[2010]JRC031
royal court
(Samedi Division)
15th February 2010
Before : |
M. C. St. J. Birt, Esq., Bailiff, and Jurats de Veulle, Clapham, Le Cornu and Marett-Crosby. |
IN THE MATTER OF AN APPLICATION BY BAYLEAVES RESTAURANT LIMITED
Advocate A. P. Begg for the Applicant.
judgment
the bailiff:
1. This is an application by Bayleaves Restaurant Limited in respect of premises at Brixton House, Route de St Aubin ("the Inner Road") in the Parish of St Helier. The applicant intends to run the premises as an Indian restaurant and seeks a Third Category Licence under the Licensing (Jersey) Law 1974 ("the Licensing Law").
2. As the premises have been run as an Indian restaurant for a number of years under the name 'Taste of India' which has also held a Third Category Licence and this is effectively, if not in law, a transfer of that licence, one might have expected that this would be a relatively uncontroversial application. However, that has turned out not to be the case. The application was rejected at the Parish Assembly by 32 votes to 2 and we heard from Deputy Green, Deputy Higgins, Deputy Hilton, Deputy Fox, and three neighbouring residents, namely Mr Friend, Mr Turner and Mr Williams, all of whom renewed before us the objections to the application which they had raised before the Parish Assembly.
The Background
3. The premises are situated on the Inner Road at First Tower on the eastern side of the junction between the Inner Road and Paris Lane. Until approximately ten years ago, the premises were used as a shop. However, planning permission was then granted for a change of use to a restaurant. We were informed that many of the residents objected at the time to this change of use but their objections were unsuccessful. Since then, the premises have been run as an Indian restaurant. A Third Category Licence was originally granted in June 2000 and the most recent Third Category Licence was granted to A Taste of India Limited in December 2005.
4. The premises have recently been taken over by the applicant, which is a company owned by Mr Eyahia Khan, who also has an interest in three other restaurants in Jersey, two of which are situated in St Helier and one in St Peter. The Connétable confirmed to us that he had received no complaints in respect of the management of the two restaurants in St Helier. Advocate Begg told us that he has spoken to the Connétable of St Peter who had commented to like effect in relation to the restaurant in that Parish.
5. According to Advocate Begg, the applicant has spent approximately £40,000 on refurbishing the restaurant. Included in this is an upgrading of the extraction system at a cost of £2000. The Assembly has received the usual reports. The construction report is satisfactory as is the Fire Service Report subject to completion of various works described in the Fire Report, none of which are likely to cause any difficulty. The report from the Health Protection Unit states that the state and condition of the premises is generally satisfactory for the grant of a licence. It confirms that the extraction facility has indeed been overhauled and new filters installed but states that this is not up to the latest standards that can be achieved. The report recommends that, if the application were to be granted, it should be on the basis that the current extraction system for cooking fumes is upgraded and thereafter is subject to regular service and replacement of the filtration system in line with the manufacturer's requirements.
The objections
6. As already mentioned, we heard from three residents who live in the immediate vicinity, together with four Deputies. The Deputies emphasised that the views expressed by the three residents were fully supported by many others who were unable to be present. For example, Deputy Higgins explained that he was Chairman of the First Tower Community Organisation and that at a recent meeting, no-one had been in favour of the application. Deputy Green emphasised that all of the 32 votes cast against the application at the Parish Assembly were by residents of the First Tower area. We accept that the views expressed by the three objectors who addressed us are representative of the views of many other residents of the area.
7. We do not propose to summarise individually what each person said to the Assembly. The objections were all to broadly similar effect and can conveniently be summarised under three headings. It is to be emphasised that the objections relate to the situation under the management of the previous licence holder. The applicant has not yet commenced business.
(i) Smell
Since the premises have been a restaurant, strong odours of cooking have pervaded the area. This is particularly acute for those in the immediate vicinity, so much so that Mr and Mrs Turner often feel unable to open their windows for the smell. The extraction equipment has not been effective in eliminating the smell of cooking. In particular, the roof of the restaurant (on which the extraction unit is situated) is lower than most of the surrounding buildings and the odours therefore have difficulty in escaping.
