Agenda item

The applicant has applied for a variation of the Premise Licence in respect of Super Pizza, 6 Batchelor Street, Chatham, Kent, ME4 4BJ.

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

Representations have been received from the Environmental Protection team and the Police. No agreements have been reached.

Background:

The Chairman explained the process that the hearing would follow, as outlined on page 4 of the agenda.

The Licensing Assistant stated that, in accordance with the Licensing Act 2003, the Council had received an application for a variation of the Premises Licence in respect of Super Pizza, 6 Batchelor Street, Chatham, Kent, ME4 4BJ. It had been confirmed that no planning application had been made to increase the licensed hours of the premises.

The application had been referred to the Licensing Hearing Panel for determination because the Council had received relevant representations relating to two of the licensing objectives. A representation had been received from Environmental Health on 20 March 2023 in relation to the Prevention of Public Nuisance. A representation had been received from Kent Police on 21 March in relation to the Prevention of Public Nuisance and the Prevention of Crime and Disorder. No agreement had been reached in relation to the representations.

The Chairman invited the applicant’s agent, Mr Eric Oppong, to present the application.

Mr Oppong said that Super Pizza had been operating since 2016 and that most orders were home deliveries. Three employees worked at the premises in addition to Mr Khan, the owner. Four delivery drivers were also employed. The business had not benefitted from local population growth due to increased competition. There had not been any disturbance or nuisance in Batchelor Street caused by the premises and the street was a quiet area of mainly businesses.

Mr Oppong said that many potential customers had called the premises after the current closing time to enquire about delivery and that this was the reason that an application was being made for longer opening hours. This would not have an impact on the area as the premises would only be doing deliveries.

Mr Oppong said that the premises would be happy to comply with the licence conditions proposed by the Police, should the application be granted, that the premises have a CCTV system operating and a security guard on duty at specific times. He said that the aim of the application was to increase the hours of operation of the premises and to serve local residents.

PC Hunt asked why the premises were looking to increase its hours of operation and why 5am was considered to be a suitable closing time. Mr Oppong said that based on the calls that had been received after the current closing time, it was considered that there was demand for the extended hours proposed.

Panel Members asked for clarification of the opening hours being applied for, questioned the level of demand for extended opening hours and asked how many orders were for collection rather than delivery. It was also asked whether customers were currently able to collect orders up until the premises closed and how many after hours calls were received.

Mr Oppong said that the application was for the premises to open from 11:00 to 05:00 seven days per week. It was difficult to give an exact level of demand, but that the volume of calls received from potential customers after the current closing time had prompted the application. There had been some demand from minicab drivers and others, such as ambulance drivers as well as from local residents. The premises served a few walk-in customers during the day but most orders were for delivery. The premises were already delivery only after midnight and notices would be displayed to advise customers of this. Calls made to the premises after it had closed were diverted to a mobile.

The Chairman invited the objectors to discuss their concerns.

Kelly Payne, Environmental Protection Officer, outlined concerns in relation to the application. Noise nuisance was a key issue which was considered to be contrary to the licensing objective, prevention of public nuisance. The premises were located in a residential street with residential premises directly above and adjacent to the premises and other residential properties in close proximity. Planning consent had been granted for the construction of other residential properties in Batchelor Street. No noise complaints had been recorded in relation to the premises.

The premises currently operated from 11:00 to 01:00 Sunday to Thursday and from 11:00 to 02:00 Friday to Saturday. The application was for the premises to open from 11:00 to 05:00 seven days per week. The proposed extended hours, likely noise generated by the kitchen and noise made by people visiting the premises and delivery drivers was not considered to be acceptable due to the proximity of existing and proposed residential properties to the premises. Acoustic assessments undertaken in relation to these new developments had not taken into account the additional background noise that would be generated were the application to be granted.

It was considered that granting of the application would result in a public nuisance and that the problem would increase the later the premises remained open. It was noted that the premises also had a rear exit which could result in additional noise disturbance if it was left open. The proposals would require mitigations and unless adequate safeguards were put in place, it was considered that the proposals had the potential to cause unacceptable noise and disturbance and detriment to the amenity of local residents, contrary to section 5 of Medway Council’s Statement of Licensing Policy.

