Agendas, reports and minutes

Minute of the meeting of the Highland Licensing Board held in the Council Chamber, Headquarters, Glenurquhart Road, Inverness, on Tuesday 7 October 2014 at 1.10pm.

Business

Present:

Dr I Cockburn, Mr C Fraser, Mr R Greene, Mr A Henderson, Mrs L Macdonald, Mr W Mackay, Mrs G Sinclair and Ms M Smith.

In Attendance:

Mr A Mackenzie, Clerk
Ms S Blease, Depute Clerk
Mr I Cox, Licensing Standards Officer
Mr D Inglis, Licensing Standards Officer
Ms A Macrae, Committee Administrator

Also in Attendance:

Sergeant S Campbell, Police Scotland 
Item 7.1: Mr D Macdougall, Applicant
Item 8.1: Mrs L Murray, Solicitor for the Applicant
Item 8.2: Mr G Dinnes, Applicant
Item 8.3: Mrs L Murray, Solicitor for the Applicant
Item 9.1: Mr K Buchan, Applicant and Mrs L Murray, Solicitor for the Applicant
Item 9.2: Mrs L Murray, Solicitor for the Applicant
Item 9.3: Mr P Thomson, Applicant and Mrs L Murray, Solicitor for the Applicant
Item 9.4: Mr K Buchan, Applicant and Mrs L Murray, Solicitor for the Applicant
Item 9.5: Mr T Mackenzie and Mr Grunert, Applicant’s Representative
Item 9.6: Mr D Somerville, Applicant
Item 9.7: Mr D Somerville, Applicant
Item 9.8: Mrs L Murray, Solicitor for the Applicant
Item 9.9: Mrs L Murray, Solicitor for the Applicant
Item 9.10: Mr P Lewis, Mr M Speir and Mr D Richardson, Applicants
Mrs L Murray, Solicitor for the Applicants
Mr G Dinnes and Mr I Jobes, Objectors
Mr R Skinner, Advocate, and Mr A Maciver, Solicitor, for the Objectors
Item 9.11: Mr M Hudson and Mr W Morrison, Applicants and Mrs L Murray, Solicitor
for the Applicant
Item 9.12: Mrs L Murray, Solicitor for the Applicant

Briefing on Protocol for Webcasting of Meetings

Ms M Smith in the Chair

The Convener advised the Board that the meeting would be filmed and broadcast over the internet on the Highland Council website and would be archived and available for viewing for 12 months.

1.  Apologies for Absence
Leisgeulan

Apologies for absence were received from Mr A Duffy and Mr J Stone.

2. Declarations of Interest 
Foillseachaidhean Com-pàirt

There were no declarations of interest.

3.  Confirmation of Minutes 
Dearbhadh a’ Gheàrr-chunntais

There had been circulated for confirmation the minute of the meeting of the Board held on 12 August 2014.

The minutes were held as read and APPROVED.

4. Licensing (Scotland) Act 2005 
Licences Granted Under Delegated Powers
Achd Ceadachd (Alba) 2005
Ceadachdan a bhuilicheadh fo Ùghdarras air a Thiomnadh

There had been circulated Report No HLB/111/14 by the Clerk detailing the licences which had been granted under delegated powers during the period 30 July 2014 to 23 September 2014 and inviting the Board to note the Report.

The Board NOTED the Report.

5.  Licensing (Scotland) Act 2005
Occasional Licences and Extended Hours Granted Under Delegated Powers
Achd Ceadachd (Alba) 2005
Ceadachdan Corra-uair agus Uairean Sìnte a bhuilicheadh fo Ùghdarras air a Thiomnadh

There had been circulated Report No HLB/112/14 by the Clerk detailing the Occasional Licences and Extended Hours Applications which had been granted under delegated powers during the period 30 July 2014 to 23 September 2014.

The Board NOTED the Report.

6.  Review of Statements of Licensing Policy 
Ath-sgrùdadh Aithrisean a thaobh a’ Phoileasaidh Cheadachd

There had been circulated Report No. HLB/113/14 inviting the Board to note the findings of the recent review by Alcohol Focus Scotland of the statements of licensing policy introduced by Licensing Boards in Scotland for the period 2013 to 2016 and to consider what, if any, lessons could be learned to inform the development of future policy statements.

The Chair welcomed the favourable comments received from Alcohol Focus Scotland in regard to the Board’s licensing policy statements and in particular its overprovision policy.

The Board NOTED the review of statements of licensing policy by Alcohol Focus Scotland.

7. Licensing (Scotland) Act 2005
Application for New Premises Licences
Achd Ceadachd (Alba) 2005
Iarrtasan airson Cheadachan Thogalaichean Ura

7.1
Ref: HC/INBS/566
Applicant: David John MacDougall, 10 Dochfour Drive, Dalneigh, Inverness
Premises: Café V8, 12 Henderson Road, Longman Industrial Estate, Inverness
Type: On Sales

There had been circulated Report No HLB/114/14 by the Clerk inviting the Board to determine the application.

On hearing from Mr D Macdougall, Applicant, the Board AGREED to grant the application subject to the mandatory conditions and the local conditions detailed in paragraph 6 of the report.

