Jersey Unreported Judgments

Licensing - application for 1st and 3rd category licenses in respect of Old Sail loft and Boatyard, St Martin.

[2015]JRC004

Licensing Assembly

(Samedi)

2 January 2015

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Fisher, Crill, Olsen, Liston and Blampied

IN THE MATTER OF AN APPLICATION BY THE SAIL LOFT GOREY LIMITED

Advocate R. A. Falle for the Applicant.

judgment

the deputy bailiff:

1.        On 22^nd December, 2014, the applicant applied for first and third category licences in respect of the Old Sail Loft and Boatyard, 18 Quai du Havre, St Martin ("the premises").  The application was for provisional licences because the construction work on the premises has not substantially commenced. 

2.        The premises were formerly an industrial warehouse and retail store.  A planning permission was issued on 10^th October, 2014, for a change of use into restaurant and delicatessen, which would include various extensions and alterations.  The Minister for Planning and Environment, through a delegated officer, gives the reason for approval as this:-

"The proposed development is considered to be acceptable having due regard all (sic) of the material considerations raised.  In particular, the development has been assessed against Policy GD1 of the Island Plan, 2011: Revised (2014), in which there is a presumption in favour of development.  In this case, the proposed change of use of an industrial warehouse and retail store into restaurant and delicatessen is regarded as acceptable because there will no visual harm (sic) to the character and setting of, "the Old Sail Loft" building, or Mont Orgueil Castle; neither will there be a detrimental impact on surrounding neighbouring amenities. 

Further, the site is located within a recognised tourist destination area wherein the diversity of the economy is encouraged and supported.  The scheme has also been assessed following the representations received and objections raised on the lack of car parking provision.  However, it is considered that an exception to the car parking guidelines can be made in this instance given the excellent public transport links to and from the area in the form of buses and coaches and also because of the emerging eastern cycle route network proposal all of which accord with the terms of the Policies identified within the Island Plan, 2011:  Revised (2014). 

On balance it is considered that the proposals will not have an unreasonable impact on the existing businesses; surrounding neighbouring amenities or character and setting of the historic buildings identified."

3.        A number of conditions were attached to the approval.  They include a provision for approval separately of the replacement windows and doors, the types and colours of decoration externally, and the materials to be used in the construction of the development, a reservation of the need for approval of any guarding or balustrading, and prior to commencement of the works on site requirements for ensuring the safety and stability of the fabric of the building to be retained by the production of a structural engineer's report. 

4.        The Assembly has been provided with the following documents in support:-

(i)        A letter dated 18^th November, 2014, from the Environmental Health authorities suggesting that on completion of the work shown in the planning application, the premises would be suitable for the grant of a licence, and indicating that the sanitary accommodation shown on the plans would be sufficient for up to 200 persons.  

(ii)       A report from the States of Jersey Fire and Rescue Service indicating that the plans contain insufficient information for the Department to comment. 

(iii)      A letter dated 19^th November, 2014, from Messrs Morris Architects confirming that the project was still within the design stage and no work had been commenced on site.  Furthermore, the beneficial owner of the applicant had confirmed that the licence was for 120 seated covers, although the drawing showed more than 200 seated covers.  The architects made the assumption that the proposals would be subject to future design development and applications made to the relevant authorities and concluded:-

"This application is not the norm as the building has not yet been constructed.  There have been comments made with regard to the provision of this facility and the Parish will be aware of these comments via the planning process, which will need to be considered in terms of a new facility that has external eating where noise and activity will be present, that are not currently there."

(iv)      Copies of drawing numbers 5275-016A, 5275-015A, 5275-003F, 5275-004F, 5275-006C, 5275-013D and 5275-014A.  The first two of these drawings are perspective views of the proposed development from different angles, the third is a proposed ground floor plan, the fourth a first floor plan including a proposed upper terraced deck and the remainder are proposed section plans and elevations.  These are not working drawings.  The plans are clearly adequate for the purposes of obtaining a planning permission, but they do not appear to be sufficient for the purposes of obtaining the necessary building permissions. 

5.        The premises are sandwiched between the Dolphin Hotel and the Seascale Hotel, and the depth of the premises extends behind the Seascale Hotel as far as the hill underneath Mont Orgueil Castle.  According to the plans, the potential for seated occupancy is 217.  There are at least two external terraces and possibly three, depending on whether the terrace at the rear of the premises is connected to the terrace adjacent to the Dolphin Hotel.  We think it is so connected, but whether it is or is not is immaterial to the present decision. 

