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LICENSING AUTHORITY: MAIDSTONE BOROUGH COUNCIL

 

LICENSING ACT 2003

LICENSING ACT 2003 (HEARINGS) REGULATIONS 2005

 

NOTICE OF DETERMINATION

 

Applicant:                              Mr Richard Balfour-Lynn

 

Regarding                             PREMISE LICENCE (VARIATION)        
                                                Hush Heath Winery, Hush Heath Estate, Five Oak Lane,

                                                Staplehurst, Kent TN12 0HX        

 

Date(s) of hearing:               10^th September 2020                      

 

Date of determination:        10^th September 2020                      

 

Committee Members:          Councillor Mrs Joy (Chairman), Councillor Mrs Sams and Councillor Mrs Springett        

 

Legal Advisor in attendance at hearing:  Mr Robin Harris

 

Democratic Services Officer in attendance at hearing:  Miss Oliviya Parfitt

 

Online Meeting Facilitator: Mr Ryan O’Connell

 

 

This was an application for: 

R      Variation

 

 

for a

    R Premises Licence     

 

A: Representations, evidence and submissions:

 

The Committee considered the representations, evidence and submissions of the following parties:

 

Applicant

Name:  Mr R Balfour-Lynn

                             

Witnesses: Cllr Perry, Cllr Riordan Staplehurst Parish Council

Responsible Authorities

 

Not applicable

 

Other Persons

Name:  Represented by Mr P Kolvin QC (Angus Codd and Andrea Hodgkiss, Kim and Sally Humphrey, Alison Clark, Richard and Natasha Davidson-Houston, Amanda and Bernard Tipples, Frank and Ann Tipples, Dawn Lye, David Taylor and Nicola Feakin.)

 

Witnesses:  Mrs N Davidson-Houston

 

Representations considered in the absence of a party to the hearing:

In support – Staplehurst Parish Council

 

Objections – Ian and Liz Tipples, Guy and Janice Barkaway, Brenda Webb and Darryl Evans, Marcus Rennick

 

Together with all written representations received, from all above-named other persons represented by Mr Kolvin QC and as witnesses for the applicant, appearing in the agenda papers at appendix 3

B:    Consideration of the Licensing Act 2003, the Guidance under s. 182 of the Act and the Statement of Licensing Policy of Maidstone Borough Council

The Committee has  taken into account the following provisions of the Licensing Act 2003 and  the Regulations thereto:

Section 4 which relates to the licensing objectives;
Sections 34 - 36 which relate to the variation of a premises licence;

The Committee has taken into account the following provisions of the Guidance under section 182 of the Act:

Chapter 2 which relates to the licensing objectives

Chapters 8 & 9 which relate to premises licences & determinations
Chapter 10 which relates to conditions attached to licences;

The Committee has taken into account the following provisions of its Statement of Licensing Policy:

Chapter 17.9 which relates to prevention of crime and disorder

Chapter 17.16 which relates to the promotion of public safety

Chapter 17.19 which relates to the prevention of nuisance

Chapter 17.23 which relates to the protection of children from harm.

The Committee has decided to depart from the guidance under section 182 of the Act and or the statement of licensing policy for the following reasons:

N/A

C:   Determination:

The Committee has decided to:  Grant the Application and

      Vary conditions appropriate for the promotion of the licensing objectives

Mandatory conditions remain; embedded conditions not applicable, current conditions at annexes 3 and 4 to be deleted and replaced with those below.

Hours:

Off sales (online)                                         00:00 – 00:00 (24 hours)

Off sales (shop)                                            10:00 – 17:00 November – March and;

10:00 – 18:00 April – October

Off sales (shop) (non special event*)       10:00 – 23:00 Fridays and Saturdays only

Off sales (shop) (special event)                10:00 – 24:00                                               

On sales (non special event*)                   10:00 – 19:00 Sunday to Thursday and;

On sales (non special event*)                   10:00 – 23:00 Fridays and Saturdays only

On sales (special event*)                           10:00 – 00:00

Late night refreshment                               23:00 – 00:00

Live and recorded music                            10:00 – 24:00

Opening hours (non special event*)        10:00 – 19:00 Sunday to Thursday and;

Opening hours (non special event*)        10:00 – 23:00 Fridays and Saturdays only

Opening hours (special events*)              10:00 – 00:00

Opening hours                                             00:00 – 00:00

(online sales only no public attendance)                    

* as defined below

A special event (previously referred to as “event occasion”) is an event at which: recorded or live music is provided after 17:00 or late night refreshment is provided and are subject to the additional conditions imposed by condition 12 a-i.

