Report by Acting Service Lead (Licensing), (attached)
Mr Poll (applicant), Mr Grainger and Mr Bruce (Applicant’s legal representatives) and Mr Howe (Interested Parties legal representative).
The Chair introduced himself and those present.
The Acting Service Lead (Licensing) Officer confirmed that all formal requirements had been met and the application properly made.
The Legal Officer outlined the process for the hearing. He advised the Sub-Committee of the receipt of very late evidence from the applicant’s legal representative containing the applicant’s witness statement. This had not been received until late yesterday evening. Members of the Sub-Committee had not had the opportunity to view the evidence and would find this difficult to view during the virtual meeting and he requested that the applicant’s representative advise the Sub-Committee of the reasons for the late submission and whether Mr Howe had been provided with a copy to view. The Sub-Committee would then need to give consideration whether to adjourn or proceed with the meeting.
Mr Bruce advised that the submission of the evidence had been following discussions with the Licensing Officer yesterday who had advised that the evidence could be submitted yesterday. Therefore he had acted in good faith and in accordance with the Licensing Officer’s advice. He advised that the Interested Parties had submitted a bundle of videos at the end of the previous week, which he received late last Thursday which needed to be responded to by the applicant. The response had been late due to the late submission made by the Interested Parties.
In response, the Legal Officer asked Mr Bruce whether he was happy to proceed with the hearing as a response had now been provided to the Interested Parties representation and if he could go through the evidence that had been submitted at the hearing.
Mr Bruce confirmed that the applicant wished for the application to be resolved today and that he would outline the evidence submitted during the hearing.
The Legal Officer advised that the Chair and himself had both received paper copies of the evidence, however the Councillors had not had the opportunity to view the evidence and would need an opportunity to do so.
Mr Bruce offered to share the documents on the screen with the Sub-Committee.
Mr Howe confirmed that he had not received a copy of the evidence submitted by the applicant and requested opportunity to read the evidence. He confirmed that his clients wished to proceed with the hearing.
The Legal Officer suggested that the hearing adjourn for a period of 20 minutes to give all parties the opportunity to review the evidence received and that the meeting be reconvened at 11.00 a.m.
The Acting Service Lead (Licensing) confirmed that a copy of the evidence submitted by the applicant’s legal representative would be forwarded to Mr Howe.
RESOLVED that the meeting be adjourned for 20 minute and reconvene at 11.00 a.m. to give Members and all parties the opportunity to read the written representations submitted by the applicant’s legal representative.
RESOLVED that it being 11.00 am that the meeting be re-convened.
Mr Howe advised that he had the opportunity to read the evidence and exhibits submitted by the applicant’s legal representative and he had spoken with his clients and requested that further time be allowed to consider the new issues raised and that the meeting be rescheduled.
The Legal Officer advised that following reading the evidence and statement, no new information had been presented and Mr Bruce had confirmed that he would outline the statement as part of his presentation and therefore sought clarification from Mr Howe regarding why he was requesting that the meeting be adjourned.
Mr Howe advised that there were quite a few issues included within the statement that were not anticipated such as vexatious comments and regarding his clients business which needed to be addressed and to proceed with the hearing would be unfair.
In response the Legal Officer asked whether Mr Howe could liaise with his clients, if the hearing adjourned for a further 15-20 minutes.
Mr Howe advised that he could not put forward the points raised by his clients at the hearing today regarding the accusations made in the witness statement and would like further time for consideration.
The Legal Officer summarised to the hearing that Mr Howe was requesting an adjournment to seek instructions from his clients regarding the issues raised in the witness statement in relation to the garden incidents and vexatious accusations made. Mr Bruce had already sought advice from his clients regarding the noise evidence.
RESOLVED that the Sub-Committee proceed with the hearing as it considered that there was sufficient evidence from both parties.
The Acting Service Lead (Licensing) Officer presented his report, (circulated previously), in respect of the application for a premises licence in respect of the Old Cream Shop, 8 Hobbs Hill, Croyde, Devon, EX33 1LZ (application reference 051959). He confirmed that the Licensing team had spoken with Mr Grainger yesterday at 10.00 a.m. who had advised that they were in the process of finalising the evidence to be submitted and that the evidence had not been submitted until late yesterday evening. He advised that Mr and Mrs Vickery (Interested Parties) were not present at the hearing, but were being represented by Mr Howe. He advised that the additional evidence had been submitted by Mr Howe on 18 November 2020 and by Mr Poll’s representative on 23 November 2020.