8.  Licensing (Scotland) Act 2005
Applications for Provisional Premises Licences
Achd Ceadachd (Alba) 2005
Iarrtasan airson Ceadachdan Thogalaichean le Cumha

8.1
Ref: HC/INBS/567
Applicant: Giraffe Concepts Ltd, Armitage House, Delamare Road, Cheshunt, Hertfordshire, per Hill Brown, 3 Newton Place, Glasgow
Premises: Giraffe, 1A Eastfield Way, Inverness Business and Retail Park, Inverness
Type: On Sales

There had been circulated Report No HLB/115/14 by the Clerk inviting the Board to determine the application.

On hearing from Mrs L Murray for the Applicant, the Board AGREED to grant the application subject to the mandatory and local conditions detailed in paragraph 6 of the report.

8.2
Ref: HC/INBS/565
Applicant: Caledonian Coffee Company Ltd, c/o Ramnee Hotel, Victoria Road, Forres, Moray
Premises: So Coco, 1 High Street, Inverness
Type: On Sales

There had been circulated Report No HLB/116/14 by the Clerk inviting the Board to determine the application.

On hearing from Mr G Dinnes, Applicant, the Board AGREED to grant the application subject to the mandatory conditions and the specific condition detailed at paragraph 6.1 of the report.

8.3
Ref: HC/RSL/1667
Applicant: Robert Caven, Messrs Grant Thornton, per Lindsays, 1 Royal Bank Place, Buchanan Street, Glasgow
Premises: Ben Mhor Hotel, 53-57 High Street, Grantown on Spey
Type: On Sales and Off Sales

There had been circulated Report No HLB/117/14 by the Clerk inviting the Board to determine the application.

On hearing from Mrs L Murray, for the Applicant, the Board AGREED to grant the application subject to the mandatory conditions and the local conditions detailed in paragraph 6 of the report.

9. Licensing (Scotland) Act 2005 
Applications for variation (major) to Premises Licences 
Achd Ceadachd (Alba) 2005
Iarrtasan airson Caochladh (Mòr) a thaobh Ceadachdan Thogalaichean

9.1
Ref: HC/RSL/0202
Applicant: Co-operative Group Food Ltd
Premises: 20 Stevenson Terrace, Kinlochleven
Type: Off Sales

There had been circulated Report No HLB/118/14 by the Clerk advising that two timeous objections had been received in response to the application, from Ms C Spence and Kinlochleven Community Council, copies of which were attached to the report.

The Clerk advised that notwithstanding that the Objectors were not in attendance to present their case, the Board should take into account the objections received in its determination of the application.

Mrs L Murray for the Applicant, advised that the application sought a marginal extension to the off sales capacity of the premises and also to introduce a musical activity within the operating plan. With regard to the objections received she noted that the increased capacity of the premises would be significantly below the capacity of 40sqm set out in the Board’s overprovision statement, and therefore that the application accorded with policy and should be granted.

The Board AGREED to grant the application subject to the mandatory conditions.

9.2
Ref: HC/INBS/509
Applicant: Iceland Foods Ltd, Second Avenue, Deeside Industrial Park, Deeside, Flintshire
Premises: Iceland, Unit 3B, Rose Street, Inverness
Type: Off Sales

There had been circulated Report No HLB/119/14 by the Clerk inviting the Board to determine the application.

On hearing from Mrs L Murray for the Applicant, the Board AGREED to grant the application subject to the mandatory conditions.

9.3
Ref: HC/INBS/312
Applicant: Co-operative Group Food Ltd, 1 Angel Square, Manchester, per BMK Wilson, Solicitors, 90 St Vincent Street, Glasgow
Premises: Co-operative Group Food Ltd, 45 High Street, Nairn
Type: Off Sales

There had been circulated Report No HLB/120/14 by the Clerk inviting the Board to determine the application.

On hearing from Mrs L Murray for the Applicant, the Board AGREED to grant the application subject to the mandatory conditions.

9.4
Ref: HC/INBS/22
Applicant: Co-operative Group Food Ltd, 1 Angel Square, Manchester, per BMK Wilson, Solicitors, 90 St Vincent Street, Glasgow
Premises: 24 High Street, Kingussie
Type: Off Sales  

There had been circulated Report No HLB/121/14 by the Clerk inviting the Board to determine the application.

On hearing from Mrs L Murray for the Applicant, the Board AGREED to grant the application subject to the mandatory conditions.

9.5
Ref: HC/INBS/081
Applicant: Whitbread Restaurants Ltd, Whitbread Court, Porz Avenue, Houghton Hall Office Park, Dunstable per John Grant and Partners, Omega Court, 372-374 Cemetery Road, Sheffield
Premises: Inches Gate, Beechwood Business Park, Inverness
Type: On and Off Sales

There had been circulated Report No HLB/122/14 by the Clerk inviting the Board to determine the application.

On hearing from Mr Grunert for the Applicant, the Board AGREED to grant the application subject to the mandatory conditions and the existing local conditions.

