Agenda item

'Flip Out', Atlas House, Glenmore Business Park, Portfield Works, Oving, Chichester, West Sussex, PO19 7BJ

 

Application for a Premises Licence:

(a)          Chair opens the Hearing.

(b)          Items arising from Regulation 6 Notice (Notice of Hearing).

(c)          Notice of any representations withdrawn.

(d)          The procedure will then follow the Sub-Committee protocol and    procedure note attached

 

 

 

Preliminary Matters

 

Cllr Sutton confirmed the entirety of the meeting would be held in public session (apart from when the AELSC retired to consider its decision) and therefore, there would be no requirement at any point to pass a resolution to exclude any press representative or the public. The Hearing in this matter was heard using remote technology as provided for under the Coronoavirus Act 2020 and the relevant Regulations made under the 2020 Act and was held in a ZOOM hearing on Thursday 14^th May 2020 at 9:30.  All parties were able to participate and could hear and be heard and the meeting was not interrupted by technical issues of any kind.

 

The Sub Committee followed the procedure set out at page 3 of the document pack.  The membership was as set out in the pack.

 

Cllr Sutton formally opened the hearing and introduced the members of the Sub-Committee and the officers present.

 

The Chairman sought clarification as to who was in attendance for the Applicant. Mr Wootton and Mr Payne confirmed their representation for the Applicant as manager and legal representative respectively.

 

Ms Giusj Di Lauro, Litigation and Licensing Lawyer confirmed her role within the hearing. She explained that her role was to advise the Sub-Committee and to ensure that procedure is followed in accordance with regulations set out in the Licensing Act 2003. Ms Di Lauro confirmed that she would retire with Committee to ensure that the Principles of Natural Justice are adhered to in the decision making process. She informed the Sub-Committee that their primary consideration was Section 4 of the Licensing Act 2003 and the four licensing objectives contained within. Ms Di Lauro also advised the Committee to consider the Chichester District Council Licensing Policy 2016 – 2021, Home Office Guidance April 2018, Human Rights Act and Section 17 of the Crime and Disorder Act 1998. Ms Di Lauro explained that should any advice be provided to the Sub-Committee once they have retired to consider the application, it would be communicated to all parties when the hearing resumed.

 

Cllr Sutton confirmed the purpose of the hearing was to consider whether to grant a Premises Licence and give consideration as to whether it would be appropriate to attach conditions or otherwise to ensure the licensing objectives are promoted

 

Cllr Sutton confirmed that the Sub-Committee members had received and read the agenda papers for the hearing and therefore there was no requirement to go over evidence which had previously been submitted.

 

Divisional Manager’s Introduction

 

Mr Foord, Divisional Manager for Communications, Licensing & Events outlined details of the application. Mr Foord set out the application and set out the representations to same, and further clarified the basis of the application as to alcohol and late night refreshment.  He went through the application as set out in the document pack.  He confirmed the Applicant details, and gave an indication that there were no relevant issues he needed to raise having liaised with other licensing authorities having a role as to the Applicant company and as to Mr Kieran Anthony Wootton, the proposed Designated Premises Supervisor named within the application.  He discussed the application of conditions to licenses.  He discussed an insurance broker form and went through pages 45-49 of the document pack.

 

 

The basis on which the Sub-Committee had been convened was a result of the Licensing Authority receiving representations. Of the representations received one was from the Sussex Police and the other from the council’s own Environmental Protection Team (in their statutory role of ‘Responsible Authority’ under the Licensing Act 2003).

 

Mr Foord informed the Sub-Committee that if they were minded to grant a Premises Licence the permission would be issued to Flip Out Chichester Limited as a limited company. Kieran Anthony Wootton would be specified on the Licence as the Designated Premises Supervisor being a Personal Licence holder. Mr Foord confirmed that he had communicated with the issuing Authority (as indicated within his report at paragraph 4.8), and there were no reported incidents that they were aware of associated with the proposed Designated Premises Supervisor.

 

Mr Foord explained that should there be any planning implications, these must and would be dealt with separately to the matters being considered under the Licensing Act 2003, which is the approach supported under the current Home Office Statutory Guidance which is issued nationally to all Licensing Authorities.

