Agenda and minutes

Apologies were reported on behalf of Alderman McCoubrey and Councillors Clarke, Hutchinson and Jones.

            The minutes of the meeting of 18thMay were taken as read and signed as correct.  It was reported that those minutes had been adopted by the Council at its meeting on 1st June, subject to the omission of those matters in respect of which the Council had delegated its powers to the Committee.

            Councillor Boyle declared an interest in respect of item 2(g) - Application for the Provisional Grant of an Amusement Permit for Roll the Dice, 181 Ormeau Road, in that he was acquainted with the applicant, and left the meeting whilst the matter was under discussion.

The Committee considered the following report:

“1.0     Purpose of Report/Summary of Main Issues

1.1       Under Article 4 and Schedule 2 of The Local Government (Miscellaneous Provisions) (NI) Order 1985 (the Order), the Council has powers relating to the Licensing of Sex Establishments. Paragraph 19, Schedule 2 provides that an applicant for the grant, renewal or transfer of a licence shall pay a reasonable fee determined by the council.

1.2       Unlike the Street Trading Act (NI) 2001 and the Licensing of Pavement Cafés Act (NI) 2014, there is no procedure prescribed in the Order that the Council must follow in determining the licence fee.

                                 Hemming v Westminster Case

1.3       Members may be aware of the recent case involving Hemming v Westminster City Council. The case was determined on 29th April, 2015 in the UK Supreme Court, which delivered judgment, in what was a significant case for regulators and the regulation of licensing or other similar regulatory regimes.  The introduction of the EU Services Directive 2006 changed the basis upon which fees for certain licences and permissions could be charged by the issuing authorities which are, in the main, local authorities.

1.4       The Supreme Court ruled that licensing authorities are entitled under the Local Government (Miscellaneous Provisions) Act 1982 to impose fees for the grant or renewal of licences covering the running and enforcement costs of the licensing scheme.  The Supreme Court, therefore, ruled that the type of costs which Westminster included within its licences fee were legitimate.  It referred the issue of how the charges were levied to the European Court of Justice.  The Court identified two different approaches to charging fees:

1.   whereby a council charged a fee upon application (covering the costs of authorisation procedures) and a subsequent fee to successful applicants (covering the cost of administering and enforcing the framework) - the ‘type A’ approach, or

2.   where a council charged a single fee on application covering all costs, on the basis that the relevant proportion of the fee would be refunded to unsuccessful applicants – the ‘type B’ approach.

1.5       The Court found the type A approach of charging two fees is permissible under the Services Directive but felt that the type B approach of charging a single fee was more problematic. The Court felt that it remained unclear whether including all costs upfront involved in law a charge incurred from the application, which is contrary to the Services Directive. The Court suggested that a charge could possibly include borrowing or loss of interest during the period in which the application was considered, but noted that the Hemming legal team had not provided any evidence of such costs.

1.6       The EU Services Directive, the Provision of Services Regulation 2009 and the Hemming case have provided clarity about the specific requirements that apply to the charging of fees. Charges must be reasonable and proportionate to the cost of the processes associated with a licensing scheme and councils must not use fees to make a profit or act as  ...  view the full minutes text for item 5.

            The Committee considered the following report:

“1.0     Purpose of Report/Summary of main Issues

1.1       Section 15 of the Street Trading Act (NI) 2001 (the Act) gives the Council the power to set sufficient fees to allow it to recover the full costs of administering the Street Trading Licence Scheme. The Act, prescribes the range of circumstances in which the Council may charge a fee:

1.     for the grant or renewal of a Street Trading Licence;

2.     for the grant of a Temporary Licence; and

3.     for varying the conditions on a Licence at the request of the licence holder.

1.2       The Act also limits the maximum amount of the fee to that required to cover the Council’s costs in administering the scheme.  The Council is, therefore, denied the right to use the Street Trading Licensing system to raise revenue.

            Hemming v Westminster Case

1.3       Members may be aware of the recent case involving Hemming v Westminster City Council. The case was determined on 29th April, 2015 in the UK Supreme Court who delivered judgment, in what was a significant case for regulators and the regulation of licensing or other similar regulatory regimes.  The introduction of the EU Services Directive 2006 changed the basis upon which fees for certain licences and permissions could be charged by the issuing authorities which are, in the main, local authorities.