9.6
Ref: HC/INBS/413
Applicant: Cairngorm Mountain Ltd, per Douglas Somerville, Cairngorm Ski Area, Aviemore
Premises: 1097 (formerly the Ptarmigan), Cairngorm Mountain, Cairngorm Ski Area
Type: On and Off Sales

There had been circulated Report No HLB/123/14 by the Clerk inviting the Board to determine the application. 

On hearing from Mr D Somerville, Applicant, the Board AGREED to grant the application subject to the mandatory conditions and the additional local conditions detailed in paragraph 7.2 of the report.

9.7
Ref: HC/INBS/317
Applicant: Cairngorm Mountain Ltd, per Douglas Somerville, Cairngorm Ski Area, Aviemore
Premises: The Storehouse (formerly The Day Lodge) Cairngorm Mountain, Cairngorm Ski Area, Aviemore
Type: On and Off Sales

There had been circulated Report No HLB/124/14 by the Clerk inviting the Board to determine the application.

The Board AGREED to grant the application subject to the mandatory conditions and the local conditions detailed in paragraph 7.2 of the report.

9.8
Ref: HC/INBS/175
Applicant: PizzaExpress (Restaurants) Ltd, Hunton House, Highbridge Estate, Oxford Road, Uxbridge, Middlesex per Pinsent Masons, 141 Bothwell Road, Glasgow
Premises: Pizza Express Unit B, Falcon Square, Inverness
Type: On and Off Sales

There had been circulated Report No HLB/125/14 by the Clerk inviting the Board to determine the application.

Mrs L Murray, for the Applicant, confirmed that her client was content with the specific local condition recommended in the Clerk’s report which stated that off-sales of alcohol shall only be made to persons purchasing takeaway food.

The Board AGREED to grant the application subject to the mandatory conditions, the existing local conditions and the specific local condition detailed in paragraph 7.3 of the report.

9.9
Ref: HC/INBS/492
Applicant: Ask Restaurants Ltd c/o Gondola Group, 2 Balcombe Street, London, per Pinsent Masons, 141 Bothwell Road, Glasgow
Premises: Zizzi’s, 20 Bridge Street, Inverness
Type: On Sales

There had been circulated Report No HLB/126/14 by the Clerk inviting the Board to determine the application.

Mrs L Murray, for the Applicant, confirmed that her client was content with the new local condition recommended in the Clerk’s report which stated that after 1100 hours alcoholic or non-alcoholic drinks shall not be consumed in the outdoor drinking area.

The Board AGREED to grant the application subject to the mandatory conditions and the local condition detailed in paragraph 7.2 of the report.

9.10
Ref: HC/INBS/
Applicant: Stonegate Pub Company Ltd, c/o Codan Trust Company, (Cayman) Ltd 2681, Cricket Square, Grand Cayman, Cayman Islands , per Hill Brown, 3 Newton Place, Glasgow
Premises: The Caledonian, 9-11 High Street, Inverness
Type: On and Off Sales

There had been circulated Report No HLB/127/14 by the Clerk advising that objections in response to the application had been received from CFG Leisure 6 Ltd, t/a Ultra Violet operators of G’s and Vinyl, Castle Street, Inverness and from Mr G Dinnes c/o Inverness City Suites, copies of which were attached to the report.

