Agenda item

The applicant has applied for a new Premises Licence in respect of Gabrielas Café Bar Restaurant, 48-50 Napier Road, Gillingham, Kent ME7 4HD.

 

All responsible authorities have been consulted in line with the Licensing Act.

 

Representations have been received from the Police, Public Health, a School, a Ward Councillor and members of the public together with a petition. An agreement has been reached with Environmental Protection.

 

Discussion:

 

The Chairman explained the process that the hearing would follow the “Guidelines for Licensing Hearing Panels”, as outlined on page 4 of the agenda.

 

The Licensing Officer stated that, in accordance with the Licensing Act 2003, the Council had received an application in respect of Gabriela’s Café Bar Restaurant (the Restaurant) to supply alcohol (on and off the premises) from 10:00 to 22:30 Monday to Sunday at the address specified as 48-52 Napier Road, Gillingham, Kent ME7 4HD.

        

The Licensing Officer confirmed that the application had been correctly advertised in the local press and notices had been displayed at the premises for the required timescales. The application had been referred to the Licensing Hearing Panel for determination because the Council had received relevant representations relating to the licensing objectives from the Police, Public Health, a School, a Ward Councillor and members of the public together with a petition. An agreement had been reached between the Applicant and Environmental Protection. She added that the Licensing Office was yet to hear from the Planning on its consent or otherwise to the application.

 

At the Chairman’s invitation, Manuel Rocha, the Applicant’s agent explained that the Gabriela’s Café Bar Restaurant was open about six months ago and was now applying to supply alcohol daily from 10:00 to 22:30 before closing at 23:00. The Restaurant had currently employed 6 to 7 staff and planned to increase the strength to 15 -16 under a full-swing operation. He then outlined the steps intended to be taken to promote the four licensing objectives, as well as the conditions agreed with Environmental Protection.

 

Mr Rocha further advised that in his email to the Police sent around last Christmas, the Applicant, John Panayi, had accepted the 13 conditions proposed by the Police except closing the outdoor seating area by 19:00 which would be done by 21:00 instead, as agreed with Environmental Protection. Mr Rocha stressed that the Applicant would make every effort to respect the licence conditions and was prepared to make all necessary improvements to maintain a good environment for the neighbourhood with a view to sustaining the business which could hardly survive without selling alcohol.

 

The Chairman invited the objectors to ask the applicant and his agent questions.

 

PC Hunt asked about the number and location of smoking area(s). Mr Panayi advised that in addition to the one at the front of the shop, they intended to put another smoking area at the back to keep the noise away from the properties at the front of the shop.  On the rationale of opening the outdoor seating area to the front of building until 21:00 having regard to the concerns of nuisance and disturbance expressed by various parties in their representations, Mr Panayi and Mr Rocha said that smoking was a human right, and there was an agreement with Environmental Protection for the outside seating area to open until 21:00, but they had no problem to change it to 19:00, as proposed by the Police.

 

Noting that the Applicant had previously submitted and subsequently withdrawn an application for one licence covering both premises of the Restaurant and the Mini-market, PC Hunt asked about the reason for the current splitting into applications for two licences.   Mr Rocha advised that their initial idea was  to apply for one licence to save costs which however was shelved on the advice of one of the Licensing officers who advised that it was better to submit applications for separate licences. Given the differences in the nature of the businesses and proposed time of operation, the types of licences and the steps to be taken to promote the licensing objectives for each of them would hence be different.

 

PC Hunt queried the Applicant’s intention of submitting applications for two licences was to allow Restaurant customers to buy alcohol from the Mini-market and consume at the former in case the licence application for the Restaurant was refused while the one for the Mini-market was granted. In response, Mr Rocha outlined the differences in the nature and price ranges of alcohol sold at the Restaurant and the Mini-market, and emphasised that they really needed both licences from the business point of view. In reply to Barbara Murray, Public Health Project Officer, Mr Rocha confirmed that customers would not be allowed to buy alcohol from the Mini-market and consume it at the Restaurant.