 

Mr Foord confirmed that a full copy of the original application had been reproduced and was included in the bundle, with a summary provided in the report at page 7.

 

Mr Foord confirmed that the Agenda papers had been made available to all parties connected with the hearing, as well as being made publically available for inspection. The Licensing Team ensured that the statutory Notice of Hearing under the Licensing Act 2003 (Hearings) (Amendment) Regulations was sent to the applicant and all persons who had made relevant representations.

 

Following receipt of that Notice, a party was required to give the Licensing Authority a notice, stating whether they intended to attend or be represented at the Hearing and whether they considered the hearing to be unnecessary.

 

Mr Foord confirmed that of the parties that received a Notice of Hearing the Licensing Authority received one response in time from the Environmental Protection Team confirming their attendance and their wish to address the Sub Committee.  Sussex Police had achieved agreement in principle with the Applicant as to conditions which they felt met the licensing objectives.

 

Mr Foord explained that the papers for the Hearing are set out in the bundle which had been provided to the Sub Committee. Included within the papers were copies of all representations and the outcome of mediation where appropriate.

 

Mr Foord confirmed for the avoidance of doubt that the application was seeking two Licensable Activities;

 

·         Sale by retail of alcohol (for consumption on the premises and indoors only)

·         Provision of late night refreshment

 

The hours being sought for each licensable activity were summarised on the report. He confirmed that the no other forms of regulated entertainment had been applied for.

 

Mr Foord presented a summary of the timeline for the application.

 

 

Throughout the period relevant Statutory Notices were displayed at the application site and the applicant ensured that an appropriate advert was published

 

During that time the application attracted the relevant representations.

 

No other Responsible Authority had made representation against this application. No objections were received from members of the public.

 

Mr Foord reminded the Sub-Committee that the inclusion of any proposed conditions was ultimately a matter for the Sub-Committee to determine even where they were agreed in principle with an authority as had happened with Sussex Police on this occasion. 

 

Mr Foord introduced the Applicant and invited them to address the Sub-Committee by way of confirming his report accurately outlined their application. This was duly acknowledged by Mr Payne.

 

Before the applicants addressed the Sub-Committee Mr Sutton invited Sub-Committee members to ask any questions as to the papers for clarification purposes before the Hearing continued.  There were none.

 

Applicants opening Address

 

Mr Payne confirmed that the summary provided by Mr Foord was a true and fair overview of the licence application.

 

Cllr Potter asked questions of Mr Foord as to transference procedures under the Licensing Act 2003. Mr Foord outlined the statutory processes on when licenses would be surrendered or transferred.  Mr Payne indicated that this was a settled business as a trampoline park with no intention whatsoever to transfer the license.  It was being sought exclusively for the purposes stated, he advised.

 

The Chairman checked whether there were further questions for Mr Foord and there being none asked that the Applicant speak.

 

Mr Wootton spoke as to the business design and the wish for the License to enhance his business.  He advised that he was not wanting to turn the site from a trampoline centre into a “party environment” but that this was an ancillary element to create an income stream.  He confirmed that there was no plan to generate “stag parties” or similar, and stated that this was about creating income as a helping hand to overall business success and enhance services to his clients as the original business model had not been as successful as he would have hoped.

Mr Wootton explained the safety processes in particular as to the use of wristband systems to enable the business, through its staff, to manage where individuals are allowed to be within the premises.  He went into the ways which this is already managed on safety grounds including as to persons having food and drink.  Mr Wotton stressed that alcohol sales and consumption would be limited to the café area on the mezzanine floor of the existing premises with no food or beverages permitted on the arena.

 

Mr Wootton went into more detail as to operational health and safety at the site and the support the company receives from its safety advisors who he indicated were “Right Directions” Limited and the Members acknowledged that this company was familiar to them.  Mr Wootton outlined the number of incidents on ‘Flip Out’ premises (in RIDDOR terms) and stated that health and safety is and remains “very much paramount” to the company thinking. 

 

He further discussed his approach to safety management and how accidents happen at a trampoline centre, types of injury likely to occur and how they are managed.

 

All members asked questions of Mr Wootton.  Questioning from members covered the following, with the responses given by the Applicant outlined in brackets.

