Agenda item

To determine an application for a Premises Licence in respect of 1 Bratton Road, Westbury, BA13 3EN made by Mr Refki Ibisi.

 

The Public Protection Officer – Licensing has updated her report since the adjourned hearings on 6 August and 1 September 2015 and this update is shown in paragraph 7 of the report.

Application by Mr Refki Ibisi for a Premises Licence at 1 Bratton Road, Westbury, Wiltshire

 

The Licensing Officer reiterated the purpose and scope of the application, the premises to which it related and the key issues for consideration.

 

In accordance with the procedure detailed in the agenda, the Applicant, the Responsible Authorities and those who had made a Relevant Representation were given the opportunity to address the Sub Committee.

 

Key points raised by Christine Scrivens on behalf of the Applicant were:

 

·               There was no proof that the picture of the rat (page 52 of Agenda papers) was as a result of the premises;

 

·               Following works that have been carried out at the property the Applicant will say that the odours have now been eliminated and oil drums are now stored properly;

 

·               Where the Applicant parks his car is not part of the application and he is not responsible for any accumulated rubbish in the area where he parks;

 

·               The vibrations heard by the residents of the Castle have now been taken care of, although problems of this nature in this home were never mentioned before the application was lodged;

 

·               The noise reading that was carried out from the bathroom of The Castle was not appropriate and should not be used as a substitute for the children’s bedroom in a similar positon.  There are no soft furnishings within a bathroom to soften the noise and this reading should not be accepted;

 

·               The noise level readings taken on 28 September were not supplied to us until 7 October and one of the noise consultants on the list supplied by the Council had a long turnaround time for works;

 

·               An offer to reduce the hours of application for late night refreshment to 23:00 to 23:30 Sunday to Thursday and 23:00 to 01:00 Friday and Saturdays was put forward which were in line with The Olympia (another venue in Westbury that has a premises licence for late night refreshment; and

 

·               The premises should be able to trade on a Sunday in line with the other premises in the area;

 

Key points raised by Damaris Broad (Environmental Health Officer) on behalf of the Responsible Authority (Environmental Control and Protection) were:

 

·               A timeline of events since the adjourned hearing on 1 September was attached as Supplement (1) to the agenda and on 17 September we were advised that the relevant works had been carried out;

 

·               On 30 September, Environmental Health Officers visited The Castle to take noise measurements and concluded that the noise is still a statutory nuisance and does not meet the criteria of the Abatement Notice;

 

·               Notified on 28 October that Elite Kitchen Services were carrying out further  work on the extraction;

 

·               The bathroom at The Castle was used to take the readings as it was no appropriate to use the children’s bedroom at the time the readings were taken as they were asleep;

 

·               Although the readings taken on 28 October found that the noise levels were reduced, it still did not meet the requirements of the Abatement Notice; and

 

·               Despite numerous requests, the residency times of the carbon filters had still not been received from the Applicant and as such the Abatement Notice for the odour issues was still in force.

 

Key points raised by those who made a Relevant Representation were:

 

Mr Loudoun -

 

·               We have worked with the Applicants and allowed them to access our property to carry out works, etc.  We would like to continue to work with them and ensure a resolution so that we can get on with our lives and live without the disturbances from the noise and odours from the premises;

 

·               There was an incident when scaffolding was erected in my property without my permission and my wife and children were prevented by those acting on behalf of the Applicants from entering our property;

 

·               An extension of the trading hours would cause further disturbance to myself and my family as staff from the premises are hanging around at the back of my premises and are smoking there;

 

·               I would say that the odours have not reduced and there are two plastic containers of oil by my back gates at the present time that should not be there;

 

·               The vibration has reduced and I thank the Applicants for that;

 

·               I want to be able to enjoy my back garden and during the summer months.  With the window open it is too noisy and it prevents us from sleeping and it is miserable for us.

 

Mrs Dixon

 

·               The smell from the premises is still prevalent and it is a very pungent oily smell.  In summer would could smell it in our house;

 

·               We suffer from noise disturbance problems with the customers parking where they shouldn’t be; and

 

·               When planning permission for the premises was granted in 1992, restrictions were placed on the timings of the premises and this was imposed because of its location near to residential homes.

 

The parties were given the opportunity to ask questions of the Applicant, Responsible Authority, those who made a Relevant Representation and Wiltshire Council Officers. 

 

The Environmental Health Officer confirmed that until all relevant information regarding the carbon filters had been received that the Abatement Notice would still remain.