 

Upon Mrs Murray’s query on the number of complaints received during the past six months, Mr Rocha explained that they had received a few complaints under the first temporary event notice (TEN) among the two to three notices held for the past six months. The complaints were made against midnight nuisances caused by excited customers for the new business. Mr Panayi added that according to their CCTV records, the Restaurant did not share the blame for some of the other complaints. Nevertheless, Mr Rocha said that they had learned the lessons by adjusting the hours of alcohol supply from 23:30 to 22:30. 

 

Mrs Murray expressed concern about the location of the premises.  Mr Rocha referred to a similar business in the area, which was closing at 2330 or midnight and attracted no complaints.  As he noticed, the catering industry was pushing their activities to a later schedule to provide brunch and late dinners. Mrs Murray pointed out that unlike the Nazare Café Bar on Gillingham Road which was located in a mix of commercial and takeaway shops among a few residential properties, the Restaurant was situated on a purely industrial and residential area that used to enjoy quiet nights.    

 

Mrs Murray asked what consultation had been carried out among residents prior to application, and what proposed steps would be taken to promote the licensing objective of prevention of public nuisance.  Mr Panayi said that he had talked with the Restaurant’s customers and invited them to let him know of any nuisance problems that might be caused to the neighbourhood by the Restaurant.  It was his intention to avoid drunk scenes and to accommodate residents’ requests to improve the environment such as keeping the noise level down by closing earlier at 19:00 and planting or installing a canopy.  He stressed that it was essential to his business to maintain a good relationship with the residents in the neighbourhood.

 

Councillor Johnson asked about any intended use of live or recorded music at the Restaurant as it was not part of the licence application. Mr Panayi advised that only background music would be used, which, according to the legal adviser, could be played without a relevant licence.

 

Councillor Johnson raised concern about public safety caused by heavy vehicles. Mr Panayi pointed out that large lorries unrelated to his business were seen entering and leaving the building about once a month and he did not see a risk associated with this. In reply to Councillor Johnson’s further question, Mr Panayi acknowledged that the Restaurant did not supply any alcohol since its initial opening. 

 

In reply to Chantelle MacGregor’s questions, Mr Panayi advised that customers could not walk from the proposed smoking area at the back of the shop to its front through the Restaurant.  A member of staff would be assigned to monitor the outside smoking area at the front restricting access to only three people at a time after 21:00. The number of people allowed to access the proposed smoking area at the back would be worked out according to the number of seats at the rear end of the Restaurant, say about six people. Regarding crowd control near the closure of the premises at 22:30/23:00, Mr Rocha referred to the dispersal policy which asked the customers to respect the neighbourhood when leaving the premises and to stay inside the premises while awaiting a mini cab. Ms MacGregor also expressed concern about customers’ parking and children’s safety.

 

Noting that the Applicant was applying to open the premises from 07:00 to 23:00 seven days a week, Daniel Osborn expressed concern on the need for residents to put up with such long hours every day. Mr Panayi advised the current operating hours of the Restaurant as follows:

 

Monday to Thursday          07:00 to 17:00

Friday and Saturday          07:00 to 23:00

Sunday                              09:00 to 16:00

 

Mr Panayi said that if the proposed opening hours caused any concern, he was happy to discuss and make changes, for example, opening the premises at 09:00 instead of 07:00.

 

The Chairman invited Panel members to ask the Applicant and his agent questions.

 

In reply to a question, Rocha advised that the application did not seek to change the overall seating capacity of the Restaurant which shall remain the same.

 

A Member was concerned about the distance between the customer car parking area and residences as the sound of door slamming at nights could be quite annoying, and whether any soundproof means would be put in place to mitigate the potential problem. Mr Panayi said that customers could park beside the building and if necessary, he was prepared to put up screens to reduce the noise.     

