Agendas, reports and minutes

Highland Licensing Board

Date: Tuesday, 29 March 2016

Minutes: Read the Minutes

Minute of the meeting of the Highland Licensing Board held in the Council Chamber, Council Headquarters, Glenurquhart Road, Inverness, on Tuesday 29 March 2016 at 1.00pm.

Present:
Dr I Cockburn
Mr A Duffy (except Items 7.1 – 7.5)
Mr C Fraser
Mr R Greene
Mr A Henderson
Mrs L Macdonald (except Items 1 – 6 and Item 9.2)
Mrs G Sinclair
Ms M Smith

In Attendance:
Mr A Mackenzie, Clerk
Ms S Blease, Depute Clerk
Mr I Cox, Licensing Standards Officer
Mr D Inglis, Licensing Standards Officer
Ms L Treasurer, Licence Standards Officer
Mr G Corner, Environmental Health Officer
Ms A Macrae, Committee Administrator

Also In Attendance:
Inspector E Henderson, Police Scotland

Item 7.4:   Mr C MacRitchie, for the Applicant
Item 8.1:   Mr L Jack and Mr M Jack, Applicants
Item 8.1:   Mr B Stewart, Objector
Item 9.2:   Mr D Smillie, Applicant
Item 10.1: Mr J Bellido, Licence Holder
Item 10.2: Mrs M Cowie, Licence Holder and Mr J Cowie, Licence Holder’s Representative
Briefing on Protocol for Webcasting of Meetings.

Dr I Cockburn in the Chair

The Convener advised the Board that the meeting would be filmed and broadcast over the internet on the Highland Council website and would be archived and available for viewing for 12 months.

1. Apologies for Absence
Leisgeulan

Apologies for absence were intimated on behalf of Mr J Stone and Mr W Mackay.

2. Declarations of interest
Foillseachaidhean Com-pàirt.

There were no declarations of interest.

3. Confirmation of minutes
Dearbhadh a’ gheàrr-chunntais 

There was submitted for confirmation as a correct record the minute of the meeting of the Highland Licensing Board held on 2 February 2016.

The minute was held as read and APPROVED.

4.Licensing (Scotland) Act 2005 
Licences granted under delegated powers
Achd Ceadachd (Alba) 2005 
Ceadachdan a bhuilicheadh fo ùghdarras air a thiomnadh 

There had been circulated Report No HLB/018/16 detailing licences which had been granted under delegated powers by the Clerk to the Board during the period 20 January 2016 to 15 March 2016. 

The Board NOTED the report.

5. Licensing (Scotland) Act 2005 
Occasional licences and extended hours 
granted under delegated powers
Achd Ceadachd (Alba) 2005 
Ceadachdan Corra-uair agus uairean sìnte a bhuilicheadh fo ùghdarras air a thiomnadh 

There had been circulated Report No HLB/019/16 detailing occasional licences and extended hours applications which had been granted under delegated powers by the Clerk to the Board during the period 20 January 2016  to 15 March 2016. 

The Board NOTED the report.

6. Extension of the period of the Board’s licensing policy statement 2013-16
Leudachadh de dh’ùine aithris poileasaidh ceadachd a’ Bhùird 2013-16 

There had been circulated Report No HLB/020/16 by the Clerk in connection with the extension of the period of the Board’s licensing policy statement 2013-16. 

The Board:-

i. NOTED the extension of the period of its existing licensing policy statement 2013-16 to November 2018; and
ii. AGREED that, in the interim, should any individual sections of the statement need to be reviewed, this be dealt with by the supplementary policy statement process. 

7. Licensing (Scotland) Act 2005 
Applications for new premises licences
Achd na Ceadachd (Alba) 2005 
Larrtas airson cheadachdan thogalaichean ura 

7.1 Ref: HC/RSL/1756 

Applicant: Isle of Sky Ltd, 19 Crespigny Road, London 
Premises: Prince of India, Bayfield Road, Portree, Isle of Skye 
Type: On sales and off sales 

There had been circulated Report No HLB/021/16 by the Clerk which invited the Board to determine the application. 

