Highland Licensing Committee Minute

Agenda

Minute of the Meeting of the Highland Licensing Committee held in the Council Chamber, Council Headquarters, Glenurquhart Road, Inverness on Tuesday 5 April 2011 at 10.30 am.

Present:

Mr P Corbett
Mr A Rhind
Mr R Greene
Mr A Henderson
Mr W Mackay
Mr D Flear
Mrs M Paterson
Mr R Pedersen
Mrs G Sinclair
Mrs J Campbell (Local Member Vote for items 4.3 & 4.4)
Mrs E McAllister (Item 4.3)
In Attendance:
Mr A Mackenzie, Area Solicitor (Clerk)
Inspector B Marquis, Northern Constabulary
Inspector G Cameron, Northern Constabulary
Mr M Elsey, Senior Licensing Officer
Ms A Macrae, Committee Administrator
Mr C Maragh, Administration Assistant

Also In Attendance:

Item 4.3 -   Mr R Peasnall (Applicant)
Item 4.3 -   Mr M Peasnall (Applicant)
Item 4.3 -   Mr and Mrs S Lee (Objectors)
Item 4.3 -   Mrs A Macpherson (Objector)
Item 4.4 -   Mr S Ali (Applicant)
Item 4.4 -   Mr D Balfour (Objector’s Representative)
Item 5.1 –   Mr A Themis (Applicant)
Item 5.1 –   Mrs L Murray (Solicitor for the Applicant)
Item 5.1 –   Mr and Mrs B Smale (Objectors)
Item 5.1 –   Mrs M Brindley (Objector)
Item 9.3 –   Mr R Macdonald (Applicant)
Item 10.1 – Mr P Moffat (Applicant)

Mr P Corbett in the Chair

The Chairman confirmed that the meeting would be webcast, and gave a short briefing on the Council’s webcasting procedure and protocol. Accordingly he advised the Committee that items 9.1, 9.2, 9.3 and 10.1 detailed below, would not be webcast due to the disclosure of personal information relating to the applicants/licence holders.

Business

1. Apologies for Absence

Apologies for absence were intimated on behalf of Mrs L Munro, Mr G Rimell and Mr D Millar.

2. Minutes of the Meeting on 8 February 2011

There had been circulated for confirmation the minutes of the meeting on 8 February 2011. The minute was held as read and APPROVED.

Arising from item 9.2 of the Minute the Area Solicitor reported that Mr P Worsfold had appealed the Committee’s decision to suspend his licence for a period of three months, and that in the event a hearing was required two Members of the Committee may be required to give evidence. He suggested that it would be appropriate for those Members to be Mr D Millar and Mrs G Sinclair who had proposed and seconded the motion to suspend the licence.

The Committee AGREED that Mr D Millar and Mrs G Sinclair give evidence, if required.

Arising from item 9.4 of the Minute concerning the application for the renewal of a taxi operator’s licence in respect of Jagjit Chima, the Senior Licensing Officer reported that the charge against him had been found to be not proven, and that the Northern Constabulary had subsequently withdrawn their objection to the application. He reported that the taxi operator’s licence had therefore been issued under delegated powers, and that no further action would be pursued in respect of Mr Chima’s taxi driver’s licence.

The Committee NOTED the position.

3. Licences Granted Under Delegated Powers

There was circulated Report No HLC-042-11 (30kb pdf) by the Area Solicitor detailing the licences granted under delegated powers under the Civic Government (Scotland) Act 1982 and the Marriage (Approval of Places) (Scotland) Regulations 2002 in the period from 25 January to 21 March 2011.

The Committee NOTED the Report.

4. Civic Government (Scotland) Act 1982
Applications for Houses in Multiple Occupation

4.1 Premises – 8 Woodland Crescent, Golspie

There was circulated Report No HLC-043-11 (29kb pdf) by the Area Solicitor relating to an application for the grant of a House in Multiple Occupation Licence from Key Housing Association in respect of 8 Woodland Crescent, Golspie.

The Area Solictior advised that the application had been withdrawn at the Applicant’s request.

The Committee NOTED that the application had been withdrawn at the Applicant’s request.

4.2 Premises – Delny House, Delny, Invergordon

There was circulated Report No HLC-044-11 (30kb pdf) by the Area Solicitor relating to an application for the grant of a House in Multiple Occupation Licence from Sonas Retreat Limited in respect of Delny House, Delny Invergordon.

