6
The Sub-Committee received report ES/0529 of the Cabinet Member with responsibility for Community Health. The Chairman invited the Licensing Officer to summarise the report.
The Licensing Officer confirmed that a new premises licence had been applied for the sale of alcohol on and off the premises at Chapel Barn, Wilderness Reserve, Heveningham. The hearing was required as twenty representations against the application had been received from other persons and a petition had also been received. These representations and petition were appended to the report and had been provided to the applicant and the Sub-Committee.
The Licensing Officer outlined that since the publication of the agenda and report, further representations had been received as well as additional noise assessments from both the applicant and objectors. It was confirmed that all of this information had been shared with the relevant parties prior to the meeting.
The Sub-Committee was advised that it was required to make its decision taking into account the Licensing Act 2003, the Council's Statement of Licensing Policy, and the Human Rights Act 1998, and if it had reason to depart from this it was asked to give full reasons for doing so.
The Sub-Committee was asked to determine this application by either granting the application subject to such conditions as are consistent with the operating schedule accompanying the application and any condition which must be included in the licence in accordance with the Licensing Act 2003, granting the application subject to such conditions as are consistent with the operating schedule accompanying the application, modified to such extent as the Sub-Committee considered appropriate for the promotion of the licensing objectives (for example, by excluding a licensable activity or restricting the hours when a licensable activity can take place) and any condition which must be included in the licence in accordance with the Licensing Act 2003, or rejecting the application.
The Chairman invited questions to the Licensing Officer from the Sub-Committee.
The Licensing Officer confirmed that Environmental Protection had been consulted on the application and had responded on 7 September 2020 stating no objections to the application and agreeing that outdoor music should be restricted after 11pm.
There being no questions to the Licensing Officer from any of the other parties present the Chairman invited Mr H, the applicant's representative, to address the Sub-Committee.
Mr H referred to the application for a premises licence, at appendix A to the report, and gave a description of what Chapel Barn and the Wilderness Reserve offered as described on the company's website. Mr H described Wilderness Reserve as an ongoing project that now had a dozen properties and offered hundreds of bedrooms across its sites for high quality self-catering accommodation. The company employed 60 people and considered itself a major contributor to the local economy, employing local people and using local suppliers.
The Chapel Barn site was described as consisting of several properties dotted around the landscape that surrounded Chapel Barn itself, which acted as hub for the site. Mr H said that the applicant was seeking to license this hub. The site would offer 18 bedrooms that could be rented individually or en bloc and Chapel Barn would offer an events space. Mr H said that the application had two purposes; to allow the supply of alcohol to bedrooms through a hotel style room service and to facilitate the sale of alcohol at events in and around Chapel Barn itself.
Mr H drew the Sub-Committee's attention to the plans included with the application and outlined the areas in and around the building that would be licensed. Mr H said that regulated entertainment would be confined indoors to the main barn and the games room.
Mr H noted that the applicant did not wish to license additional areas not marked as such on the plans supplied and had been instructed to advise the Sub-Committee that the applicant sought to withdraw the part of the application seeking regulated entertainment outdoors and external late-night refreshment.
It was highlighted that documents at appendix D to the report, regarding operational guidance and noise management, had been submitted as part of the application. Mr H said that the submission of acoustic evidence and the input of external noise management consultants had resulted in new conditions being submitted by the applicant.
The meeting adjourned at 11.18am to ensure that all parties had received the new conditions submitted by the applicant. The meeting reconvened at 11.23am and it was confirmed that all parties now had this information.
The proposed new conditions were displayed on the screen and Mr H spoke on each condition and outlined the reasons they had been proposed. Mr H detailed the event management policy, noise management plan and the risk assessments that would be produced for the premises and each event; he said that the Designated Premises Supervisor would ensure effective management within the framework these documents.
The Sub-Committee was advised that an acoustic limiter would be placed on the public address systems in both the barn and the games room, that would be calibrated by a qualified acoustician to levels considered satisfactory by the authorised local authority Environmental Health Officer. Mr H reminded the Sub-Committee that Environmental Health would have the absolute right to set the noise generating levels at whatever level it sees fit, and the limiter would be sealed once set. Mr H noted that the noise management plan would need to be approved by Environmental Health.