A non special event with extended hours refers to Fridays and Saturdays where on and off sales are permitted until 23:00 subject to the conditions imposed by condition 13 a-f. All other non special events refer to occasions where there is not a special event or a non special event with extended hours.

The following conditions apply at all times:

1.    The premises shall not be operated as a public house, restaurant, drinking establishment, nightclub, wedding venue or events venue (other than events ancillary to the winery use).

2.    The licensable activities authorised by this licence and provided at the premises shall be ancillary to the main function of the premises as a winery.

3.    There shall be good CCTV coverage of all licensed areas. The CCTV system will be kept in good working order and any images captured will be kept for a minimum of 30 days and supplied to a Police officer or local authority officer upon request.

4.    No customers will be left unsupervised on the premises.

5.    Children will be kept under adult supervision at all times.

6.    All hazardous materials will be kept under child proof lock.

7.    A Challenge 25 proof of age scheme shall be operated at the premises, where the only acceptable forms of identification are recognised photographic identification cards, such as a driving licence, passport or proof of age card with PASS hologram.

8.    The premises licence holder shall organise a meeting with residents living within 800 metres of the Hush Heath Estate once per calendar year to discuss any impact of the premises on the promotion of the licensing objectives.  (See also informatives).

 

9.    The sale of alcohol for consumption on the premises shall be restricted to products produced by Hush Heath Winery and shall not include spirits.’

10. The sale of alcohol for consumption on the premises shall be only to those attending the winery for the purposes of winery tours, tastings and vinicultural and vinicultural education.

11. There shall be no external advertising generally or at the premises, of the sale of alcohol for consumption at the premises, by the licence holder or any person instructed by or associated with him, including on any signs or any third party website. The website for the premises may advertise the services and hours that are available at the premises.

 

The following condition applies during special events as defined above.

 

12. Special Events may be held at the premises subject to:

 

a) Special Events shall be limited to 12 per calendar year.

b) Special Events shall not occur on consecutive weekends.

c) Special Events shall be notified by letter or email to neighbours within 800   
    metres of the premises a minimum of 7 days before the event.

d) The supply of alcohol shall be restricted to products produced by Hush Heath
    Winery and shall not include spirits.

e) After 23:00 live and recorded music and late night refreshment will be indoors  
    only and windows and doors will be closed save for entry and exit.

f)  Live and recorded music will end by 23:45.

g) All visitors to the premises will leave the premises and parking area by
    midnight.

h) Signage will be placed at the exits of the premises asking visitors to leave
    quietly and respect neighbours.

i)  The premises licence holder shall ensure that any patrons drinking and/or
    smoking outside the premises, including on the exterior terrace, do so in an
    orderly manner and are supervised by staff so as to ensure that there is no
    nuisance to local residents.

 

The following condition applies during non special events with extended hours as defined above

 

13. Non Special Events (Extended hours on Fridays and Saturdays)

 

a)    The extended hours to 23:00hrs apply only on Fridays and Saturdays, but are available all year round.

b)    The premises may only be opened for extended hours on a Friday or Saturday where there are pre-booked activities.

c)    The maximum number of customers during extended hours is limited to 60 persons.

d)    Licensable activities during extended hours will occur indoors only.

e)    The supply of alcohol during extended hours shall be ancillary to a full table meal only.

f)     Off sales during extended hours are only available to persons taking part in the pre-booked activities.  

Informatives:

 

If issues should arise during the operation of a licence which are related to licensable activities at the premises and promotion of the licensing objectives, application may be made for a review of a premises licence in accordance with the Licensing Act 2003.

 

Any term or condition of the premises licence does not confer planning permission for the activity licensed and should any conflict arise implementation of the licence may put the licensee at risk of planning enforcement unless appropriate planning permission is obtained.