 

1)    what food was sold (confirmed as pizzas and similar)

2)    the client base (confirmed as typically young people aged 5 to 14)

3)    the client base in the evening, noting the operating times (confirmed as older people later, and that young people do not attend late)

4)    how the council could be confident as to control of alcohol sales (Mr Wootton advised that staff pick up on what is happening, that control of people cannot be 100% but they have measures in place to manage the room).

5)    Who is the personal license holder (confirmed as the son of Mr Wootton at the meeting, Kyran, as well as Mr Wootton himself.)

6)    How did the company think alcohol and safety could mix in this location (Mr Wootton again referred to the use of the wristband system and indicated that such wristbands are difficult to remove).

 

At this point Mr Foord was asked by the Sub-Committee for his views on the above, he responded as to the use of conditions to tailor a licence to address concerns in any particular area which the Sub-Committee may have and that each application must obviously be considered on its individual merits based on the nature of the licensable activities at the application site.

 

Members returned to questioning the Applicant.

 

7)    Asked for a more detailed outline of the wristband system.  (This was provided by the applicant.)

8)    Asked why alcohol was needed for this operation.  (Mr Wootton indicated that the operational environment had changed and that financially it currently only just “washed its face” and that additional income was needed to enable the business to remain economic.

 

Mr Payne as lawyer for the applicant spoke to the application.

 

Mr Payne went into the diversity already present within the premises as to operational purpose and the existing management to control access to areas.  He asked if the site was known to members, all three confirmed that they did and Cllr Potter went into some detail as to the location and its closeness to ongoing development.

 

Mr Payne confirmed that he accepted alcohol is not appropriate to trampoline activity, and is not compatible for persons doing so but that this was not what was being sought.  He submitted that the question should be whether the availability to others would increase risk.  He discussed the average stay period and the responsibilities of staff to investigate and control drinking and that persons sitting or undertaking longer periods of vertical drinking would be identified by staff.  He submitted that drinking of alcohol would be lower scale in quantity, and with higher controls in place.  He went through the training package for staff and the package being well recognised and originating in local authorities delivery and in his view of a higher standard than might be found in other packages.

 

The Sub Committee asked whether the business was a franchise, this was confirmed and that other sites operate in Eastleigh and Southampton. 

Mr Payne concluded by indicating that in his view these were established activities nationally and that the operation of other premises indicates that members should be confident that properly managed trampoline parks can operate safely with an alcohol license.

 

The Chairman offered the opportunity for questioning again, then moved on to relevant representations.

 

Mr Wyatt spoke on behalf of the Environmental Protection Team in their role as Responsible Authority and linked to his representation which he confirmed was set out correctly in the document pack. He went on to expand as to what he described as relatively high accident rates for trampoline parks and went into the RIDDOR relevant injuries that are typical on his research – leg breaks, knocking out.  He drew comparisons with British Gymnastics trampolining guidance where 1:1 support is provided.  He indicated that the advice given at ‘Flip Out’ was to be active within your capability, that such decisions would be for the child and their observing parent.  He went through the waiver signed by all responsible adults.  He expressed concerns that parent perceptions could change as to risk of their children’s activities when they have been drinking.  He concluded by acknowledging the training but that it was not in his view a panacea for all issues, that he continues to have and express concerns as to public health risk of the application and maintained his professional view that the application should therefore be refused.

 

Members asked questions of the Applicant as to the total capacity of the site in order to assess these issues against the specific operation.  Mr Wyatt could not confirm, but Mr Wootton advised that up to 160 people may be trampolining with 80 “others” present in non-trampolining areas (café) as a maximum.  Mr Wyatt expressed concerns that this is a very high number to manage.  Councillor Moss stated that he found this figure concerning in the context of the application.

 

Cllr Sutton asked Mr Wyatt as to experience of alcohol licences at other trampolining sites and Mr Wyatt indicated that his findings were local and that there were only a few since 2019 and that as such there is a limited statistical base to compare from.

 

Members asked about the disclaimer referred to above.  Ms Di Lauro indicated that this would be irrelevant to the licensing objectives and that licensing conditions can only address licensing matters so the use of disclaimers should be ignored by the Sub-Committee.  The chair acknowledged this advice.