1.4       The Supreme Court ruled that licensing authorities are entitled under the Local Government (Miscellaneous Provisions) Act 1982 to impose fees for the grant or renewal of licences covering the running and enforcement costs of the licensing scheme.  The Supreme Court therefore ruled that the type of costs Westminster included within its licences fee were legitimate.  It referred the issue of how the charges were levied to the European Court of Justice.  The Court identified two different approaches to charging fees:

1.     whereby a council charged a fee upon application (covering the costs of authorisation procedures) and a subsequent fee to successful applicants (covering the cost of administering and enforcing the framework) - the ‘type A’ approach, or

2.     where a council charged a single fee on application covering all costs, on the basis that the relevant proportion of the fee would be refunded to unsuccessful applicants – the ‘type B’ approach.

1.5       The Court found the type A approach of charging two fees is permissible under the Services Directive but felt that the type B approach of charging a single fee was more problematic. The Court felt that it remained unclear whether including all costs upfront involved in law a charge incurred from the application, which is contrary to the Services Directive. The Court suggested that a charge could possibly include borrowing or loss of interest during the period in which the application was considered, but noted that the Hemming legal team had not provided any evidence of such costs.

            Procedure for Fee Setting

1.6       The Act states the procedures which the Council must follow in setting the fees and these stages may be  ...  view the full minutes text for item 6.

The Committee considered the following report:

“1.0     Purpose of Report/Summary of main Issues

1.1       Section 12 of the Licensing of Pavement Cafés Act (NI) 2014 gives the Council the power to set sufficient fees to allow it to recover the full costs of administering the Pavement Cafe Licence Scheme. However, the Council has the discretion to charge a reduced fee or to waive all charges.

1.2       Any reduced fee will result in a short fall in income to cover the cost of administering the scheme which will need to be recovered by another means.

1.3       The Act, prescribes the range of circumstances in which the Council may charge a fee:

1.      for the grant or renewal of a Pavement Cafe Licence; and

2.      for varying the conditions on a Licence at the request of the licence holder.

1.4       The Act also limits the maximum amount of the fee to that required to cover the Council’s costs in administering the scheme. The Council is, therefore, prohibited from using the Licensing system to raise revenue.

1.5       The EU Services Directive, the Provision of Services Regulation 2009 and the Hemming case have provided clarity about the specific requirements that apply to the charging of fees. Charges must be reasonable and proportionate to the cost of the processes associated with a licensing scheme and councils must not use fees to make a profit or act as an economic deterrent to certain business types from operating within an area.

            Hemming v Westminster Case

1.6       Members may be aware of the recent case involving Hemming v Westminster City Council. The case was determined on 29th April 2015 in the Supreme Court who delivered judgment, in what was a significant case for regulators and the regulation of licensing or other similar regulatory regimes.

1.7       The Supreme Court held that local authorities can charge for the cost of ‘enforcement of licence’ as well as the cost of ‘processing the licensing application.’  The Supreme Court referred the question to the Court of Justice in Luxemburg of whether the total fee, including management costs, could be demanded upfront on the basis that the management fee is refunded to unsuccessful applicants.

1.8       Section 5 of the Act allows the Council to determine the period of the Licence, for example the Council could determine 1 year, 3 year, 5 year licence and so on. The period of the licence will impact on the overall cost to the licensee. A 5 year licence would also be compatible with proposed changes to entertainment licensing and with liquor licensing.

            Procedure for Fee Setting

1.9       The Act states the procedures which the Council must follow in setting the fees and these stages may be summarised as follows:

1.      the Council is to give notice of the proposed fees to licence holders and to publish the proposed fees by such means as it thinks appropriate.

2.      the Council is required to consider any written representations concerning the proposed fees and charges.

1.10     However, as a prerequisite, Members  ...  view the full minutes text for item 7.

            The Committee noted a list of licensing applications which had been issued under the Council’s Scheme of Delegation.

            The Building Control Manager informed the Committee that an application had been received for the renewal of a Seven-day Annual Indoor Entertainments Licence in respect of the above?mentioned premises.

            He explained that, under the terms of the Local Government Miscellaneous Provisions (Northern Ireland) Order 1985, the Committee, in considering an application for the grant, renewal or transfer of an Entertainments Licence, must have regard to any convictions of the applicant relating to an offence under the Order which had occurred within a five-year period immediately preceding the date on which the application had been made. With that in mind, he drew the Committee’s attention to the fact that the applicant had, on 22nd November, 2011, been convicted at the Belfast Magistrates’ Court of an offence under the aforementioned Order.  That offence had been detected during an earlier inspection of the premises by officers of the Building Control Service whilst entertainment had been taking place, which had found that an emergency exit had been locked.  As a result, a fine of £400 and costs of £66 had been imposed.