Mrs L Murray for the Applicant, spoke in support of the application as follows:-

• The application sought to extend the hours on Thursdays, Fridays and Saturdays to 3 am, seeking to benefit from the Board’s late opening policy which recognises hybrid premises, i.e. premises or parts of premises which the Board is satisfied offer, from a certain point on certain evenings, significant entertainment facilities and where the sale of alcohol for consumption on the premises is ancillary to that significant entertainment. Nightclubs and discotheques may fall within this category but it also includes hybrid premises which operate as a general on-sales premises during the day but then offer significant entertainment from a certain point in the evening. The applicants sought to make the case that their premises are hybrid premises.
• Since they opened in or around 2007, The Caledonian had offered their customers significant entertainment every Thursday, Friday and Saturday evening, mostly by way of professional DJs but occasionally supplemented by live music. This was offered from 9 pm in the evening until closing time which, for those evenings, was currently 1 am.
• The premises were on two floors. They had a sizeable dance floor (approximately 25% of the overall floor area) on the ground floor and this was overlooked by the mezzanine floor. There was a dedicated and fully equipped DJ booth and professional sound and lighting systems. All of this combined to enable The Caledonian to offer their customers a genuine entertainment experience. This would be further assisted by a planned refurbishment in respect of which a minor variation had already been granted.
• With regard to advertising, in common with most late-night operators, spend on traditional print advertising was diminishing and was largely being replaced by on-line advertising via Facebook and other social media.
• The premises were already compliant with the late night opening mandatory conditions. They already had a state-of-the art CCTV digital camera system, with 32 cameras. The City’s own CCTV system captured the front door of the premises on the High Street. They already employed professional door stewards through Moray Security and these stewards were on duty on Thursday, Friday and Saturday evenings. There were two stewards on the door and two patrolling within the premises. The stewards used a clicker system to monitor numbers within the premises at any given time. They also communicated with each other and with management staff using walkie-talkies. Four personal licence holders were employed and a sizeable number of the staff were trained in first aid. The toilets were regularly checked and anti-drug and fire evacuation policies were in place. These policies would be provided to the Licensing Standards Officer. Detailed records were kept of all activity and any incidents and issues were carefully recorded and kept under review by the management team which extended to four members of staff.
• The Caledonian was a member of Pub Watch and was pro-active in supporting its objectives. They also operated the Challenge 22 scheme and had a zero-tolerance drugs policy.
• The Licensing Standards Officer’s comments in the Clerk’s Report were very supportive of the premises, the application and the manner in which the premises were managed. His proposal for an additional condition preventing use of the beer garden, which was located to the rear of the premises, was wholly accepted by the applicants and in fact the restriction had been in place since August. So the rear beer garden was now not used for drinking, smoking or any other purpose after 9 pm daily. This had worked well and had allowed the door stewards to better monitor customers’ behaviour on the High Street as anybody wanting to leave the premises for a smoke after 9 pm had to do so through the front door where the door steward was present.
• Since opening these premises, the applicants had demonstrated unquestionably that they were able to run a well-managed premises and throughout this time they had offered significant entertainment each Thursday, Friday and Saturday evening.
• On this basis, it was submitted that the premises did meet the criteria to qualify as hybrid premises under the Board’s policy.
• With regard to the objection from CFG Leisure 6 Limited, who operate as Gs and Vinyl, this was undeniably a trade objection. Their claim that the application did not sit well with Board policy on hybrid premises was entirely at odds with the Licensing Standards Officer’s report and his summation of the premises and the way in which they trade. Contrary to what was suggested, the recent closure of Miami had led to an acute underprovision of late night venues in the City. So much so that it was understood that Gs had closed its doors on a September weekend at 1 am as they were already at capacity by then. This left more than 200 people on the City streets, hopelessly looking for another late night venue. Anyone who had witnessed the queues outside Johnny Foxes and The Den would know that their quest would have been futile. Ms Murray’s own son and his friends had told her of their acute frustration at being unable to find a late night venue with spare capacity in Inverness City Centre, particularly since the recent closure of Miami which has particularly exacerbated the situation.
• With regard to the objection from Inverness City Suites (ICS), this had come as a surprise to the applicants. There had been no complaints made by ICS to the applicants and no dialogue between them. The current premises manager had been in post for over a year and during this time he had not received a single complaint. The Licensing Standards Officer had also spoken with Environmental Health and they too had received no complaints of noise nuisance emanating from these premises. The only element of the objection specific to The Caledonian was the suggestion that noise nuisance occurred as a result of live music being audible through the internal wall. Again, this had come as a shock and surprise to the applicants because there had been no history of complaint and they had not previously been made aware of any difficulties which their neighbours and, more importantly, their neighbours’ guests might be experiencing. They had received no complaints at all. This had denied them the opportunity to assess and address any noise issues which might exist. It was also understood that ICS had not raised the issue previously with the Licensing Standards Officer. In addition, significantly, there were no Police objections or representations on the application. The applicants had offered a weekend programme of mainly DJ entertainment over a number of years and never before had there been any suggestion of any noise seepage from the premises. Amplifiers in the premises were all fitted with limiters, which could not be altered as they were password protected.
• The applicants wished to operate and work in harmony with their neighbours and did not want to give rise to any cause for complaint. They would reassess the location of the speakers. There was a base unit on the mezzanine level and a large multi-purpose speaker close to the party wall at ground floor level and they were happy to relocate those. They were also happy to meet with ICS within ICS’s premises to listen to any noise which they might be experiencing and to liaise with the Licensing Standards Officer and Environmental Health in this regard. But the bottom line was that this was all news to the applicants who had not been given an opportunity previously to address any issues because they were not aware of any issues. There is no question, however, that they recognised that if their own operation was to be successful, then they must operate in harmony with their neighbours and that if there were issues then these required to be addressed. They were confident that they could do so by use of any further limiters or any other noise reduction measures which Environmental Health or others might suggest. They would engage a noise consultant if necessary.
• There were two entrance doors to The Caledonian: one on the left hand side beside the ICS apartments and one on the right hand side beside Poundland. As a matter of practice, after 9 pm the door nearest to ICS was closed in favour of use of the door on the right hand side. This door had stewards on it. It comprised an outer door, a vestibule and an inner door, so acted as a buffer to mitigate noise from the premises. Professional stewards monitored the right hand side door from 9 pm every evening and that enabled them to closely monitor the behaviour of patrons. The smokers’ area to the rear was now closed from 9 pm, removing this as a possible source of noise nuisance.
• The crux of the objection appeared to relate to “people noise”. Inevitably this noise was generated by customers of other city Centre premises also and other people who happened to be on the High Street. It was an inescapable fact that there would be a degree of people noise and, unfortunately, instances of anti-social behaviour in the streets of the City. Anyone booking accommodation in the heart of the city would have factored this in to their decision to make that booking. There was a recurring theme in the reviews for ICS on TripAdvisor in that guests mention their advance concern that the location was likely to be noisy then advise of being pleasantly surprised at the high quality of soundproofing and the effectiveness of the glazing system. There was not a single review which made reference to noise from The Caledonian.
• Last December, the applicants had taken advantage of the 2 am extension permitted over the festive period. They were granted this extension over approximately a 3 week period, 7 nights a week. They operated every evening over the festive season until 2 am, with DJ entertainment, and there were no objections or concerns raised. This was almost like a trial operation of the hours they were now seeking.
• The applicants were experienced operators. They guarded their licences jealously and they would not do anything to put those licences in jeopardy. If issues did develop there was a swift and effective review process available under the Act. However, the applicants were confident that they could continue to operate without issue and to offer significant entertainment at the weekends, and they therefore sought the benefit of a 3 am licence.

