of its duty under the Act to carry out its functions with a view to promoting the licensing objectives of:

• the prevention of crime and disorder
• public safety
• the prevention of public nuisance; and
• the protection of children from harm.

The Sub-Committee had regard to section 18 of the Act, and as such disregarded any information which it did not consider to be, about the likely effect of the grant of the application on the promotion of the licensing objectives .

The Sub Committee were mindful of the Judgment in the case of R (on the application of Hope & Glory Public House Ltd) v (1) City of Westminster Magistrates' Court & Ors [2011] EWCA Civ 31 in which Lord Toulson stated –

Licensing decisions often involve weighing a variety of competing considerations: the demand for licensed establishments, the economic benefit to the proprietor and to the locality by drawing in visitors and stimulating the demand, the effect on law and order, the impact on the lives of those who live and work in the vicinity, and so on… They involve an evaluation of what is to be regarded as reasonably acceptable in the particular location.

The Sub Committee noted the Judgment of Mr Justice Jay in the case of East Lindsey District Council v Hanif (t/a Zara's) (2016) EWHC 1265 (Admin) with regard to the approach to be taken to determining the appropriate and proportionate action in light of the salient Licensing Objectives; and in particular their approach should involve –

• consideration of the antecedent facts; and
• a prospective consideration of what is warranted in the public interest, having regard to the twin considerations of prevention and deterrence.

The Sub-Committee had regard to the case of Daniel Thwaites plc v Wirral Borough Magistrates Court (2008) EWHC 838 (Admin) and Meade v Brighton Corporation (1968) 67 LGR 289, in particular –

[D]rawing on local knowledge, at least the local knowledge of local licensing authorities, is an important feature of the Act's approach…[however Committees] must measure their own views against the evidence presented to them. In some cases, the evidence presented will require them to adjust their own impression. This is particularly likely to be so where it is given by a Responsible Authority such as the police. They must also scrutinise their own anxieties about matters such as noise and other types of public nuisance particularly carefully if the responsible authorities raise no objections on these grounds .

The Sub-Committee had regard to the Home Office Guidance, including –

• paragraph 8.42 – "Applicants are, in particular, expected to obtain sufficient information to enable them to demonstrate, when setting out the steps they propose to take to promote the licensing objectives, that they understand:
  • the layout of the local area and physical environment including crime and disorder hotspots, proximity to residential premises and proximity to areas where children may congregate
  • any risk posed to the local area by the applicants' proposed licensable activities; and
  • any local initiatives (for example, local crime reduction initiatives or voluntary schemes including local taxi-marshalling schemes, street pastors and other schemes) which may help to mitigate potential risks"
• paragraph 8.43 Applicants are expected to include positive proposals in their application on how they will manage any potential risks. Where specific policies apply in the area (for example, a cumulative impact assessment), applicants are also expected to demonstrate an understanding of how the policy impacts on their application; any measures they will take to mitigate the impact; and why they consider the application should be an exception to the policy
• paragraph 9.38 "In determining the application with a view to promoting the licensing objectives in the overall interests of the local community, the licensing authority must give appropriate weight to:
  • the steps that are appropriate to promote the licensing objectives
  • the representations (including supporting information) presented by all the parties
  • this Guidance
  • its own statement of licensing policy"
• paragraph 9.43 The Authority's determination should be evidence-based, justified as being appropriate for the promotion of the licensing objectives and proportionate to what it is intended to achieve.
• Paragraph 9.12 Each responsible authority will be an expert in their respective field, and in some cases it is likely that a particular responsible authority will be the licensing authority's main source of advice in relation to a particular licensing objective. For example, the police have a key role in managing the night-time economy and should have good working relationships with those operating in their local area. The police should usually therefore be the licensing authority's main source of advice on matters relating to the promotion of the crime and disorder licensing objective. However, any responsible authority under the 2003 Act may make representations with regard to any of the licensing objectives if they have evidence to support such representations. Licensing authorities must therefore consider all relevant representations from responsible authorities carefully, even where the reason for a particular responsible authority's interest or expertise in the promotion of a particular objective may not be immediately apparent. However, it remains incumbent on all responsible authorities to ensure that their representations can withstand the scrutiny to which they would be subject at a hearing .

