Jersey Unreported Judgments

Licensing - decision re 3rd and 6th category Licence application.

[2015]JRC205

Licensing Assembly

7 October 2015

IN THE MATTER OF ARTICLE 9 OF THE LICENSING (JERSEY) LAW 1974 IN RELATION TO THIRD AND SIXTH CATEGEORY LICENCES

AND IN THE MATTER OF AN APPLICATION BY THE OLD SAIL LOFT

DECISION

the deputy bailiff:

1.        At the sitting of this Assembly on 24^th September, 2015, we granted to 18 The Yard Limited third and sixth category licences with regard to the premises the Old Sail Loft Gorey ("the premises").  At that time we indicated that we would give reasons.  We now do so. 

2.        The application came before the Parish on 12^th August, 2015.  On that occasion the Parish supported the application for a third category licence but voted against the application for a sixth category licence.  During the course of that meeting a number of people spoke. 

3.        This is not the first time that an application in respect of these premises has come before this Assembly in recent times.  At the Assembly on 22^nd December, 2014, the applicant had applied for first and third category licences for the premises and the application at that time had been refused.  The Assembly gave its reasons in a judgment of 2^nd January, 2015. 

4.        The application was presented to us by Advocate Falle who firstly dealt with the fact that the name of the applicant had been changed from Sail Loft Gorey Limited to 18 The Yard Limited.  We agreed that the matter could proceed in the new name. 

5.        Advocate Falle went into the history of this application at some length. He made submissions about the nature of the opposition to the application indicating that in his view it had been orchestrated by disappointed potential purchasers of the premises with a financial interest in other businesses in the vicinity.  He indicated that he had received correspondence which in his view amounted to threats and that the resistance to the application came about as a result of what he describes as "sectional private interest" which has nothing to do with the public interest which falls to this Assembly to consider.  We do not need to go into the detail of the allegations that Advocate Falle made during the course of his submission to us on this aspect.  Suffice it to say that we have approached this application on its merits and have put out of our mind what we view as extraneous information. It is our responsibility, as the Licensing (Jersey) Law 1974 makes clear at Article 6(9), to 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".

6.        As our decision does not entirely accord with the recommendations of the Parish Assembly, for the sake of completeness we recall that Article 6(11) states:-

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

7.        On the more positive part of his application Advocate Falle pointed out that in his view the third category grant should not be contentious as the building was new and was to be wholly designed for its purpose and that, in considering the public interest, the Assembly can and should have regard to the various stages that the applicant has gone through.  There is planning consent and a positive fire report and that our view of the public interest is informed by a collective process.  The planning process had had an open session and to a great extent the application had been approved enthusiastically.  It is clear that there should be a restaurant there and the applicant would agree to a limit of 120 persons in respect of the third category.  The person behind the applicant company is Mrs Laurraine Falle and we were referred to Mrs Falle's history with creating a high standard restaurant and that she had operated a licence of third category without complaint over a significant period.  Advocate Falle went on to say that Gorey should be considered a tourist destination and is in need of the investment that this project would bring with it. 

8.        As to the grant of the sixth category licence he indicated that the purpose of the application was to supply a bottle or two of wine to people buying high-quality food from the delicatessen.  He described the licence as ancillary, a matter to which we return, and said that there was very little prospect of any increase in drunkenness.  He pointed out that there were already a number of delicatessens that held a sixth category licence, primarily in St Helier, but there was none in Gorey or elsewhere in the east of the of the Island.  He anticipated arguments being raised against the application on the grounds of parking.  This, he assured us, had been canvassed by the planning department and indeed Gorey was well served with buses and coaches.  There was in any event a public car park some five minutes' walk away. 

9.        In terms of the ambit of the sixth category licence he urged us not, were we to grant it, to apply it to a specific area of the premises.  Although it was intended to be ancillary to the delicatessen the applicant also wished to host events during the summer such as farmers' markets, where alcohol in bottles might be sold, and also to operate an outside catering business. 

10.      We heard from the Connétable of St Martin.  He was able to explain to us the process of the Parish Assembly and indicated that the primary concerns raised had been related to parking and possible noise.  He informed us that there had previously been a sixth category licence held at Gorey.  He confirmed that parking was a problem at Gorey although it had improved recently.  He also understood from the States of Jersey Police that they would be installing extra CCTV coverage when the money to do so was available for the purposes of policing. 

11.      A number of people who had spoken at the Parish Assembly exercised their right to make submissions to us:-

(i)        Mr Silva Yates, a former Connétable and Centenier expressed concern about the number of covers at the restaurant expressing the view at 120 it would be the largest restaurant in Gorey.  He was concerned about access which might be difficult and as to potential congestion he expressed the view that it was "possibly horrendous".  He believed the planning approval had been ill-conceived and a mistake and that the overall application was not in the public interest. 

(ii)       Mr Rudolf Goritschnig said that whereas he anticipated a lovely shop selling fine food he did not see any sense in it selling alcohol.  He had held a licence in the past but he gave up because of problems.  There was a constant parking problem. 