Mr R Skinner on behalf of the Objectors, Inverness City Suites, made the following submissions:-

• The premises owned by the objectors, ICS, were immediately next door to the application premises. These premises comprised 6 self-contained up-market serviced apartments and had a maximum capacity of 36 persons. These premises had been established for over 3 years and represented an investment in the City Centre of nearly £1.5 million.
• They had an all year round clientele comprising mainly tourists, including young families (for whom a good night sleep was important) and businessmen, and they were very proud of the fact that they are number 1 for speciality accommodation on TripAdvisor in the City, with a high approval rating.
• As a result, for the majority of the year, they had a 95% occupancy rate.
• Having people stay in the City Centre was good for the economy of Inverness. It was good for the bars, the restaurants and the shops. 
• A high approval rating on such an internet site was vital for the continued success of these premises. But such a reputation could be lost quickly if guests did not enjoy their stay and posted bad reviews. It took a long time to build up a reputation but a very short time to lose it.
• Guests staying in high quality accommodation, and paying the appropriate rate, were entitled to a reasonable night’s sleep and would not stand the levels of noise and nuisance that would inevitably follow if this nightclub opened next door.
• ICS accepted that given their city Centre location they could not expect complete silence every night. They had done as much as they could to mitigate this by investing, at considerable cost, in double glazing at the back and quadruple glazing at the front and in bedrooms facing the High Street. However, even with those measures, noise was the single criticism of the premises by its guests. Not all criticism appeared on TripAdvisor. Some complaints and criticisms were made directly. The outside street noise sometimes disturbed the rest of guests and was already an existing problem, particularly when the nights were warmer and the windows were open.
• There was no doubt that the problem of noise nuisance already experienced at the premises would be made much worse if this application for a night entertainment venue were granted. There would be a clear inconsistency with the licensing objective of preventing public nuisance.
• Relations between ICS and The Caledonian had hitherto been good. By and large, and particularly during the week, The Caledonian was competently run. ICS accepted that the applicants had to make a living and, where possible, ICS adopted a live and let live philosophy. However, they felt they had little choice but to object to this proposal.
• The door of ICS was 3 to 4 feet away from the front door of The Caledonian, a premises which currently operated mainly as a bar and restaurant. ICS and The Caledonian shared a party wall and 4 of the ICS bedrooms adjoined that party wall.
• The Caledonian had never operated as a bona fide club.
• This application fell within the Board’s statement of policy only if significant entertainment was provided throughout the extended period. According to the Board’s own policy, “significant entertainment” would be interpreted by the Board strictly. The applicants required to show that the entertainment was not merely ancillary to the sale of alcohol. It might have been expected therefore that there would be a significant dance floor and a dedicated stage or performance area and that the entertainment would be pre-advertised. Mr Skinner submitted that these matters had not been addressed at any length in Ms Murray’s submission. He himself had visited the premises the night before and had seen a small wooden floor area to the front and an area to the rear which could hardly be described as a significant dance floor. He had also seen a small DJ area and submitted that this indicated that the entertainment was no more than a “bloke with a record player in the corner”.
• The policy envisaged that the real reason why patrons are attracted to the premises late at night was the entertainment, such as in bone fide clubs or discotheques, where there was a great deal of money spent on sound systems and high tech lighting, top DJs, top bands, etc. So if the applicants were to offer significant entertainment, then they would have to make a significant change in the way the premises currently operated, to transform the nature of the premises during the extended hours from a bar/restaurant which offered a bit of dancing at the weekend to a large late night club with a capacity of 375 people. This would inevitably cause serious disturbance to ICS guests.
• Stripped to its essentials, what appeared to be sought here was permission to operate a nightclub right next to a residential establishment. ICS anticipated that the noise from the live bands envisaged and from recorded music from the DJ would be audible late at night and early into the morning within the apartments. This would be particularly bad during the summer months when ICS were at their busiest. The noise would come not only from patrons entering and leaving the premises in the small hours but also from the thumping beat of the music if the volume was at normal entertainment levels – and that until 3 am.
• It was understood that the applicants would be refurbishing the premises and that club lighting and a new sound system would be installed. It was highly likely that this would lead to even worse internal noise penetrating the suites occupied by guests.
• This was not speculation. There was a history of noise nuisance at these premises. This had been particularly bad under the previous owners, who sometimes employed a DJ to play dance music at the weekends. This was in the nature of a bloke in the corner with some DJ equipment, a practice which continued. And even although music was played below the volume one would expect in clubs, this resulted in a considerable number of complaints from guests staying at the apartments. Complaints related to outside noise, as patrons entered and left, but also to internal noise from the thumping sound of the beat of the music travelling through the walls into the apartments. During the summer months the doors were left open and the noise from music was constant. Even when the doors were closed, the noise rose and fell as people left or entered the premises.
• Complaints had been made to The Caledonian on at least 12 – 15 occasions by ICS following receipt of strenuous complaints by their guests. ICS had also been constrained to write letters of complaint to the previous occupiers’ head office. There was therefore a history of noise and public nuisance complaints even when the premises had simply held a dance night, with a DJ brought in, rather than operating as a full-blown club.
• No matter how well The Caledonian was to be run or stewarded there was bound to be a high degree of noise and nuisance, particularly as revellers arrived at and left the premises late at night and particularly at the terminal hour. Tourists (including young children) as well as businessmen would be disturbed, as they had been in the past, by the noise and constant beat of the music and the to-ing and fro-ing of revellers late at night, when entitled to a good night’s sleep.
• Gs night club was about 75 metres away and if this application were granted, it would mean that at least 2 night clubs, or 3 if one included Johnny Foxes just around the corner, within that short space would all be disgorging patrons into the High Street at 3 am.
• The taxi rank was just across the road and was often a source of noise and tension with drunken revellers late at night.
• Problems were already caused at the rear of the premises where smokers were allowed to congregate. It had now been suggested that this might be closed, but all that meant was that smokers would move to the front, immediately beside the front door of ICS and beneath the front bedrooms. The sound levels of people chatting, particularly when they had been drinking, were inevitably high.
• In addition, ICS guests arriving or returning late at night were bound to encounter groups of club patrons out for a smoke, most of whom would be, to a greater or lesser level, under the influence of alcohol.
• The Board was invited to consider that, because of the noise and nuisance to visitors to the City staying immediately next door at ICS, this was not an appropriate location for a large night club.
• With regard to overprovision, there were already about 10 late night venues all within a fairly compact area. Overprovision of such premises was evidenced by the fact that many of these did not operate at anywhere near full capacity. Miami had closed and others might be in the same position. So there were already plenty of late night venues within the City Centre and the last thing that was needed was for further noise and nuisance to arise by the opening of another.
• On this basis, the Board was invited to refuse the application.