            He pointed out that the Licensing Committee, at its meetings on 17th October 2012, 20th November 2013 and 15th April, 2015 had agreed to renew the Entertainments Licence, on the basis that the Building Control Service had been satisfied that the premises were being managed in accordance with the Entertainments Licensing legislation, particularly around the safety of patrons, performers and staff. A number of subsequent inspections had confirmed that that continued to be the case. He added that no written representations had been received in relation to the application, neither the Northern Ireland Fire and Rescue Service nor the Police Service of Northern Ireland had offered any objection and the Council’s Environmental Protection Unit had received no complaints regarding noise disturbance from the premises.

            Accordingly, the Committee agreed, in its capacity as Licensing Authority, to renew the Seven-day Annual Indoor Entertainments Licence in respect of the Irish National Foresters’ Club, 14-18 Albert Street.

            The Committee was informed that an application had been received from the licensee of the Phoenix Bar for the grant of a Seven-day Annual Indoor Entertainments Licence.

            The Building Control Manager reported that the previous Entertainments Licence had expired on 31st March, 2011. He confirmed that no written representations had been received in relation to the application and that the Northern Ireland Fire and Rescue Service and the Police Service of Northern Ireland had offered no objection. In such circumstances, it would be normal practice for the Entertainments Licence to be issued under the Council’s Scheme of Delegation. However, given that the applicant had, on 24th May, 2016, been convicted at the Belfast Magistrates’ Court of providing entertainment within the bar without a valid Entertainments Licence, the application had, as required under the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985, been placed before the Committee for consideration. The applicant had received a conditional discharge in relation to the offence and been ordered to pay costs of £69.

            The Building Control Manager confirmed that, in terms of this application, all of the required works had been completed to the satisfaction of the Building Control Service and that no entertainment had been found to be taking place during any of the fourteen inspections which had been carried out since the aforementioned offence had been detected. In addition, the Council’s Environmental Protection Unit had indicated that it had received no complaints regarding noise disturbance from the premises.

            The Committee agreed, in its capacity as Licensing Authority, to grant a Seven-day Annual Indoor Entertainments Licence in respect of the Phoenix Bar, 179-181 Antrim Road.

Recovery of Court Costs

            Arising from discussion on the foregoing applications, the Divisional Solicitor confirmed that a report on the outcome of a review of the level of costs which the Council could apply for in relation to prosecutions taken under the entertainments licensing legislation would be submitted to the next monthly meeting of the Committee.

Noted.  

            The Committee considered the following report:

“1.0     Purpose of Report/Summary of main Issues

1.1       To consider an application from Mr Brian McGeown of IM BIBE Limited, for the grant of a Fourteen-day Occasional Outdoor Entertainments Licence for Aether & Echo, Lower Garfield Street, based on the Council’s standard conditions to provide outdoor musical entertainment.

         Area and Location           Ref. No.                Applicant

         Aether & Echo                 WK/201600574    Mr Brian McGeown

         1-3 Lower Garfield Street                             IM BIBE Limited

         Belfast BT1 1FP                                            Aether & Echo

                                                                                 1-3 Lower Garfield

                                                                                      Street

                                                                                 Belfast, BT1 1FP

1.2       A copy of the application form has been forwarded to the Committee.

1.3       A location map has been circulated to Members.

1.4       Members are reminded that all applications for the grant of Outdoor Entertainments Licences must be brought before Committee for consideration.

2.0       Recommendations

2.1       Taking into account the information presented and any representations made in respect of the application you are required to make a decision to either:

1.   approve the application for the grant of a Fourteen-day Occasional Outdoor Entertainments Licence, or

2.   approve the application for the grant with special conditions, or

3.   refuse the application for the grant of the Fourteen-day Occasional Outdoor Entertainments Licence.

2.2       If Members are minded to grant the application, it will be conditional upon any outstanding technical matters, such as those relating to noise management, being completed to the satisfaction of the Council.

2.3       If an application is refused, or special conditions are attached to the licence to which the applicant does not consent, then the applicant may appeal the Council’s decision within 21 days of notification of that decision to the County Court. In the case that the applicant subsequently decides to appeal outdoor entertainment may not be provided until any such appeal is determined.

3.0       Main Report

            Key Issues

3.1       The applicant currently holds a Seven-day Annual Indoor Entertainments Licence. The indoor areas licensed to provide entertainment are the:

·             Ground floor Bar and Lounge, with a maximum capacity of 150 persons

·             1st floor Bar, with a maximum capacity of 220 persons

·             APOC, with a maximum capacity of 40 persons.

