5 PUBLIC ENTERTAINMENT LICENCE: ‘CASHMERE NIGHTCLUB’, GOLDEN SQUARE, BERWICK-UPON-TWEED 5
• ‘Cashmere Nightclub’, Golden Square, Berwick-upon-Tweed 5
• Request that the Provisional Public Entertainment Licence be made Final 5
BERWICK-UPON-TWEED BOROUGH COUNCIL
Council Offices, Wallace Green, Berwick-upon-Tweed, TD15 1ED
COMMITTEE: LICENSING
DATE TUESDAY 23RD NOVEMBER 2004
TIME: 6PM
PLACE: ANTE ROOM, GUILDHALL, BERWICK-UPON-TWEED
Members: Councillors H Bettison, A Bowlas, E Breckons, D Buckle, C G Hallam-Baker, G E Miller, J M F Nesbit, A H Murray, R J Patterson, L W Robson, J Waterhouse
If you have any enquiries about items on this Agenda, please contact
The Meeting will be open to the Press and Public during consideration of
the items set out in Part 1 of this Agenda.
1 DECLARATION OF INTEREST
Members are invited to declare any interest they may have in any of the items included on the agenda for this Meeting.
[Note: Any Member wishing to seek clarification as to whether it may be appropriate to declare an interest in respect of any item on this agenda should seek advice from the Chief Executive or Borough Solicitor at least one working day before the Meeting].
2 MINUTES OF THE MEETING OF THE LICENSING COMMITTEE HELD ON 22ND SEPTEMBER 2004
Previously circulated; Chairman to sign.
3 HIGH COURT DECISION: PRIVATE HIRE OPERATOR’S LICENCE NOT REQUIRED BY HACKNEY CARRIAGES
Report Author: David B Wilson, Senior Licensing Officer, (01289) 301804; email: dbw@berwick-upon-tweed.gov.uk
Summary
• Private Hire Operator’s Licence not required by Hackney Carriages; and
• Refund (on a pro-rata basis) of such Private Hire Operator’s Licence fees.
Purpose
To note the High Court decision in Brentwood Borough Council v Andrew Ernest Gladen of 28th October 2004.
Report
Within the Borough of Berwick-upon-Tweed, ‘taxi’ licensing is principally regulated by two pieces of legislation, namely the Town Police Clauses Act 1847, which is exclusively concerned with Hackney Carriages and Drivers, and the Local Government (Miscellaneous Provisions) Act 1976, which is principally concerned with Private Hire Vehicles, Drivers and Operators, but also makes limited provisions with regards to Hackney Carriages.
Section 46(1)(d) of the Local Government (Miscellaneous Provisions) Act 1976 provides that “no person shall . . . operate any vehicle as a private hire vehicle without having a current licence [a Private Hire Operator’s Licence] under section 55 of this Act”.
Section 48 is concerned with the licensing of Private Hire Vehicles, but the definition for such vehicles is contained within section 80, the ‘Interpretation’ section of the Act. Section 80 states a Private Hire Vehicle “means a motor vehicle constructed or adapted to seat [fewer than nine passengers], other than a Hackney Carriage or Public Service Vehicle [or a London Cab] [or tramcar], which is provided for hire with the services of a driver for the purpose of carrying passengers”
It was widely thought that as section 46(1)(d) referred to “any vehicle as a private hire vehicle” it included Hackney Carriages and accordingly this Council, together with many other throughout the country, have required a Hackney Carriage to be covered by a Private Hire Operator’s Licence to allow the vehicle to be used in connection with pre-booked (i.e. private hire) journeys.
The High Court’s decision was, however, that “any vehicle used as a private hire vehicle” did not include a Hackney Carriage as the definition of a “Private Hire Vehicle” in section 80 expressly excluded a Hackney Carriage.
There is no further appeal available to Brentwood Borough Council and this decision seems unlikely to be challenged in the foreseeable years. The High Court expressed surprise that it had taken 28 years for this matter to have come to its attention.