The Area Solictior advised that the application had been withdrawn at the Applicant’s request. In discussion the Senior Licensing Officer clarified that if there was a suggestion that the premises was operating as an HMO without a licence then members report this to TEC Services to investigate.

The Committee NOTED that the application had been withdrawn at the Applicant’s request.

4.3 Premises – 42 Telford Road, Inverness

Mrs J Campbell and Mrs E McAllister had applied for and been granted Local Member votes for this item. However as Mrs E McAllister was not present in the Chamber for the whole of this item the Area Solicitor advised that she would not be eligible to vote.

In Attendance: Messrs M & R Peasnall (Applicant), Mr and Mrs S Lee (Objectors) and Mrs A Macpherson (Objector)

There was circulated Report No HLC-045-11 (31kb pdf) by the Area Solicitor relating to an application for the grant of a House in Multiple Occupation Licence from Ashington Brooke Limited in respect of 42 Telford Road, Inverness. The Report noted that 11 letters of objection to the application had been received, copies of which were appended to the Report. The Report also outlined the responses received from the various consultees to date and the required certification which remained outstanding. The Report recommended that the Committee either refuse the application on one of the grounds set out in section 6.1 of the Report or, if minded to grant the application, to recommended that agreement in principle be given that the licence be issued by the Area Solicitor under delegated powers once any outstanding works had been carried out and and the required certification was received.

The Committee proceeded to consider the application in accordance with the Council’s hearings procedure.

Mr R Peasnall, on behalf of the Applicant Ashington Brook Ltd, spoke in support of the application during which he confirmed that the relevant planning permissions had been obtained to allow the property to operate as an HMO. He also observed that the Police had not objected to the application and confirmed that it was not the intention to accommodate persons with challenging needs in the property. He advised the the company operated five other HMOs Inverness and that to date no complaints had been received in respect of those properties. He explained that a day to day manager and night warden would monitor the premises and stressed that if any problems with residents arose these would be dealt with immediately. The property was already a six bedroom house and as it was not proposed to extend the property or increase the number of windows, he did not consider there would be a loss of amenity or privacy to local residents. The car parking provision for the building had also been increased through the removal of a front boundary wall and three additional car park spaces made available in this area, therefore parking would not be an issue.

Responding to questions he confirmed that the premises would accommodate homeless referrals from the Highland Council. He understood that the objectors concerns were based on their experience of a neighbouring HMO but that his understanding was that the property had specialised in accommodating people with challenging behaviour which would not be the case in respect of this property. He also gave an assurance that the mobile numbers of the day manager and night warden would also be made available to local residents to allow them to report any matters of concern.

Mrs A Macpherson spoke on behalf of the objectors and advised their experiences with a neighbouring HMO and other HMO properties in the area had caused them anxiety over the current application, particularly in regard to the potential public and traffic nuisance which may be generated by the proposal and the adverse impact on local amenity. In summary she advised that this was a quiet residential area and that local residents did not want any further disturbance through the approval of a further application for a HMO in the local area.

The applicant reiterated that his Company had considerable experience in operating HMOs over a considerable period of time and that their properties were operated to the satisfaction of the Police, Local Authority and neighbouring residents, with no complaints or issues arising.

The Senior Licensing Officer confirmed that there had been no complaints received in respect of the other properties operated by Ashington Brook Ltd in Inverness, and that if any problems did arise they would be referred to the Licensing Committee for consideration.

During discussion Members expressed the following views:

There were already 12 HMOs in the area of Telford Road, Inverness and concerns was expressed about the impact on the amenity of local residents should a further HMO licence be approved
The applicant had a proven track record in operating HMOs without complaint and had satisfied any concerns raised in regard to parking,
The applicant should as far as possible not accommodate individuals with challenging needs in the property to protect the amenity of tenants and local residents
While acknowledging the reasons for the objectors concerns it was noted that there was an urgent need for more homeless accommodation in the Highlands to meet the ever increasing demand to accommodate homeless persons.
Concern was expressed that the property was located next door to Merkinch Primary School and that approval of the application would have an adverse impact on local residents and on the sustainability of the local community.

Following further discussion Mrs J Campbell seconded by Mrs G Sinclair moved that the application be refused in view of the adverse impact approval of the application would have on the quality of life and amenity of the residents of Telford Road, Inverness.

The Area Solicitor cautioned that in his opinion there were no grounds to refuse the application given that the motion was not based on evidence which had been placed before Members.

