Jersey Unreported Judgments

Licensing - ex parte application for extension of 7th category licence and for a variation of conditions.

[2013]JRC067

Royal Court

(Samedi)

8 April 2013

IN THE MATTER OF AN EX PARTE APPLICATION BY YACHT HOTEL LIMITED FOR AN EXTENSION TO 7^TH CATEGORY LICENCE WITH A VARIATION OF CONDITIONS BEFORE THE LICENSING ASSEMBLY

Advocate G. A. Cook for Yacht Hotel Limited.

judgment

the deputy bailiff:

1.        On 21^st March the Assembly received an ex-parte application by the Yacht Hotel Limited which holds, inter alia, a 7^th category licence for the Drift nightclub within premises known as the Royal Yacht Hotel, St Helier.  The application was for the extension of the 7^th category licence and the designation of the extended area as a designated nightclub; and for a variation to existing conditions with respect to the licence.  The applicant requested that the Assembly:-

(i)        Extend the area subject to the licence to include the area defined in the plan as presented to the Assembly and conditional upon such extension, designate the extended area as a designated nightclub;

(ii)       If the licence was extended as requested, designated the outside areas of the premises as shown on the plan presented to the Assembly as the designated smoking areas;

(iii)      Remove the restriction attached to the licence in respect of part of the premises which is in these terms "that the extended area as shown on the plan presented to the Assembly may be used neither for the sale or consumption of alcohol", and to replace that condition with an amended condition which provided "that the outside areas as shown on the plan presented to the Assembly may not be used for the sale of alcohol". 

2.        The application was considered by the Parish Assembly on 27^th February, when it was presented by Advocate Cook, who also presented the application to this Assembly.  Six persons spoke at the Parish Assembly, and of them Mr David Seymour and Mr Ian Gray, both of the Pomme D'Or Hotel, attended before us and addressed us.  In the Parish Assembly the application was not recommended, there being six votes in favour and eight votes against with a number of abstentions. 

3.        The Drift nightclub has a licence which permits the sale of alcohol up to 2am.  The current licensing conditions operate so as to include areas within the licensed premises which can be used to 2am, but with restrictions preventing the sale or consumption of alcohol.  Most of these areas are access corridors, but one of the areas is a narrow strip of land outside the building which is a designated smoking area where tables and chairs have been set up.  In particular the existing licence does not include an area within the building which is described as a cocktail bar or "Posh Bar". 

4.        The general thrust of the proposed amendments is to include the cocktail bar within the licensing extension to 2am to enable alcohol to be sold and consumed in that area, to rationalise the access to and egress from the licensed premises, and to establish two large areas (by comparison with the present) outside the building where alcohol would not be sold but could be consumed.  The extension into the cocktail bar would enable patrons to enjoy the ambiance of that bar with its quieter music during the extended hours.  Advocate Cook was at pains to emphasize that the applicant was conscious of the need not to disturb its own guests, and therefore would want to exercise strict control over the outside areas.  No overall increase in numbers was proposed, and she laid some store by the submission that there were other premises, especially the Mimosa nightclub where there was a large outside area which patrons from the nightclub could enjoy, and for the purposes of commercial equality, it was right that the application should be granted. 

5.        The opposition from Mr Seymour and Mr Gray was intended to protect the guests at the Pomme D'Or Hotel, some 30 metres from the Royal Yacht.  That Hotel is able to cater for approximately 285 guests and concern was expressed that the extension of the licence for the Royal Yacht would result in increased noise levels which would impact adversely on the business of the Pomme D'Or.  Mr Seymour contended that with regard to the outside area what is currently a smoking area will become a social area because patrons will not use it simply for the purposes of enjoying a cigarette but will use it to sit out, drink and socialise.  Mr Gray said that the overall increase in the licensed premises was some 245 square metres of extra space, an increase of 35%.  He told us that reviews on TripAdvisor, an internet website on which patrons could place their comments on the Pomme D'Or Hotel (and others), showed that while they were impressed with the quality of the Pomme D'Or, there were a number of adverse comments on noise levels.  To all this, Advocate Cook responded that her clients were not seeking extra numbers but wished to provide a different product. 