In the circumstances, the Council has already publicised the High Court’s decision and announced that it will give pro-rata refunds from 28th October 2004, the date of the High Court decision, to the date of expiry of each Private Hire Operator’s Licence.
There are about 27 Private Hire Operator’s Licences in force in respect of Hackney Carriages, but the expiry dates vary from being within a couple of weeks of the decision to those which have been applied for in advance of the previous one expiring. The annual licence fee is £57.75
A section of the taxi trade has indicated that they believe they are entitled to refunds for up to 6 years. This is not accepted by the Borough Solicitor or by other Councils with whom the Senior Licensing Officer has consulted through the North East Licensing Enforcement Group.
At the present time it is impossible to quantify the sums to be refunded, but so long as the refunds are only payable from 28th October 2004, the senior Licensing Officer is confident that this will not adversely affect the overall taxi licensing fees revenue for the current or future years. A Council is not permitted under section 70 of the Local Government (Miscellaneous Provisions) Act 1976, to make a profit from its taxi licensing functions. The Senior Licensing Officer was previously concerned that due to there being an on-going increase in the number of vehicles, drivers and operators (in respect of purely Private Hire Vehicles), being licensed, particularly as a result of Northumberland County Council requiring all vehicles used for contract work to be licensed Hackney Carriages or Private Hire Vehicles from no later than September 2005. In the circumstances, the likely refunds and increased numbers of licensed vehicles and drivers are likely to balance each other out. The final analysis will, however, be made in future years, when determining future fee levels.
Implications:
Environmental and Sustainability:
Nil
Equal Opportunities:
Nil
Crime and Disorder:
Nil
Best Value and Best Practice:
Reacting quickly and decisively to make refunds must be best practice, despite the likely perceived financial consequences.
Financial/Legal/Personnel:
These matters are all addressed within the Report.
Recommendation: To note:
(i) the decision of the High Court in Brentwood Borough Council v Gladen of 28th October 2004;
(ii) the consequent changes to taxi licensing; and
(iii) the necessity for the Council to make refunds in respect of Private Hire Operator’s Licence fees in relation to Hackney Carriages
Report Author: David B Wilson, Senior Licensing Officer, (01289) 301804; email: dbw@berwick-upon-tweed.gov.uk
Summary
• Disability Discrimination Act 1995;
• Requirement for new Taxi Licence Plates
Purpose
To note the necessity to issue new Taxi Licence Plates for all licensed Hackney Carriages and Private Hire Vehicles.
Report
From 1st October 2004, the Disability Discrimination Act 1995 required that service providers, which includes the Council, make reasonable adjustments when the physical features of their premises make it impossible or unreasonably difficult for disabled people to use their services.
Whilst the legislation extends to the Council, it will not apply to Hackney Carriages and Private Hire Vehicles until 2020.
The Taxi Licence Plates are, however, the property of the Council and should, therefore, comply with the Disability Discrimination Act 1995.
The new Taxi Licence Plates are of A4 size, in landscape, with a white centre and a coloured border. Hackney Carriage Licence Plates will have a light green border and Private Hire Vehicles Licence Plates will have a pale red border. The colours are intended to assist the public in identifying and understanding the differences between the two types of licensed vehicles. A Hackney Carriage is capable of being taken from a Taxi Rank, hailed in the street or being pre-booked (as detailed in the previous Report) and is therefore always capable of being hired. A Private Hire Vehicle can only be pre-booked and therefore seeking to hail it in the street represents a degree of danger as the vehicle would not necessarily be covered by a policy of insurance if used unlawfully as if it were a Hackney Carriage.