The Sub-Committee further had regard to the fact that when considering public nuisance matters which occur away from the immediate area of the premises, that the Home Office Guidance states:

• paragraph 2.27 – Beyond the immediate area surrounding the premises, these matters are for the personal responsibility of individuals under the law. An individual who engages in anti-social behaviour is accountable in their own right…

With regards specifically to hours of trading for the sale of alcohol, the Sub-Committee were mindful of paragraph 10.15 of the Guidance which states that:

• Shops, stores and supermarkets should normally be free to provide sales of alcohol for consumption off the premises at any times when the retail outlet is open for shopping unless there are good reasons, based on the licensing objectives, for restricting those hours .

The Sub-Committee further bore in mind paragraph 10.13 which confirms that:

• The Government acknowledges that different licensing strategies may be appropriate for the promotion of the licensing objectives in different areas. The 2003 Act gives the licensing authority power to make decisions about the hours during which premises can conduct licensable activities as part of the implementation of its licensing policy statement. Licensing authorities are best placed to make decisions about appropriate opening hours in their areas based on their local knowledge and in consultation with responsible authorities. However, licensing authorities must always consider each application and must not impose predetermined licensed opening hours, without giving individual consideration to the merits of each application.

The Sub-Committee had regard to paragraph 6.2 of the Council's Statement of Licensing Policy, noting that –

"the Licensing Authority considers –

• the effective and responsible management of premises
• instruction, training and supervision of staff; and
• the adoption of best practice

to be the most important control measures for the achievement of all the licensing objectives."

With regards to the consideration of licensing hours, the Sub-Committee also noted the following paragraphs of the Council's Policy to be relevant:

• Paragraph 9.1 – It is expected that premises whose primary activity is off licence sales will not normally be open between 23:00 and 07:00 hours. Applicants wishing to operate beyond 23:00 hours will need to demonstrate to the satisfaction of the Licensing Authority, in their operating schedule, that there will be no significant disturbance to members of the public living, working or otherwise engaged in normal activity around the premises concerned. Opening hours beyond 23:00 hours will generally be considered to be more acceptable for premises in commercial or tourist areas with high levels of public transport availability, rather than premises in predominately residential areas .
• Paragraph 9.2 "When considering applications, in respect of hours of operation, the Licensing Authority will take the following into consideration.
  • Whether the premises is located in a predominantly retail or entertainment area
  • The nature of the proposed activities to be provided in the premises
  • Whether there are any arrangements to ensure adequate availability of hackney carriages and private hire vehicles and appropriate places for picking up and setting down passengers
  • Whether there is an appropriate amount of car parking, readily accessible to the premises, and in places where the parking and use of vehicles will not cause demonstrable adverse impact to local residents
  • Whether the operating schedule agreed with Council Officers indicates that the applicant is taking appropriate steps to comply with the licensing objective of preventing public nuisance
  • Whether the licensed activity, particularly if located in areas of the highest levels of recorded crime, may result in a reduction or increase in crime or antisocial behaviour
  • Whether the licensed activities are likely to cause adverse impact especially on local residents, and that, if there is a potential to cause adverse impact, appropriate measures will be put in place to prevent it."

The Sub-Committee also had regard to paragraph 2.5 of the Policy which states that –

The promotion of the licensing objectives underpins every decision that the Licensing Authority makes. How the objectives are best promoted can vary from place to place, and depending on the nature and scale of the activities that are to be carried out...

The Sub-Committee were reminded that any conditions or restrictions they sought to place on the licence should be sufficiently clear that they can be understood and enforced and that any condition must be appropriate for the promotion of the Licensing Objectives. The Sub-Committee were further advised that they should consider –

• the harm they were seeking to prevent
• what weight to attach to the concerns they have, and
• what would be a proportionate measure to prevent that harm

The Sub-Committee were mindful in considering all evidence heard, that any hearsay evidence is admissible within the licensing hearing, but that such evidence inherently carries less weight than direct evidence provided by the parties. In the same way, the Sub-Committee were mindful that any statistics and facts and figures which were not supported by documentary evidence were to be given less weight than if a document proving the statement was in front of them.