Jersey Unreported Judgments

[2010]JRC066

royal court

(Samedi Division)

1^st April 2010

LICENSING ASSEMBLY APPLICATION

AND IN THE MATTER OF LA NAUTIQUE BAR AND RESTAURANT LIMITED

Mr Martin Sayers for the Applicant.

judgment

the deputy bailiff:

Preliminary

1.        We announced at the outset of hearing the application that Jurat Tibbo, who was a member of the Licensing Assembly as constituted on 18^th March, 2010, would not participate in either the debate or the decision in relation to the current application by Nautique Bar and Restaurant for a seventh category provisional licence in respect of premises known as La Nautique Bar and Restaurant, Liberty Wharf, Liberation Square, as a result of his position as a Director of the Waterfront Enterprise Board Limited.  Although it was believed that the Assembly was constituted by the Deputy Bailiff sitting with five Jurats, Jurat Kerley being the other member of the Assembly, we subsequently ascertained from Jurat Kerley that he believed he also had a conflict of interest.  In the circumstances, only four Jurats have participated in the debate upon this application and in this decision.

2.        That gives rise to the question as to whether the Assembly is quorate for these purposes.  As the members of the Assembly are unanimously of the view that the licence should not be granted, this is perhaps not an issue, and if the application is to be re-submitted, whether in the same form or in a different form, no doubt there will be at least five Jurats sitting who are able to participate without being exposed to a charge of a conflict of interest.  It may however be useful to add these comments in relation to quorum. 

3.        Article 1 of the Licensing (Jersey) Law 1974 defines the Licensing Assembly as the Assembly of the Governor, the Bailiff and Jurats.  Self evidently, that is not the same tribunal as the Royal Court.  It follows that the provisions regarding the relevant quorum of Jurats in any sitting of the Royal Court would not apply.  Indeed this is clear from Article 21 of the Royal Court (Jersey) Law 1948 which provides:-

"Nothing in this Law shall effect the constitution or the jurisdiction of the Assembly of Governor, Bailiff and Jurats"

4.        This Assembly is an Assembly of some historical tradition.  To the extent that it may once have been a law making body, it is tolerably clear that the presence of the Lieutenant Governor was essential.  Indeed, in his Essay Pour des Reglemens Politique, Le Geyt says at Titre VI, Article 2:-

"Le Nombre des Taverniers, Bouchers & Boulangers, & la conduite de chacun d'eux, doit estre reveuë & reformée, si besoin est, tous les ans par un reglement general où le Gouverneur est requis d'estre present, & se doivent tous Taverniers, Bouchers, Boulangers, conformer aux ordonnances publiques, àpeine de Suspension, Cassation ou telle Amende qu'il y pourroit escheoir, les Gens de la Reyne sur ce ouïs, comme en tout autre cas de pareille nature."

5.        That extract may well have had some understandable validity at a time when the Assembly of Governor, Bailiff and Jurats was making secondary legislation by regulations.  It also of course reflects the standards of a bygone age, and there have undoubtedly been many developments since then.  It is noteworthy that in the Commissioner's Report of 1861, there is no assistance to be found as to the quorum for a sitting of the Assembly of Governor, Bailiff and Jurats, although there is some considerable attention paid to the question of the quorum of the Royal Court.

6.        It was not many years ago that the Licensing Assembly was generally constituted by the Bailiff or Deputy Bailiff sitting with all the Jurats if they were in the Island and able to attend.  More recently, the Assembly has considered that it was properly constituted by a lesser number than all 12 Jurats, although there seems to be no provision in any piece of legislation that would have directed that to be the case.  In our view, that was unnecessary because of the nature of the Assembly of Governor, Bailiff and Jurats - as a tribunal of some antiquity, it had and therefore has an inherent jurisdiction to regulate its procedure and, given its lack of legislative power today, its constitution, and can resolve whether or not it is quorate for the purposes of any particular application.  In our view, the Assembly is quorate for present purposes, and it is on that basis that we have reached our conclusions.

7.        Mr Sayers appeared in person for La Nautique Bar and Restaurant Limited and made his application very competently and fully.  He proposed an application for a provisional 7^th category licence in respect of the premises on the old abattoir site opposite the Pomme D'Or Hotel, at Liberty Wharf.  As part of the application, he requested that the premises be given designated nightclub status, and also that permission be granted for the premises to remain open on Sunday afternoons, notwithstanding the permitted hours under Article 72 of the Licensing (Jersey) Law 1974 which would have prohibited opening between the hours of 1 p.m. and 4.30 p.m. 

8.        The application as put forward to us was based upon the proposition that the premises would have a positive impact on the environment and nightlife in St Helier, and that the additional lighting, CCTV and security staff would make the area safer and would set a new standard for licensed premises.  The project had been designed with the discerning customer in mind and the target audience was families, visiting yachtsman and tourists, the neighbouring business district and the younger professional.  Mr Sayers said that the dress code policies and internal fit-out designs had been created with these criteria in mind.  Thus very substantial sums of money would be spent on glazing the premises with the most advanced sound equipment being used, and zoned areas where decibel metering would be provided so that historical data could be available.  Because of the conferencing part of the business, the loud speakers and lights would be hidden.  The applicants would place a major emphasis on the training of staff, and Mr Sayers himself had considerable experience in relation to the running of premises already licensed under the 7^th category at the Havana Club.