Mr H turned to the issue of noise that had been raised by the objectors. The applicant had commissioned a feasibility study from Sustainable Acoustics, the results of which were at appendix D of the report. Mr H said that the results demonstrated that viable commercial music levels could be achieved with adequate controls to limit the levels of noise. Mr H said it was therefore viable to run Chapel Barn as planned without causing undue impact on neighbouring properties.
Mr H noted that there had been some "expert tennis" between the applicant and the objector regarding the feasibility study and invited Mr R, the owner of Sustainable Acoustics, to comment on it.
Mr R outlined his 25+ years' experience in acoustics, including five years as a local authority officer dealing with noise nuisance, and considered that he had the skills to both identify and solve noise nuisance issues. Mr R summarised the feasibility study and compared it to an MOT test of a car, in that looked at the feasibility of allowing a situation to occur, and as part of that identified the background noise levels at the quietest times predicted what the level of noise produced by the sound systems would be.
The Sub-Committee was advised that there was a significant hill between the site and the nearest tenanted noise receptor and that the feasibility study provided what the worst case situation would be and what the impact of noise would be. Mr R considered that a feasibility study would show whether or not a commercially viable level of sound could be achieved and that in this instance an exercise was carried out using a variety of techniques and equipment including subjective tests.
Mr H noted that the hill mentioned in the study was between the site and the home of Mr TS, one of the objectors; Mr H asked Mr R if the impact assessed as (A) in the study was a worst case scenario and if the number of events held on the site would make a difference to the impact of noise on Mr TS' home. Mr R confirmed that impact (A) was the worst-case scenario and that the number events would make a difference to the impact and that a stringent level of control would be required to meet the licensing objectives.
Mr R confirmed that the nearest A-Road was to the south of the site. Mr R also stated that the acoustic limiter would limit all frequencies generated by the PA systems.
Mr H suggested that the concerns raised by one of the objectors centred around the environmental noise survey and asked Mr R what its purpose was. Mr R said that the survey had a limited purpose and looked at how environmental noise levels varied at different times of day, identified the lowest level of noise and then formed a view of impact using written guidance. Mr R detailed where the sound sensor had been located for the survey and what sound in the area it would have picked up.
Mr H asked Mr R to outline the results of the environmental noise survey and Mr R noted the different periods of noise over a Fridays to Mondays, considering that there was a very quiet period over Saturday into Sunday. Mr R focused on this area and said it was important to note that if the sensor reached the noise floor this would be expected to be seen as a flat line and noted where lines had gently dropped and said that the survey had showed that environmental noise was low during this period. Mr R was of the view that the period surveyed was a reasonable robust one to have considered.
Mr H asked Mr R to detail the process that was followed after the environmental noise survey was completed. Mr R said that the feasibility study used the environmental noise survey to work out the level of noise that could generated over that before there was an impact on surrounding receptors, looking at how sound would reduce over distance, to then predict an approximate level under still wind conditions a certain distance away from the noise source. Mr R noted that this level would be an indicative one but would be robust. Mr R considered that there was significant screening around the site and that the study presented the worst-case scenario.
Mr R noted that if the commercial source level at Chapel Barn was set at 98dB, this would meet the predicted sound levels at receptors surrounding the site and said that in reality, the noise level would be barely audible at those receptors.
Mr H asked Mr R if Environmental Health could require a lower source level and Mr R stated that this was indeed the case.
Mr H noted the documents produced by Mr DB of MAS Environmental on behalf of the objectors, criticising the feasibility study, the response from Sustainable Acoustic supplied over the previous weekend, and the further reply from Mr DB earlier in the day. Mr H asked Mr R if anything stated by Mr DB had caused him to reassess or alter his conclusions. Mr R said that this was not the case and considered that the documents from MAS Environmental contained considerable distraction and little substance. Mr R cautioned the Sub-Committee against giving significant weight to these documents.
At this point (12.10pm) the Chairman adjourned the meeting for a 30 minute break. The meeting was reconvened at 12.40pm.
The Chairman invited questions from the Sub-Committee to Mr H and Mr R.