6.        On the present application, Advocate Cook sought to put before us a letter from the Minister for Economic Development.  We did not receive the letter directly, because the Minister had not spoken at the Parish Assembly and therefore was not entitled to address us under Article 6(4) of the Law, but we did hear from the Tourism Department officer who attended the Assembly pursuant to Article 6(8) of the Law, and the Minister's views were thus provided to us.  The Minister was of the opinion that the proposed extension was a modest variation of the existing arrangements which would remove the current ability for customers to have direct access to Mulcaster Street, and thereby the proposal would reduce the alfresco area available to customers in the early hours of the morning and bring all alfresco areas within the security controlled parameters of the Hotel.  It was also the Minister's view that, if granted, the extension would bring the licensing arrangements for the Royal Yacht in line with other establishments, particularly Mimosa on Liberation Square where alcohol could be consumed in the alfresco area. 

7.        On 21^st March the Assembly refused the application and indicated that reasons would be delivered later.  These are those reasons. 

8.        The 7^th category licence was granted to the Yacht Hotel Limited in December 2007, with the Drift being designated as a nightclub for the purposes of Article 72(4) of the Licensing (Jersey) Law 1974 ("the Law").  The conditions were then imposed on maximum occupancy for the Drift Club and for the Drift Bar respectively, and on the passageways leading to and from the Drift as set out above.  In March 2008, the licensed area was extended to include the designated smoking area mentioned above.  When the application was brought to the Assembly in December 2008, it was controversial.  The application was not recommended at that time by the Parish Assembly.  It was supported by the Tourism Department, on the basis that the number of visitors had declined, and it was right to foster competition between nightclub owners. 

9.        Just as planning authorities may have to guard against "urban creep" in relation to developments in the countryside, in our view this Assembly must be aware of the possibility of "licensing creep".  An application to amend or extend the terms of a licence must be treated in the same way as an application for a new licence, namely that the Assembly must have regard to the interests of the public in general, 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. 

10.      It is right to make this statement of principle.  This Assembly is not a competition regulator.  It is no business of this Assembly to have regard to competitive differences which may exist between different licence holders.  The fact that some premises are more suitably set out than others for the purposes of attracting a particular form of business, or may be more conveniently located in the sense that there are fewer premises nearby is not a directly relevant factor for the purposes of our consideration of a particular application in this sense - we are not concerned to grant a licence so that other premises may have competition on a level playing field.  A question for us is simply whether it is in the interests of the public in general that the licence be granted, and in reaching a conclusion on that issue, the Assembly will of course have to have regard to the nature of the business conducted or to be conducted and the suitability of the premises for the conduct of that business.  In considering the interests of the public in general, the Assembly is entitled to have regard to the desirability of fair competition, but not at the expense of other public interests. 

11.      Accordingly, we have noted that the Mimosa club was purpose built and may be designed in such a way as to allow some alfresco drinking.  That is an advantage which the Mimosa may claim over other premises, but it is not of itself a reason for this Assembly to grant this application.  In our view, the noise implications for those living or staying in the area, particularly at the Pomme D'Or Hotel but not only there, would be very significant indeed if this application were granted.  We accept the objection which Mr Seymour advanced, namely that what is currently a designated smoking area would become a social area.  Patrons undoubtedly would choose to congregate outside, possibly with appropriate heaters in the winter, but certainly in the warmer conditions in the summer.  We think the proposal is fundamentally flawed for this reason. 

12.      As to the suggestion that the cocktail bar should be included within the 7^th category premises, we see no basis for that.  It is not a bar in which there will be any entertainment provided other than, as we understand it, some quieter music.  To grant an extension of the 7^th category licence in respect of this part of the premises would in effect be to determine that there is no difference between a 1^st category licence and a 7^th category licence and we are not prepared to do that. 

13.      The suggestion that the areas of access to and from the Drift Club might change is not to our mind an important part of the application which was before us.  If there were to be an application which removed the access onto Mulcaster Street, but did not contain the other changes which are advanced with this application, we think there would be no objection, but that is clearly not the basis of the current application. 

14.      For these reasons the application was refused. 

Authorities

Licensing (Jersey) Law 1974.