The Board AGREED to grant the application subject to the mandatory conditions. 

7.2 Ref: HC/INBS/588 
Applicant: Cairngorm Greetings Limited Reg. Office: Oakfield House, 378 Brendan Street, Motherwell ML1 1XA, per Bernard Harris. 
Premises: Cairngorm Creations Ltd, Unit 1D, Aviemore Shopping Centre, Grampian Road, Aviemore PH22 1RH. 
Type: Off sales 

There had been circulated Report No HLB/022/16 by the Clerk which invited the Board to determine the application.

The Board AGREED to grant the application subject to the mandatory conditions.

7.3 Ref: HC/INBS/589 
Applicant: Speyside Distillers Company Ltd, Duchess Road, Glasgow G73 1AU 
Premises: Speyside Distillers Company Ltd, Tromie Mills, Kingussie PH21 1NS. 
Type: Off sales 

There had been circulated Report No HLB/023/16 by the Clerk which invited the Board to determine the application. 

The Board AGREED to grant the application subject to the mandatory conditions.

7.4 Ref: HC/RSL/3999 
Applicant: GlenWyvis Distillery Ltd, Registered Office at Glenwyvis Farm House, Upper Docharty, Dingwall, IV15 9UF 
Premises: GlenWyvis Distillery Ltd, Glenwyvis Farm House, Upper Docharty, Dingwall, IV15 9UF 
Type: On sales and off Sales 

There had been circulated Report No HLB/024/16 by the Clerk which invited the Board to determine the application. 

On hearing from Mr C MacRitchie, for the applicant, the Board AGREED to grant the application subject to the mandatory conditions and the special condition detailed in paragraph 7 of the report.

7.5 Ref: HC/CSER/1757 
Applicant: Thurso Football Club 
Premises: Thurso Football Club, The Old Pavilion, Sir George’s Park, Thurso 
Type: On sales 

There had been circulated Report No HLB/025/16 by the Clerk which invited the Board to determine the application.

The Board AGREED to grant the application subject to the mandatory, local, specific and late opening conditions detailed in paragraph 7 of the report.

8. Licensing (Scotland) Act 2005 
Applications for provisional premises licences 
Achd Ceadachd (Alba) 2005 
Iarrtas airson ceadachdan thogalaichean le cumha 

8.1 Ref: HC/INBS/587 
Applicant: LJ Restaurants Ltd Reg. Office: Johnston and Carmichael, Clava House, Cradlehall Business Park, Inverness IV2 5GH. 
Premises: Sun Dancer Bar and Restaurant, Harbour Street, Nairn IV12 4PH 
Type: On sales and off sales. 

There had been circulated Report No HLB/026/16 by the Clerk which invited the Board to determine the application. 

The Clerk reported that in response to the application timeous written objections had been received from Mrs L Mackintosh, Mr and Mrs Duncan, Mr A Watt, Mrs J Ross, Ms F Cameron, Mr B Stewart and Nairn River Community Council.  A written timeous representation had also been received from N and B Middleton.  

The Clerk advised that two late letters of objection had been received from Nairn West and Suburban Community Council and from Ms C Cameron and in accordance with Section 135 of the Licensing (Scotland) Act 2005 he invited the Board to consider whether the late objections should be accepted.

On hearing from the applicants who confirmed they were content for the late objections to be heard, the Board AGREED to accept the late objections, copies of which were then circulated to all parties.

