Agenda item

Members are requested to determine an application for a premises licence where the authority has received relevant representations.

Mk   The Sub-Committee received a report to determine an application for a premises licence where the licensing authority had received relevant representations.

The Principal Licensing Officer introduced the report. Within his introduction, he stated the following:

a)            He stated that, in response to a query from a Member, a summary of nearby off-licences had been provided to Members, as it was considered relevant information in order to provide a general picture of the number of licensed premises in the area and their operating hours, due to objections being raised in respect of cumulative impact. He stated that the information was also thought relevant due to one of the objectors being a premise license holder on the list. In light of this information, he pressed that each application must be considered on its own merits and that the only consideration that should be given to an application is the promotion of the licensing objectives, and no account should be taken of other establishments’ licensing hours or conditions.

b)            He stated that any decision made by the Sub-Committee may be appealed in the courts.

The Sub-Committee invited the Applicant and Objectors to ask questions of the Principal Licensing Officer. Neither the Applicant nor the Objectors had any questions to ask of the Principal Licensing Officer at this time. The Sub-Committee had no questions to ask of the Principal Licensing Officer at this time.

The Sub-Committee invited the Applicant to make an opening submission. The Applicant’s representative (Licence Consultant) provided an opening submission on behalf of the Applicant:

a)            He stated that the Friday and Saturday hours applied for were the same as those granted to two other off-licences on Epsom high street.

b)            He stated that the premises at 31 High Street was small, at c.54m², and, along with alcohol, would sell other goods such as vapes, phone accessories, and various convenience items. He stated that the alcohol on the shop floor would be kept behind and directly opposite the sales counter, in full view of counter staff.

c)            He stated that a number of robust conditions had been offered as part of the application within the operating schedule.

d)            He stated that the two other representatives of the Applicant present at the meeting – the Sales Manager and Company Director – had been operating a vape shop in the town for over a year and, though the shop in question did not sell alcohol, they were already experienced retailers.

e)            He addressed the written representations provided by objectors:

                      i.        He stated that within the written objections there were claims there was no need for another off-licence in town – he stated that ‘need’, however, was not a relevant consideration for licensing.

                    ii.        He stated that within the written objections there were claims that another off-licence in town would have a negative cumulative impact – he stated that Epsom & Ewell Borough Council, however, did not currently have a Cumulative Impact Policy in place.

                   iii.        He stated that two of the written objections had been made by would-be-competitor off-licence retailers on the High Street – he stated that, in his view, the true reason behind their objection to the application was on account of the competition to their business that the new shop would bring.

                   iv.        He stated that within the written objections there were claims that another off-licence would increase the number of people in the town centre and consequently increase the chance of crime and public nuisance – he stated that the new shop would not draw large numbers of additional people to the town centre, and that it would simply offer more choice for the people already visiting the town centre.

                    v.        He referred to the revised guidance issued under section 182 of Licensing Act 2003 and stated that the guidance advised that permission to sell alcohol should be granted to a premises for all opening hours unless relevant representations are received from responsible authorities. He stated that the Police nor Environmental Health had placed any objection to the application with regard to any of the licensing objectives, and that heavy weight should be placed on the fact that said responsible authorities had taken no issue with the application.

                   vi.        He stated that the written objections equated the sale of alcohol to causing underage drinking and criminal behaviour – he stated that in both cases it is the only small minority of instances where alcohol sales leads to such activity. He stated that the vast majority of alcohol sales do not lead to any trouble, but people focus on the small minority of times where things go wrong. He stated that the Sales Manager and Company Director, through their vape shop in town, had had no issues since its opening in relation to the sale of age-restricted items (vapes). He asserted that, should the application under consideration be granted, children would not be placed at risk and great care would be taken over who age-restricted items were sold to at the shop.

                  vii.        He stated that the objectors, nor the Police or Environmental Health, had provided any evidence to support any of the claims set out within the written objections, and that the written objections put forward opinions only.

The Applicant’s representatives responded to questions from the Sub-Committee:

a)            The Licence Consultant stated that the Sales Manager was currently undergoing personal licence training, and that he was aware the off-licence could not operate until such a time as he had received said licence. He stated that, as set out in the submitted operating schedule, a record of training would be kept on site, with refresher training to be received by staff within every 12-month period. He stated that the training would be level 1 (covering the basics of alcohol sales) and would be provided via an App produced by CPL Learning – he stated that provision of training via an app would allow for standardisation, ensuring everyone receives the same training, and that a certificate would be provided upon completion of the training. The Sales Manager stated that two staff members would be level 1 trained, and that whilst open the shop would always have someone level 1 trained present at the premises.

b)            The Licence Consultant stated that the Applicant had applied to stay open until 01:00am on Fridays and Saturdays in order to capture the late-night market that exists on those days, with the intention of closing at 22:00pm the other days of the week due to those days being quieter. He stated that he had recently spoken with local businesses in the area and enquired as to whether they experience any trouble in the evenings/night to which, he stated, the ones who responded said they did not, with any trouble they were aware of usually happening around 02:00 – 03:00am. The Sales Manager stated that he wanted the shop to stay open until 01:00am in line with the opening hours of the two competitor off-licences on the high-street in order for the business to not be disadvantaged.

c)            The Sales Manager stated that all alcohol sales would take place at the premises and would not be made available via delivery service.