 

The Environmental Health Officer also confirmed that the bathroom in The Castle from which the noise readings were taken was slightly closer to the fan at the premises, but that the readings taken were still accurate and appropriate.

 

The Responsible Authority and those who had made Relevant Representations did not wish to add any further points in summation.

 

Summations points made by Christine Scrivens on behalf of the Applicant were:

 

·         When the scaffolding was in the property of Mr Loudoun this was removed within a couple of minutes and Mrs Loudoun was able to access her property;

 

·         The engineer employed by the Applicant advised there was no fat odour as the fan was clean;

 

·         Aware that when Planning Permission was granted in 1992 that the premises was not able to trade after 23:00 or on a Sunday, but this is not in line with other premises and the business should be able to gain maximum revenue and trade as others do;

 

·         The filter for the extraction system had not yet been installed as there had been a hold up with the manufacturers but it should be in place by the end of the week; and

 

 

·         We say that had the noise readings been taken from the bedroom then the levels could have been 4 – 10 db less which would bring them within the acceptable levels.

 

The Chairman sought clarification on the differences between DEFRA and World Health Organisation levels. 

 

The Senior Environmental Health Officer confirmed that the noise readings taken were in the same proximity and in his opinion were suitable and proportional readings.

 

The Sub Committee members sought clarification on some points before retiring to consider the application and were accompanied by the Solicitor for Wiltshire Council and the Democratic Services Officer.

 

The Sub Committee then retired to consider the application at 10:50am and were accompanied by the Solicitor for Wiltshire Council and the Democratic Services Officer.

 

The Hearing reconvened at 11.45am.

 

Following the deliberations of the Sub Committee Members, the Solicitor for the Council made a statement of material legal advice given in closed session as follows:

 

No specific legal advice had been given, other than to clarify that the only relevant issues were those relating to the licensing application as applied for.

 

The Sub Committee considered all of the submissions made to it and the written representations together with the Licensing Act 2003, Statutory Guidance and Regulations and the Licensing Policy of the Council

 

Resolved:

 

Decision:

 

The decision of the Sub Committee is that the application by Mr Refki Ibisi for a Premises Licence at 1 Bratton Road, Westbury, Wiltshire, SN13 3EN be rejected.

 

Reasons for the Decision:

The Sub Committee considered that, at present, the operation of the premises for the provision of late night refreshment beyond 23:00 would prejudice the licensing objective of the prevention of public nuisance as there would be unacceptable levels of noise and odour which would affect the amenity of local residents.

 

The Sub Committee accepted that these are issues that may be able to be addressed by technical measures; however at present the measures in place are not adequate to prevent the unacceptable level of nuisance.

 

The hearing had been adjourned from 1 September to allow time for the Applicant to carry out works at the premises to address the concerns that had been raised by local residents and the Council’s Environmental Control and Protection Officers relating to noise, odour and vibration. The Sub Committee accepted that the vibration issues had largely been resolved, but considered that insufficient steps had been taken to mitigate the effects of noise and odour arising from the operation of the premises.

 

The Sub Committee accepted the evidence of the Council’s Environmental Control and Protection Officers that the levels of noise, as measured by them, were still unacceptably high and, as such constituted a public nuisance. They also accepted the evidence from both the local residents and the Council’s Environmental Control and Protection Officers that the use of the premises as a hot food take-away produced levels of odour that were not adequately controlled at present, and which would be a nuisance to neighbouring residents if the premises were to operate beyond 23:00 hours.

 

The Sub Committee considered the offer to reduce the hours applied for but did not consider that this would sufficiently mitigate any of the concerns raised.

 

A number of other matters had been raised by the parties, both in writing and orally at the hearing. These included the storage of used cooking oil and other waste and allegations of unlawful parking.  However, these were not considered to be relevant to the issue of whether a licence should be granted for the provision of late night refreshment.

 

The Sub Committee, therefore, concluded that rejection of the application was the only practical option and was one which was both proportionate and appropriate.

 

In reaching its decision, the Sub Committee took account of the representations, both oral and written, that had been made on behalf of the Applicant, together with those made on behalf of Wiltshire Council Environmental Control and Protection Team and those who made Relevant Representations in objection to the application. The Sub Committee also took account of relevant Government guidance and the Council’s licensing policy.

 

Right of Appeal

 

Any party has the right to appeal against this decision to a Magistrates’ Court. Any appeal must be made to a Magistrates’ Court within 21 days of the date of notification of this decision.