Thereafter, the Board then heard from the Mr L Jack and Mr M Jack, applicants, in support of the application during which the following points were raised:-

• it was clarified that throughout the application process the proposal had been for a restaurant and at no stage of that process had the application been amended to a bar operation as had been suggested locally and in the objections received;  
• it was suggested that the misunderstanding which had arisen had given rise to many of the issues raised in the objections;
• in response to concerns about potential noise and disturbance to local residents it was reported that the premises had been designed and constructed to minimise any potential noise nuisance, for example doors and windows opening to the sea side only and through the use of reinforced double glazing; 
• the premises would be a family run operation and there was no intention to cause any disturbance or disruption in the local area in which the applicants were also resident;
• an open meeting had been held with the objectors during the previous week during which all parties had been given the opportunity to discuss the proposal with the applicants and Licensing Standards Officer and to undertake a tour around the premises to view the operation at first hand with a view to alleviating their concerns;
• it was suggested that the above meeting had alleviated the concerns of the majority of people present;
• it was explained that the top floor restaurant would provide 106 seats and there would be a separate bar area which would provide for 25-30 seats; the purpose of the bar area would be so that customers could sit and enjoy a drink before and after the meal;
• on the ground floor there would be a café area with 10/15 seats where ice-cream and takeaway pizza would be served; the purpose of the off- sales application was to allow anyone purchasing a takeaway to also buy a bottle of wine to accompany their meal; 
• the premises also had a private conference room for private dining, and events such as funerals and small weddings; provision had also been made for wedding ceremonies to be held in a marquee by the beach but it was clarified that the consumption of food and alcohol after any ceremony would only permitted within the licensed premises; 
• the applicants would be content to accept a condition that no live music would be permitted within the marquee if the Board was minded to grant the licence; and
• confirmation was sought and provided by the applicants that a written noise management plan would be submitted for approval by the Board.
Thereafter, the applicants provided Members, and all other parties with an opportunity to view a model of the premises.

The Board then heard from the Licensing Standards Officer who explained that throughout the application process nothing other than a restaurant and ancillary facilities and services had been proposed.  He advised that the generic operating plan which all applicants were required to complete may have contributed to the misunderstanding in regard to the type of operation proposed. He suggested that given the proximity of the development to a residential area it was important that the applicants operated in concert with their neighbours.  In conclusion he advised that if the Board was minded to grant the application with the recommended conditions then it would comply with the licensing objectives. 

Mr B Stewart, objector, confirmed that he was appearing in both an individual capacity and as a representative of the Nairn and Suburban Community Council.  He advised that while the concept of a restaurant in this area of Nairn was welcomed the main thrust of the objections related to the non-restaurant activities and therefore it was hoped that a good relationship with local residents was maintained.  In regard to events and weddings being held outwith the premises he queried the legal position in this regard noting that this could also impact on Common Good land.

The Clerk advised that an occasional licence would be required if licensed activities were to be held outwith the area covered by the premises licence. 

The applicants also confirmed that they would require to seek permission from the Trustees of Nairn Common Good to erect a marquee on Common Good land.

During the debate on this application, it was suggested that it was common practice for permission to be sought from the Trustees of the Common Good for any events or functions to be held on Common Good land.  It was suggested that the proposal represented a significant investment in, and would be an asset to, the town. The application should be granted subject to the conditions recommended in the Clerk’s report, including the special conditions in response to the concerns of residents in regard to potential disturbance arising from the operation. 

Thereafter, the Board AGREED to grant the application subject to the mandatory, local and special conditions detailed in paragraph 7 of the report.

8.2 Ref: HC/RSL/1761 
Applicant: Sea Breezes Ltd, Cnoc an Lion, Lower Ollach, Braes, IV51 9LJ 
Premises: Cuchullin, Nicolson House, Wentworth Street, Portree, IV51 9EJ 
Type: On sales and off sales 

There had been circulated Report No HLB/027/16 by the Clerk which invited the Board to determine the application. 

The Board AGREED to grant the application subject to the mandatory conditions.

9. Licensing (Scotland) Act 2005 
Applications for variation (major) to premises licences
Achd Ceadachd (Alba) 2005 
Iarrtasan airson caochladh (mòr) a thaobh ceadachdan thogalaichean 

9.1 Ref: HC/RSL/1120 
Applicant: Partnership of Sine B and Gavin B Davis 
Premises: West Highland Hotel, Mallaig, PH41 4QZ 
Type: On sales

There had been circulated Report No HLB/028/16 by the Clerk which invited the Board to determine the application. 