The Environmental Protection Officer acknowledged that it was necessary to balance use of premises as takeaway restaurants with the protection of residents from undue disturbance. Sections 7 and 12 of the Council’s Statement of Licensing Policy referred to acceptable opening hours of late night fast food premises. This set out the expectation of a risk assessment being provided to set out how the four licensing objectives would be complied with should the premises open for extended hours. Where such a risk assessment was not provided there was a likelihood that the application for extended hours would be refused.

The Environmental Protection Officer said that the applicant was aware of these concerns but that adequate information to address them had not been provided. Granting of the application would set a precedent leading to applications from other premises, the cumulative noise impact of which would be significant. Premise operators had limited control of resulting noise external to their premises and it was therefore considered appropriate to restrict the hours of operation of Super Pizza to those specified on the current premises licence.

PC Hunt, Kent Police outlined the Police’s concerns regarding the application. He said that his presentation was based upon the application as submitted and, therefore, did not take account of the offer made by the applicant during the hearing that the premises would operate as delivery only after a particular time. The premises currently operated as a fast food takeaway premises and currently had a licence for late night refreshment for operation until 01:00 Sunday to Thursday and until 02:00 on Friday and Saturday. The current hours and operation of the premises caused little to no concern to Kent Police. If the application for variation of the premises licence was granted, the premises would be able to serve late night refreshment Monday to Sunday from 23:00 to 05:00. As a premises licence was not required outside of these hours, granting of the application would enable the premises to operate 24 hours a day.

PC Hunt said that Kent Police was opposed to the application and that its representations related to two licensing objectives, the prevention of crime and disorder and the prevention of public nuisance. The area neighbouring the premises was predominantly comprised of retail and other businesses, with some residential use. There did appear to be support for the application from some local residents. However, residential development was planned in the area. This included development of flats at multiple sites. PC Hunt said that consideration should be given to the needs of these potential new neighbours. The application had made no reference to these planned developments and appeared not to have taken them into account.

Section 5.19 of Medway Council’s Statement of Licensing Policy referred to premise operating hours and suggested that proximity to residential areas and the possible disturbance of residents’ rest, relaxation and sleep would be of concern to the Licensing Committee. It stated that the effect of noise was greater late at night when levels of ambient noise were lower and people were more likely to be at home relaxing or sleeping.

Section 5.60 of the Statement of Licensing Policy stated that fast food and takeaway premises which were open beyond 23:00 could attract customers who may have consumed alcohol in pubs, bars and clubs. This could lead to crime, noise and disturbance, particularly when the premises were located in residential areas. Consumption of food and drink in areas outside a premises could often lead to food waste and litter, amounting to a public nuisance.

Section 5.33 of the Policy stated that if the hours of licensable activity sought were beyond 23:00 Sunday to Thursday or beyond 02:00 Friday and Saturday, the authority would expect to see an operating schedule that proposed specific measures to address concerns. Where these were not included it would be likely that an application for extended hours would be refused. Section 5.61 of the Policy suggested that such issues were of particular concern in Cumulative Impact Policy (CIP) and stress areas. The premises is located within the Chatham High Street CIP.

Section 5.63 of the Policy suggested that late night fast food restaurants would be expected to operate until midnight Sunday to Thursday and 02:00 Friday to Saturday. The current licence already exceeded these suggested hours on Sunday to Thursday.

It was not considered that the applicant had demonstrated sufficient steps or measures in the proposed Operating Schedule to reduce the risk associated with operating through the night until the early hours of the morning. Rochester High Street was a short distance from the premises and there was the potential for new customers to have consumed alcohol or to be intoxicated. This could lead to noise nuisance, public nuisance, assault and other criminal behaviour. There was also a nightclub in Railway Street, Chatham, which was close to the premises. This nightclub was open until 04:30 three days per week and Super Pizza would attract customers from this nightclub should the application be granted.