In considering the Area Solicitor’s advice, Mrs J Campbell agreed to withdraw her motion.

Mr A Rhind left the meeting at this point.

Thereafter discussion followed on a proposal to grant the licence for a restricted period on the basis that the application for renewal would be referred back to the Committee for determination in light of the concerns expressed regarding the impact on local residents and the amenity of the area.

The Area Solicitor again advised that in his opinion there were no grounds to grant a licence for a lesser period based on the evidence presented to the Committee.

Thereafter Mrs G Sinclair seconded by Mrs M Paterson moved that a licence be granted subject to standard conditions for a period of 6 months once any outstanding works/documentation had been submitted with the application for renewal being referred back to Committee.

Mrs J Campbell seconded by Mr David Flear moved as an amendment that a licence be granted subject to standard conditions for 1 year once any outstanding works/documentation has been submitted with the application for renewal being referred back to Committee.

There being no further amendments, the matter was put to the vote with votes being cast as follows:

Motion (4): Mr A Henderson, Mr P Corbett, Mrs G Sinclair, Mrs M Paterson

Amendment (5): Mr R Pederson, Mr D Flear, Mr W Mackay, Mr R Greene and Mrs J Campbell

The amendment that a licence be granted subject to standard conditions for 1 year once any outstanding works/documentation has been submitted with the application for renewal being referred back to the Committee, accordingly became the finding of the meeting.

4.4 Premises – 62 Tomnahurich Street, Inverness

Mrs J Campbell had applied for and been granted a Local Member vote for this item.

In attendance: Mr S Ali (Applicant) and Mr D Balfour (Objector’s Representative)

There was circulated Report No HLC-046-11 (32kb pdf) by the Area Solicitor relating to an application for the grant of a House in Multiple Occupation Licence from Aminur Rahman in respect of 62 Tomnahurich Street, Inverness. The Report noted that one letter of objection had been received, a copy of which was appended to the Report. The Report also outlined the responses received from the various consultees to date and the required certification which remained outstanding. The Report recommended that the Committee either refuse the application on one of the grounds set out in section 6.1 of the Report or, if minded to grant the application, recommended that agreement in principle be given that the licence be issued by the Area Solicitor under delegated powers once any outstanding works had been carried out and and the required certifcation received.

The Committee considered the application in accordance with the Council’s hearings procedure.

Mr S Ali, who was appearing on behalf of the applicant, Mr Rahman, spoke in support of the application and confirmed that all the outstanding works to the premises had now been completed and the required certification submitted. He also advised that he had approached the objector, Mrs Fraser, who had confirmed she was now content with the condition of the house and garden. He explained that the rubbish was thrown into the garden of the property from the adjacent school playing field and gave an assurance that the garden would be kept clear of rubbish. He also confirmed that he would provide the objector with his telephone number and address should she have any concerns in regard to the management of property or its residents.

The Senior Licensing Officer confirmed that TEC Services would require to re-visit the premises to check that the works listed in the schedule set out in appendix two of the Report had been completed and that the electrical certificate submitted confirmed the electrical installation in the premises was satisfactory.

Mr D Balfour then spoke on behalf of the objector Mrs Janet Fraser, who was unable to attend the meeting for health reasons. He alleged that the premises had accommodated more than 5 residents in the past, although it did not have a HMO licence, and that works to improve the condition of the property and the garden ground had only commenced over the past two weeks. There was no indication this would be sustained in the future or that occupancy would be restricted in future to the 5 persons which would be specified in the licence. Mr Balfour also expressed the view that it had been inappropriate for the applicant to approach Mrs Fraser directly on this issue. He refuted the applicant’s claim that rubbish was being dumped in the garden from the neighbouring school and explained that Mrs Fraser had experienced problems with vermin as a result of the amount of refuse lying around the property.

During disucssion a number of points were raised by Members in regard to the definition of a fit and proper person and whether this would extend to the day to day manager.

The Area Solicitor advised that the test of a fit and proper person should be based on the evidence presented to the Committee and that this could be applied to the day to day manager as a reason for refusing the application if there was sufficient evidence. He confirmed that the objection received in relation to the application was a material consideration however he cautioned against taking account of environmental health reports on a restaurant run by the day to day manager on the basis that this evidence had not been placed before the Committee. He also advised that the Police had not objected to the application and this should be giving significant weight in the determination of the application.