(ii) Noise and disturbance
This comes in two forms. The first is from customers of the restaurant. It has in recent years provided a takeaway service. Customers have tended to emerge from public houses the worse for drink and then gone to buy takeaway food at the premises. Having purchased their food they have tended to congregate in the area whilst eating their food. They have often been noisy, aggressive and threatening. They frequently vomit and urinate in the doorways of neighbouring houses, they respond aggressively and threateningly if protests are made by house owners, they leave rubbish in the area which has to be cleared up, and they tend to shout and talk loudly making it difficult for residents to sleep. We emphasise that this is of course a minority of customers but the effect is significant. The second type of noise is caused by the extractor itself. This is particularly acute for Mr and Mrs Turner whose balcony is immediately adjacent to the extraction equipment on the roof of the restaurant.
(iii) Parking
There have been considerable problems with parking in Paris Lane and in the cul de sac which runs off Paris Lane behind the restaurant and in which garage parking for a number of the residents is situated. Paris Lane runs between the Inner Road and Victoria Avenue. There is a No Entry sign at the Victoria Avenue end and there is a sign at ground level on the Inner Road end indicating No Entry save for access to premises and cycles. It appears that these notices are routinely ignored. We were told that customers of the restaurant regularly park in Paris Lane and the cul de sac thereby making it very difficult if not impossible for residents to gain access to their garages or parking area. Indeed, we were even told of one occasion when a customer of the restaurant had refused to move in order to make way for an ambulance.
8. The Connétable of St Helier confirmed that he was aware of and was sympathetic to the issues raised by the residents. In relation to the parking issue, he had attended two site meetings with residents and the parking wardens and honorary police would be clamping down on illegal parking in the area. He agreed to consider the suggestion made during the Assembly that the No Entry sign at the Inner Road end of Paris Lane was not particularly obvious and it might be preferable to install a sign at the normal height at which motorists expected to see a No Entry sign. He believed that much of the illegal parking was caused by the takeaway business of the previous restaurant and he thought that a condition forbidding any takeaway business would greatly assist. He urged that, if the Assembly felt it had no alternative but to grant a licence, it should impose strong conditions to alleviate the concerns of the residents so far as possible.
9. The bare recital of the nature of the objections contained above does not reflect how strongly the residents' lives have been affected. We have every sympathy with them. They feel strongly that their quality of life has been seriously affected by the decision of the planning committee of the day to allow the change of use to a restaurant ten years ago. The constant smells, the parking problems, the noise, the anti-social behaviour and the rubbish have caused real distress and strain to many of them. The Assembly fully understands their concerns.
The response of the applicant
10. Advocate Begg made it clear that Mr Khan had not been aware of the problems before taking on the premises and had only become aware of them at the Parish Assembly. He was endeavouring to meet the concerns of the neighbours. He accepted that his proposals in this respect were varying and indeed had changed as late as the day of the hearing before the Assembly. However his response as put to the Assembly was as follows:-
(i) Smell
It was Mr Khan's understanding that the extraction system used by the previous restaurant was not fully up to modern standards in respect of eliminating odours and also that the previous licensee had not properly maintained the system in terms of regularly changing the filters. The applicant had installed an upgraded system and had entered into a contract with Sheet Metal Fabrication Limited to maintain it on a regular basis by changing the filters. The applicant was also changing the oven from charcoal to gas which would further reduce smells. Furthermore the ducting in the extraction system on the roof has been angled away from the residents so as to reduce noise and smells. The applicant did not however accept that there was any merit in the upgraded system recommended by Public Health. This apparently involved the addition of an ultraviolet unit behind the filter. This would help break down bacteria but would not affect odours. In effect, submitted Advocate Begg, the applicant was doing all that was reasonable to reduce smell to the neighbours and the position should be much better than under the previous management.
(ii) Noise and disturbance
This had been caused by people eating takeaways in the vicinity of the restaurant late at night, sometimes under the influence of drink. In order to deal with this, the applicant proposed that its takeaway business should be strictly limited. No orders would be taken in person. Customers would have to telephone their orders. Furthermore no customer would be able to pick up any food at the restaurant. Service would be by delivery only. The vans would deliver food from the restaurant to the address given by the customer. This would mean that customers would not be loitering in the area eating their food and generally making a disturbance.