When asked about risk assessments in relation to noise management, Mr H confirmed that the noise management plan would be a comprehensive document. He noted that risk assessments would be produced in line with health and safety requirements and would consider elements around noise in terms of risk to staff and that escape of noise from the site would come under the noise management plan. This was verified by Mr R.
Mr H said that any risk assessment would look at the risk of noise levels to staff members' hearing.
A member of the Sub-Committee asked for a definition of a commercial level of sound. Mr R explained that this level would be one considered viable to be loud enough for clients and was a solid operation condition of an event dancefloor.
Mr R advised that trees had not been taken into account when considering the impact of noise; their biggest effect would be the rustling of leaves.
The Chairman invited questions to Mr H and Mr R from the Licensing officers.
The Senior Licensing Officer sought confirmation that the applicant was no longer applying for regulated entertainment outdoors and asked if the 11 conditions proposed by the applicant would replace or complement those on the schedule in the application. Mr H confirmed that the applicant was no longer seeking permission for regulated entertainment outside and the new proposed conditions were to replace those currently in the schedule in order to create conditions that would be fit for purpose and enforceable. He considered that some of the originally proposed conditions would be more suitable for a noise management plan.
The Chairman invited questions to Mr H and Mr R from the objectors.
Mr RS sought clarification on the stipulation that doors and windows would only need to be closed after 11pm; it was his understanding that noise would be broadcast outside if these were open and asked if this had been assessed in any way. Mr RS noted that the building has mechanical heating and cooling and considered there was no need for the doors and windows to be left open at any time. Mr RS also asked if an acoustic lobby would be installed to mitigate sound emitting from the building.
In reply, Mr R stated that three subjective tests had been completed including with doors and windows open and no audible sound had been recorded at Mr TS's home; Mr R gave assurance that the situation identified by the feasibility study was robust and that little impact would be made by closing doors and windows. Mr R considered that closing doors and windows after 11pm would be a precautionary measure and allowed windows and doors to be opened at earlier times on the hotter days of the year. Mr R said that the applicant was being proactive to control noise to external receptors and the local environment and did not consider there was a need for an acoustic lobby.
Mr RS asked if sound had been recorded at Mr TS's home using microphones or through spontaneous events. Mr R said that a listening test had been conducted to see what noise was audible and what noise was measurable.
Mr RS was asked if testing had been completed under a range of meteorological conditions. Mr R advised that testing had been completed under still wind conditions as well as a variety of other conditions. Mr R reiterated that the study was to ascertain feasibility and that the applicant would be ensuring that Environmental Health be satisfied with conditions, which could require more testing.
Mrs L questioned the validity of the subjective testing. Mr R accepted that subjective testing could be considered less valid but considered that it was still scientific. Mr R said that the study attempted to quantify objectively where possible but ultimately it came down to what could and could not be heard. Mr R was of the view that subjective testing was useful as part of the process.
Mr C raised concerns about sound being channelled by the Blyth Valley and propagated by the dry clay in the area. Mr R said that the dry clay would not affect propagation of the sound as it was not in immediate proximity to the sound source. Mr R acknowledged that landforms could channel the effect of sound but considered that this would not be the case for sound travelling towards Mr C's property. Mr C noted that he had been able to hear construction sound from the site and can often hear other noises from nearby rail lines and roadways and considered that party level noise was likely to be intrusive.
Mr TS asked if the proposals for ongoing checks were a substitute for the lack of pre-application assessment. Mr R said that the report specified the feasibility study completed and stated that it had not been a desktop exercise. Mr R said that the study had also looked at propagation and that an extensive amount of work had been done to identify if the licensing objectives could be reasonably satisfied. Mr R said both the study and his opinion was that the objectives could be satisfied and this would be followed up with robust measures during the set-up process.
Mr TS noted that a nearby fair, that took place annually at a site further away from his property than the application site, was audible at his residence and asked how party noise from a nearer source would not be audible. Mr R said he understood that the event referred to by Mr TS took place outdoors and was attended by approximately 10,000 people each year. Mr R highlighted that the sound generated at Chapel Barn would be within the building's envelope and that the applicant was being proactive by closing doors and windows after 11pm.
