Agenda item

AquaVitae 10 Ormond Place Cheltenham (18/01920/TCAX)

 

The Licensing Officer introduced the report which had been circulated with the agenda he explained that an application to place tables and chairs on the highway had been received from Mr Paul Stephens in respect of aqua vitae located at 10 Ormond place, Cheltenham.  He advised that the applicant wished to place 16 chairs and 8 tables on the highway during the day and 32 chairs and 10 tables during the evening/night. The day time layout would be from 08:30 – 18:30 and the evening layout from 18:30 – 03:00. He confirmed that a picture of the proposed structure was included at appendix a and a location plan at appendix b.

 

He informed the sub-committee that an objection to the application had been received and this was outlined in the background papers. Similarly, the licensing position and information in respect of the Highways Act 1980 which had been referenced in the objection were included at section 5 of the report.

 

He reminded Members that Members must be mindful of the Probity in licensing guide and in particular, must vote in the best interest of the Borough as a whole and not vote on the basis of local ward interests.  They must also be aware of section 5.8 of the report with regards to emergency exits.

 

He reminded the sub-committee that they could:

 

·           Grant the consent because the application is compatible with the current Street Scene Policy and the provisions of the Highways Act 1980, or

·           Refuse the consent because the application falls outside the provisions of the current Street Scene Policy.

 

Following questioning from Members, the Licensing Officer advised that the sub-committee had the option to permit either just the day or just the night-time operation.

 

In attendance was the applicant, Mr Paul Stephens, the legal advisor for Aqua Vitae Mr Philip Jones, Scott Lahive the Manager of the Regent Arcade who was objecting to the application and Nick Harding the solicitor representing Canada Life and the Regent Arcade.

 

The Applicant Mr Paul Stephens was then invited to speak in support of his application. He advised that:

 

·           He had purchased the premises 12 months ago with a silent business partner;

·           When purchased, Aqua Vitae did have a licence to place table and chairs outside the premises:

·           He reported that they had made an application for a day and night time set up and wished to emphasise that the night time arrangements would only be in place when the Arcade was closed, if it were open they would keep the day time set up;

·           The windbreaks were to be used as a means of controlling customers and ensuring they were safe whilst on the premises;

·           They attracted a more mature client base, from the age of 21 upwards;

·           Their aim was to make the venue more cosmopolitan so people would also be able to have food and drinks outside during the day;

·           The opticians immediately opposite Aqua Vitae did not have a problem with the application;

·           The windbreaks would be easily moveable in the event of an emergency;

·           They had extremely adequate door staff who were all SIA trained and could assist if there were any issues;

·           They believed that the development in the Regents Arcade was fantastic and did not want to hinder that, they were more than willing to work with them to rectify any issues. They had reduced the table and chair size in an attempt to mitigate the Arcade’s concerns;

·           They wanted a seating area so there was somewhere for smokers to go;

·           They had a close working relationship with the police and local authority, who had never had any issues with the establishment;

·           They fully cleaned down the area at the end of every evening;

 

Following questions from Members, the Licensing Officer confirmed that historically the venue did have a licence for table and chairs but it didn’t at present.

 

The applicant offered the following responses to Members questions:

 

·           All table and chairs would be brought inside when they were not in use, there was space to either store them in Aqua Vitae or 21 Club which they also owned;

·           They used a mix of polycarbonate plastic and ordinary glasses. They had 4-5 glass collectors on shift each night who cleared up any spillages or breakages immediately;

·           At present, they opened on a Friday and Saturday from 18:00 - 02:30/03:30 and hoped to also open on a Thursday and offer a day time service;

·           They had disabled access and customers could either enter through the single or double doors;

·           The windbreaks were only about 3 metres in length and 1 metre high;

·           Following concerns about access to the cycle rack, Mr Stephens advised that this would still be easily accessible; and the door staff could assist if necessary;

·           If a process needed to be devised for the emergency exit from the Regent Arcade he would be more than happy to accommodate this;

·           Following a suggestion that the timings of the day/night time layout be amended to fit with that of the Arcade, the applicant agreed he would be happy to work with them to try and find a solution;

·           He advised that it took them 10 mins to set up the table, chairs and windbreaks;

·           The table and chairs only slightly encroached on the concrete pillars which were either side of the Arcade doors;

·           He advised that not having fixed fixtures gave them flexibility to take down the wind breaks if needed and allowed them to control the customers within that given area;

·           He reported that the diagram of the set up was to scale.

 

Nick Harding the solicitor representing Canada Life and the Regent Arcade then spoke in objection to the application. He explained that:

 

·           Under the Highways Act 1980, a local authority is prohibited from issuing its approval to a proposed highway obstruction where consent from frontagers has not been obtained. He strongly disputed the legal advice that the Regent Arcade were not a frontager:

·           He felt it was clear that his client was a frontager to the area of Ormond Place as the tables were positioned directly in front of the property;

·           The development works to the Arcade were due to be starting in the first quarter of 2019 and the cinema which forms a large part of the development was due to open within the next 12 months. He noted that should the tables and chairs licence be granted to the applicant, it would not expire prior to the redevelopment and opening of the new leisure unit.

·           He explained that the cinema would be open a lot later than the shops would be and the table and chairs would provide an obstruction to customers to the leisure unit and may give the appearance that the Arcade is closed.