 

Mr Wootton spoke, giving his opinion that safely trampolining is not more dangerous than rugby or even golf.  He revisited training and the financial imperative for income streams.  The Sub-Committee asked what else was being done to increase sales.  This question was withdrawn following  interventions from Mr Payne and Ms Di Lauro.

 

Mr Payne started to question Mr Wyatt.  Ms Di Lauro expressed concerns that this questioning was cross examination in style and not appropriate to a licensing hearing.  Mr Payne acknowledged this point and amended his questioning method.

 

Mr Wyatt repeated his concerns that trampolining is a high risk activity and that any controls rely upon human diligence, and that he was concerned that these are more liable to failure with alcohol affecting that diligence.

 

Mr Payne returned to questioning as to the existence of licenses in other locations for in excess of 2 years and submitted that the principle should be established that such licenses at trampolining sites are therefore legitimate.

 

Mr Payne questioned the conditions circulated by Mr Wyatt at a late stage in the process.  Mr Wyatt confirmed that these originated from other locations.  Mr Payne advised the Sub-Committee that the company is submitting similar applications to other locations and that at the time of speaking no representations were received for those other applications.

 

Mr Payne outlined to Mr Wyatt some arguments about the Health & Safety at Work Act 1974, Section 4, strong controls, training, segregation and time spent in premises all being relevant to whether a person would be unable to make valid informed decisions. 

 

Mr Payne spoke to the Sub-Committee about what he described as stringent control measures and that in his view taking all of above into account the sale of alcohol to persons not trampolining would not affect the safety of those who do.  He discussed his concerns with the conditions put forward by Mr Wyatt as to noise on leaving when the site is in the centre of an industrial site, and went through several others which he argued repeated or were less impactive than the conditions already agreed with the police to be submitted to the Sub Committee as appropriate.  He indicated that any additional elements as to refusal book and challenge 25 would be entirely acceptable to the applicant.

 

Divisional Managers Conclusions

 

Mr Foord referred to a number of points within the council’s current Statement of Licensing Policy 2016 - 2021. The Licensing Authority recognised that the entertainment industry in the district was a major contributor to the local economy, attracting tourists, visitors and creating a vibrant community; and providing employment. However, as part of the policy adoption the Licensing Authority also recognised that both the needs of residents and visitors to have a safe and healthy environment in which to live, work and enjoy recreation were to be considered. The adopted policy set out the general approach to be taken when considering applications under the act and each application was viewed on its own merit.

 

The Chairman asked Mr Foord to comment on the effect of evidence at the hearing as to the local licensing authority policies.  Mr Foord did so, confirming the broad position that applications are considered on their individual merits and that the Sub Committee needed to weigh the needs of the applicant, residents  and visitors to ensure the public are entertained safely.  He discussed the use of conditions, that they are not a panacea for all problems and that conditions must avoid duplication of any attempt to impose conditions for purposes other than licensing grounds has to be avoided.  He discussed the licensing objective of protection of children from harm, the policy elements as to ensuring family friendly businesses thrive and that limitations should be focussed upon protection of children from physical and other harms.  Mr Foord repeated the options available to members leading them to page 9 of the documents.

 

The Chairman again checked that all parties had said all they wished to.  He asked for comments specifically as to whether Ms Di Lauro could accompany the members into private session in case they needed legal advice.  The Applicant’s lawyer agreed to this.  The Chairman confirmed that the decision would be issued within the statutory period in writing and that no oral decision would be provided on the day of the meeting.  This was acknowledged by Mr Payne.

 

All persons other than Ms Di Lauro left the remote meeting so that the Sub Committee could make their decision.  Cllr McAra did not stay in the meeting and left with all other persons.  Subsequently Ms Di Lauro confirmed that she did not provide legal advice during the private session with members.

 

Decision

 

Chichester District Council’s (‘CDC’) Licensing and Entertainment Sub-Committee (‘the Committee’) considered an application for a Premises Licence by FO Chichester Limited for its venue, Flip Out, a trampoline, entertainment and café facility near the city of Chichester.  

The application asked for a permanent Premises Licence (‘the Licence’) for two specific licensable activities: 1) Retail sale of alcohol; 2) Provision of late night refreshment.  The opening hours of the venue are: every day from 9:00am to 00:00.  The Committee noted from the Licensing Officer’s Report that the second activity, the provision of late night refreshment is only licensable between 11:00pm and 05:00am. 