6.        At the parish assembly, the application was supported by 36 voting in favour and 14 against.  It was clearly controversial, and a number of parishioners voted.  Of those who attended the parish assembly and spoke, and therefore had the right to attend before us and address us, Mr Philip Jeune, who lives some 60 yards away from the premises, Mr Silva Yates and, through Advocate Simon Thomas, Mr Renzo Martin, exercised their rights to appear before us and address us. 

7.        Mr Jeune was concerned about noise.  He said that the area was relatively quiet from 11pm onwards, but granting a first category licence created a potential for late night noise.  The karaoke celebrations at the Dolphin Hotel stopped at 11pm.  He was anxious to know if we could impose a similar time limit, and he was concerned about the possibility that the premises would be used for wedding parties in respect of those who had been married at Mont Orgueil Castle and their guests. 

8.        Mr Yates was against any licence being granted but especially a first category licence.  He thought that this would lead to the over commercialisation of Gorey.  Most houses around the premises did not have off-street parking and he considered the traffic problems were bad and would deteriorate.  There were 200 spaces on the road, and 700 covers in restaurants in that area at the moment, before adding to that number from the premises. 

9.        Advocate Thomas submitted that the Assembly should grant only a provisional third category licence.  The planning application was made on the basis that the premises would be used as a restaurant and that is what the plans showed.  A first category licence would not be appropriate and was unnecessary.  Article 38 of the Licensing (Jersey) Law 1974 ("the Law") showed that the reason given by the applicant for a first category licence was illusory.  It had been claimed that it was necessary to have a first category licence to allow those who were about to eat to enjoy a drink at the bar prior to eating.  In fact, as long as there was waiter service to a table, Article 38(2) allowed drinks to be served to those waiting to eat.  Advocate Thomas submitted that there was a high risk of mission creep, with the possibility of the premises being run as a public house if the provisional first category licence was granted.  It would not be a sufficient protection to rely upon the need for permission to carry out structural alterations because the premises could in fact be converted into a public house without the need for any significant structural change from the plans which had been approved by or on behalf of the Minister for Planning and Environment. 

10.      The Connétable of St Martin, in which the premises are situated, was meticulously fair and balanced in his comments.  He considered that there were a number of difficulties.  Advocate Falle personally acted for the parish and members of the municipality frequented some of the competitors of the applicant.  There were difficulties with parking, not helped by the fact that a number of different public authorities had responsibility in this area - Transport and Technical Services for the main road, and the Harbour authority in respect of that part of the public highway from the slipway going south.  There was no formal policing of the area except from the parish honorary police and his office had received a number of complaints about parking difficulties.  The Connétable informed us that many people wanted a limit to be set at 120.  He noted that both the Dolphin Hotel and Feast Restaurant, further along the pier, a sister restaurant of the applicant, had first and third category licences.  There were concerns about noise, and in particular he thought that it was difficult to police a third category licence, and he sympathised with those who found looking at plans a difficult exercise.  It was unfortunate that the application had had a divisive effect within the parish. 

11.      The Licensing Unit was not concerned about any licensing difficulties.  The officers anticipated none. 

12.      In reply, Advocate Falle submitted that one should view the objections of Mr Jeune with care.  He was living some 60 yards away and was not really affected, in Advocate Falle's view.  He confirmed that there would be 120 seated covers and a restriction on numbers to 140 (that is to say the 120 + 20 persons waiting for a meal) would be acceptable.  He also accepted that no music after 11pm would be an appropriate condition, subject to the possibility of a Bailiff's permit issuing from time to time for a later hour.  In particular he said that the applicant might need flexibility for use of the premises for gallery exhibitions and so on.  In his submission, the opposition were really worried only about competition, and that was not a good reason to refuse the relevant licences.  In response to a letter from Sir David Kirch (who did not attend the Assembly but had appeared and spoken at the parish assembly), Advocate Falle confirmed that the applicant would surrender the first category licence in respect of the Feast restaurant, further down the quay, if that were necessary, but did not want to do so. 

Discussion

13.      Article 6(9) of the 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 licenced 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."