 

In response, the Council’s legal officer explained that they had confirmed where the centre of the highway falls from Gloucestershire County Council and due to the nature of where the centre of the highways falls the objector’s client cannot be viewed as a frontager in respect of the day time layout of the table and chairs as none of the objects lay between any part of the Regent Arcade and the centre of the highway. In relation to the evening layout, however, the objection would be relevant to the windbreaks between the Arcade and the centre of the highway. Following questions from Members, the Legal Officer confirmed that it was adopted highway and proceeded to hand round a copy of the highways register.

 

Members suggested that this was a red herring in any case as the applicant was only proposing to place the tables and chairs in front of the Arcade when it was closed. The objector noted that when the cinema was open which was likely to be every day until 01:00 there would be little point in putting the evening structure up considering Aqua Vitae closed at 02:30.

 

Following Members questions, Mr Harding and Mr Lahive confirmed that:

 

·           They did still object to the arrangements in front of the premises during the day when the Arcade was open;

·           Following the new development there would be very few occasions when the Arcade would be closed, and as a result, the cinema would likely be open until midnight or later;

·           They explained that the Arcade were working with the Council to provide a safe, well lit passage to the car park;

·           They had no objection to the arrangements during the two race meets as the development of the Arcade would not have taken place then.

 

Mr Lahive, the Arcade Manager explained why he was objecting to the application:

 

·           When the venue had been changed from retail to A3 use they were supportive as it did not impact upon their operation;

·           As it was a particularly damaging time for retail they were having to diversify and as there had been no interest from retailers in the space in the basement they were looking to pursue leisure;

·           He reported that Canada Life who owned the arcade also owned the Cavendish House building;

·           They were hoping to complete the lease agreement with the cinema, however, this could not be done until they could guarantee access to the building;

·           He felt that the night time arrangement gave the impression that the area was closed off;

·           They had concerns that the passage between the tables and chairs was not wide enough considering the entrance was an emergency exit;

·           They required a 4 metre passage which had to have a minimum space of 2 metres each side. The Licensing Officer confirmed that the space was 9 metres in width so in theory there was enough space for the required access;

·           He felt that the space was too small for tables and chairs as on previous occasions the waiters had had difficult manoeuvring around the tables and people would often pull chairs up which would impede the entrance to the Arcade;

·           The Arcade would be open every day, 7 days a week until 12:00/01:00 apart from on Christmas day.

·           He confirmed that they had obtained figures form the cinema in the Brewery and it was suggested around 120 people could be leaving at any one time depending on the screening.

 

Mr Harding queried whether if they were able to veto the windbreaks they had the right to amend the evening layout. The Chair confirmed that as no formal consultation had taken place they were not able to do so.

 

Aqua Vitae’s Legal Officer queried whether the Arcade had entered into a section 278 agreement with the local highway authority. The objector believed so, although, explained that the conversations with highways were ongoing.

 

The Applicant was then given his final right of reply. He explained that:

 

·           He wanted a positive working relationship with his neighbours and was willing to work together to resolve any issues;

·           There was a lot of competition with such establishments around the town and they were hindered by not being able to offer an outdoor service;

·           He was willing to compromise on the footprint;

·           He recognised that an exit strategy needed to be adopted and he would embrace additional training for his staff if it was deemed necessary;

 

. The Licensing Officer also confirmed that the Regent Arcade should have its own evacuation procedures and should not rely on a third party procedures.

 

The Arcade’s legal representative reiterated that the Highways Act states an application can only be granted if consent has been obtained from all frontagers and as the local authority had accepted that the Arcade was a frontager for the purpose of the night time set up due to the location of the windbreaks they should have the power to amend the evening layout if they were minded to grant it. The Council’s Legal officer advised that due to the windbreaks they were unable to make a decision on the night time layout and would purely have to deliberate on the day time set up. The applicant would need to put in a fresh application with a revised layout for the evening.

 

In their debate that followed Members felt satisfied that the day seating arrangements were acceptable and that it would not encroach on the Arcade, providing that there was no creep in the footprint. If there were concerns that the table and chairs would get moved enforcement action could be taken. One Member suggested making the barriers immovable, although, the Licensing Officer advised that any permanent structures on the highway would need to be approved by the County Council and so they would not be able to condition it tonight. It was agreed that this could be explored further as part of ongoing consultation. They also felt satisfied that there was the required 4 metre pathway and as such no health and safety concerns. One Member noted that he had visited Aqua Vitae with the Licensing Officer, and had been impressed that they catered for an older clientele and felt that the establishment made a positive contribution to the night time economy. They did, however, feel it was important that due regard was given to the Arcade’s position so as to not prejudice the planning application. Members agreed that a condition should be applied for additional cleaning to ensure the area was well maintained.

 

The Members then proceeded to vote, firstly on whether a condition should be applied for additional cleaning and litter provisions.

 

Upon a vote it was unanimously for.

 

Members then voted on section 1.4.1 which was amended to say ‘grant day time consent because the application is compatible with the current Street Scene Policy and the provisions of the Highways Act 1980.

 

Upon a vote it was unanimously for.

 

Resolved that

 

Day time consent be granted because the application is compatible with the current Street Scene Policy and the provisions of the Highways Act 1980.