Agendas, reports and minutes

Minute of the meeting of the Highland Licensing Board held in the Council Chamber, Council Headquarters, Glenurquhart Road, Inverness, Tuesday 4 December 2018 at 1.00pm.

Present:

Mr J Bruce, Dr I Cockburn (Convener), Ms E Knox, Mrs L Macdonald, Mr D Macpherson, Mrs P Munro, Mr K Rosie.

In Attendance:

Ms C McArthur, Depute Clerk
Mr I Cox, Licensing Standards Officer
Mr D Inglis, Licensing Standards Officer
Ms A Macrae, Committee Administrator

Also In Attendance:

Sergeant B Gray, Police Scotland
PC J Williamson, Police Scotland
Ms E Smart, Consultant in Public Health, NHS Highland

Item 6.1: Ms K Clark, applicant
Item 7.1: Mr M Smith, solicitor for the applicant and Mr I Lovey, representative
Item 8.1: Mr M McDougall, solicitor for the applicant and Mr N Soutar, representative
Item 8.8: Ms A Junner, solicitor for the applicant and Mr K Buchan, representative
Item 9.1: Ms E Grant, solicitor for the Premises Licence Holder and Mr A McMaster, Premises Manager

Briefing on Protocol for Webcasting of Meetings.

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 intimated on behalf of Mr G Cruickshank, Mr A Jarvie and Mr C Smith.

2.  Declarations of Interest
Foillseachaidhean Com-pàirt.

There were no declarations of interest.

3.  Confirmation of minutes
Dearbhadh a’ gheàrr-chunntais

There was submitted for confirmation as a correct record the minute of the meeting of the Highland Licensing Board held on 6 November 2018.

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/089/18 detailing licences which had been granted under delegated powers by the Clerk to the Board during the period 24 October 2018 to 21 November 2018.

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/090/18 detailing occasional licences and extended hours applications which had been granted under delegated powers by the Clerk to the Board during the period 24 October 2018 to 21 November 2018.

The Board NOTED the report.

6.  Licensing (Scotland) Act 2005
Applications for new premises licences
Achd na Ceadachd (Alba) 2005
Larrtas airson cheadachdan thogalaichean ura

6.1  Ref: HC/INBS/632
Applicant: Partnership of Kim Clark and Aimee Gow, Strathspey House, Carrbridge, PH23 3AA
Premises: High 5 Gifts and Spirits, 55 High Street, Kingussie, PH21 1HX
Type: Off sales

There had been circulated Report No HLB/123/18 the Clerk which invited the Board to determine the application.

The Board AGREED to GRANT the new premises licence subject to the mandatory conditions only.

6.2  Ref: HC/RSL/1884
Applicant: Claymore Limited
Premises: Claymore Filling Station, Tyndrum Road, Glencoe, PH49 4HP
Type: Off-Sales

There had been circulated Report No HLB/124/18 the Clerk which invited the Board to determine the application.

The Board AGREED to GRANT the new premises licence subject to the mandatory conditions only.

7.  Licensing (Scotland) Act 2005     
Applications for provisional premises licences 
Achd Ceadachd (Alba) 2005
Iarrtas airson ceadachdan thogalaichean le cumha

7.1  Ref: HC/INBS/633
Applicant: Scottish Midland Co-operative Society Limited, Hillwood House, 2 Harvest Drive, Newbridge, EH28 8QJ
Premises:  Scotmid, Kilmore, Drumnadrochit, IV63 6UW
Type:  Off sales

There had been circulated Report No HLB/125/18 the Clerk which invited the Board to determine the application.

On hearing from the solicitor for the applicant, the Board AGREED to GRANT a provisional premises licence subject to the mandatory conditions only.