The Board AGREED to grant the application subject to the mandatory conditions, existing local conditions and the additional local, late opening and special conditions detailed in paragraph 8 of the report.

9.2 Ref: HC/RSL/0486 
Applicant: David Smillie 
Premises: Volunteer Arms, 47-49 High Street, Fort William 
Type: On sales 

There had been circulated Report No HLB/029/16 by the Clerk which invited the Board to determine the application.

The Clerk reported that timeous written objections had been received from J Wallace, A Aggarwal, R Tomar, A Debicka, S Kumar and J Kumari and although they were not present at the meeting, the Board was required to take the terms of their objections into account in their determination of the application. 

The Clerk also circulated the Board with an updated noise management plan which had been submitted by the applicant.

The Environmental Health Officer advised that the updated noise management plan submitted by the applicant included further works and measures to control and minimise internal noise sources, details of which he provided. The applicant had also provided the complainants who lived above the premises with his telephone number so they could contact him in the event a noise nuisance arose and had given an undertaking to reduce the noise levels accordingly in such circumstances. In response to a question he advised that there were currently no outstanding complaints in relation to noise in respect of the premises.   

The Licensing Standards Officer reported that she had met with the applicant, and the objectors who occupied the flats above the premises, during which the applicant had confirmed that monitoring devices had been fitted to the music speakers and that he was aware of how to manage noise levels within the premises. The objectors had confirmed that the level of noise during the previous evening had been satisfactory. Following these discussions the applicant had also confirmed he had been testing the music at different levels and had been liaising with the objectors in this regard to resolve any issues.

During discussion, Members raised the following issues:-

• clarification was sought and provided in regard to the action taken to mitigate the noise impact on the Ossian Hotel and information was sought on complaint history in this regard; 
• it was important the applicant recognised the importance of keeping all windows and internal and external doors, including the fire exit, closed at all times of the year;
• the importance of any people noise outside the premises being minimised, for example when using the smoking area and the need for there to be adequate stewarding in this regard;
• the opportunities for alternative technologies to be used to limit noise levels and ensure compliance with the noise management plan;
• that it should be accepted this was a town center location and that there would be an element of noise disturbance;
• that the application be granted subject to all relevant conditions being applied in regard to noise management; 
• that the application from a hybrid premises for a late opening licence be welcomed but that it was important the applicant recognised the added responsibilities in terms of ensuring there was no noise nuisance arising from the premises; and
• in regard to the above the applicants were advised that if any further complaints were received these would be brought back to the Board.

The Clerk indicated that if the Board was minded to grant the application then the updated noise management plan would be incorporated into the recommended conditions to be attached to the grant of a licence as set out in his report. 

Thereafter, the Board AGREED to grant the application subject to the mandatory conditions, the existing local conditions and the additional local, late opening and special conditions detailed in paragraph 8 of the report.

10. Licensing (Scotland) Act 2005 Section 83 –review of personal licence – notice of conviction
Achd Cheadachd (Alba) 2005, Earrann 83 – ath-sgrùdadh air ceadachd phearsanta – brath dìtidh 

10.1 Licence Holder: Jose L C Bellido (HC/RSL/L/3846) 

There had been circulated Report No HLB/030/16 by the Clerk which advised that notification had been received from Police Scotland under Section 83 of the Licensing (Scotland) Act 2005 that Mr J Bellido, personal licence holder, had been convicted of a relevant offence on 5 January 2016 and had failed to notify the Board of that conviction.  

Inspector E Henderson confirmed that Mr Bellido, a personal licence holder, had been convicted of a relevant offence and had failed to notify the Board of his conviction. Accordingly Mr Bellido had failed to comply with the terms of Section 82(2) and (5) of the Licensing (Scotland) Act 2005 and an enquiry would be progressed by officers in this regard and a report sent to the Procurator Fiscal.

Mr Bellido advised that he had failed to notify the Board of the conviction on the basis that he had not been aware that it was relevant or related to his personal licence. He outlined the circumstances by which he had incurred the conviction and expressed regret at his actions and error of judgment in this regard, and provided an assurance that there would be no recurrence in future. 