It is a requirement that Taxi Licence Plates are fixed securely to licensed vehicles, but must also be capable of being easily removed by the Council, should a vehicle licence be revoked or suspended. These conflicting demands do present some practical difficulties and, in the past, Taxi Licence Plates have been screwed or bolted to vehicles or brackets attached to vehicles; stuck with heavy duty double-sided adhesive tape; or attached using adhesive backed ‘Velcro’ strips. The Senior Licensing Officer considers that the use of magnetic Taxi Licence Plates is an equivalent method of fixing Taxi Licence Plates securely, whilst also being capable of being easily removed. The historic concerns of issuing or allowing the use of magnetic Taxi Licence Plates is overcome by the fact that all Taxi Licence Plates now, and in the future will, bear a description of the vehicle, together with its registration number and licence expiry date, so the obvious risk and concern that Taxi Licence Plates may be affixed to unlicensed vehicles alleviated. Indeed, the risk is no less for any other method a fixing.
Sample Taxi Licence Plates will be available to Members at the Licensing Committee Meeting.
It is intended to offer Hackney Carriage and Private Hire Vehicle proprietors a choice of either a rigid board or magnetic Taxi Licence Plate.
Implications:
Environmental and Sustainability:
Nil
Equal Opportunities:
Nil
Crime and Disorder:
Nil
Best Value and Best Practice:
The introduction of new style Taxi Licence Plates is both a requirement of the Disability Discrimination Act 1995 and best practice.
Financial/Legal/Personnel:
The costs of the new style Taxi Licence Plates will be about £18.75 plus VAT each, as opposed to the cost of £9.80 (VAT exempt) for the existing non-compliant Taxi Licence Plates.
Due to the increased numbers of vehicles, drivers and operators becoming licensed, taxi licensing was likely to make a substantial ‘profit’ during the current and next financial years. In the circumstances, these increased costs will merely serve to eliminate or reduce the projected ‘profit’, thereby returning the taxi licence function to a state of neutrality, as required by the Local Government (Miscellaneous Provisions) Act 1976.
Recommendation: To note:
(i) the necessity to change the Taxi Licence Plates to be compliant with Disability Discrimination Act 1995; and
(ii) the new size, shape and colours of Hackney Carriage and Private Hire Vehicle licence plates to be issued as soon as reasonably practicable.
5 PUBLIC ENTERTAINMENT LICENCE: ‘CASHMERE NIGHTCLUB’, GOLDEN SQUARE, BERWICK-UPON-TWEED
Report Author: David B Wilson, Senior Licensing Officer, (01289) 301804; email: dbw@berwick-upon-tweed.gov.uk
Summary
• ‘Cashmere Nightclub’, Golden Square, Berwick-upon-Tweed
• Request that the Provisional Public Entertainment Licence be made Final
Purpose
Mr Zafer Saygilier was granted a Provisional Public Entertainment Licence in respect of premises at Golden Square, Berwick-upon-Tweed by this Licensing Committee on 23rd June 2004.
The provisional licence required certain works to be carried out to the structure of the building to achieve inaudibility in the neighbouring residential property and to allow the final decision on matters such as capacity and Door Supervisors to be determined upon the completion of the building and fitting-out works.
All works have now been completed and, subject to the granting of a Justices’ Licence on the morning of Tuesday 23rd November 2004 and the making of a final Public Entertainment Licence, the premises are ready to commence trading as a restaurant, bar and nightclub.
The premises are now called and known as ‘Cashmere Nightclub’.
Report
The Licensing Committee may wish to inspect the premises for themselves, but the Senior Licensing Officer who has visited the premises with other authorities and has had comments from them can advise as follows:
Building Control
Gordon Dickson, Senior Building Control Surveyor, has confirmed that Building Control were involved in monitoring the whole build process and are satisfied that everything which was required generally and specifically in relation to achieving inaudibility in the neighbouring residential property was done.
Environmental Health
Steve Cleworth, Environmental Health Officer, attended the premises at stages through construction and finally on the evening of Thursday 18th November 2004 with Richard Mackenzie, acoustic consultant, and the senior Licensing Officer.
Mr Mackenzie’s original report was submitted by Mr Saygilier in support of his application and adopted by the Licensing Committee as the source of the specification to be utilised in the building.