Mr Bruce presented the applicant’s case. He advised that he would outline the key passages within the witness statement and then request Mr Poll to confirm that he was in agreement with the statement. He advised that the statement had been designed to pull together the application and deal with the representations that had been made. In relation to the late submission of the evidence, he hoped that the Sub-Committee would not hold it against Mr Poll and that he was present to provide evidence on any issues raised. The late submission of evidence had been partly created by the late submission of evidence by the Interested Parties. He explained that Hobbs Hill was the main area in Croyde and that the Old Cream Shop was located next to Billy Budds which was a large premises with an outdoor patio area which overlooked the Old Cream Shop and Hobbs Bistro. He then proceeded to outline the key passages contained within the witness statement (circulated separately). He advised that Mr Poll did not need or want “noisy trade”. Mr Poll recruited staff through “word of mouth” locally and whom he knew and trusted. He referred to photographs which set the scene as to the close proximity of the Old Cream Shop to Hobbs Bistro. He also referred to the fact that the Interested Parties were not present at the hearing to be tested by questioning and requested consideration be given to hold this fact against them and give weight to this. The sound from most of the video and audio files submitted by the Interested Parties was normal licensing activity and it would never be silent due to the location of other premises such as Blue Groove, The Thatch and Billy Budds nearby. In some of the clips, wind was as loud as the conversations if not louder. In two of the clips you could hear distinctive sound of cutlery and crockery and as the Old Cream Shop used compostable “vegware” with wooden utensils, this must have been from another premises. One recording appeared to be started inside and then moved outside to be closer to the noise. Of the two video recordings taken outside, the loudest was when the wind blew but this level of noise was not backed up with a decibel reading. As the audio and video clips lacked any date or time stamps it was not possible to know when in the season the recordings were made. As stated in the witness statement Mr Poll had installed a decibel meter at his premises in September and the recordings were all below 85db. The majority were around 70db and on one occasion less than 80db. Following the conclusion of the presentation of the witness statement, Mr Bruce called Mr Poll to confirm whether the statement was correct and accurate.
Mr Poll addressed the Sub-Committee and confirmed that the witness statement presented was accurate and he had signed it as a true record. In response to a question from the Sub-Committee, he advised that the extractor fan was for the pasty oven and walk in freezer located inside the premises. This fan came out in line with Hobbs Bistro wall near to the upstairs of the premises and he had never received a complaint about this fan. An extractor fan was located on both sides of the roof and he was unsure which fan was in relation to his premises and which one belonged to Hobbs Bistro.
In response to further questions from the Sub-Committee, Mr Poll advised that the reason for changing the Designated Premises Supervisor was due to him spending less time on the premises as he was spending more time in his other premises which were located two doors away and had been changed in consultation with the Licensing Authority. No gas cylinders would be left outside once cooking on the BBQ had finished and would be secured at 10.00 pm. They would be locked away and located in an area which was not accessible by customers. To mitigate concerns raised by neighbours, the BBQ would be located 30 meters away at the far end of the premises. The only smells would be from the extractor fan for the pasty oven. There would be no live music played, only background music. The boundary wall at the rear of the premises was owned by Mr Vickery and the height could be increased. He would offer access for a builder to undertake this work.
The Acting Service Lead confirmed that he had visited the premises. The only representations made were by the Interested Parties to the right of the premises. A witness statement had been received from Theresa Moss who lived the other side of the premises and had not raised any objections to the application. The application had been advertised in the local media and outside of the premises which provided an opportunity for representations to be made.
In response to questions from Mr Howe, Mr Poll advised that he worked 15 hours a day during the summer season and split his time between the Old Cream Shop and his other business and was therefore spending less time at the Old Cream Shop than he used to. He confirmed that Mr Howe’s client had informed him at the end of the first lockdown that he was concerned about his business and also due to requirements of social distancing the restaurant capacity had been reduced. He had previously worked entirely at Hobbs Bistro but now had to work nights which had led Mr Poll to the conclusion that the business was struggling.
In response to a question from Mr Bruce, Mr Poll confirmed that the BBQ stopped operating at the end of September and the new position for the BBQ was currently being prepared. No further BBQs would take place on the roof terrace.