8.  Licensing (Scotland) Act 2005
Applications for variation (major) to premises licences 
Achd Ceadachd (Alba) 2005
Iarrtasan airson Caochladh (Mòr) a thaobh ceadachdan thogalaichean

8.1  Ref:  HC/INBS/122
Applicant:  Edinburgh Woollen Mill Ltd, Waverley Mills, Langholm, Dumfriess shire, DG13 0EB
Premises:  James Pringle Weavers of Inverness, Holm Woollen Mill, Dores Road, Inverness, IV2 4RB
Type:  On and off sales

There had been circulated Report No HLB/126/18 by the Clerk which advised that a timeous notice of objection had been received from David and Chris Taylor. The Board was invited to determine the application.

Mr M McDougall, solicitor for the applicant, advised that the application sought to provide his clients with flexibility over the festive season or at peak tourist periods and there were no plans to sell alcohol at late night music or other events at the premises.

The Board AGREED to GRANT the major variation to premises licence subject to mandatory conditions only.

8.2  Ref: HC/RSL/1256
Applicant:  Ronald MacKinnon
Premises:  Rankins Stores and Post Office, Uig, Isle of Skye, IV51 9XP
Type: Off sales

There had been circulated Report No HLB/127/18 by the Clerk which invited the Board to determine the application.

The Board AGREED to GRANT the major variation to premises licence subject to mandatory conditions only.

8.3  Ref: HC/RSL/0452
Applicant:  Ben Nevis Distillery (Fort William) Limited
Premises:  Ben Nevis Distillery, Lochy Bridge, Fort William
Type:  Off-sales

There had been circulated Report No HLB/128/18 by the Clerk which invited the Board to determine the application.

The Board AGREED: to GRANT the major variation to premises licence subject to mandatory conditions and the local conditions set out at 8.2 of the report.

8.4  Ref: HC/CSR/0247
Applicant:  Edward Newton
Premises:  Newton Lodge, Kylesku, Lairg, IV27 4HW
Type: On and Off-sales

There had been circulated Report No HLB/129/18 by the Clerk which invited the Board to determine the application.

The Board AGREED to GRANT the major variation to premises licence subject to mandatory conditions, removal of special condition 1, and the local conditions and special conditions set out at 8.2 and 8.3 respectively of the report.

8.5  Ref: HC/CSR/1639
Applicant:  Richard Knight
Premises:  Capilla, The Old Chapel, Scrabster, Thurso
Type: On-sales

There had been circulated Report No HLB/130/18 by the Clerk which invited the Board to determine the application.

The Board AGREED to GRANT the major variation to premises licence subject to mandatory conditions, deletion of local condition (e), and the local conditions and special conditions set out at 8.2 and 8.3 respectively of the report.

8.6  Ref: HC/CSR/0608
Applicant:  Firm of Kinlochewe Hotel
Premises:  Kinlochewe Hotel, Kinlochewe, By Achnasheen
Type: On and Off-Sales

There had been circulated Report No HLB/131/18 by the Clerk which invited the Board to determine the application.

The Board AGREED to GRANT the major variation to premises licence subject to mandatory conditions, existing local conditions, and the additional local condition (k) and the special conditions set out at 8.2 and 8.3 respectively of the report.

8.7  Ref: HC/CSR/0246
Applicant: Mervyn J Hill
Premises: Nethercliffe Hotel, 48 High Street, Wick
Type: On and Off-Sales

There had been circulated Report No HLB/132/18 by the Clerk which invited the Board to determine the application.

The Board AGREED to GRANT the major variation to premises licence subject to mandatory conditions, existing local conditions but with the removal of local condition (e) and the additional local condition (k) and the special condition set out at 8.2 and 8.3 respectively of the report.

8.8  Ref: HC/RSL/0167
Applicant:  Co-operative Group Food Limited
Premises:  Co-op, Main Street, Broadford, Isle of Skye, IV49 9AB
Type: Off sales

There had been circulated Report No HLB/133/18 by the Clerk which advised that a timeous notice of representation had been received from Police Scotland and a timeous notice of objection from NHS Highland. The Board was invited to determine the application.