 

In reply to further questions, Mr Panayi advised that upon the request of his immediate neighbour upstairs, he had moved the operation to one side away from the window of the neighbour’s son’s room. He also clarified that there had been three to four TENs issued in the past six months. Except for the complaints made under the first TEN, the others were unfounded as evidenced by their CCTV records.    

 

Addressing a concern on the proposed opening hours, Mr Panayi explained that as the response to the new business of supplying alcohol was untested, the proposed opening hours of 07:00 – 23:00 were made to enable the Restaurant to accommodate customers’ actual demands.  It was likely for the Restaurant to close early at 21:00 during the week and stay late just for the weekends. Mr Rocha added that they were planning to open late when the business environment improved over time.

 

Next, the Chairman invited the objectors to present their representations

against the application.

 

PC Hunt pointed out that Gabriela’s café/bar/restaurant was a former plumbing supplies business located in Napier Road in Gillingham, which fell just outside of both the Gillingham town centre cumulative impact policy area (CIP) and the Gillingham stress area (SAP).  It was situated next to a small industrial area to one side but was also surrounded by residential properties on the outskirt of the town centre. There was limited parking in the area, with numerous curbs in the residential driveway.

 

PC Hunt said that the Applicant was originally requesting to allow service to customers in the outdoor seating area at the front until 21:30, with all tables and chairs being removed by 22:00 each day. Kent Police believed these timings to be too late, which was likely to cause a noise nuisance and anti-social behaviour to residents. Noise nuisance could be in many forms be it persons using the outside space chatting over a meal or having a drink, persons congregating and using this space as a smoking area. Noise nuisance and levels of antisocial behaviour were often amplified after the consumption of alcohol. Kent Police proposed the use of the outdoor seating area be limited until 19:00 hours each day as a compromise, with it being used only as a smoking area after this time by no more than three persons at any one time. Kent Police further suggested that the number of persons allowed to use the proposed rear-end smoking area at any one time should also be limited to prevent nuisance to the residents living in the properties behind the Restaurant.  

 

PC Hunt also highlighted that the premises were a large-sized restaurant with two clearly defined dining areas, one of which was located to the front of the premises and the second to the rear. It was worthy to note that there was no mention within the application form of there being a function room, nor of the premises intention to host larger functions such as birthday parties, wedding receptions and special events. The hosting of these functions might change the dynamic of the premises of being just a café/ restaurant and raise the level of risk with regards to the potential for incidents of crime and disorder occurring and added further to the concerns already shared regarding public nuisance and disturbance to residents.

 

PC Hunt further advised that Kent Police shared the view of the Public Health on public nuisance caused by littering, insufficient parking space, and noise nuisance due to car engines and slamming of doors.  In its current form, Kent Police was unable to support this application. As such, Kent Police sought the addition of 13 conditions set out in pages 33 to 35 of the agenda which would help alleviate to a certain extent those concerns raised by objectors.  In his email dated 27 December 2021, the Applicant agreed 12 conditions and would like to maintain the agreement with Environmental Protection on the closure of the outdoor seating area by 21:00.  He urged the Panel to consider adding the 13 conditions if it were to grant the licence.

 

Mrs Murray pointed out that the Restaurant was in Napier Road, Gillingham, which was almost exclusively a residential area running between Gillingham Road and Nelson Road. Apart from a very small industrial area, where the Restaurant was located, there were no other commercial premises in this part of the road. The nearest area with shops, a café and some takeaway premises was in Gillingham Road at the bottom of Napier Road. As this was not an area which had a history of licensed premises, the Restaurant had the potential to cause public nuisance, particularly in the form of noise and disturbance from customers coming and going to and from the premises, and from customers outside, eating, drinking and smoking.

 

Mrs Murray highlighted that there was considerable concern about noise and disturbance to the people living in the immediate and surrounding area emanating from the Restaurant’s customers, particularly in the evenings and later at nights. Noise nuisance in residential areas could disturb people in their homes, and could be generated by a variety of means, such as customers and staff gathering outside buildings to eat, drink and smoke. This could affect residents even at some distance from the premises. The impact on the wellbeing of residents from noise generated by licensed premises was indeed concerning.