 

Any issues arising or complaints may be raised with the premises licence holder as they arise and not await an organised meeting, to facilitate constructive discussion at the time.

 

The premises licence holder is strongly recommended to engage fully with local residents prior to making any further applications.

 

Reasons for conditions:

 

Members of the Licensing Sub Committee considered that all the conditions attached to this licence are appropriate and proportionate to the scale of this premises and nature of its operation as a winery with tours, tastings and wine related education and activities, including a limited number of special events ancillary to its main function and the new addition following this hearing of extended hours for on and off sales that are permitted on Fridays and Saturdays. They are such as to continue to promote the licensing objectives, following the addition of extended hours on Fridays and Saturdays.

 

In respect of conditions previously in Schedules 3 and 4 to the premises licence granted on 28^th March 2019, these have been transferred with very minor amendments to the conditions to form schedule 4 of this licence, for clarity.

 

The condition limiting extended hours to Fridays and Saturdays only was appropriate and proportionate to promote the licensing objective of preventing public nuisance. The Sub-Committee were of the view that three nights a week including a night during the ordinary working week could lead to public nuisance due to the increase in customers attending the premises later in the evening.

 

The condition limiting the number of customers allowed during extended hours was appropriate and proportionate for the same reason and also for the promotion of the public safety objective, in respect of an increased volume of traffic, in so far as that is relevant. The Sub-Committee noted that the applicant requested 10 tables and in the current climate that sets a maximum of 60 people and that number going forwards was appropriate for the promotion of the licensing objectives.

 

The other on sales extended hours conditions are consistent with the conditions already on the licence in respect of the use of the facility being ancillary to the primary use as a winery and clarify that this remains the case during extended hours as they continue to promote the licensing objectives going forwards.

 

The condition relating to off sales during extended hours is appropriate and proportionate to promoting the licensing objective of preventing pubic nuisance and consistent with the conditions already on the licence in respect of the use of the facility being ancillary to the primary use as a winery and clarify that this remains the case during extended hours. The Sub-Committee confirmed that it was not mistaken when it set the hours for the shop previously and these hours remain unchanged.

 

The existing condition restricting advertising externally the sale of alcohol for consumption on the premises remains appropriate and proportionate to prevent public nuisance, as such advertising is reasonably likely to attract a number visitors seeking a premises selling alcohol rather than for wine tasting experiences provided as ancillary to services intended by the winery operation. However, the Sub-Committee considered the amendment to allow advertising of services and hours on the premises website to strengthen this condition as it would limit speculative visits to the premises and support the pre-booking condition.

 

The Sub-Committee felt that a further informative in respect of the premises licence holder engaging with residents prior to any application would be helpful.

 

 

Reasons for determination:

Having heard from Mr Kolvin, on behalf of many objectors, Mr Balfour – Lynn, the applicant and those in support of his application and read all the representations made, (see lists above), Members of the Sub Committee took account of the lengthy and detailed evidence where relevant to promotion of the licensing objectives and impacts relating to this variation application.

 

They also took into account that there were no representations from Responsible Authorities.

 

The Sub-Committee noted that there was no objection to online sales being 24 hours a day.

 

Members have carefully balanced the stated requirements of the applicant in operating his winery business and ancillary licensable activities against the concerns of neighbours likely to be affected by uncontrolled licensable activities which have a reasonable likelihood of not promoting the licensing objectives.

 

Prevention of Crime and Disorder

 

The Sub-Committee noted that there were no representations under this licensing objective.

Protection of Children from Harm

 

The Sub-Committee noted that there were no representations under this licensing objective that would meet the definition in the guidance. However, reference to child safety generally, particularly on the roads was raised and was therefore considered under the public safety objective.

 

Public Safety

           

In respect of public safety, the Sub-Committee noted that the objectors’ main concerns centred around the potential of this variation to create a substantial increase in visitor numbers, leading in turn to an increase in traffic on the small local roads, during evening hours which they state is the time of highest risk. A witness was able to point to a specific example of a vehicle departing the winery causing a hazard, which had been reported to the Parish Council.