(iii) Parking
There was a lack of parking in the area although it was available on Victoria Avenue and at the multi storey car park in Bellozanne Road. Customers would be told not to park in Paris Lane and a member of staff would be placed at the front of the premises to ensure that drivers did not park outside the restaurant. The removal of the possibility of customers picking up takeaway food from the restaurant would drastically reduce the parking problem, which had largely been caused by customers wishing to park simply for a few minutes whilst they took delivery of their food.
11. Ultimately, he submitted, the objections of the residents were to the presence of a restaurant. This was not a matter for the Licensing Assembly; it was a planning matter for the Minister of Planning and Environment. Even if no licence were granted, the premises could be run as a restaurant with a full takeaway business. In that event the problems of smell, noise, disorderly conduct, rubbish and parking would be unaffected. Conversely, if a licence were granted with the restrictions offered, the position of the residents would be better.
Decision
12. The feelings of the residents were summed up by Deputy Green when he said that a 'terrible mistake' had been made some ten years ago when planning permission was given for a change of use which permitted a restaurant to be established immediately adjacent to a residential area. It is clear from a number of the submissions made to us that there is a strong hope on the part of the residents that this Assembly will somehow be able to prevent the re-opening of a restaurant on the premises. Reference was made to the peace and quiet which they had enjoyed during the period that the restaurant has been closed for refurbishment following the acquisition by the applicant.
13. Whilst having every sympathy with the residents, this is not something which we have power to do. The sole issue for us is whether a liquor licence should be granted for the premises. The issue of whether the premises may be used as a restaurant is a planning issue. At present such use is permitted by virtue of the planning decision reached some ten years ago. Thus, even if we refuse a liquor licence, the premises can quite properly be run as a restaurant in accordance with the Places of Refreshment (Jersey) Law 1967. Indeed, in his written skeleton argument, Advocate Begg stated that, if a liquor licence is not granted, the restaurant can simply be run without a liquor licence and in that event the concentration would have to be on takeaway business, thus exacerbating some of the problems to which we have referred.
14. Were it not for the odour issue, to which we shall refer in a moment, we would have concluded that we could not properly refuse a Third Category Licence for the restaurant business which can lawfully be carried on at the premises. However, we would have considered imposing a number of conditions with a view to alleviating the very real problems suffered by the residents. The sort of matters we would have had in mind would have been as follows:-
(i) We consider that much of the problem of noise, disturbance and anti-social conduct by customers is due to the existence of a takeaway business. The applicant accepts this and has suggested a condition that in future orders could only be given by telephone and that food could only be delivered to an address i.e. no customer could come to the restaurant to collect his takeaway food. The question for this Assembly would have been whether that went far enough. In reality, if it is known that the restaurant provides a takeaway service, customers, sometimes under the influence of drink, are likely to approach the restaurant in order to buy takeaway food. Even if they are told that they have to telephone an order, this is likely to lead to misunderstandings and altercations as they will not understand why they cannot be allowed to place an order in person, given that they are physically present at the restaurant; similarly if they are told that they cannot receive the food then but that it has to be delivered to their home. There might be altercations and they may loiter in the area with the accompanying risk of noise, disturbance and anti-social behaviour. Furthermore, if the takeaway business is successful, there is likely to be a steady stream of delivery vans coming to the restaurant. One way to address the entirely reasonable concerns of the residents would be to impose a condition that there be no takeaway business. This would mean that the premises would simply be used as a conventional restaurant serving food to customers who may also have a drink with their meal. There is no reason to think that such a restaurant will lead to noise and disturbance by customers. We are satisfied that the applicant understands his responsibilities under the Licensing Law and the fact that no complaints have been made in relation to other restaurants in which he has an interest lend support to this. The alternative would be to impose a condition as offered by the applicant on the basis that, if strictly adhered to, it should alleviate most of the problems, particularly when considered with the suggested condition at (ii) below. Which course should be followed will be for the Assembly to decide on a future occasion in the light of the information provided at that time.
(ii) In his response to the objections, Advocate Begg suggested that his client would undertake to close the restaurant at 11.30pm. Given the proximity of a number of residential properties and the nature of the area, we think this is sensible and we would have been minded to impose a condition to that effect.