At the inspection on the evening of Thursday 18th November 2004, a very slight bass noise was just audible within a few meters of the rear of the premises. It transpired that there is a very small leakage of noise from the air extract / intake ducts, but this was regarded to be of such a low level as not to present as a nuisance.
The sound system within the premises was found to be capable of producing 108dB of sound in the centre of the dance floor, without sound being audible in the neighbouring residential property. Indeed, the proprietor / occupier of that property was ‘delighted’ not to be able to hear any sound within his own property, save for that from another neighbouring licensed premise, and he also visited Cashmere Nightclub to be certain that sound was being produced therein. The neighbour expressed nothing but praise for the way in which matters had been dealt with by Mr Saygilier and the results which has been achieved.
Mr Cleworth also conducted an inspection for Health and Safety purposes and was satisfied that the premises complied with all requirements in that regard.
Fire Authority
The Fire Safety Officer, Danny Stephenson, has also regularly visited the premises throughout the building and fitting-out works. He conducted his final inspection on the morning of Friday 19th November 2004, in the presence of the Senior Licensing Officer.
The Fire Safety Officer found all fire safety equipment to be in order and, indeed, some initiatives to surpass the Fire Authority’s requirements.
The Fire Authority recommend maximum capacities of 380 people downstairs (bar and nightclub) and 100 people upstairs (restaurant with bar), giving a total capacity of 480 people. It must, however, be noted that capacities will need to be carefully monitored and regulated by the licensee, Mr Saygilier, to avoid either capacity being exceeded by the movement of people between the two floors of the premises.
The Police and the Community Safety Officer on behalf of the Crime and Disorder Reduction Partnership
The Police have also regularly visited the premises, particularly during the latter stages of the construction and fitting-out and, on one occasion, invited Gerald Connor, the Community Safety Officer to accompany them on their visit.
Discussions have taken place between the Police, the Community Safety Officer and Mr Saygilier about a range of crime and disorder issues, ranging from CCTV systems and monitoring, door supervisors, and the actual risks relating to disorder and violence and drug use and dealing within the premises or in the vicinity.
The premises are fitted with sophisticated CCTV equipment, which records onto computer hard disc. There is no sound recording on the premises CCTV system. CCTV cameras are fitted throughout the premises, externally as well as internally, including the communal areas of both the ladies’ and gentlemen’s toilets, being areas where drugs might typically be used or dealt.
The Police are satisfied with all the measures that have been taken and of the arrangements they have with Mr Sagilier.
Mr Saygilier intends to operate the premises as a restaurant and bar seven days a week, but also as a nightclub on Thursday, Friday, Saturday and Sunday nights, thereby necessitating the holding of a Public Entertainment Licence.
It is only in respect of the conditions attaching to a Public Entertainment Licence that conditions can be imposed concerning Door Supervisors. As a consequence when the premises are operating in a way which does not require a Public Entertainment Licence, the conditions are inoperative.
Mr Saygilier will always have Door Supervisors working on the premises, whilst the premises are operating under a Public Entertainment Licence.
The minimum number of Door Supervisors recommended by the District Surveyors Association Guidelines is two for the first 100 people and one for each further 100 people.
Mr Saygilier asks that the Licensing Committee accept that the District Surveyors Association guideline is both reasonable and proportionate for occupancy of up to 100 people. This level is acceptable to the Police.
For occupancy of between 101 people and 250 people, Mr Saygilier asks that the Licensing Committee accept that six Door Supervisors are reasonable and proportionate. This level of door supervision exceeds the District Surveyors Association guidelines, which would be for only four Door Supervisors. This level is acceptable to the Police.
For occupancy of between 251 people and 480 people, Mr Saygilier asks that the Licensing Committee accept that eight Door Supervisors are reasonable and proportionate. This level of door supervision exceeds the District Surveyors Association guidelines, which would be for only six Door Supervisors. This level is acceptable to the Police.