Ms A Junner, solicitor for the applicant, spoke in support of the application as follows:-

• the extension and refurbishment of the premises represented a significant commitment and investment by her clients in the Isle of Skye and would benefit the community by providing a significantly enhanced service to customers and tourists;
• the benefits would include additional alcohol lines partly due to the increase in the size of the store and also in response to customer demand for a greater range of alcohol products;
• her clients were responsible operators and had operated the premises for many years with an alcohol capacity of over 40m² without incident or any issues arising;
• the refurbished premises would create new jobs and staff would receive comprehensive training which went beyond the mandatory training requirements;
• a range of measures were in place at the premises to ensure compliance with the licensing objectives, and these were set out at Appendix 3 to the report;
• the increase in the alcohol capacity being sought represented only a 0.14% increase in the overall off sales in the Highland area; and
• the Board’s overprovision policy was rebuttable if the Board was satisfied that the grant of the application would not undermine the licensing objectives.  

In summary, Ms Junner advised that the track record of the premises and its staff was evidence the licensing objectives were not being undermined, despite there already being an alcohol capacity of over 40m² at the store. The driving force behind the application was not more alcohol sales. The variation was part of a much bigger picture and the improved store would create positive benefits for the community and she asked the Board to keep this in mind when determining the application.

In response to questions, Ms Junner advised that the alcohol capacity being sought was relatively modest in relation to the other products stocked and the overall size of the store. Her clients, as responsible operators, included warning labels on their products and promoted the safe alcohol drinking guidelines.  The premises stocked a limited amount of a range of products and the application would allow her clients to increase that range. The premises already operated above the threshold of 40m² without any threat to the licensing objectives.

Ms E Smart expressed concern that the grant of the application would pose a threat to the licensing objective of protecting and improving public health. It was recognised the applicant was a sensible service provider and employer, however, the evidence showed that many people were drinking in excess of the recommended safe limits and that the application would increase availability in the area. The Isle of Skye had a relatively small population and she questioned the logic of significantly increasing the capacity at the premises at a time when it was known many people were drinking to a level which posed a risk to their health. The economic benefits associated with the premises were not a valid consideration in terms of the Licensing (Scotland) Act 2005. The Scottish Government had produced a new framework around alcohol and one of the key drivers of that was licensing. This recognised that licensing was an important part of a bigger picture in terms of protecting the population’s health.

Sergeant B Gray confirmed that Police Scotland’s representation related to the fact the application was outwith the Board’s overprovision policy.

In summing up, Ms Junner explained that she understood the overall alcohol sales capacity on the Isle of Skye was 200m². The proposal by her clients to increase that by 14m² was, in her submission, a small amount and would not have a negative impact on the licensing objectives. 

In discussion, Members suggested that the concerns expressed in NHS Highland’s objection in relation to protecting public health were valid and they did not consider sufficient justification had been provided to depart from the Board’s overprovision policy.

Thereafter, Ms A Junner advised that if the Board was not minded to grant the application then she would seek an amendment to the application to remove variation (2) “increase alcohol capacity from 54.36m2 to 68.731m2” from the application and request that in relation to variation (1) that an amended layout plan be submitted to reflect the alcohol capacity as 54.36m². 

The Board AGREED to GRANT the major variation to premises licence (as amended, at the applicant’s request in the course of the hearing before the Board to delete variation (2) – “increase alcohol capacity from 54.36m2 to 68.731m2” which had been sought in the original licence variation application) in respect of the amendment to layout – full refurbishment and extension of the premises, subject to the applicant providing an updated plan to reflect the alcohol display area being shown as 54.36m².

9.  Licensing (Scotland) Act 2005 Section 38
Application for review of premises licence
Achd Cheadachd (Alba) 2005, Earrann 38
Iarrtasan airson èisteachd ath-bhreithneachail air ceadachd togalaich

9.1  Licence holder: Loch Ness Country House Hotel Limited
Premises: Loch Ness Country House Hotel, Dunain, Inverness

There had been circulated Report No HLB/134/18 by the Clerk together with an application by the Licensing Standards Officer for a premises licence review.

