5
The Sub-Committee received report
ES/2190 of the Licensing Officer, which related to an application for a variation to the premises licence at Sirmani Foods Ltd, Alba Chiara Restaurant, 91-93 Undercliff Road West, Felixstowe, IP11 2AF.
The Chair invited the Licensing Officer to summarise the report. The Licensing Officer told the Sub-Committee that Alba Chiara had submitted an application for a variation to the licensable activities, as follows:
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Supply of alcohol – ON sales
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Monday to Sunday 09:00 to 23:00
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Supply of alcohol – OFF sales
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Monday to Sunday 09:00 to 23:00
The hearing had been held as two representations against the application had been received from other persons on the grounds of the noise nuisance being an hour earlier.
The Sub-Committee was advised that the applicant had been advised of the representations made, however no successful mediation had occurred, therefore the hearing was still required. The Sub-Committee was informed that when taking its decision, it was required to consider the guidance issued under Section 182 of the Licensing Act 2003, the Council's current Statement of Licensing Policy and the Human Rights Act 1998, giving full reasons should it have reason to depart from these points. The Sub-Committee was asked to determine the application by either:
1. Granting the application subject to any mandatory conditions and to those consistent with the operating schedule accompanying the application.
2. Granting the application subject to the same conditions but modified to such extent as the Sub-Committee considers appropriate for the promotion of the licensing objectives.
3. Rejecting the application.
The Sub-Committee was asked to state its reasons when announcing its decision.
The Chair invited questions to the Licensing Officer.
Councillor Hedgley asked if there had been any complaints in the past year regarding the premises. The Licensing Officer confirmed there had not been any complaints or feedback regarding the premises.
There being no further questions the Chair invited the Applicant to make their representation.
The Applicant told the Sub-Committee that he was seeking new channels of sales for his business to mitigate against the crisis in the hospitality sector. Therefore he was proposing the new hours to offer breakfast and off sales.
The Chair invited questions to the Applicant.
Councillor Hedgley noted the opening times that were proposed and asked if there would be any compromise anywhere, for example on a Sunday morning.
The Applicant confirmed that Sunday was an important trading day for them, during the week there could be some flexibility, but the weekends were the most important part of the trade.
Councillor Reeves referred to the objection regarding outside tables and asked if the tables would have to be outside early in the morning? The Applicant responded that he would see that as a restriction to his premises. The business rates are calculated by the size of the premises, he uses the outside seating regularly, but it is subject to weather conditions, and therefore only used 30% of the time. He also found that by putting the tables outside it minimised the nuisance.
He clarified that although the new opening hours still needed to be firmed up as it was new trade to them, he didn’t envisage their being any outside activities (setting up tables) before 08:30.
The Objector noted that the applicant already takes furniture outside an hour and a half before opening. They were brought outside so that the applicant could layout the main restaurant and clean floors etc. The Objector said the furniture was dragged noisily and placed outside. They asked the Applicant if they opened at 09:00, what time would they drag the furniture out? The Applicant confirmed that activities would not start outside before 08:30 and that was the earliest time that he would have front of house staff available.
He added that currently they open at 12pm and the staff start at 11.00 am, they will change their process to make the setting up outside quicker and there would not be any activity before 08.30am.
The Objector noted that earlier the applicant had said the outdoor space was only used in nicer weather, but they still bring it out each day. The Applicant said they lay them out so as not to leave piles of tables and chairs. The Objector expressed concern that it would affect them for the whole year as they were still laying the tables out. They asked if the Applicant would consider buying a trolley to transport them on wheels so they were not being dragged on tiles and creating noise disturbance.
The Applicant stated that would mean putting in a new system for 20 chairs maximum. He added they were not dragging them on purpose, it was normal noise being created from the setting up of the tables and chairs and it would not be possible to put them on wheels.
