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Agenda item

Licensing Act 2003 - Application for a New Premises Licence - Sugar Hut, 93 High Street, Brentwood. CM14 4RR

Minutes:

An application had been received for a new premises licence for the provision of regulated entertainment, supply of alcohol and late-night refreshment in respect of 93 High St, Brentwood CM14 4RR. There had been 3 representations received from the Responsible Authorities and 220 relevant representations received from other persons, including a ward councillor.Members were requested to determine the application having regard to the operating schedule, the representations received, the Council’s Statement of Licensing Policy and the four Licensing objectives.

 

The sub-committee  was  asked  by  counsel  for  Essex  Police  (Ms  Parekh)  to  refuse  to  take  into  account material  which  had  been  submitted  on  behalf  of  the  Applicant  at  just  after  5pm  the  night before the hearing and had decided to refuse to take into account that material.

 

The sub-committee was alsoasked by counsel for the Applicant (Mr Dadds) to adjourn the hearing on the basis  that  it  would  be  unfair  to  proceed.     Members decided  to  refuse  the  request  for  an adjournment and to proceed with the hearing.

 

The sub-committee’s reasonsfor both decisions were as follows:

 

The decision to refuse to take into account the Applicant’s material

 

Solicitors  for  the  Applicant  had sent  four  emails  to  the  Council  and  responsible  authorities beginning  at  just  after  5pm  the  night  before  the  hearing,  attaching  a  112-page  bundle. Additionally,  an  email  sent  by  the  Applicant’s  solicitors  at  1.16pm  had  included  a  link  to  a YouTube  video.    Members did  not  receive  any  of  that  material  until  shortly  before  the  hearing began when hard copies were provided by the Applicant’s solicitors.   While the Responsible Authorities had been sent the material directly, none of the residents in attendance to support their own relevant representations had seen the material.

 

 

Essex  Police  objected  to  the  admission  of  this  material  on  the  basis  that  it  had  not  been provided before the hearing, as it was not received until after close of business.   They also said that they had not had time to properly consider the material in the time available.   Ms Laura Smith, a resident, also objected on the basis that it was unfair to admit material which she had not seen.

 

 

Mr  Dadds  submitted  that  no  party  would  be  prejudiced  by  the  admission  of  this  written material.   He  said  that  it  had  been  submitted  to  assist  the sub-committee  but  that  he  could  deal  with  the matters  set  out  in  that  material  orally  and  by  calling  his  witnesses.   He  explained  that  the material had been submitted in response to late evidence received from Essex Police on 31October 2019.

 

Legal Adviser to the sub-committee, Matt Lewin, advised  Members  of  Regulation  18  of  the  Licensing  Act  2003  (Hearings) Regulations 2005, which provided:

 

“In considering any representations or notice made by a party the authority may take into account documentary or other information produced by a party in support of their application, representations or notice (as applicable) either before the hearing or, with the consent of all the other parties, at the hearing.”

 

Members decided that technically the material was produced before the hearing and therefore, in principle, it could be taken into account: all that Regulation 18 required was that the material was produced before the hearing” and no further time limit was set.

 

However, Members decided to exercise their discretion not to take the material into account for the following reasons.

 

(1)  There  was  no  good  reason  for  it  having  been  provided  so  late.   At  the  very  latest,  the Applicant  had  received  Essex  Police’s  supplementary  evidence  by  31  October  2019  – two  weeks  before the hearing.   It was considered  that  there  was  sufficient  time  for  the  Applicant    a  well- resourced business represented by experienced licensing solicitors and consultants to respond  earlier  than  they  had done.  In  any  case,  Members considered  that  the  material  was  general evidence   which   responded   to   all   relevant   representations   made   during   the   public consultation  (which  had  concluded  on  24  October  2019)  and  not  just  the  Essex  Police material.   Given that the two expert reports were dated within 72 hours of the hearing, it seemed to Members that this evidence had simply been left to the last minute.

 

(2)  It would not be unfair on the Applicant.   Mr Dadds had advised the sub-committee that he was able to deal with the matters addressed in the written evidence orally and by calling his witnesses.

 

(3)  It would be unfair on the other parties.   Essex Police advised that they would not be able to respond properly to the material without an adjournment.  The residents who were also parties to the hearing but not professionally represented also objected that it would be unfair to admit evidence which they had not seen in advance.

 

The decision to refuse an adjournment

 

 Mr Dadds on behalf of the Applicant asked for the hearing to be adjourned on the basis that it would  be  unfair  to  proceed.    The sub-committee  decided  to  proceed  with  the  hearing  for  the  following reasons.

 

(1)  Given that Mr Dadds had advised that he could present his case without admission of the written material, Members did not consider it would be unfair to proceed.  Additionally they rejected Mr Dadds suggestion that it was unfair of the Chair to ask that he address her as “Chair” or Councillor rather than “Madam”.

 

(2)  The request for the adjournment arose because the Applicant had served a substantial amount of evidence very late in the day.   Members considered that there was no good reason for the delay in serving that evidence.

 

(3)  All  parties  had  prepared  for  the  hearing  and  had  attended.    It  would  cause  serious inconvenience and would waste public time and resources to adjourn and arrange a new hearing date.

 

(4)  Members did not attach much weight to the fact that the business had invested a substantial amount of money in the premises.  Their priority was to ensure that the hearing was fair to all parties and that their decision would promote the licensing objectives.

 

When Mr Dadds’ request for the hearing to be adjourned was refused he advised that the Applicant had decided to withdraw his application and the hearing ended.

 

 

 

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