Mr Saygilier has specific proposals as to where the Door Supervisors will be deployed, depending upon occupancy, but the Police ask that such provisions are not included as conditions of a licence, because they may be too prescriptive and make it difficult to achieve a flexible approach, which might be required to overcome anything which has been overlooked. The Police would ask that it be a condition of the licence that Door Supervisors be deployed as may be directed by the Police, in writing, from time to time. It is considered highly unlikely by the Police that they would wish to issue specific directions, but such a condition would provide flexibility and avoid the prescriptive alternative, which is also inflexible.
Mr Saygilier will also employ a person, who is not a Door Supervisor, to monitor the CCTV equipment and to direct Door Supervisors to any incident and, if at all possible, to recognise that an incident might be about to occur and to direct the Door Supervisors to the location before such an incident might occur. The Senior Licensing Officer has discussed this matter with the Security Industry Authority (SIA) who confirmed such activities are not of a kind to require the CCTV operator to be registered with the SIA as a Door Supervisor. The SIA also advised that such activities would, in due course, be licensable security activities, but would be exempted from licensing so long as the CCTV operator was employed by the club and not provided under contract by another company. There is no known guidance with regard to this facility, but Mr Saygilier has stated to the Senior Licensing Officer that the CCTV will be monitored whilst activities permitted by a Public Entertainment Licence are taking place on the premises.
These matters were confirmed to the Senior Licensing Officer late in the afternoon of Friday 19th November 2004 by Inspector Martin Baylis, following telephone discussions he had had with Inspector Gillian Mitchell.
Procedure
As stated at the beginning of this Report, the Licensing Committee may wish to visit and inspect the premises for themselves. Mr Saygilier is aware of this and this can be accommodated within the Meeting.
Members must remember that only those members present throughout the hearing of the application and at any inspection of the premises may take part in making a decision on the application.
Although the Licensing Committee is entitled to regulate its own proceedings, it is recommended, save for the foregoing, that the following procedure be adopted:
(i) The Applicant, Mr Saygilier, or his representative be invited to formally make the application for the Provisional Public Entertainment to be made Final and, if he wishes, to present any evidence in support of the application. It is appreciated that the acoustic consultant’s report of the assessment on the evening of Thursday 18th November 2004 may not be available until a late stage;
(ii) Members of the Licensing Committee be entitled to ask questions of the Applicant, his representative or expert (if present);
(iii) The Police, Fire Authority, Environmental Health and Building Control, being the authorities with statutory responsibilities be entitled to ask questions of the Applicant, his representative or expert (if present);
(iv) The Police, Fire Authority, Environmental Health and Building Control, being the authorities with statutory responsibilities be entitled to make submissions on their own behalf upon the application; and
(v) The Licensing Committee will then consider the application and representations in camera (private), before announcing their decision at that time or alternatively, it may thereafter be notified in writing to the Applicant.
Implications:
Environmental and Sustainability:
As detailed within the Report and any supplemental reports that may be made available to the Licensing Committee at the Meeting.
Equal Opportunities:
Nil
Crime and Disorder:
As detailed within the Report and any supplemental reports that may be made available to the Licensing Committee at the Meeting.
Best Value and Best Practice:
Nil.
Financial/Legal/Personnel:
Nil.
Recommendation: To determine:
(i) whether it is satisfied that all necessary works have been carried out as required by the Provisional Public Entertainment Licence and, if it is:
a. to determine the maximum capacities for the ground floor (bar and nightclub) and first floor (restaurant with bar) of the premises;
b. the sound level which should not be exceeded by audio equipment and / or musical instruments of any nature within the premises in order to achieve sound inaudibility in the neighbouring residential property (as required by the Provisional Public Entertainment Licence);
c. the requirement, if any, for Door Supervisors and their numbers and whether it is appropraite and necessary to impose
d. whether it is appropriate to impose any further conditions, in addition to those conditions contained within the Council’s standard Regulations.
Members are reminded of their responsibility to sign the Attendance Sheet in compliance with the Rules of Procedure.