 

Further, objectors were concerned regarding the safety of the public when moving around the site after dark, due to the potential planning limitations on the use of the external lighting at the premises.

 

In response, the applicant stated that they had a well run premises, there was no history of public safety issues at the site and where residents had raised concerns these had been responded to, for example by purchasing a minivan and routing this vehicle from Marden rather than Staplehurst. The applicant suggested conditions in relation to public nuisance which were also relevant to this licensing objective, namely a limitation on the number of customers and operating a pre-booking system.

 

The Sub-Committee noted that there was no representation from any responsible authorities on this issue and given the representation from the Parish Council, there was a range of opinion, even among local residents in respect of public safety on the roads.

 

No party produced expert evidence in respect of the proposed variation on visitor numbers or traffic flows.

 

The Sub-Committee was satisfied that there is adequate lighting available at the premises. The Sub-Committee draws attention to the informative regarding the relationship between planning and licensing that was made at the previous hearing and remains extant.

 

Taking into account all of the above, the Sub-Committee were of the view that the proposed variation was likely to increase visitor numbers in the evening. However, due to issues of road safety not being evidenced as  occurring on the premises or the immediate vicinity of the premises, or linked to the proposed variation, it was considered that the public safety objective was not sufficiently engaged by the proposed variation to justify specific conditions under this objective, but, the Sub-Committee felt that conditions that were appropriate to the promotion of the prevention of public nuisance also assisted in respect of this licensing objective, in as far as it is relevant.

 

Prevention of Public Nuisance

 

The Sub-Committee noted that the objectors main concerns around this issue were related to a potential increase in visitors, which had the risk of increased noise and disturbance in an area which is both rural and tranquil and further, that the proposed variation was indicative of a move away from services ancillary to a winery towards an operation akin to a hospitality venue, with a more social experience, which would by its nature be a noisier enterprise.

 

The representations made both at the hearing and in advance of the hearing pointed to previous assurances by the applicant that there was no intention to change the existing licence.

 

Representations noted that the applicant had not used his quota of 12 special events but now wanted to increase late night openings 14 fold.

 

The applicant responded that the changes were not planned and that he had been genuine when he had given assurances previously. However, the impact of the Covid-19 pandemic required a response and there was also a change in the demand from customers, which as a business the premises had to respond to or the business could fail. The applicant noted that neighbouring properties would not be impacted by noise from inside the winery, due to the construction of the winery.

 

The applicant advised that he felt it unlikely that the hours would be exercised three nights a week, but that the business wanted there to be flexibility. He noted that he is the closest resident to the winery and that he also has an interest in limiting noise from the premises.

 

The applicant also proposed a condition on the maximum number of guests that could attend later in the evening, along with pre-booking and the suggestion of dimming the lights during the hours of darkness.

 

The Sub-Committee noted that there was no representation from any responsible authority in respect of this licensing objective.

 

The Sub-Committee noted the support of the Parish Council to the application.

 

Taking into account all of the above, the Sub-Committee considered that the application as originally made failed to adequately promote this licensing objective. However, with some of the modifications proposed by the applicant and appropriate conditions applied by the Sub-Committee the application could be approved in part and continue to promote this licensing objective.

 

The Sub-Committee felt that three nights a week, including an ordinary working day was likely to cause a public nuisance. However, a reduction to two weekend evenings with a limitation on the total number of customers and the further additional controls noted above, would be sufficient to promote this licensing objective and ensure that the licensable activities on the premises remained as ancillary to the primary use as a winery.

 

The Sub-Committee permitted off sales to run concurrently with the extended hours, but did not change the hours for other days of the week. The intention of 19:00 for on sales at the premises was stated in the previous application to be to allow flexibility for any visitors staying a little over time. This was not a mistake and has promoted the licensing objectives.

 

Members amended the no external advertising condition to allow advertising of services and hours on the premises website. They considered this to be appropriate and proportionate to promote the prevention of public nuisance.

 

 

 

 

PRINT NAME (CHAIRMAN):  COUNCILLOR MRS JOY

Signed [Chairman]:                               A copy of the original document is held on file

Date: 15 September 2020