During further debate Members expressed the view that taking account of the concerns raised by the objector in regard to the past operation of the premises, the extensive schedule of works which had been required to bring the property up to HMO standards, the fact there was no commercial contract in place to uplift refuse at the premises and that a restaurant run by the day to day manager had been subject to environmental health reports there was sufficent evidence to refuse the application on the grounds that the day to day manager was not considered to be a fit and proper person to operate a HMO.

Mrs J Campbell, seconded by the Chairman, moved that the application be refused on the grounds that the day to day manager was not considered to be a fit and proper person to operate an HMO.

There being no amendment the motion became the finding of the meeting and accordingly the application was GRANTED subject to the standard conditions.

5. Civic Government (Scotland) Act 1982 – Application for Late Hours Catering Licences

5.1 Applicant – Tesco Superstore and Filling Station, Ness Side, Dores Road, Inverness

In attendance: Mr Andrew Themis (Applicant) and Mrs Lorna Murray (Applicant’s Solicitor). Mr and Mrs B Smale and Mrs M Brindley (Objectors)

There was circulated Report No HLC-047-11 (28kb pdf) by the Area Solicitor relating to an application for the grant of two late hours catering licences received from Tesco Stores Ltd to allow the Superstore and Filling Station to remain open until midnight. The Report advised that while no objections had been received from the various services/agencies consulted in respect of the application, 3 letters of objection from members of the public had been received, 2 in relation to the Superstore and Filling Station, and 1 relating to solely to the Filling Station, copies of which were appended to the Report. The Report recommended that the Committee determine the application in accordance with the Council’s Hearings Procedure.

The Committee heard from Mrs Lorna Murray in support of the application. She noted that there had been no objections from the services and agencies which had been consulted on the application, and that only three objections from members of the public had been received, despite the size of the local population and its proximity to housing developments. She confirmed that in common with all Tesco stores there would be no hot food facilities provided after 11pm, and that the late hours catering licence would relate only to the sale of supermarket foods, beverages and other commodities. The application had been submitted on the basis of the assessed demand, and she also advised that Tesco operated late hours catering licences elsewhere in Inverness and other areas with no problems being reported and that the Company had a track record of working with the communities it served.

Following a question from an objector, Mrs L Murray explained that the evidence for the anticipated demand for the additional one hour opening time had been based both on national research and feedback from a local consultation meeting to which invited members of the public had been asked to give their views.

The Committee then heard from the objectors Mrs Smale and Mrs Brindley who advised that there had been significant local opposition to the application for planning permission for the development and that there was a continuing lack of support within the local community for the development. They noted that the determining issues in relation to the applications were public order, nuisance and safety and suggested that the applications should therefore be refused on the grounds of the adverse impact approval would have on the amenity of a residential area as a result of the increased likelihood of public disorder, and the nuisance that would be generated through the additional noise, traffic, light pollution and littering that would be associated with the extended hours.

On the conclusion of the hearings procedure Members raised a number of issues in regard to the exact location of the store to the nearest residential development, the policy hours for late hours catering licence in Inverness, it being noted that outwith the city centre each application is treated on its merits, issues of screening, the fact that there had been no reports of nuisance arising from other Tesco stores in Inverness, and the suggestion that any issues of public disorder should be a matter for the Police.

The Chairman, seconded by Mr R Greene, moved that the application be granted subject to the standard conditions.

There being no amendment the motion became the finding of the meeting and accordingly the application was GRANTED subject to the standard conditions.

6. Civic Government (Scotland) Act 1982 – Application for Metal Dealer’s Licences

6.1 Premises – Highland Clearances Ltd, Great North Road, Muir of Ord

There was circulated Report No HLC-048-11 (19kb pdf) by the Area Solicitor relating to an application for the renewal of a Metal Dealer’s licence received from John Mackenziee.

The Area Solicitor advised that this item had been withdrawn from the agenda on the basis that the fire certificate had been received and that the licence could now be issued under delegated powers.

The Committee NOTED that the item had been withdrawn and that the licence would be issued under delegated powers.

7. Civic Government (Scotland) Act 1982
Application for Second Hand Vehicle Dealer’s Licence

7.1 Premises- Castle Cars (Highland) Ltd, Muir of Ord

There was circulated Report No HLC-049-11 (18kb pdf) by the Area Solicitor relating to an application for the renewal of a Second Hand Vehicle Dealer’s Licence received from Castle Cars (Highland) Ltd. The Report advised that no objections had been received in response to the application from the Northern Constabulary, TEC Services and Planning and Building Standards and that a response to the application was awaited from the Fire and Rescue Service. The Report recommended that the Committee agree to defer determination of the application, either: (i) to allow it to be approved under delegated powers in the event that all responses and no objections are received, or (ii) to a future meeting of the Committee when the application will be determined in terms of the hearings procedure.