9.        The application had come before the Licensing Assembly in December 2009 but was adjourned because the Bailiff's Entertainment Permit had not then been granted.  That was no longer the case as the permit had now been issued.  The application was approved by a Parish Assembly in May 2008 with 19 votes in favour and two against.  At the Parish Assembly in May 2008, Mr Sayers agreed with a comment made that the Parish Assembly should not be concerned regarding the volume of people on the proposed premises as they would be busy mainly during the day and early evening up to 11 p.m. when the restaurant would close; and in agreeing with that comment, Mr Sayers gave his assurance that the venue would not be run as a nightclub.

10.      The application was fully supported by the Tourism Department, which was anxious to see the development of a multi-purpose facility on these premises.  In that connection, this Assembly has had the opportunity of reviewing some detailed plans which Mr Sayers produced on behalf of the applicant company.

11.      There was opposition from Mr David Seymour of Seymours Limited, the owners of the Pomme D'Or Hotel.  He said that he was concerned with noise levels in the streets outside the Hotel when people left the applicant's premises.  He pointed out that there were five 7^th category licensed premises in the areas around the Pomme D'Or Hotel already, which, he said, was far too many.  He said that although the Pomme D'Or Hotel had taken considerable steps to reduce the impact of external noise for its guests, there was nothing much further they could do and particularly in the summer guests would of course want to have the windows open.

12.      The Assembly was also addressed by members of the Licensing Unit who confirmed that they were entirely confident that Mr Sayers was a fit and proper person to have effective conduct of a 7^th category licence.  However, they raised objections that although the States Police did not allocate officers to each 1^st category premises, they did allocate officers to each 7^th category premises at closing time and therefore the number of premises with 7^th category licences was significant and the grant of an additional licence would require additional resources from the Police, which were not easily available.  Concern was also raised that the exit from the applicant premises was close to a dual carriage way which was also perceived to be a problem, because patrons tended to go out into the road outside licensed premises.  Finally, the Licensing Unit was concerned that the CCTV cover might not be adequate and that there might be repercussions for public safety in the adjacent areas.  Mr Sayers was taken aback by this last comment, and subsequently relayed a message to the Assembly that there were two Police cameras which appeared to have a direct line into the courtyard of the applicant premises and towards the entrance.  He also pointed out that there were a number of internal CCTV cameras which would belong to the applicant company, and there would of course be co-operation with the Police with respect to the records of any footage from those cameras. 

13.      The Assembly has given careful consideration to this application, and wishes to indicate that it was impressed with the plans and draft layout of the premises and can fully understand why the Tourism Department might be in favour of this multi-purpose facility.  Nonetheless the Assembly does not consider it appropriate to grant a licence of the 7^th category on the information it currently has.  The reasons are as follows:-

(i)        The Assembly has noted its decision on 24^th June, 2009, in relation to the application of Armada Leisure Limited for a 7^th category licence in respect of the B Bar at Wharf Street, not far from these premises.  In particular, the Assembly then noted that the public were undoubtedly concerned at the level of noise, disturbance and drunken behaviour in the streets of St Helier late at night and in the early hours of the morning, which affected not only those living or staying in the area but also those seeking to pass peacefully about their business at that time.  The Assembly then took the view that there would be a material adverse effect on the levels of noise and disturbance in Wharf Street and Conway Street if the application in that case had been granted, and in particular the timing of patrons leaving the premises would change from 11.30 p.m. to about 1.30 a.m., some two hours later, at which time guests of the Pomme D'Or Hotel could be expected to be trying to sleep.  The Assembly expressed the view that there was no doubt that the introduction of a new 7^th category licensed premises with a capacity of 400 people would lead to a material increase in noise and disturbance.  In particular the Assembly then noted that there was no evidence produced of any unfulfilled demand for 7^th category premises in St Helier.  All those considerations apply equally in relation to the present application - indeed, given that the total numbers potentially to be accommodated on the applicant premises would be 734 persons, the potential for increased noise late at night would be that much greater.

(ii)       Article 70(b) of the Licensing (Jersey) Law 1974 provides that the Assembly should be satisfied that the sale of intoxicating liquor is ancillary to the purpose of providing entertainment to persons resorting to the licensed premises.  In this case, the entertainment to be provided is as we understand it the provision of a dance floor and discothèque.  There is a raised floor and stage, and it may be possible to accommodate live performances from time to time, although the application has not been put to us on that basis.  If one looks at the plans which are produced, there is a relatively small dance floor area which perhaps accounts for approximately 1/5^th of the ground floor public area of the premises to be licensed.  In those circumstances, the Assembly finds it impossible to say that the sale of intoxicating liquor will be ancillary to the purpose of providing entertainment.  This is particularly so in relation to the first floor of the premises which seem to be laid out primarily as a restaurant area.  The layout we have described is entirely consistent with the comment of Mr Sayers to the Parish Assembly in 2008 that he was not intending to run the premises as a nightclub.

14.      In the circumstances, it does not seem to us that the application for a 7^th category entertainment licence is justified.  These premises look to be extremely impressive and to provide an exciting development in this area of the town but it is not at all obvious that the applicant has selected the appropriate category of liquor licence for which to apply.  While it is open to the Assembly to grant a licence of a different category than the one applied for, it seems to us that it would be more desirable for the applicant to consider the application again in the light of everything we have said. 

Authorities

Licensing (Jersey) Law 1974.

Royal Court (Jersey) Law 1948.

Essay Pour des Reglemens Politique, Le Geyt.