The Licensing Standards Officer detailed the alleged grounds for review and the information considered by him to support these grounds as set out in the report. He advised that one of the complainants Mrs Mina Black was unable to attend the review hearing due to work commitments but had confirmed she fully supported the text and testimony set out in her statement which was appended to the report.   

Ms E Grant, solicitor for the premises licence holder, raised the following issues in response to the review application:-

• the premises was keen to maintain and foster good relations with their neighbours and had been proactive in encouraging residents to report any concerns;
• it was disappointing, therefore, that the complainants had not contacted the premises directly in relation to the function held on 19 October 2018 to enable immediate action to be taken;
• her clients disputed the fact the staff had been unhelpful in terms of dealing with complaints in the past;
• since 2012, 24 marquee functions had been held at the premises which equated to 6% of the total number of weddings over that period; 
• her clients could not agree to the request that they cease holding marquee functions which involved live or recorded music on the grounds that as a business they needed to offer a full portfolio of functions to customers and were contractually obliged to fulfil bookings in 2019;
• the potential to restrict the number of marquee functions held each year had been rejected by the complainants with no alternative suggestions being proposed;
• offers of direct meetings with the complainants, potentially facilitated by the Licensing Standards Officer, had also been made, but to date this had not been taken up. This lack of engagement had made it difficult to find a satisfactory resolution for all parties;
• the noise management plan for the premises was being updated and it was the intention to continue to liaise closely with the Licensing Standards Officer and Environmental Health and take on board any workable solutions;
• sound monitoring equipment had been installed at the complainants properties in March 2016 over a period during which functions had been held at the premises and no disturbance had been recorded;
• her clients had written to all neighbours in response to the review application. Nearby residents, Mr and Mrs McQuarrie had confirmed in writing they had no concerns about noise arising from the premises, and similarly a neighbour Mrs Grant, had verbally confirmed the same position and was willing to provide a written statement to that effect;  
• the premises had changed its policies as a direct result of previous complaints by Mrs M Black about noise, details of which were provided, and they had only just become aware of Pauline McEwan’s recent complaint and therefore had not had the opportunity to contact her directly; and
• the premisesl was willing to consider any practical solutions to limit noise during functions going forward. This could be agreed on a voluntary basis outwith the formal setting of the Board and without the need for formal restrictions to be imposed.

In conclusion, Ms Grant submitted that s.36(3) of the Act could not be established. There had been no failure to prevent noise nuisance at the premises given the numerous ways the premises had tried to address concerns as detailed in her submission. In view of this and the detrimental impact on the business, it would be inappropriate and unnecessary to vary the premises licence. If the Board agreed that the grounds for review had been established then it should have regard to the small number of functions held in the marquee, the potential commercial impact on the business and their continued willingness to work with all parties.

With the agreement of the Chair, Ms Grant then circulated a copy of the letter received from Mr and Mrs McQuarrie in support of the premises to all parties present. Thereafter, all parties proceeded to view a layout and location plan of the premises.

In response to questions from the Licensing Standards Officer, Members and the complainant, Mr A McMaster, Premises Manager advised that:-

• the premises had not been proactive in contacting its neighbours in relation to the function held on 19 October 2018;
• he had contacted Mrs Black face to face on a previous occasion but this had not been well received and  had discouraged him from further approaches;
• marquee functions had been held at the premises prior to the receipt of complaints since 2016 and it was acknowledged that increasing customer demand for live rock type bands may be a contributory factor to the noise complaints;
• marquees were used in cases where the function room was not large enough to accommodate the number of people attending functions;
• no marquee functions had been held during the period sound monitoring equipment had been installed in the complainants properties in March 2016;
• the proposal going forward was to contact the neighbours directly in advance of any function where it was considered there may be a noise issue and to better understand the nature of the disturbance to minimise any impacts whilst at the same time not limiting the hotel’s business;
• an immediate response to any complaints about noise would include asking the band or DJ to turn down the volume;
• he was confident that the current complement of staff at the premises would handle any complaints professionally.