The Objector asked how they would manage the waste disposal service with the increased hours. The Applicant confirmed they used a private service provider – Biffa and the frequency of collections would be the same, he noted they have had issues and hoped that this would improve over time. The Objector expressed concern that recent waste collection was 5.00 am. The Applicant said if the waste collection needs to increase then this would need to involve a service increase from the provider. The Objector noted the particular disturbance from the glass collection and asked what demands could be made of Biffa? The Applicant said as soon as he found out about the early collection in a residential area, he did contact them to ask them to observe the permitted hours. The Senior Licensing Officer confirmed she had seen a copy of the email and response.
The Objector asked what the Applicant meant when talking about engaging with the local community. The Applicant said he was proposing to put on bread and pasta courses.
The Objector stated that they were not communicated with at all by the Applicant. Under prevention of public nuisance in the application it cites engagement with local community but they are not talked to. They had no knowledge of the refurbishment or walls being knocked down, again they asked what the regular engagement with the community was. The Applicant referred to marketing/sales strategies and said they were not yet in place. The Applicant wasn’t clear what was being asked and stated if there was a nuisance they would engage and act upon it.
Councillor Hedgley clarified that the Objector was asking that the Applicant talked to them and kept them informed of changes and checked in to see how things were. He asked that the Applicant improved the communications in the future. The Applicant confirmed that all communication had stopped and they now communicated via the management agency. The neighbour had applied for a variation due to the nuisance.
The Second Objector referred to an incident on 7th December 2024 and asked why the applicant did not turn the music off when they called down to the restaurant at 10.15pm. He stated it was only when Environmental Protection were called that the music ceased, this was 10.45pm. The Applicant stated he wasn’t aware of that incident and said the staff know they should turn the music off. He agreed to talk to the staff. The Objector started that effective communication with local community needs to commence in line with the prevention of nuisance. The Applicant said they were talking about an event he wasn’t aware of, he apologised but he wasn’t aware.
The Objector elaborated on the event on 7th December, he said there was music playing outside, it had been playing all day and this was in the evening, the weather was rainy and windy and there was no one outside. A neighbour rang the venue and then they rang Environmental Protection.
The Legal Advisor sought clarification on the permitted music. The Senior Licensing Officer confirmed that background music was not licensable and therefore doesn’t have to be on the licence. The Licence the Applicant currently holds states they can only have live and recorded music from midday to 10pm. There is no regulation for what they can have inside (background music) – it was noted that the levels would be a different matter.
The Objectors confirmed that other than the points made in their written representation and what they had spoken about today, they had nothing further to add.
Councillor Hedgley commented that he was getting the impression that this was a continual nuisance – with the Objectors having to phone up about music, scraping chairs and tables. The Objectors confirmed they do get noise disturbance which interferes with the peaceful enjoyment of the home, They moved to the seafront to enjoy the sound of the waves and the beach.
Councillor Hedgley commented that when living on the seafront, and in a commercial area you would expect some level of disturbance.
The Objectors accepted that there would be noise, especially at the weekends when the night club is operating and they close the windows. However, they cannot be expected to close the windows all of the time, they like the fresh air and this is being hampered by being above the restaurant.
Councillor Patience requested that the Applicant ensured the tables and chairs were carried and not dragged. The Applicant said this would happen and no one would do this on purpose, by dragging them they were damaging the furniture.
It was clarified where the tables and chairs were moved to and from and where they are stored. The Applicant said they should all be lifted and the sound of the dragging is not intentional.
In response to Councillor Patience, the Applicant agreed to undertake to tell the staff to lift and not drag the chairs and tables.
The Objector noted that the staff were dragging them in a stack at opening and close times, they only mentioned the morning as it referred to the morning hours variation of the licence that the applicant was applying for.
Councillor Hedgley noted the challenges in the hospitality sector and was keen to increase the ability for business viability. He stated that there was a communication breakdown and urged the applicant to make an effort to undertaken regular communications with his neighbours to find out how things were going.