(iii) As to parking, we would have been minded to acknowledge the intention of the applicant to arrange for someone to ensure parking did not take place in Paris Lane or the cul de sac and to have imposed some form of condition on the applicant to the effect that it should take all reasonable steps to prevent such parking by customers. This should be much easier in the case of a conventional restaurant than in the case of an ordinary takeaway restaurant, where customers would think that they were only stopping for five or ten minutes and would therefore be more likely to think it acceptable to park immediately outside the restaurant.
15. However, that leaves the question of smell. Article 6(9) of the Licensing Law provides as follows:-
"The Licensing Assembly, in deciding whether or not any application should be granted, shall have regard:-
(a) to the interests of the public in general;
(b) to the nature of the business conducted or to be conducted on the premises sought to be licensed and the suitability of those premises for the conduct of that business, ..."
16. We have already stated that this does not permit the Assembly to second guess or overturn the decision of the planning authority. If we were satisfied that the applicant had taken all reasonable steps to minimise or extinguish the escape of odours into the neighbourhood, we would have concluded that we could not properly refuse a liquor licence on that ground. Such odours as did escape would be an inevitable consequence of the decision of the planning authority to allow the premises to be used as a restaurant. However, a liquor licence is a privilege, not a right and the onus lies on the applicant to satisfy the Assembly that all reasonable steps have been taken in this respect.
17. That is not the case at present. Thus:-
(i) There is uncertainty as to whether the applicant has installed the most effective equipment. The Health Protection Report suggests that it is not up to the latest standards that can be achieved and recommends an upgrade. Conversely, Advocate Begg submits that that is a reference to ultraviolet equipment which kills bacteria but does not affect odours. We have no expert report from anyone on the subject and accordingly cannot be satisfied as to the position.
(ii) The situation concerning the extraction unit on the roof is wholly unclear. It seems that the previous extraction unit was removed following closure of the restaurant but a new extraction unit has recently been placed on the roof as part of the refurbishment. According to the grandson of Mr and Mrs Turner, who is a qualified mechanical engineer specialising in plumbing and heating installations, the new unit is larger, is in a different location on the roof and the fans are angled towards the prevailing westerly wind. It is his opinion that, as a result, far from reducing odour as Advocate Begg suggests, the unit will increase the odour pollution beyond the level experienced with the old unit, making the position even more intolerable for his grandparents (whose balcony is immediately adjacent to the roof) and other neighbours. It would also be noisier because of the increased size. He says that there has been no notice on site of any planning application in connection with the new extraction unit.
(iii) Advocate Begg, on the other hand, asserted that the only difference between the new unit and the old one was that the fan was now angled away from the neighbours so as to reduce noise and smells. The work had been done and he conceded that the change in angle of the fans required there to be an application for planning permission. He initially asserted that a retrospective application (his client had not realised that planning permission was required) had been made but on closer questioning it transpired that, although the application form had been filled in, it has not yet been submitted to the Planning Department in the appropriate form. It follows that there have not as yet been any notices on site alerting the neighbours to the application and giving them an opportunity to protest to the Planning Minister.
(iv) Once it is clear what the Planning Minister will permit, the Assembly can receive expert evidence on the effectiveness of the measures which are being taken to minimise or eliminate odours. In particular, the direction of the fans should presumably be that which is most effective from the point of view of reducing smell and noise. This will require appropriate expert evidence, which is not available at present.
18. Because of the lack of expert evidence and because the position is so unclear as to what may be permitted there and how effective such equipment would be, we are not willing to grant a licence which might reasonably be expected to increase the number of customers and therefore the amount of cooking and consequently increase the odour and noise problems for residents. We therefore refuse the present application.
19. However, we do not wish falsely to raise the hopes of the residents. If, on a subsequent application, the position is clear as to what form of extraction equipment is permitted and is to be constructed on the roof and if the Assembly is satisfied from appropriate reports that the applicant has taken all reasonable steps open to him to minimise the level of odour and noise, it is hard to see that the Assembly will have proper grounds on which to refuse to grant a third category licence in respect of premises which the planning authority has authorised to be used as a restaurant. The Assembly would however be likely to consider imposition of the sort of conditions which we have discussed earlier in paragraph 14, with a view to addressing, as far as possible, the very understandable concerns of the residents.
Authorities
Licensing (Jersey) Law 1974.
Places of Refreshment (Jersey) Law 1967.