[2010]JRC102A
royal court
(Extraordinary Licensing Assembly)
1st June 2010
Before : |
W. J. Bailhache, Esq., Deputy Bailiff, and Jurats de Veulle, Clapham, Le Cornu, Marett-Crosby and Nicolle. |
IN THE MATTER OF AN APPLICATION BY BAYLEAVES RESTAURANT LIMITED
Advocate A. P. Begg for the Applicant.
judgment
the deputy bailiff:
1. On 15th February 2010, the Assembly gave its decision in relation to an application by Bayleaves Restaurant Limited for a 3rd category licence in respect of the premises Brixton House, Route de St Aubin, St Helier. The applicant had applied to run the premises as an Indian restaurant - it had previously been run as an Indian restaurant for a number of years and a 3rd category licence had been granted to the previous proprietor. As the Bailiff said then, the application was in effect, though not in law, a transfer of that licence and might have been expected to be relatively uncontroversial.
2. In fact it was extremely controversial. The application was at that time rejected at the Parish Assembly by 32 votes to two, and objectors spoke in the Licensing Assembly when the application was made. In the event, the Licensing Assembly at that time rejected the application for a 3rd category licence because there was uncertainty as to the form of extraction equipment and the Assembly required to be satisfied that the applicant had taken all reasonable steps open to him to minimise the level of odour and noise.
3. On 1st June, the Assembly came to consider a fresh application. The 3rd category licence was granted subject to the following conditions:-
(i) The filters installed within the cooking extraction system must be subject to the manufacturers required routine maintenance and replacement schedule. This must be undertaken by contract by an authorised contractor approved by the Health Protection Department.
(ii) The doors to the rear of the premises must remain closed while cooking is in progress.
(iii) The licence holder is required to keep a record of the regular maintenance of the extractor filters and provide such record for inspection by the Health Protection Department on request.
(iv) The permitted opening times shall be between 9 a.m. and 11 p.m., such that all customers must be off the premises by 11 p.m.
(v) Background music only can be played.
(vi) If any door staff are employed, they be members of the Jersey Door Registration Scheme.
(vii) That the number of persons permitted to be on the premises shall at no time exceed 55, excluding members of staff.
4. The decision was announced on 1st June and it was said that reasons would be given later. The Assembly now gives its reasons for the decision.
5. The present application was considered by a Parish Assembly on 3rd March 2010. The application was not approved, eight persons voting in favour and 26 persons voting against. Mr Turner, Mr Williams, Deputy Green, Deputy Hilton and Deputy Higgins all spoke at the Parish Assembly and also spoke before us. We also heard from Mrs Lorraine Fiander-Hill, who did not address the Parish Assembly but gave notice in writing that she wished to address us, and did so, in support of the application.
6. There has been a significant change since the premises were the subject of the application in February. A retrospective application for the installation of an extractor fan on the roof of the premises has been considered by the Minister for Planning and Environment, and on 20th May, approval was given. There were three conditions attached to the permit, two of which were concerned with the minimising of cooking odours, and the third of which was concerned with a vertical screen to reduce views of the extractor fan from Paris Lane. The Minister's decision was no doubt influenced by advice from the Health Protection Department to the effect that the work which had been done, provided that the system was properly maintained, amounted to the best practicable means of dealing with cooking odours at the premises. It was emphasised in that letter that even with the system which had been installed, there might still be some odour, but it would not be at a level that would be deemed to be a statutory nuisance. This is a different test from an odour which amounted to an irritation, or a smell which would be unpleasant to the neighbours.
7. The Assembly has noted that the decision of the Minister was given on 20th May and, at the time the present application was considered by the Assembly, was potentially subject to third party appeal, the effect of which would have been to stay the impact of the permission. It was suggested by the Deputy Judicial Greffier that the Assembly could deal with the matter by providing that the licence would not take effect until confirmed by the Inferior Number. We have not decided to take that course, but if for any reason the Minister's decision should be set aside, then we would expect the Attorney General to bring a representation to the Assembly at the next ordinary sitting thereafter in order that the licence could be reconsidered.
8. The objections which were placed before the Assembly were similar to those which were placed before the Assembly in February - essentially it was said that this was a heavily residential area, and the use of these premises as a restaurant resulted in strong cooking odours which have pervaded the area; there was noise and disturbance, both from customers and from the extractor fan itself; and abuse of the parking restrictions in Paris Lane and in the cul-de-sac which runs off Paris Lane behind the restaurant, and in which there is garage parking for a number of the residents. As the Assembly noted in February, the bare recital of the nature of the objections does not reflect how strongly the residents' lives have been affected. The Assembly expressed every sympathy at that time, and continues in those expressions today. We fully understand the concerns which have been expressed as to how the quality of life of the residents nearby has been seriously affected by the decision of the Planning Committee of the day to allow a change of use to a restaurant 10 years ago.