In response to questions from the Chairman and Committee members:

• Mr Skinner confirmed that no ICS guests had complained direct to Environmental Health, but this was hardly surprising given that guests were staying at ICS for very short periods of time. If they had a bad night’s sleep, they moved on.
• In relation to the number of late opening premises in the City Centre, the Licensing Standards Officer confirmed that both Miami and Karma Lounge were shut, leaving Vinyl, Gs, Johnny Foxes, Private Eyes, the Ironworks and Hootananny operating at the moment.
• Mr Skinner advised that ICS would consider a reasonable number of night clubs in the location to be such number as would not cause nuisance. It was recognised that there was bound to be a degree of noise in the City Centre.
• Ms Murray confirmed that she was not aware of any history of complaints. The current owners of The Caledonian took over the premises in November 2013, so had been there 11 months. They were not aware of any prior history of complaints. The premises manager had been in post approximately 13 months and had assured Ms Murray that he was not aware of any complaints.
• Mr Skinner confirmed that the last formal complaint to the previous owner (Barracuda) at their head office was, he believed, in December 2012. The problems arose when there were late extensions. ICS expected there to be a degree of noise, but not to the levels which would occur if this were to be used as a nightclub as opposed to a pub with the occasional bit of music and dancing.

Thereafter, Mr A Maciver, on behalf of the Objectors, Vinyl and G’s, made the following submissions:-