14.      By paragraph (11):-

"The Licensing Assembly, in deciding whether or not an application should be granted or whether a licence of category different from that for which application is made should be granted, shall have regard to but shall not be bound by, the recommendation of the parish assembly."

15.      Article 8 of the Law deals with the provisional grant of licences and insofar as is relevant is in these terms:-

"(1)     Any person intending to apply for the grant of a licence in respect of any premises about to be constructed or adapted or in the course of construction or adaptation, may apply for the provisional grant of a licence of any category (other than the second category) in respect of those premises. 

(2)       Any such application shall be accompanied by the plans of the premises and evidence that such consents for the construction or adaptation of the premises as may be required under any enactment have been obtained, and copies of such plans and such evidence shall be sent to the Chief Architect of the States, the Chief Fire Officer and the Chief Public Health Inspector, who shall cause reports thereon to be prepared and sent to the Judicial Greffier. 

...

(5)       When the work of construction or adaptation has been completed, the holder of the provisional licence shall transmit to the Judicial Greffier -

(a)       the certificate of an architect stating that the work has been completed in accordance with such plans as aforesaid (or, if the plans have been modified, indicating the nature of the modifications and stating that the work has been completed in accordance with the plans as modified); and

(b)       the receipt of the Treasurer of the States for the appropriate licence fee or fees,

and the Judicial Greffier shall forward the same to the Attorney General who shall present the said certificate and receipt to the Court.

(6)       On presentation of the said certificate and receipt to the Court, the Court shall confirm the licence: 

Provided that where the plans have been modified, the Court may refer to the matter to the Licensing Assembly and the Assembly may confirm or refuse to confirm the licence as it sees fit. 

..."

16.      There is to be found in Article 12 a number of general conditions for all on-licences.  Amongst them is the condition found at Article 12(1)(i) in these terms:-

"No structural alteration or alterations to the layout of the licensed premises which affect any room in which intoxicating liquor is sold or any public area in those premises shall be made without the prior approval of the Licensing Assembly."

17.      Third category licences are governed by Part 6 of the Law.  In its material parts for the purposes of the present application, Article 38 provides as follows:-

"(1)     Subject to the provisions of this Law, a licence:-

(a)       shall authorise the sale by retail, during the permitted hours, of intoxicating liquor for consumption on the licensed premises, to persons taking a meal on the premises; and

(b)       where the conditions specified in paragraph (2) are complied with, shall also authorise the sale by retail of intoxicating liquor, for consumption on those premises, to other persons during the permitted hours for a licence of the first category. 

(2)       The conditions referred to in paragraph (1), on which intoxicating liquor may be sold to persons who are not taking a meal on the licensed premises, are as follows:-

(a)       the principal purpose of the premises must be the business of a restaurant;

(b)       no liquor may be opened or served to any such person on the premises, except by a waiter or waitress and while the person is seated at a table; and

(c)       no liquor may be consumed by any such person on the premises except while seated at a table."

18.      For the purposes of these provisions, "table" is defined as a table that does not constitute a service counter or bar. 

19.      There is no doubt therefore that insofar as the applicant appears to have asserted before the parish assembly that a first category licence was necessary to allow diners to have a cocktail before sitting down to eat, Article 38(2) permits that course of action, and the first category licence, contrary to the assertions of the applicant, would not be necessary for that purpose.  When faced with this, Advocate Falle asserted that the applicant had plans from time to time to hold gallery exhibitions, and similar events.  This may well be so, although it is not obvious from the plans where those would be held.  All this seemed to us to be rather consistent with the comment of Messrs Morris Architects in their report of 19^th November that the project was still at the design stage. 

20.      We have looked carefully at the proposed plans which seem to us to demonstrate that this development would not be of a public house in the traditional sense.  On the contrary, the plans reflect what looks to be a high class restaurant. 