Mr TS made reference to the MAS Environmental reports which stated that the feasibility study had not satisfactorily considered wind direction in its testing. Mr R challenged this and noted wind direction also brought noise toward Mr TS's property from the road to the south. Mr R noted that Environmental Health would consider wind direction carefully at the next stage and considered that MAS Environmental had overstated the importance of wind direction in its reports.
Mr TS asked further questions to Mr R that Mr H considered to be moving towards cross-examination and considered that the Mr TS had already had the opportunity to seek further clarity on wind propagation. Mr TS ended his line of questioning at this point.
There being no questions to Mr H and Mr R from the Legal Advisor the Chairman invited Mrs L, who objected to the application, to address the Sub-Committee.
Mrs L considered that the terms of the application were unreasonable given the tranquil nature of the area and the site's relationship to nearby houses. Mrs L said that activities were likely to cause a nuisance that would be contrary to both the licensing objectives and the Council's own licensing policy and stated that the application should be refused. Mrs L was particularly concerned that should the application be approved the amount of live music on the site could equate to 17 hours a day, 7 days a week, 52 weeks a year.
Mrs L objected to the hours proposed for live music and considered the party levels and open doors and windows would create a disturbance at a time that residents would not expect. Mrs L concluded that the licence terms should be restricted to appropriate activities at suitable times and reiterated her view that the best course of action would be for the Sub-Committee to refuse the application.
There being no questions to Mrs L the Chairman invited Mr RS, who objected to the application, to address the Sub-Committee.
Mr RS was of the view that the current licence application was too wide and broad. Mr RS highlighted his engineering background and said he was concerned about the data provided by the applicant regarding sound propagation and acoustics; he said that from a purely mechanical basis the devices used to measure sound could resulted in the data collected being skewed by wind conditions on the date of the test.
Mr RS considered that more testing was required before a licence was granted and stated that an acoustic lobby would help soundproof the building. Mr RS wanted the activities on the site to be passive and something that worked with the community rather than against it.
The Chairman invited questions to Mr RS from Mr H.
Mr H clarified with Mr RS his comments on the equipment used to measure sound, and then asked Mr R to respond to this. Mr R confirmed that the microphone in question had a windshield and weather kit and was in accordance with the relevant British Standard, meaning it could be used in windy conditions.
There being no questions from the Licensing officers or the Legal Advisor the Chairman invited Mr C, who objected to the application, to address the Sub-Committee.
Mr C said that he had nothing further to add to the points he had made earlier in the meeting and that he supported the views expressed by Mrs L.
There being no questions to Mr C the Chairman invited Mr TS, who objected to the application and was also representing the petitioners, to address the Sub-Committee.
Mr TS referred to his speaking note, that had been circulated to the Sub-Committee prior to the meeting.
Mr TS noted that his property was the closest to the application site and that the residential buildings on the application site were in use throughout the year, especially in the spring and autumn. Mr TS considered that the assertion of a hill between the application site and his property was an exaggeration, describing it as a gentle slope.
The number of petitioners and their households were outlined by Mr TS; he highlighted that a sizeable proportion were west of Heveningham and several residents of Long Lane, towards Peasenhall. Mr TS said it was important to note that residents of Dunwich Lane had also signed the petition and that this site would be between two different operations run by the applicant.
Mr TS considered that the increase of traffic to and from the site would be contrary to the public nuisance licensing objective. Mr TS advised that there was significant and widespread concern across the locality as represented by the petition, in addition to the individual objections made to the application.
Mr TS stated that the required acoustic assessment regarding public nuisance had not been carried out by the applicant prior to submitting the application; he referred to the Council's guidance recommending a high standard of control to minimise the risk of of public nuisance and noted the application was in a tranquil area, noise sensitive and was asking for the maximum possible opening hours.
It was noted by Mr TS that there had been no consultation with residents until after the time limit for representations had expired and that the noise survey was only completed in September 2020.
The application was described by Mr TS as being not only for the Chapel Barn area but its surrounding site. The operating schedule set out the different type of events that would be hosted by the site and Mr TS compared this to the planning permission received on the site in 2017 for mixed leisure/tourism use. Mr TS considered that the application should be for events held in the barn and not to supply alcohol to the whole of the estate.