The Committee AGREED the recommendation.

8. Civic Government (Scotland) Act 1982
Application for Renewal of a Licence for Skin Piercing and Tattooing

8.1 Premises – 18 Margaret Street, Inverness

There was circulated Report No HLC-050-11 (23kb pdf) by the Area Solicitor relating to an application for the renewal of a licence for Skin Piercing and Tattooing. The Report advised that no objections had been received in response to the application from the Northern Constabulary, Fire and Rescue Service and Building Standards and that a response to the application was awaited from the TEC Services. The Report recommended that the Committee agree to defer determination of the application, either: (i) to allow it to be approved under delegated powers in the event that all responses and no objections are received, or (ii) to a future meeting of the Committee when the application will be determined in terms of the hearings procedure.

The Committee AGREED the recommendation.

The Committee resolved that, under Section 50A(4) of the Local Government (Scotland) Act 1973, the public should be excluded from the meeting during discussion of the following Items 9.1. 9.2, 9.3 and 10.1 on the grounds that they involved the likely disclosure of exempt information as defined in paragraph 3 of Part 1 of Schedule 7A of the Act.

9. Civic Government (Scotland) Act 198
Application for Private Hire Car Driver’s Licences

9.1 Applicant – William S McNeill (aka Bruce)

There was circulated Report No HLC-051-11 by the Area Solicitor relating to an application for the grant of a Private Hire Car Driver’s Licence received from William S McNeill (aka Bruce). The Report invited the Committee to consider the application following a medical report that the applicant did not meet the Group 2 (PSV) Standard which was the Council’s agreed medical standard.

The Committee was advised that the applicant was not at present at the meeting,and following debate it was agreed that the application be dealt with in his absence.

Following discussion the Committee REFUSED the application on the grounds that the applicant was not a fit and proper person on the basis that he had not passed the Council’s agreed medical standard.

9.2 Applicant – George S Hill

There was circulated Report No HLC-052-11 by the Area Solicitor relating to an application for the grant of a Private Hire Car Driver’s Licence received from George S Hill . The Report invited the Committee to consider the application.

The Committee AGREED to defer determination of the application either (a) to allow it to be approved under delegated powers or (b) to a future meeting when the application would be determined in terms of the Hearings procedure.

9.3 Applicant – Raymond Macdonald

In attendance: Mr Raymond Macdonald (Applicant)

There was circulated Report No HLC-053-11 by the Area Solicitor, Inverness, Nairn, Badenoch and Strathspey relating to an application for the grant of a Private Hire Car Driver’s Licence received from Raymond Macdonald. The Report invited the Committee to consider the application.

On hearing from the Applicant the Committee AGREED to grant the application for 3 years subject to standard conditions.

10. Civic Government (Scotland) Act 1982
Application for Taxi Driver’s Licences

10.1 Applicant – Paul C Moffat

In Attendance: Mr Paul C Moffat

There was circulated Report No HLC-054-11 by the Area Solicitor relating to an application for the renewal of a Taxi Driver’s Licence received from Paul Moffat The Report indicated that an objection from the Northern Constabulary had been received outwith the statutory 21 day consultation period The Report noted that Schedule 1, Paragraph 3(2) of the Civic Government (Scotland) Act 1982 stated that it was competent for the Licensing Authority to entertain an objection or representation received before taking a final decision on the application if they were satisfied that there was sufficient reason why it was not submitted in the time required. The Report recommended that the Committee determine the application in accordance with the Council’s Hearings Procedure.

On hearing from Acting Inspector, Mr G Cameron and the applicant in regard to the reasons for the late objection, the Committee AGREED to hear the late objection from the Northern Constabulary.

The Committee then heard from Acting Inspector, Mr G Cameron, in regard to their objection to the application, and from the Applicant in support of his application.

During disussion the Area Solicitor advised the Committee that fixed penalities were not convictions and did not have to be disclosed on the application form.
Mr R Pederson, seconded by the Chairman, moved that the application be refused on the grounds that the applicant was not a fit and proper person to hold a taxi driver’s licence.

There being no amendment the motion became the finding of the meeting and accordingly the application was REFUSED.

The meeting ended at 1.15 pm