 

Councillor Johnson expressed sympathy for the Applicant who was making the application for a retail change from plumbing to catering, which however was rendered inappropriate by the location of the Restaurant.  It was situated in an otherwise residential area, surrounded at all sides by housing and residents included the full range of age from elderly to young children.  The Restaurant, if licensed, would impact the family lives of this established community. This part of Napier Road did not form part of CIP and SAP because it did not previously have any premises deemed to be at risk.

 

Councillor Johnson said he had received objections from a large number of residents against this application and that was why the Applicant only received a few direct complaints.  Residents had experienced how the premises had been operating under the TENs and they complained about problems of noise nuisance, littering, smoking, lack of parking space, public safety due to increased traffic, as well as nuisance to passing children or ordinary pedestrians brought by customers at outdoor seating area. Noise nuisance could be caused outside or within the premises, but there was no mention of dispersal procedures/policy in the application.

 

Chantelle MacGregor who was living three doors away and worked from home said she could hear the noise from smokers at the premises and she had to close the window.  Sometimes, the noise continued after midnight, and unfortunately due to the pandemic, no support for the residents in this regard could be provided. She was concerned about people loitering and smashing glasses outside her home given there were over a thousand incidents of criminal damage in the area in 2021. It was not her intention to let her young child see people drinking all day outside the premises. 

 

Clare Osborn who was living at the opposite of the premises said her two school-aged children could hear customers talking, shouting and swearing through the window. She believed the situation would get a lot worse with drinks.  It was also intimidating for young children to constantly hear drunk people talking, whom were much more impacted than those just passing by. She did not think it appropriate to license the premises in the residential area.

 

The Chairman asked if any party wished to add anything further. Mr Rocha raised the concern that without the licence of supplying alcohol, the Restaurant could not stop customers bringing their own bottles to consume there, yet no steps would be taken to promote the licensing objectives outlined in the application.

 

In reply to an enquiry about complaints received under the TENs other than the first one, PC Hunt said that the Kent Police had raised objection to a recent application for TEN made by the Applicant because the location of this premises was in a residential area and not because it fell just outside the CIP. 

 

The Chairman asked if any of the parties wished to add anything further. Mr Rocha appreciated the opportunity to attend this hearing to understand the views of Councillors and residents. He said that the community and the business should work together to provide jobs and boost the economy. They were keen to maintain a good working relationship with the local residents by adjusting the opening hours and putting in place measures to prevent nuisance and disorder. Mr Rocha said he understood that the licence, if granted, was subject to review and revocation.

 

PC Hunt reiterated the need for the Panel to consider the 13 conditions set out by the Kent Police if it were to grant the licence, in particular the proposed closure of the outdoor seating area by 19:00. He also urged the Panel to take note of the hosting of functions at the rear dining area which might change the nature of the premises to more than just café/restaurant.

 

Mrs Murray referred to paragraphs 4.17 and 4.18 of the Statement of Licensing Policy regarding the prevention of public nuisance. She pointed out that the premises had already caused considerable concerns among residents even without the sale of alcohol. As there were no mitigating measures that could be taken to stop nuisance from happening in the form of noise and therefore the Director of Public Health asked the Panel to consider refusing the application.  If the Panel decided to grant the application, Mrs Murray asked the Panel to consider the condition of closing the outdoor seating area by 19:00.    

 

The Chairman requested everyone to leave the room for the Panel to discuss and reach a decision.

 

Decision:

 

The Panel, having read the objections submitted against the application and listened to some objectors’ views, questioned the Applicant in relation to these, and after very careful consideration, did not consider that it could grant a licence for Gabriela’s Café BarRestaurant at 48-52 Napier Road, Gillingham, Kent ME7 4HDmainly because the premises sat predominately in the residential area. The Chairman reminded the Applicant about his right to appeal against this decision at the Magistrate’s court should he wish to do so.