3.2       The days and hours during which the premises are currently licensed to provide indoor entertainment are:

·             Monday, Thursday, Friday and Saturday: 11.30 am to 3.00 am the following morning,

·             Tuesday and Wednesday: 11.30 am to 1.00 am the following morning, and

·             Sunday: 12.30 am to 12.00 am the following morning.

3.3       The premise operates as a public bar and nightclub with indoor entertainment being provided in the form of DJs and live bands. The applicant proposes to provide further outdoor entertainment events on Lower Garfield Street, in front of the premises. 

3.4       The standard days and hours for an Outdoor Entertainments Licence are:

·             Monday to Sunday:   11.30 am to 11.00 pm.

3.5       In addition, the following special conditions are usually attached to Outdoor Licences:

1.     maximum numbers will be agreed at the discretion of the Building Control Service and will vary depending upon individual concert set up proposals;

2.     prior to any event taking  ...  view the full minutes text for item 11.

            The Committee considered the following report:

“1.0     Purpose of Report/Summary of Main Issues

1.1       To consider an application for the renewal of a Seven-day Annual Entertainments Licence for The House, based on the Council’s standard conditions to provide music, singing, dancing or any other entertainment of a like kind where an objection has been received.

1.2       Members are reminded that, at your meeting on 20th April, you agreed to consider the application at a future monthly meeting, to which the objector and the applicant would be invited to attend.

Premises and Location       Ref. No.             Applicant

The House                            WK/201600301  Mr. Timothy

12 Stranmillis Road                                        O’Kane

Belfast, BT9 5AA                                            DJTJ Enterprises

                                                                         Limited

                                                                         12 Stranmillis Road

                                                                         Belfast, BT9 5AA

1.3       The renewal application was received from Mr Timothy O’Kane of DJTJ Enterprises Limited, on 25th February 2016.

1.4       A location map has been circulated to Members.

1.5       Members are reminded that one objection was received within the 28 day statutory period.

2.0       Recommendations

2.1       Taking into account the information presented and representations received in respect of the application you are required to make a decision to either:

1.   approve the application for the renewal of the Seven-day Annual Entertainments Licence, or

2.   approve the application with special conditions, or

3.   refuse the application for the renewal of the Seven-day Annual Entertainments Licence.

2.2       If the application is refused, or special conditions are attached to the licence to which the applicant does not consent, then the applicant may appeal the Council’s decision within 21 days of notification of that decision to the Recorders Court.

3.0       Main report

            Key Issues

3.1       The objection is from a resident of an adjacent residential property on Stranmillis Road and the nature of their objection relates to allegations that the noise emanating from the premises is disturbing their sleep  and causing sleep deprivation.

3.2       Following receipt of the objection, the Service offered to facilitate a liaison meeting between all parties involved in an attempt to resolve the matter. However, the objector advised the Service that they did not wish to avail of this opportunity and instead wanted his objection to remain and be considered by the Committee.

3.3       The Service advised the objector to contact the Night Time Noise Team when he was being disturbed by noise emanating from the applicant’s premises, to enable the Council to record the noise levels to substantiate the objection. The Service has also requested the Night Time Noise Team to prioritise any calls from the objector.

3.4       Officers have also offered the objector the opportunity to provide a suitable date and time for the Night Time Noise Team to carry out planned monitoring in his apartment to establish the noise nuisance. The objector has not yet availed of the offer of planned monitoring.

            Previous Application and background

3.5       The current applicant, Mr Timothy O’Kane of DJTJ Enterprises Limited, contacted the Service to advise us that he was taking over the running of the premises and that he was now the licensee. He also  ...  view the full minutes text for item 12.

            The Committee was advised that an application had been received from the Woodvale and Cambrai Youth and Community Association in relation to an outdoor musical event which it was proposing to hold on the night of 11th July, as part of a week-long programme of Orangefest activities taking place within the Woodvale Park.

            The Building Control Manager explained that the Council’s City and Neighbourhoods Services Department held both a Seven-day Annual Outdoor Entertainments Licence and a Fourteen-day Occasional Marquee Entertainments Licence for the Park, which it transferred to organisers for the duration of their event. Under the terms of those licences, entertainment was permitted to take place from Monday to Sunday between the hours of 11.30 a.m. and 11.00 p.m. and special conditions were attached to each licence in relation to occupancy levels, early consultation with residents and businesses, extended hours and addressing complaints. 