Following discussion, the Board AGREED to take no action on this matter.

10.2 Licence Holder: Mary Cowie (HC/CSER/2034) 

There had been circulated Report No HLB/031/16 by the Clerk which advised that notification had been received  from Police Scotland under Section 84A of the Licensing (Scotland) Act 2005 that Mrs M Cowie, Personal Licence Holder, had on 22 January 2016 been convicted of a relevant offence and had failed to notify the Board of that conviction.  

Inspector E Henderson outlined the circumstances by which Mrs M Cowie, had received a drink driving conviction at Wick Sheriff Court on 22 January 2016. This was her second drink driving conviction within a period of three years, having been previously convicted for a similar offence on 23 April 2012. It was therefore the opinion of Police Scotland that Mrs Cowie had acted in a manner inconsistent with the licensing objective of preventing crime and disorder.  Mrs Cowie had also failed to comply with terms of Section 82(2) and (5) of the Licensing (Scotland) Act 2005 in failing to notify the Board of the conviction and an enquiry would be progressed by officers in this regard and a report sent to the Procurator Fiscal.

Mr J Cowie spoke in support of Mrs M Cowie during which he outlined in detail the circumstances which had led to the offence and subsequent conviction.  He advised that Mrs Cowie had no previous convictions prior to 2012, and they had jointly operated the Captains Galley Seafood Restaurant, Scrabster for the past 15 years with no complaints having been received in respect of its premises licence.  Mrs Cowie had sought to understand the underlying reasons which had led to both offences and had approached her GP and a specialist in herbal medicine both of which had indicated she was suffering from stress. He advised Mrs Cowie was responding well to treatment and had also made the conscious decision to reduce the hours she was working in the restaurant and would continue to do including over peak times.

Mr Cowie advised that In regard to the failure to notify the Board of the conviction, he had sought legal advice on this matter in regard to the first offence in 2012 and been advised that there was no requirement to do so, and had assumed the same would apply in respect of the second offence.    

In discussion, concern was expressed that the actions of the licence holder could have caused a serious accident involving other vehicles and persons. It was suggested that it unacceptable for a personal licence holder to have incurred two drink driving convictions over a three year period.

Thereafter Ms M Smith seconded by Mr A Duffy moved that Mrs M Cowie’s personal licence be suspended for a period of six months.

The Depute Clerk advised that the Board should be mindful that suspending Mrs Cowie’s personal licence did not prevent her from working on the premises or serving alcohol, albeit she would require to be supervised by someone who held a personal licence.    The Clerk also advised that if the Board was minded to impose a sanction it had to establish how the offences were linked to the licensing objective referred to by the Police of preventing crime and disorder.  In particular the Board should consider how the fact that the licence holder had committed a drink driving offence affected her ability to sell alcohol.

At this point, Ms M Smith with the agreement of Mr A Duffy withdrew her motion.

During further discussion, the following points were raised by Members:-

• it was suggested that in regard to the second conviction if the licence holder had been consuming alcohol on the premises during her working hours then this might have had a bearing on her ability to sell alcohol; and; 
• it was suggested that there was a link in terms of the licensing objectives given that Mrs Cowie while in the responsible position as the operator of a licensed premises had incurred two drink driving offences.

The Depute Clerk advised that under Section 84 of the Licensing (Scotland) Act 2005 it had to be established that the licence holder while working on the licensed premises acted in a manner which was inconsistent with the licensing objectives. The Police had provided no evidence in this regard.  The licence holder’s representative had confirmed that the licence holder had not consumed alcohol on the licensed premises while working and there was no evidence to dispute that.  The onus was on Police Scotland to provide evidence that conduct inconsistent with the licensing objectives took place while the licence holder was working on the licensed premises, and she advised that they had failed to do in this case. 
During further discussion it was suggested that from the information provided to the Board there was no evidence to indicate there had been a breach of the licensing objectives and therefore that no further action could be taken on the matter.

The Board AGREED to take no action in relation to the Licence Holder.

The meeting ended at 2.50pm.