9. The Planning Authorities are not before us, and it would therefore not be appropriate to make a comment about the propriety of that decision, albeit that at first glance it may appear a surprising one. The fact is that the Licensing Assembly is not the Planning Authority. It is not for the Licensing Assembly to attempt to put on conditions which could have been imposed by the Planning Committee of the day, or might yet be required by the Planning Minister.
10. Article 6(9) of the Licensing (Jersey) Law 1974 sets out the parameters for the exercise of discretion by the Licensing Assembly:-
"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,
and may grant a licence of a category different from that for which application is made".
11. By sub paragraph (12) of Article 6:-
"The Licensing Assembly may attach to any licence such conditions as, having regard to all the circumstances of the case may seem desirable, including, in particular, the designation of any bar as a public bar."
12. It is to be remembered that the Licensing Law has as its purpose the making of provision for the control of the sale and consumption of intoxicating liquor. The provisions of Article 6(9) and (12) must be construed against the purpose of the legislation. We are not entitled to apply planning considerations to applications of this kind, subject to one caveat.
13. The caveat is this. It seems to us that the Assembly is entitled to take account of the fact that pursuant to Article 2 of the Places of Refreshment (Jersey) Law 1967, and subject to exceptions, no person shall carry on a place of refreshment otherwise than on premises registered under that Law. The exceptions include premises which are licensed under the Licensing (Jersey) Law 1974, registered under the Tourism (Jersey) Law 1948, schools, places of refreshment within a workplace, or places where the only refreshments sold consist of ice-cream and non-alcoholic drinks, together with such other places of refreshment as the Minister may in his discretion exempt. In our view, it is necessary for the Licensing Assembly to have regard to the same public health considerations as would have been considered by the Minister under the Places of Refreshment (Jersey) Law 1967 when considering applications for a 3rd category restaurant licence. It is appropriate therefore to have regard to public health considerations, which we have taken into account in settling conditions (i), (ii) and (iii) which we have attached to this licence. Similarly, we have taken the recommendations of the Fire Department into account for the purposes of assessing the maximum occupancy.
14. We do not however think that we can take into account the possibility that although cooking odours might be at a level below that of a statutory nuisance, they will still be unpleasant to neighbours. That is a planning matter and not one for the Licensing Assembly. Whether or not there is a liquor licence in respect of these premises will not have an impact on any cooking smells that emanate from them. The draft consent which was produced to the Assembly as that which would have been issued by the Economic Development Minister under the Places of Refreshment (Jersey) Law 1967 if no Restaurant licence were granted shows that the premises could be run as an Indian restaurant, which would be liable to provide all the same cooking odours, whether there is a licence or not.
15. Noise can give rise to public considerations where it is linked to the sale of alcohol. For the most part, we do not think the objections in relation to noise at those premises are so linked. However we have taken account of the possibility that the existence of a licence might result in the premises remaining open after other licensed premises have closed, and for that reason we have taken account of the desirability of restricting the opening hours of the restaurant. This should provide at least some protection to the neighbours. It is the reason for condition (iv), which we think is a necessary condition in the interests of the public in general if a licence for these premises is to be granted, which we have considered to be appropriate.
16. There were objections at the possibility of a delivery or take-away service. As far as the applicant was concerned, this service was in his view essential to the viability of the restaurant. We were told that it was expected that 50% of the turnover might come from the take-away service and 50% from the restaurant itself. Those objecting to the take-away service have based their objections on the parking difficulties which would be caused by patrons collecting meals and parking in Paris Lane or the cul-de-sac behind the restaurant premises. The difficulty with this argument is that the same objection can be raised if the restaurant were to be granted a licence under the Places of Refreshment (Jersey) Law 1967, and therefore it is clear that the grant of the licence would not have any impact on this problem. Indeed, those using the take-away service would not be entitled to consume alcohol as they would not be having a meal on the premises. Matters such as this will be determined on their particular facts. In this case, although we were asked to impose a condition which related to the take-away service, we declined to do so because we do not think it would bear any real relationship to the grant of the licence. The issue is a planning problem rather than a licensing problem. In that connection we add that we can certainly see that if the turnover at the restaurant is such that the majority is a take-away trade rather than a sit down restaurant trade, there may well be a case for asserting that a different use class would apply to the premises in question, and appropriate objection be made to the planning authorities.
17. We remind ourselves that these premises have previously been licensed. We cannot see any reason for not granting the 3rd category licence to the new applicant, especially so given the conditions which we have attached to it.
Authorities
Licensing (Jersey) Law 1974.
Places of Refreshment (Jersey) Law 1967.