            He reported that the Association had requested that the Committee give consideration to permitting entertainment to run until 1.00 a.m. on the night of 11th July, which would bring to a close a family fun day, consisting of live entertainment, face painting and similar activities, although the overall programme of entertainment had yet to be finalised. He reminded the Committee that it had, at recent meetings, approved requests for similar events taking place in Custom House Square, in Writers’ Square and in the Falls Park and pointed out that, since the applicant was seeking to extend the hours permitted under an existing licence condition, rather than vary the Entertainments Licence itself, there had been no requirement for the application to be advertised. He confirmed that neither the Northern Ireland Fire and Rescue Service nor the Police Service of Northern Ireland had objected to the application and that the Police Service had stated that it had found the Woodvale and Cambrai Youth and Community Association to be both responsible and organised and that their programme of events helped to ease tensions in the area.

            The Building Control Manager informed the Members that, whilst the Building Control Service had yet to receive the relevant event documentation, officers were liaising with the organiser and other Council Departments and agencies to ensure that appropriate measures would be put in place in advance of the event to safeguard the health, safety and welfare of patrons. The Council’s Environmental Protection Unit had confirmed that it had no particular concerns around the request to operate till 1.00 a.m. and that it would seek to ensure that an appropriate noise management plan was developed, in consultation with all relevant parties, with a view to keeping noise breakout and disturbance to a minimum. He added that a special condition attached to the Entertainments Licence placed a requirement on the Association to consult with residents in advance of the event and that officers would approve an appropriate letter in that regard. Furthermore, they would discuss with the Association the process for dealing with any complaints arising on the night of the event.  

            After discussion, the Committee  ...  view the full minutes text for item 13.

The Committee was reminded that, at its meeting on 20th April, it had agreed that it was minded to refuse an application for the grant of an Amusement Permit in respect of the above-mentioned premises, on the grounds that it failed to comply with the Council’s Amusement Permit Policy.

The Building Control Manager explained that, under the provisions of the Betting, Gaming, Lotteries and Amusements (Northern Ireland) 1985, the applicant had been advised of the Committee’s intention to refuse the application and afforded the opportunity to attend a future meeting to make representation regarding that decision. However, the applicant had since confirmed that it was not his intention to pursue the matter.

Accordingly, the Committee agreed, in its capacity as Licensing Authority, to affirm its decision of 20th April to refuse an application for the grant of an Amusement Permit in respect of Roll the Dice, 181 Ormeau Road, on the grounds that it failed to comply with the Council’s Amusement Permit Policy.  

The Committee considered the following report:

“1.0     Purpose of Report/Summary of Main Issues

1.1       To consider an application from Ms. Kerry Boyle of KB Shaft Limited, for the grant of an Amusement Permit under the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (‘the 1985 Order’).

1.2       The Director of KB Shaft Limited is Ms. Kerry Boyle.

1.3A copy of the application form has been circulated to the Committee.

1.4       A location map has also been circulated.

2.0      Recommendations

2.1       The 1985 Order states that the Committee, in considering the application for the Grant of an Amusement Permit, shall have regard to:

1.     the fitness of the applicant to hold a Permit having regard to his character, reputation and financial standing,

2.     the fitness of any other person by whom the business is to be carried on under the Permit would be managed, or for whose benefit that business would be carried on,

3.     representation, if any, from the sub-divisional commander of the Police Service of Northern Ireland in whose sub-division the premises are situated, and

4.     representation, if any, as a result of the public notices of advertisement.

2.2       You must refuse the application unless satisfied that:

1.     the applicant is a fit person to hold an Amusement Permit; and

2.     the applicant will not allow the business proposed to be carried on under the Amusement Permit to be managed by, or carried on for the benefit of, a person other than the applicant who would himself be refused the grant of an Amusement Permit.

2.3       Thereafter:-

1.     You may refuse the application after hearing any representations from third parties, or

2.     You may grant the application, subject to the mandatory condition that the premises are not to be used for an unlawful purpose or as a resort of persons of known bad character, and

2.4       In the case of premises that have machines with the maximum cash prize of £25.00, where admission is restricted to persons aged 18 or over that –

·        no persons under 18 are admitted to the premises; and

·        at any entrance to, and inside any such premises there are prominently displayed notices indicating that access to the premises is prohibited to persons aged under 18, and in addition

3.     You may also grant the application subject to discretionary conditions outlined in the 1985 Order relating to the illumination of the premises, advertising of, and window displays on the premises and the display of information notices.

2.5       Should you be of a mind to refuse the application for the grant of an Amusement Permit or grant the Permit subject to any discretionary conditions, you are required to advise the applicant of your intention to do so. In this case you must afford the applicant the opportunity to make representations at a specified Licensing Committee meeting on the matter before making  ...  view the full minutes text for item 15.