Mr TS highlighted what he considered to be a number of deficiencies in the application around noise conditions, operating times and the noise impact assessment commissioned by the applicant. Mr TS was of the view that the comparison with the nearby country fair was a fair one as even low noise at repeated points would be an irritation.
Mr TS said that the absence of a prior acoustic risk assessment put pressure on the applicant to evidence mitigating factors that would be put in place and suggested that acoustic lobbies could be included as such a factor. Mr TS considered that not enough testing had been undertaken by the applicant.
Mr TS reiterated the need for any licence to comply with the planning permission on the site and not to impact on the primary use it defined. Mr TS considered that the Sub-Committee should be reluctant to approve the application as it would generate traffic movement across the estate during the night to deliver alcohol to the accommodation, which would be wholly inappropriate.
Mr TS called Mr DB, from MAS Environmental, to address the Sub-Committee.
Mr DB confirmed that he had authored both the MAS Environmental reports submitted as well as the written statement provided earlier in the day, and that his views remained the same as set out in those documents.
Mr DB said that he had been concerned about the background monitoring and methodology used by Sustainable Acoustics; he considered that wind direction had a big impact on sound propagation, including that of background noise, and that the same methodology should be applied when measuring both background and generated noise.
Mr DB also queried the locations used by Sustainable Acoustics for testing as well as the type of meter used. Mr DB said he would have asked for measurements in tranquil areas using lower microphones to achieve a more accurate reading and noted it would be useful to see how noise affected Gothic Farm compared to the field used for testing.
Mr DB said that acoustic lobbies were normally installed as a common mitigation factor in licensed premises; he noted that opening windows and doors when noise was being generated needed to be proven under the right conditions.
There being no further comment from Mr TS or Mr DB, the Chairman sought advice on the relationship between planning permission and premises licences. The Legal Advisor stated that neither took priority over the other but had to be adapted to meet the requirements of the other; he advised the Sub-Committee that licensing decisions should not be tied to planning permission.
There being no questions from the Sub-Committee to Mr TS or Mr DB, the Chairman invited questions from Mr H.
Mr DB highlighted his experience providing evidence as an Environmental Health Officer; he confirmed that this was his first time acting as an expert witness.
When asked about the appropriateness of the conditions now offered by the applicant, Mr DB considered that this placed reliance on Environmental Health to set the noise levels allowed without seeing the evidence provided by MAS Environmental and Sustainable Acoustics.
Mr DB said that the noise assessment plan at paragraph 1.59 of his second report was appropriate given the circumstances of the application.
The Chairman invited Mr H to sum up.
Mr H sought to clarify Mr TS's comments about the expansion of the application; he noted the condition proposed that alcohol would only be served to guests resident on the estate and that application was for sale of alcohol for consumption on and off the premises. it would be required that the alcohol be sold on the premises but could be consumed off the licensed premises and delivered as late-night refreshment to accommodation on the site. Mr H said that this was clearly stated in the application and that the application would take steps to uphold the licensing objectives.
Mr H considered that the Sub-Committee should only consider the advice of acoustics experts and not those who only 'dabbled' in the subject. Mr H reminded the Sub-Committee that Environmental Health had not objected to the application and had made no representation on it. Mr H said that particular weight should be given to the testimony of Mr R and his significant expertise in acoustics. Mr H said that Mr B's advice suggested that perfect conditions needed to be met before any application was made, whereas the process should be iterative.
Mr H was confident that Environmental Health would address and resolve any issues that would arise on the site. Mr H concluded that the application should be decided on its own merits.
The Chairman invited Mr TS to sum up.
Mr TS believed that Mr H was attempting to bring ingenuity to a flawed application. Mr TS considered that the application was unreasonably wide in scope as stated by the various objectors who had spoken. Mr TS asked the Sub-Committee to consider the application carefully and stated that testing had been carried out late and in an unsatisfactory matter, which he was of the view precluded the granting of a licence.
Mr TS reiterated his conclusions about what events were planned for the site and commented again that additional traffic could cause a public nuisance.
The Chairman invited Mrs L to sum up.
Mrs L hoped that the Sub-Committee would take her representations into consideration.
The Chairman asked Mr RS to sum up.
Mr TS considered that application was too wide in scope and required additional conditions and testing to ensure no nuisance was created by activities on the site.