There was nothing further to add, therefore the Sub-Committee adjourned to make their decision.
Decision Notice
Sirmani Foods Ltd (the Applicant) has applied for a variation to an existing premises licence at Alba Chiara 91 – 93 Undercliff Road West, Felixstowe, Suffolk IP11 2AF, to extend the licensable activity time of on sale from 10am to 11pm to 9am to 11pm as well as adding off sales.
This Sub-Committee has been held as two representations against the application had been received from other persons. There were no representations received from any responsible authorities. The grounds for objection were that extended opening hours would bring unreasonable early noise disturbance, from the outdoor seating area, increased waste collections and deliveries. The representations also stated that there is a problem with litter and smoke pollution which could increase too because of the longer hours. Ultimately, causing a disturbance to those who reside above and near the premises.
The Sub-Committee first heard from the Licensing Officer, who summarised the report. The Licensing Officer confirmed that they had not received any complaints about the premises.
The Sub-Committee then heard from the Applicant who explained that they want to open new channels of sales, such as opening for breakfast. When questioned by the objector the Applicant confirmed that activities outside will not start until 8.30 in the morning. The Applicant was asked about waste disposal management, they clarified they use an external service provider and cannot predict the frequency of waste collection or time.
The Sub-Committee then questioned the objector about the continual nuisance, they confirmed that they do have noise disturbance that interferes with the enjoyment of their home.
The decision of the Sub-Committee
The Sub-Committee, having considered the application, the Licensing Officer’s report and the representations from the Applicant and the objector has decided to grant the variation application for on and off sales, Monday to Sunday, 09:00 to 23:00.
Reasons for decision
In arriving at this decision, the Sub-Committee has taken into consideration the representations of both the Applicant and Objectors as well as the Licensing Officer’s report. The Sub-Committee also considered the Council’s own licensing guidance and Statement of Licensing Policy, as well as the Statutory Section 182 guidance, and Human Rights Act 1998.
Pursuant to 9.12 of the Revised Guidance issued under section 182 of the Licensing Act 2003, each responsible authority will be an expert in their respective field. The Sub-Committee, therefore, took great weight in making its decision upon the lack of responses from responsible authorities, most notably Environmental Protection in relation to noise disturbance.
The Sub-Committee recommends that the Applicant strictly enforces their operating schedule, to promote the Licensing Objectives. The Applicant should be engaging in “effective regular engagement with the local community”. The Sub-Committee strongly recommends that the Applicant partakes in regular communication with the immediate local residents to discuss measures to reduce the disturbance that the premises is causing.
The Sub-Committee note that ‘public nuisance’ should be interpreted in its widest sense to include such issues as noise, light, odour, litter and anti-social behaviour, where these matters impact on those living, working or otherwise engaged in normal activity in the vicinity of a licensed premises per 14.4 of the Licensing Act 2003. The Sub-Committee note that in the Applicant’s operating schedule and the licensing conditions, they will employ controlling measures to prevent public nuisance.
The Sub-Committee acknowledge the representation from the Objectors whose key concern was that extending the licensable hours would cause disturbance. The Sub-Committee would like to note that all the conditions that are already attached to the licence will remain in force with this variation, specifically Annex 3 that states that in the outside licensable area, live or recorded music shall only be played between the hours of 12 noon and 10 pm.
Article 6.4 of the Licensing Act 2003 states that in the absence of any specific reasons linked to the licensing objectives, the Licensing Authority will not seek to restrict licensed retail outlet’s ability to sell alcohol for consumption off the premises throughout their general trading hours. As the Objectors’ comments referred to the on sales the Sub-Committee see no reason not to grant the off sales application.
The Sub- Committee believe that the Applicant should be capable of promoting the licensing objectives therefore the variation application is granted.
Anyone affected by this decision has the right to appeal to the Magistrates’ Court within 21 days of receiving notice of the decision.
Date: 9 December 2024