The Sub-Committee invited the Objectors to ask questions of the Applicant. None of the Objectors had any questions to ask of the Applicant at this time.

The Principal Licensing Officer made a point of clarification in response to the Applicant’s opening submission:

a)            He clarified that at page 29 of the agenda pack, the submitted operating schedule set out the steps that the Applicant would take in respect of the prevention of crime and disorder and included details surrounding training. He explained that, should the Sub-Committee grant the licence, those steps would become conditions of the licence as set out in the operating schedule, unless otherwise modified by the Sub-Committee. He explained that those conditions would be enforceable by the Council.

b)            He clarified that paragraph 10.15 of the ‘revised guidance issued under section 182 of Licensing Act 2003’, the content of which was referred to by the Applicant’s Representative (License Consultant), advised 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’, and that the guidance was not saying that permission to sell alcohol should only be restricted where objections are received from responsible authorities. He suggested that the intent of the guidance was to prevent instances where a shop’s opening hours do not correlate with the hours permitted to sell alcohol, causing the shop to have to obscure its alcohol from view during portions of its operating hours.

The Sub-Committee invited the Objectors to provide an opening submission. Objector #2’s representative provided an opening submission on behalf of Objector #2:

a)            She stated that the concerns of Objector #2 were based on the wider impact on the local community and not based on matters relating to business competition or commercial interests.

b)            She stated that Epsom High Street experiences a significant level of street-drinking, groups loitering and violent crime. She stated a recent BBC news article reported that Police had been speaking with pedestrians on Epsom High Street with respect to crime taking place there. She stated that the late-night sale of alcohol contributes to such crime and disorder. She stated that it was acknowledged that the Sales Manager and Company Director present at the meeting had been running a vape shop for the past year, and that vapes were an age-restricted item, but stated that alcohol is different to vapes in that alcohol affects one’s judgement and behaviour when consumed. She stated that increasing late-night alcohol availability would likely lead to an increase in disorder.

c)            She stated that the part of the High Street the shop would be located was regularly used by young people and that an additional off-licence would increase the visibility and availability of alcohol – she stated that this could give rise to issues in respect of crime and disorder and children’s safety by providing more opportunity for attempted underage purchases.

d)            She acknowledged that the Council did not currently have a Cumulative Impact policy in place – she referred to the revised guidance issued under section 182 of Licensing Act 2003 and stated that paragraph 14.41 (later in the hearing confirmed to be 14.42) set out, however, that cumulative impact can be considered without a formal policy where evidence shows there are problems in the area. She stated that she had spoken with a resident who had told her of a recent stabbing in the area, referred again to the aforemtioned BBC article, and stated that Epsom & Ewell had one of the highest crime rates in Surrey. She stated that the addition of a new off-licence would increase density and intensify existing issues.

e)            She referred to the proposed condition listed at page 30 of the agenda pack setting out that the number of people on the premises would not exceed 30 – she stated that 30 people was too many for the size of the shop and suggested that the Sub-Committee should modify the condition to a lower number in the event that the licence is granted, for reasons of public safety.

f)             She stated that, as seen on page 25 of the agenda pack, the proposed designated premises supervisor was currently in the process of applying for a personal licence indicating that they lacked prior experience in selling alcohol. She stated that the level 1 training provided through the aforementioned app would be too basic and that the level of training provided to staff should be to a higher level.

g)            She stated that the application ought to be refused. She requested, should the Sub-Committee decide to grant the licence, that more robust stricter and stricter conditions be applied to it.

Objectors #1 and #3 declined to provide an opening submission.

The Sub-Committee invited the Applicant to ask questions of the Objectors. The Applicant had no questions to ask of any of the Objectors at this time.

The Applicant’s representatives responded to a question from the Sub-Committee:

a)            The Sales Manager stated that he would be happy to take part in additional training opportunities, such as training offered by the Police through their Safer Streets initiative.

b)            The Licence Consultant reiterated that the shop was c.54m². He stated that he did not consider it necessary to have a condition outlining a maximum capacity of people, suggesting that the shop would be unlikely to have more than a few people in it at a time. He stated that the proposed condition ought not to have been included within the application, advising that it would not be practical or reasonable to enforce it. He stated, however, that the Applicant would be content should the Sub-Committee wish to modify the condition to a capacity of fewer than 30 people.

The Principal Licensing Officer made a point of clarification in response to the opening submission made on behalf of Objector #2:

a)            It was clarified that the paragraph of the ‘revised guidance issued under section 182 of Licensing Act 2003’ referred to by Objector #2’s Representative was 14.42. The Principal Licensing Officer explained that said guidance advised that ‘the absence of a CIA does not prevent any responsible authority or other person making representations on an application for the grant or variation of a licence on the grounds that the premises will give rise to a negative cumulative impact on one or more of the licensing objectives, However, in each case it would be incumbent on the person making the representation to provide relevant evidence of cumulative impact’.