The Chairman invited Mr C to sum up.
Mr C said he had nothing further to add to his earlier comments.
The Sub-Committee adjourned, with the Legal Advisor and the Deputy Democratic Services Manager, to make its decision.
On its return, the Chairman advised that the Sub-Committee had resolved to grant the applicant a Premises Licence subject to the conditions proposed. The Chairman informed all present that a full decision notice would be formulated and distributed to all parties via email within the statutory timescale of five working days.
The decision notice, which was distributed on 14 October 2020, was as follows:
"Mr T has applied for a premises licence at Chapel Barn, Wilderness Reserve, Halesworth Road, Heveningham, IP19 8PT. The premises, should the licence be granted, would be used for company events, seminars, workshops etc and for weddings and private functions.
This Sub-Committee meeting has been held as over 20 representations were received against the application, as well as a petition with more than 50 signatures, representing around 35 households.
In arriving at this decision, the Sub-Committee has taken into consideration the oral and written representations submitted by all parties, the guidance under Section 182 of the Licensing Act 2003 and the Council’s Statement of Licensing Policy.
The Licensing Officer’s report also drew the Sub-Committee’s attention to its obligations under the Human Rights Act 1998.
The Sub-Committee heard from Mr H for the applicant, who called Mr R, his acoustic expert. No responsible authorities had made representations. From those who made relevant representations, the Sub-Committee heard orally from Mrs L, Mr RS, Mr C and Mr TS. Mr TS called Mr DB, as his acoustic expert. All parties were permitted to ask questions of their counterparts.
The Sub-Committee were also assisted by expert acoustic reports from both parties. The Sub-Committee read those reports and the subsequent exchange of information.
The Applicant’s submission
The applicant amended the application to exclude regulated entertainment and late night refreshment from any outdoor area, leaving only the supply of alcohol to be licensed outside.
The applicant’s barrister took the Sub-Committee through the application and the acoustic evidence. He then invited Mr R from Sustainable Acoustics to explain the impact assessment and noise management plan.
Questions were permitted from other persons.
The Objectors’ submissions
The Sub-Committee heard in turn from Mrs L, Mr RS, Mr C (who was accompanied and assisted by Mr KB) and finally Mr TS, who spoke on his own behalf as well as for Mr MB. Mr TS also spoke about the petition.
Mr TS called Mr DB to speak about his acoustic report.
Questions were permitted from the applicant.
All parties were given the opportunity to sum up.
Sub-Committee’s decision
In arriving at our decision, we have given due consideration to all the representations made including the expert evidence from both parties.
The Sub-Committee decided to grant the application, subject to the conditions and the amendment proposed by the applicant.
The amendment was to exclude regulated entertainment and late night refreshment from any outdoor area, leaving only the supply of alcohol to be licensed outside. The Sub-Committee noted that the proposed conditions included a restriction that alcohol only be supplied to residents of Wilderness Reserve, for their guests and people attending events there.
Given that the key issue appeared to be potential noise nuisance from the premises, the Sub-Committee attached considerable weight to the fact that the Environmental Health Team had not made a representation. At the Hearing, the Licensing Officer confirmed that the Environmental Health Team had been consulted and had no objection to the proposal. There were also no objections from any other responsible authority.
The Sub-Committee were satisfied that the impact assessment carried out by Sustainable Acoustics on behalf of the applicant was a sufficient basis to conclude that the application would promote the objective of preventing public nuisance.
In particular, the Sub-Committee did not think that comparisons with Heveningham Fair were relevant given the size and nature of that event. On the particular suggestions made by Mr TS, the Sub-Committee felt that a condition requiring doors and windows to be closed before 11.00pm was not appropriate. The suggestion of limiting overall capacity was felt to be a matter for the Fire Authority who had not made a representation.
The Sub-Committee also noted that a review could be brought in future should problems arise.
Overall the Sub-Committee considered that granting the licence, subject to the 11 conditions proposed and as amended at the hearing, was appropriate, having regard to the licensing objectives.
Anyone affected by this decision has the right to appeal to the Magistrates’ Court within 21 days of receiving this notice of the decision, and reasons.
Date: 14 October 2020"