In the course of the above discussion, Ms P McEwan, complainant, advised that at no time had anyone from the premises contacted her in response to her complaints. She had complained on a number of occasions in the past to the Police, Environmental Health and telephoned the hotel several times but had received no response.

The Licensing Standards Officer then responded to further questions and advised that it would be possible for sound limiters to be fitted to in house amplifiers or for maximum sound levels to be set for visiting bands. Professional advice would be required on safe noise limits within the marquee. There was also the potential to limit the number of functions in a year. He also advised that the local residents should be involved in the test of the noise management plan.     

In summary, the Licensing Standards Officer stated that the noise issues at the premises represented a public nuisance. The complaints were credible and from ordinary local residents who had been disturbed as a result of noise from the hotel. The main issue in terms of the measures included in the noise management plan was firstly to ensure there was not an external noise nuisance, and then to build in some comfort in regard to having a designated point of contact for local residents. 

Ms E Grant, solicitor for the applicant submitted that while it was accepted that the complaints were credible, she did not consider these amounted to a public nuisance and undermining of the licensing objectives and that s.36 of the Act had not been established.  Her clients were open to discuss any workable measures which may help mitigate the concerns of neighbours.

During the debate on the application, Members raised the following points:-

•  there was clear evidence of public nuisance arising from the premises and that the grounds for review had been established;
•  there had also been a failure to prevent public nuisance given that complaints from the neighbours had been an ongoing issue since 2016; and
•  in terms of a variation of the premises  licence, the conditions recommended by the Licensing Standards Officer in his review application should be put  in place subject to an amendment to the first condition that it should also be subject to a review once a satisfactory noise management plan had been put in place. The conditions were to be put in place to ensure that nearby residential properties were not disturbed by noise arising from the premises in the interim period.

Thereafter, the Board AGREED: (1) that grounds for review as set out in s.36(3) of the Act had been established, in particular a contravention of the third licensing objective - the prevention of public nuisance, and (2) that it was necessary and appropriate for the purposes of preventing public nuisance to take one of the steps set out in s.39(2) of the Act, more specifically to make a variation of the licence by imposing the following conditions:

• The playing of live or recorded music within any outdoor drinking area of the premises shall be prohibited after 19:00 hours
• All playing of live and recorded music within the function suite shall be permitted until 23:00 hours only

Both conditions were to remain in place until such time as the licence holder submitted a noise management plan and until the submitted noise management plan had been tested and approved by the Licensing Standards Officer and the Council’s Environmental Health Service to ensure that nearby residential properties were not disturbed by the playing of such live or recorded music.  Should the licence holder be able to demonstrate appropriate noise control measures to the satisfaction of the Licensing Standards Officer and the Council’s Environmental Health Service, the Board will consider an application to relax these conditions, subject to a further condition, however, that the licence holder will require to continue to implement and adhere to the tested and approved noise control measures. 

10. Surrender of premises licence
Gèilleadh Ceadachd Togalaich

10.1  Premises:  Caithness Horizons, High Street, Thurso (HC/CSR/1006)
Licence Holder:  Caithness Horizons

10.2  Premises:  Greens Market, 4/5 Market Street, Tain (HC/CSR/1640)
Licence Holder: Greens Events and Catering Ltd

10.3  Premises:  Tomlinsons Beer Shop, 79 Castle Street, Inverness (HC/INBS/528)
Licence Holder: Damon Sean Tomlinson

The Board NOTED the above premises licences had been surrendered in terms of Section 28(5)(f) of the Licensing (Scotland) Act 2005.

The meeting ended at 2.55pm.