Objector #2’s representative responded to questions from the Principal Licensing Officer:

a)            The Officer referred to the comment made by Objector #2’s representative, in which she requested that, should the Sub-Committee decide to grant the licence, they apply more robust and stricter conditions. He enquired as to what additional conditions she had in mind when making the request. She stated that level 1 training would be insufficient and that there should be a condition requiring a higher level of training, chiefly in the interest of children’s safety.

The Principal Licensing Officer and Legal Advisor responded to questions from the Sub-Committee:

a)            The Principal Licensing Officer explained that, unless an application specifies a duration for the premises licence, the licence upon being granted lasts indefinitely, subject to the payment of an annual maintenance fee or until such a time as the licence is surrendered/revoked/etc. The Sub-Committee’s Legal Advisor advised that there were provisions under sections 51 – 53 of the Licensing Act 2003 for applications for reviews of licences to be made at any time on the grounds of concerns with respect to the licensing objectives.

b)            The Principal Licensing Officer clarified that in order to sell alcohol, two licences are required - a premises licence and a personal licence – with a personal licence holder specified as a designated premises supervisor (‘DPS’) on said premises licence. He explained that level 2 training was required in order to obtain a personal licence. He stated there was no legal requirement for there to be a DPS or other personal licence holder on site during hours permitted for alcohol sales, nor any legal requirement for non-DPS staff to receive any level of training with respect to selling alcohol, with said staff only requiring authorisation from the DPS to sell alcohol. He stated that the application under consideration had gone beyond legal requirement in the sense that it was proposing a condition that all non-DPS staff selling alcohol would receive level 1 training. He advised that the Sub-Committee could add a condition requiring a personal licence holder to be on site at all times during hours permitted for alcohol sales but advised that such a condition would normally be attached only to premises deemed as high-risk, and that it was highly unusual for off-licences to receive such conditions.

The Sub-Committee invited the applicant to ask questions of the Objectors. The Applicant had no questions to ask of any of the Objectors at this time.

The Sub-Committee invited the Objectors to provide a closing submission. Objector #2’s representative provided closing submission on behalf of Objector #2:

a)            She stated that the representation she was putting forward was not about stopping a new business, but rather about ensuring the licensing objectives were upheld.

b)            She reiterated the views that the proposed DPS did not have enough prior experience in selling alcohol, and that the proposed training to be received by the shop’s staff would not be robust enough.

c)            She reiterated the request that the application be refused, and if granted, that the licence have stricter conditions applied to it.

Objectors #1 and #3 declined to provide a closing submission.

The Sub-Committee invited the Applicant to provide a closing submission. The Applicant’s representative (Licence Consultant) provided a closing submission on behalf of the Applicant:

a)            He stated that the Police had placed no objection to the application, stating that this indicated they had no concerns in respect of crime and disorder in relation to the application.

b)            He stated that there was no evidence to suggest that the proposed DPS – the Sales Manager – would not be capable of selling alcohol on account of not having sold it previously. He stated that the Sales Manager had already been selling age-restricted items in the form of vapes for the past year and had had no issues. He stated that in the event that any issues did arise, the licence review process was available.

c)            He stated that there was no evidence to suggest that there would be an increase in crime and disorder as a result of the licence in question being granted.

d)            He stated that there was no evidence to suggest that the application should be refused for cumulative impact reasons.

e)            He stated that, whilst it was the intention that a member of staff trained in alcohol sales would always be on site during opening hours, it would not be the case that there would always be a personal licence holder on site. He stated that it would be unreasonable and cost-restrictive for a condition to be imposed requiring that a personal licence holder be on site in order for alcohol to be sold. He stated that such a condition would also be to the detriment of the customer experience as it would result in cases where one day a customer can buy alcohol, and the next day they can’t, on account of staff absence.

The Sub-Committee made a comment in response to the Applicant’s closing submission:

a)            A Member stated that customer experience was not a material consideration that the Sub-Committee could take into account as part of its decision-making.

The meeting was adjourned at 12:01 and the Sub-Committee retired from the Council Chamber with their legal advisor to consider the application.

The Sub-Committee and their legal advisor returned to the Council Chamber and resumed the meeting at 12:24. The Chair relayed the Sub-Committee’s decision (as detailed below).

Having read all the material presented in the agenda and all of the written representations made, having listened to all the evidence and submissions presented at the hearing, and having regard to the Statutory Guidance and to the Licensing Policy of the Council, the Sub-Committee resolved to:

“Grant the licence as applied for. We have heard from the applicant and have taken into account both the oral and written representations received. Whilst we understand the concerns raised by objectors, we do not feel there are sustainable grounds to show that the licensing objectives will be undermined by the granting of the licence. The applicant provided reasonable conditions as part of their application. It is notable that no objections from responsible authorities, including the Police, have been received. We are satisfied that the level of training detailed in the operating schedule is sufficient and enforceable. We therefore grant the premises licence and impose the conditions in the operating schedule, which we feel are reasonable and proportionate.”