• The applicant’s solicitor had tried to paint a picture of a vibrant town centre with people queueing to get into nightclubs and a paucity of choice for the citizens of Inverness to enjoy late night entertainment.
• She had also stressed that the objection by the operators of Gs and Vinyl was a “trade objection”. It was not denied that the operators of Gs and Vinyl were trade objectors. However, it was a perfectly competent objection. Moreover, they were one of the longest serving nightclub operations in the City of Inverness. They had traded and provided a service to the Inverness community for around 26 years. They had seen the highs and the lows and the changes which had taken place in the city in the course of that passage of time. So they had a quarter century of experience of trading in the late night entertainment industry and the Board was invited to bear this in mind when considering their objection.
• With regard to the Board’s policy, it looked first at what it described as “General on-sales premises” and cited as examples public houses, hotel bars and members clubs all offering no significant entertainment facilities. For these premises, the Board would allow a terminal hour of 1 am. The policy then identified exceptions to that rule, including premises which the Board was satisfied offered, either throughout their opening hours or from a particular time, significant entertainment facilities.
• The significant word in this was “significant”. Further on in the policy statement the Board made it clear that they would interpret the phrase “significant entertainment” strictly.
• So the first question which had to be asked was what significant entertainment would be provided. It was not denied that entertainment would be provided and had been provided over a number of years in these premises. The question, however, was whether it had been, or was going to be, “significant” entertainment, because the applicants themselves, in their submissions, had made it clear that what was envisaged was effectively a continuation of the way these premises had been operating for the past number of years.
• By way of illustration of what “significant entertainment” was, Mr MacIver advised that Gs nightclub for the year September 2013 to August 2014 had spent £38,900 on DJs. The spend on other entertainment such as live acts had been £33,400. That gave a total of £72,300. The security costs for the same period had been £42,900. So in total, this was a six-figure spend. That, in Mr MacIver’s submission, was “significant”.
• What was not “significant” was having somebody sit in the corner for £100 - £150 a night pushing the button on a CD player or other form of music equipment. Any pub or restaurant could do that. It was just playing at providing entertainment and should not fall within the general exception contained in the Board’s policy.
• It was important to understand where the applicants saw themselves in the market. According to the Clerk’s Report, the description of the premises was of a public house premises with conference facilities, restaurant, bar meals and other facilities. There had been no attempt in the application to seek to vary that description in any way, so it must be assumed that the applicants still saw themselves as a public house premises. They had confirmed that the intention was to continue trading the way they had been so there would be no change in the operation. They might well be carrying out a refurbishment – painting the walls, putting down new carpets, etc – but there was to be really no great change.
• Mr MacIver questioned how this fitted with the Board’s policy of imposing a terminal hour of 1 am unless significant entertainment was provided. In his submission, it did not fit at all.
• He considered it also relevant that, under the previous operators, about 3 years ago, the premises had made an application of a very similar nature and that application had been refused. Mr MacIver was unaware of any great change in the City or the type of entertainment provided since that decision was made.
• With regard to the number of premises within the City which enjoy a 3 am extension, Mr MacIver understood that this was broadly 10. If the City was so vibrant and the businesses were doing so well that there were people queueing outside and unable to find somewhere to go – because all these premises were doing so well – it begged the question of why premises seemed to be closing hand over fist. As recently as last weekend the operator of Karma had handed the keys back to the landlords. Ms Murray would argue that that created a space – that the people who used to go to Karma were now up for grabs. However, if there had been that many of them, the operator would not have handed the keys back. It was as simple as that.
• The Board should also bear in mind that, although a number of these premises were shut, they still had licences with 3 am extensions. So if somebody came along as a new tenant, they could re-open those premises. The Board therefore still had to take them into account.
• There were 4 or 5 other pub-type premises watching this application with very great interest, because if this one was granted, it was highly likely that there would be 4 or 5 more coming along asking for the same thing.
• With regard to the possibility of increased public nuisance in the City Centre, there were a number of other premises which enjoyed the 3 am extension at the moment. Some traded better than others. Many did not operate a door charge. What was happening was that people went to a premises where they did not pay to get in. They then realised there were only half a dozen people in there and that the atmosphere was zero. So they then decided to move on somewhere else. If another outlet was opened with those hours, this created potential for migration from premises to premises to premises until people found one with a bit of atmosphere and decided to stay there for the night. So there would be more people wondering around the City Centre and the potential for noise nuisance would become greater.
• The licensing objectives were all about prevention. They were not about closing the door after the horse has bolted. They were about not letting the horse get out of the stable in the first instance. It was all to do with prevention, so was all forward looking. So although Mr Maciver had used the term “potential” in relation to noise nuisance, this was done against the background of looking ahead to see what would happen if the application were granted and in Mr Maciver’s submission increased noise nuisance was likely to happen.
• This was a very significant application because the ramifications for the City could be huge, both in terms of the existing businesses and the effect on them but, more importantly, in terms of the stable door analogy put forward by Mr Maciver. There would be other premises which followed hard on the heels of these applicants.
• The Board was accordingly invited to refuse the application on the basis that it did not sit well with the Board’s policy and for the other reasons outlined in the letter of objection.  

In response to questions by the Chairman and Committee members:

• The Licensing Standards Officer confirmed that the previous application by The Caledonian referred to in Mr Maciver’s submissions had been dealt with by the previous Board at either the end of 2010 or the beginning of 2011. On that occasion, there had been strong representations by the Police about issues in the City Centre.
• The Clerk confirmed that the Board’s policy for hybrid premises had changed since then.
• The Licensing Standards Officer also confirmed that the premises did have a parquet dance floor on the ground level. His impression was that this was currently a licensed premises which traded until 1 am and that the floor could be and was used for dancing. There was potential for it to be used more if the demographic of the premises changed.
• Ms Murray confirmed that until the issue of noise nuisance was raised in the objections to the application, the applicants had been planning to offer live music. Now, however, they would delay making any decision on that pending a meeting with Environmental Health to see whether there were in fact any noise issues, as a live band was much more difficult to control in terms of noise. So initially, live bands would be avoided until it was established whether or not there was a problem and, if there was one, whether or not it could be overcome to allow them to offer live entertainment. In the main, the entertainment would be a DJ provision. The refurbishment would include the dance floor and the DJ booth and a complete refresh of the premises. It had been hoped that this would start in November, but that date was now in doubt as the premises were a Grade A listed building and there were ongoing discussions with Historic Scotland on the proposed refurbishment.
• Ms Murray also stressed that it was not necessary for the entertainment to be in the form of live bands in order for it to be significant. The application compared well with the Playhouse in Nairn which offered DJ entertainment and the Volunteer Arms in Fort William which offers similar entertainment. So DJ entertainment was sufficient in itself to be significant and in fact the same DJ company which Gs used was also the DJ company which the Caledonian used. There was a dedicated DJ booth within the premises together with professional sound and lighting systems and a dance floor which extended to 25% of the useable public floor area. So it was a sizeable dance floor and the premises compared very well with the two premises which had to date satisfied the hybrid test.