It was acknowledged that the premises may have some experience of dealing with intoxicated customers but that opening later would result in it serving a different clientele who would have consumed alcohol or be intoxicated in greater numbers, with there being increased risk of incidents and disturbances.

Section 5.66 of the Statement of Licensing Policy specified that when considering applications for this type of premises, the authority would consider the likelihood of crime and public nuisance resulting from night time activities, particularly where premises were in residential areas or on a route away from late night licenced premises, or were close to late night licenced premises.

Section 5.67 of the Policy also stated that the licensing authority would expect an application and operating schedule to include proposed specific measures to mitigate risks and concerns. If these were not proposed, it was likely that the application for extended hours would be refused. The authority would also consider restricting the hours of operation of fast food and takeaway premises to ensure closure before pubs and clubs in the area, so that the premises did not become a focal point for disturbance and nuisance.

PC Hunt said that the premises had not applied for planning permission to vary the current permitted planning restrictions. Should the licensing variation be granted and the premises operated to the full extent of the premises licence, without a change in planning consent, an offence would be committed. 

While there were no current concerns associated with the premises there was concern that granting the application for a variation to the operating hours would lead to crime and disorder and disturbance to local residents. The proposed operating schedule and mitigations were considered to be lacking and there was concern that the premises could fall short in its duty to promote the four licensing objectives.

Kent Police requested that the Licensing Hearing Panel refuse the application for variation to the operating hours of the premises. Should the Panel be minded to grant the application, it was requested that consideration be given to the addition of a number of conditions to the licence, as set out in the Police’s representation. It was also requested that a further condition be included to specify that from a certain time, the premises must operate on a delivery only basis and that the premises must appear to be closed to anyone outside the premises.  

The Chairman invited the applicant to put any questions to the objectors. Mr Oppong said that the premises were currently open from 11:00 to 02:00 and that there had never been a disturbance. Customers generally expected delivery and he did not anticipate that an extension to the operating hours would cause a problem. The premises would operate with security and CCTV cameras and could benefit local residents.

Members asked questions to all parties to the Hearing. It was asked whether there had been any complaints about the premises to date, the time from which it was proposed that the premises would operate as delivery only and how the public would be kept away from the premises after this. PC Hunt said that while he did not know whether there had been any calls received relating to the premises, the current operation of the premises was not a concern. Mr Oppong said that the premises had not received complaints and that local residents had given their support. The premises expected to operate as delivery only after midnight and proposed to promote this on screens within the store. A security guard would prevent access to the store after this time.

The Chairman asked whether parties wished to add anything further. Ian Gilmore, Head of Regulatory and Environmental Services, said that there were substantial concerns about the proposed late night operation of the premises as delivery only. Home delivery would require operation of a kitchen, ventilation system and delivery drivers and material would be displayed at the front of the shop to tell customers how they could place orders. There was concern that customers could ask for pizzas to be delivered to the street. These proposals were for a premises in an area where the amount of residential property was due to increase. 

The Chairman asked all parties to leave the room whilst the Panel considered its decision.

Decision:

The Panel, having considered all the written and oral evidence presented at the hearing, unanimously decided to refuse the application for a variation of a Premises Licence in respect of Super Pizza, 6 Batchelor Street, Chatham, Kent, ME4 4BJ.

The Panel determined that a public nuisance could be caused by the operation of the kitchen and extraction equipment and general noise emitting from the premises late into the night. The Panel noted that noise levels were of increased concern as levels of ambient noise dropped. The increase in traffic noise was also a factor considering that vehicles would likely be used in the delivery and collection of food items.

The Panel was concerned that the proposed operation of the premises as a takeaway and even a delivery service until 5:00am could result in members of the public attempting to gain access, which could lead to noise, disturbance and anti-social behaviour, which had the potentiality for incidents of crime and disorder.

The Panel did not consider that the applicant had demonstrated that they would be able to mitigate noise issues and behaviour issues outside the premises.