21.      This uncertainty as to why a first category licence might be necessary emphasised to us that the application as a whole is premature.  The plans which have been presented are not sufficient for the purposes of Article 8(2) of the Law, and the fact that the Chief Fire Officer indicates that it is not possible to express an opinion on the plans as presented confirms that to be so.  The application is accordingly refused, and the Assembly will consider a further application when more detailed plans are available.  The detail of such plans should be at least that which is sufficient to enable a building permit to have been issued from the department of Planning and Environment under the building by-laws for work to commence.  The reason why it is important that such plans are available is that it enables the Royal Court, when confirming the provisional licence under Article 8(6) to consider the extent to which modifications have been made which require further consideration by the Licensing Assembly.  The other reason it is important to have such plans relates to the general condition set out at Article 12(1)(i) which requires that there should be no alterations to the layout of the licenced premises, so as to affect any room in which intoxicating liquor is sold or any public area in those premises without the prior approval of the Assembly.  If one does not know at the time of granting the provisional licence what the final layout will be, it is hard to make sense of the general condition in question because there is no basis on which one can compare the final product with the proposal which has been licensed. 

22.      Although the application is being refused today, it may be helpful to both the applicant and those who have raised objections if we make some further comments, not least because we anticipate that these will set the scene when a further application is made in due course.  The first comment to be made relates to Article 6(9) of the Law.  When the Licensing Assembly is charged to have regard to the interests of the public in general, it is appropriate to recall that the Licensing Assembly is not the planning authority.  It is not for the Licensing Assembly to undo a consent or permit which has been given by the Planning Minister or on his behalf and we are not entitled to apply planning considerations to applications under the Law, which has as its purpose the making of provision for the control of the sale and consumption of intoxicating liquor.  This is subject to one caveat, as was mentioned by the Assembly in the application of Bayleaves Restaurant Limited on 1^st June, 2010.  It is appropriate for the Licensing Assembly to have regard to public health considerations and the recommendations of the Fire Department for the purposes of assessing maximum occupancy.  However, this Assembly must be cautious about objections which do not relate to the sale of alcohol.  Thus, insofar as objections were raised by Mr Yates that the development would represent an over commercialisation of Gorey, we think that was a planning matter and not for us.  Insofar as there are complaints about parking and traffic, we think that largely those are unlikely to be relevant to an application for a third category licence.  After all, as was pointed out in the Bayleaves case, there would appear to be little to prevent the Economic Development Minister from granting a permit under the Places of Refreshment (Jersey) Law 1967, and if that were granted, exactly the same problems would arise.  These seem to us to be planning considerations rather than relevant considerations for the purposes of assessing the interests of the public in general under Article 6(9) of the Law. 

23.      We recognise that noise may be a consideration, particularly where the Assembly has before it applications for a first and third category licence as that can be a consideration which affects the interests of the public in general.  The permitted hours in relation to a first category licence are more restrictive than those for a third category licence and it may well be a question of fact and degree in relation to particular applications as to whether some premises are not suitable for third category licences on account of the noise that might be suffered by those living nearby when patrons leave in the early hours of the morning, and other premises might be inconveniently located for the purposes of a first category licence with perhaps a different but noisier clientele leaving earlier in the evening.  Noise considerations will be fact specific. 

24.      We can see that with regard to these premises, noise may be a consideration depending upon the activities which are to be conducted.  It is a potential problem, especially on the terraces.  It is not clear from the plans we have seen - and this is another reason for refusing the applications at present - what facilities might be available if the premises were to be offered for weddings in conjunction with the use of Mont Orgueil Castle, where dancing might take place, what other bars might be available, and like considerations.  In relation to Advocate Falle's submissions that there could be gallery exhibitions or other events, the plans simply do not demonstrate where those might be situated.  So in all these circumstances, questions of noise are capable of being relevant and would have to be assessed. 

25.      On presentation of more detailed plans, the Assembly as presently constituted cannot see any reason, subject to the content of those plans, why a third category licence should not be granted.  There might well be a background music condition attached. 

26.      As to whether a first category licence would be appropriate, it seems to us that that depends upon a more detailed explanation of why it is necessary and what the purposes of such a licence would be, given that we are not currently convinced that a further public house, of the traditional variety, would be appropriate in premises of this size in an area which is at least still partly residential and we are minded to think that such a development might be difficult to justify as being in the interests of the public in general.  However we recognise the constraints of the Law as presently drafted and if there can be a coming together of an appropriate purpose for a first category licence with an appropriate building construction and layout such that mission creep of the kind referred to by Advocate Thomas can be avoided, then that would be a matter for consideration by an Assembly in the future.  We emphasise that the decision on the application can only be made by the Assembly which hears it, taking into account the information which is then presented to it. 

Authorities

Licensing (Jersey) Law 1974.

Places of Refreshment (Jersey) Law 1967.