In summing up:

• Ms Murray stressed that she was not attempting to make a case that these premises intended to operate as a bone fide club. It was instead the hybrid test which they were looking to satisfy. The earlier application referred to well pre-dated the Board’s current policy. Hybrids had only now been recognised in the Board’s policy and had not been looked on favourably under the previous policy. So it was not surprising that a previous application under the previous policy had failed. Current policy gave a very clear indication that hybrid premises would be looked on favourably if they meet the relevant test. The Caledonian met this test. Entertainment would be pre-advertised. There was a dance floor and professional sound and lighting systems and the applicants would be using the same DJ company as Gs themselves used. The entertainment provision comfortably compared with that provided at both of the two premises which had already been considered by the Board to satisfy the test.
• She reminded members that the door which would be used after 9 pm was not the door next to ICS. It was the door next to Poundland. The smoking facility for customers of Vinyl was on the street outside those premises and was more or less equidistant, in terms of any noise which might travel.
• With regard to overprovision, the Board had undertaken a comprehensive policy review and had determined that there was overprovision only of off-sales with more than 40 square metres capacity.
• Ms Murray was unsure as to why other premises might have decided to close, but this was not relevant. Each application had to be determined on its own merits and each applicant had to satisfy the Board that they met the criteria set out in the Board’s policy. 
• Mr Skinner submitted that this was about preventing public nuisance. Ms Murray was now saying that the applicants would first get their application granted and would only then work out whether it was going to cause a public nuisance. The Board needed to know from the applicant, before granting the application, that noise nuisance would not occur.
• The premises had a very small dance floor at the entrance. The parquet flooring continued some way up a length of corridor. It could hardly be considered a dance floor. The dance floor was very much smaller than was suggested by Ms Murray.
• It was clear that significant nuisance would occur and this would be inconsistent with the licensing objective of preventing public nuisance.
• Granting the application would set an unhealthy precedent.
• For these reasons, the Board was invited to refuse the application.
• Mr Maciver submitted that this was an application by a self-proclaimed public house which had traded in a certain fashion for the past number of years and proposed to carry on trading in the same way as it had done for the past number of years. If the significant entertainment test was satisfied by having a lighting system, a dance floor (regardless of size) and a DJ booth then any public house in the country, let alone Inverness, could satisfy that requirement without too much difficulty.
• When the Board looked at significant entertainment it had to look at whether there was something which took the entertainment beyond the norm. It had to be more than just the situation which had been described. It was understood that the premises had only had one live band in the past 5 years. This hardly suggested a premises which has gone out of its way to provide significant entertainment.
• The premises completely failed the test set out in the Board’s policy. It was a glorified pub seeking a 3 am extension effectively by the back door.

During discussion, Members raised the following issues:- 

• The Board’s current overprovision statement related to the capacity of off-sales premises and not the number of licensed premises in a locality.
• The premises and other licensed premises in the area had been in operation prior to the Inverness City Suites development.
• Concern that granting the application might set a precedent, encouraging other establishments in the City Centre to apply for an extension to 3 am, which would place increased pressure on Police Scotland.
• Inverness City Suites was a welcome development in the City Centre and the continuing concerns of its operators in regard to noise should be taken into account.
• The type of entertainment to be provided at the premises and the area of the dance floor were equivalent to those at other hybrid premises in Fort William and Nairn and the planned refurbishment of the premises would enhance the existing facilities.
• Assurance should be provided that the music plan within the Operating Plan for the premises would be discussed with the Licensing Standards Officer and the Objectors to ensure any concerns were addressed.
• The grant of the application was not likely to increase noise or footfall in the City Centre.
• Tourism was important to the local economy and the premises should be given the opportunity to trade until 3am, in common with other premises in the City Centre, and to try to make a success of their business irrespective of any further similar applications that might come forward.
• There was no evidence of any complaints having been received in respect of the running of the premises under its current ownership and the Licensing Standards Officer had stated that this was a well-managed establishment.
• The local conditions recommended to be attached to the grant of the licence included a time at which music and live performances would be required to cease, and also stipulated that if significant entertainment was not provided then the premises could not open after 1am.
• The Board was required to determine each application on its merits and having regard to its policy and therefore that the grant of one application did not set a precedent for others.
• There was insufficient evidence to support a finding that there would be a noise nuisance if the variation were granted. 

During further discussion and in response to the Chair, Mrs L Murray for the Applicant, confirmed that her clients would be willing to discuss any concerns about noise with the Objectors and would be willing to employ a noise consultant if required and would undertake any noise mitigation measures which required or recommended by Environmental Health. An undertaking was given on behalf of the Applicant that live band music would not be provided until a noise assessment had been carried out and it could be established that live music could be provided without causing noise nuisance.

Thereafter, the Board AGREED to grant the application subject to the mandatory conditions, the local conditions and the specific local condition detailed in paragraph 7 of the report.