Mr Howe (on behalf of the Interested Parties) addressed the Sub-Committee. He advised that the Interested Parties were not in attendance and asked that this not be held against them. It was a difficult topic for them to talk about and they were emotional due to stress as a result of the nose. It was not true that they submitted representations to cause any harm or due to a competitive nature. They had submitted representations as residents and not as business owners as they lived about the property and had a young daughter. They just wanted a safe space and they were not able to enjoy their space due to music being played loudly, customers talking and intense smell of the BBQ. They had a young daughter who was unable to go to bed at night. The comments made were not vindictive or vexatious and they were entitled to a reasonable enjoyment of their property. They had previously raised these issues with Mr Poll and had been assured that they would be resolved, but they hadn’t. If the licence was approved, it would result in these concerns increasing from a two month to a five month period. In relation to comments made regarding the Interested Party spraying patrons with water, this had been accidental whilst watering his vines and he had then been subject to verbal abuse from the patrons. One of the statements provided was by the now Designated Premises Supervisor. In relation to an allegation of throwing an item, this was not possible as the Interested Party had arthritis. Exhibits A and B provided by the applicant showed how flimsy the fence between the properties was. He confirmed that all recordings had been taken during July to August 2020 at approximately 9.00 p.m. The Interested Parties content that the noise, nuisance and smell was not coming from another premises but was coming from the Old Cream Shop and had seen no evidence to prove otherwise. The proposed extension of the time period to five months had increased the Interested Parties anxiety due to the loud and excessive noise, strong smell from the BBQ, thrown items on to their property and rowdy behaviour. They had expressed concern that the mitigation measures would not be implemented by the applicant and regarding the Designated Premises Supervisor. They had concerns regarding their mental health and daughter’s wellbeing.
In response to questions from the Sub-Committee, Mr Howe advised that the previous owner had raised a complaint in 2015. The bar area had only been installed at the end of 2019 and the Interested Parties had no complaints prior to this time.
The Sub-Committee adjourned for two minutes to enable the Chair to resolve a personal issue.
In response to a question from the Sub-Committee, Mr Bruce advised that Hobbs Hill ran North/South direction, with the bay directly west of the premises and the front of the premises east.
In response to a question from the Sub-Committee regarding the prevailing winds being in a south westerly direction, Mr Howe advised that the Interested Parties had made no complaints regarding Billy Budds. In response to a further question, Mr Howe advised that Mrs Vickery worked for the NHS and Mr Vickery worked at Hobbs Bistro, however the premises was only open 7 months of the year. He had held another job for the past three years.
In response to questions from Mr Bruce, Mr Howe confirmed that Mrs Vickery’s first name was Lorraine and that she was a director of Hobbs Bistro but did not work there. He believed that their daughter was 7 years of age. He confirmed that he had misread the statement that had been signed by Mr Harper on behalf of a customer. They had not disclosed that they owned Hobbs Bistro in a letter on 3 September 2020 as they had submitted the representations in a personal capacity. As far as he was aware that they had not requested a review of the premises licence or made a direct complaint to the Police. No recordings had been taken during September and all recordings had been made outside. The outside bar area was installed at the end of 2019. The Interested Parties were concerned that the proposed measures would not be implemented.
In response to a question from the Legal Officer, Mr Howe confirmed that he had received no instructions regarding the amendment or additional of further conditions to those detailed in Appendix K. Their concern was in relation to the Designated Premises Supervisor and whether the proposed measures would be implemented. Both parties could discuss the boundary wall between both properties.
RESOLVED that it being 1:00pm that the meeting continue in order for the remaining business to be transacted.
The Acting Service Lead (Licensing) summed up.
Mr Bruce (representing the applicant) summed up. He referred to the email received from Theresa Moss, adjoining neighbour who had raised no objections to the licence.
The Legal Officer asked whether the applicant would be agreeable to change the seasonable variation time for the sale of alcohol to 21.40 hours and premises to close at 22.00 hours.
In response, Mr Bruce advised that the applicant was anxious to comply with the conditions, however the Old Cream Shop was the earliest premises to close at 22.20 hours on Hobbs Hill. By closing earlier would not address the issue of the business being viable.
Mr Howe summed up. He confirmed that the age of the Interested Parties daughter was in fact 25 years and the children referred to were grandchildren who were 5 and 6 years old who stayed at the premises on occasion.
RESOLVED, that everyone be excluded from the meeting with the exception of Members, the Legal Officer and the Committee Clerk in order for the sub-Committee to receive legal advice in accordance with Paragraph 5 of Schedule 12A of the Local Government Act 1972.
RESOLVED, that everyone be re-admitted to the meeting.
The Chair requested that the Committee Clerk read the proposed decision, which was voted upon and agreed.
RESOLVED that the application for the variation of a premises licence in respect of the Old Cream Shop, 8 Hobbs Hill, Croyde, EX33 1LZ (reference 051959) be granted as applied for subject to the measures outlined in paragraph 4.3 of the report and the conditions as detailed in Appendix K of the report.
On reaching its decision, the Sub-Committee had regard to the relevant licensing policy considerations and statutory guidance set out in the Licensing Officer’s report (paragraphs 5 and 6 of the report), considered the representations of the applicant and of the Interested Parties and that no representations had been received from the Responsible Authorities. The Sub-Committee considered that the licensing objectives can be met by the implementation of the measures put in place by the applicant (as outlined in paragraph 4.3 of the report) and the conditions (as detailed in Appendix K of the report).