(iii)      Jurat P J de Veulle, who had presented the application before the Parish, also made submissions to us.  He mentioned with regard to the sixth category that the Sail Loft was not going to be in the business primarily of selling alcohol and that that aspect was purely going to be ancillary to the business of a delicatessen and outside catering.  He thought a condition making it clear that the provision of alcohol was ancillary would be appropriate.  He reminded us that we were dealing with someone with an exemplary record for holding a licence in the person of Mrs Falle. 

(iv)      Advocate Simon Thomas appeared for the Dolphin Hotel.  He urged that the Assembly should stay its hand as the impact of the sixth category was simply unknown and the final shape of the business was not clear.  He suggested that the sixth category was not essential to the success of the business and it would mean if granted there would then be a sixth category licence on Gorey Pier which was a new departure.  We had not previously been told about the outside catering business.  He raised concerns about the prospect of congestion of people dropping by for alcoholic purchases and said that whereas his client supported the rest of the application he urged us to proceed to consider the sixth category matter with caution.  He referred to a letter 17^th September, 2015, (copies were supplied to Advocate Falle) from Sir David Kirch who in that letter expressed his concerns about the sixth category licence primarily because of the number of licences already in the area and concerns relating to parking.  Finally Advocate Thomas indicated that we should have a high regard to the Parish Assembly's views and if we were minded to grant a licence of the sixth category it should be granted in respect of a limited area. 

(v)       Mrs Judith Egré informed us that there were misleading arguments made in the Parish Assembly and that really we were dealing with a local business with a proven track record.  In her view without a licence of the sixth category there would be an adverse effect on the viability of the delicatessen.  People liked to be able to purchase what they needed for a particular event at one location.  She was in favour for of the application for the sixth category licence. 

12.      Three persons wished to speak before us who had not previously spoken at the Licensing Assembly.  All three had given notice in accordance with the provisions of the Law and we permitted them to make submissions to us:-

(i)        Mr Philip Jeune had concerns with regard to the level of noise for the residential neighbours and for the occupants of the adjoining hotels.  He was concerned that there would be loud music after 11pm. 

(ii)       Mr Jason Gleave warmly endorsed the application describing the entire prospect as exciting and also confirmed that in his view an inability to buy wine when you were buying fine foods for an event would be a disadvantage.  He was a frequent visitor to the restaurant already run by Mrs Falle the applicant and he attested to its being run very strictly in accordance with the licensing laws and to a very high standard.  He asked us to approve the application. 

(iii)      Lastly Samantha Gleave informed us that the objections as she understood them were based on inaccurate facts and that the conduct of Mrs Falle was exemplary.  She viewed the issue of parking has being scare-mongering as Long Beach car park was very nearby and she looked forward to the presence of an upmarket delicatessen with an ability to supply decent wine. 

13.      The Police Licensing Unit had no observations on the application. 

14.      In reply Advocate Falle mentioned that he saw no difficulty with a condition restricting music and capping occupancy at 120 persons.  He observed that on his understanding in fact this number of covers was less than that available to the Moorings Hotel at 150. 

15.      It is clear from the above that much of the concern related to parking.  The decision of the Assembly of 2^nd January, 2015, also considered that issue.  In its judgment at paragraph 22 it said:-

"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 Bay Leaves 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.  This seems 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".

16.      We see no reason to take a different view from the Assembly as constituted on that occasion nor indeed to take the view that similar considerations do not apply to the application for a sixth category licence as well. 

17.      We have given careful consideration to what is proposed.  We note that there has been a full planning process which has given rise to planning permissions.  We therefore proceed on the basis that all matters of a planning nature have been fully taken into account.  There is a positive Fire certificate. 

18.      Insofar as concerns relate to noise late at night these can be met in our view by an appropriate condition.  We see no objection to the establishment of another high quality restaurant in the Gorey area which, as has been said to us, is a tourist destination.  This, so it seems to us, is clearly in the interests of the public in general and indeed the premises as depicted in the plans shown to us appear to be entirely suitable for that business. 

19.      With regard to the sixth category licence we are aware that there are a number of businesses, although none in Gorey, where delicatessens carry with them licences of the sixth category to enable fine alcoholic beverages to be provided with fine foods.  We think it would be appropriate to make it clear that we treat the grant of a sixth category as ancillary to the business of the delicatessen and indeed to the provision of off-site catering and the occasional event such as a farmers' market.  We think once again that it is in the interests of the public in general that this facility be provided.  Once again we consider the premises to be suitable for the conduct of the business in the way that we have understood and articulated it. 

20.      We do not think it likely that there will be a material problem with parking but in any event, for the reasons set out by the Assembly on the last occasion, this it seems to us to be primarily a planning consideration and not for this Assembly. 

21.      In summary we were content to grant licences of the third and sixth category.  The third category licence will, amongst the other conditions, carry with it a maximum occupancy of 120 and no music shall be played after 11pm and we make it clear in connection with the sixth category licence that it is granted not as a major part of the business but as ancillary to the delicatessen part of the business and to the occasional farmers' market and provision of outside catering.  We accordingly granted the application subject to those conditions and on the other conditions set out in the act of the Assembly. 

22.      For the sake of completeness we note that whilst Jurat Clapham was present on the bench during our hearing she recused herself from this matter and took no part in our deliberations. 

Authorities

Licensing (Jersey) Law 1974.