The Committee considered the following documents: the application with all the documents and correspondence attached; the Licensing Officer’s Report; Sussex Police’s relevant representation and the Responsible Authority’s (‘RA’) relevant representation by CDC’s Health Protection Department.  The Committee considered the letter of Sussex Police dated 5 May where they explained they would not be attending the hearing.  The Committee was satisfied the letter did not add any new relevant information and in fact, Sussex Police’s original representation would not be taken into account as part of their decision because the Applicant had met all of Sussex Police’s requests by way of mediation.  Sussex Police had withdrawn their representation as their proposed conditions had been incorporated.  The Committee was satisfied that the only outstanding valid representation against the granting of the Licence was the one by the RA.  This was only in relation to the first activity, namely the retail sale of alcohol.  The RA’s representation focused on two specific Licensing Objectives which, according to the representation, could not be promoted: 1) The protection of children from harm and 2) Public Safety.  

The Committee, in reaching its determination, considered the promotion of all four Licensing Objectives as stated in section 4 of the Licensing Act 2003 (‘the 2003 Act’): 1) The prevention of crime and disorder; 2) Public Safety; 3) The prevention of public nuisance and 4) The protection of children from harm.  The Committee also took into consideration the Revised Home Office Guidance of April 2018; CDC’s Statement of Licensing Policy 2016 – 2021; section 17 of the Crime and Disorder Act 1998, as amended which imposes a duty on the Licensing Authority to exercise its functions with regard to the likely effect of crime and disorder in its particular area and to do all that it reasonably can to prevent crime and disorder.  The Committee took into account Human Rights and Equality Law legislation and focussed its mind on the principles of natural justice and the principles of public life (the Nolan Principles) in assessing the application, namely: right to a fair trial, integrity, fairness, objectivity, openness, right to be heard, assess the matter on its own merits and only to consider relevant facts and disregard irrelevant factors.  The Committee reminded itself of the option, as granted by the 2003 Act, to review the Licence, if granted, at any time in the future.  Finally, the Committee noted the options available to it as prescribed by the 2003 Act.  These are to grant the application as applied for; to grant it with any other condition as considered appropriate to promote the Licensing Objectives; to exclude one or more of the proposed licensable activities, in this case as there were only two proposed, the Committee was aware of the option to exclude one; to reject the whole application altogether. 

 

DETERMINATION

 

Having heard the Licensing Officer’s Report, the Applicant’s written and oral representations and the RA’s written and oral relevant representation, the Committee was satisfied that the 2 Licensing Objectives of: 1) The prevention of crime and disorder and 2) Prevention of public nuisance had been adequately addressed and it had no concerns about these two objectives having been met and promoted according to the requirements of s.4 of the 2003 Act.   

The Committee carefully considered the remaining two Licensing Objectives of 1) Public Safety and 2) The protection of children from harm.  The Committee considered these against the two licensable activities applied for.

Provision of late night refreshments: the Committee was satisfied that this activity met, not just the two above mentioned Licensing Objectives, but all four.  It was satisfied that the applicant had put mechanisms in place to allow this activity to take place whilst the four Licensing Objectives were upheld and promoted.

Retail sale of alcohol (indoors and on the premises only): the Committee was not satisfied that the promotion of 1) Public Safety and 2) The protection of children from harm could be maintained and promoted at this venue.  The Committee listened carefully to the measures proposed by the applicant to ensure the consumption of alcohol did not interfere with public safety and that the protection of children from harm could be adequately addressed.  The Committee considered the activity of using a trampoline was inherently dangerous.  The applicant had stated to the Committee that in theory, the activity of using a trampoline and alcohol were incompatible but he had put measures in place to deal with this.  The Committee noted the amount of incidents recorded across the Country in the main and it attached less weight to the record of incidents regarding this particular venue as outlined in the RA’s representation. This is because it noted such number was proportionate to the number of participants this venue had which was significantly higher than some other venues mentioned in the comparison.  

The Committee considered the reported incidents sustained by participants as a whole across all venues mentioned and concluded that the consumption of alcohol by adults who are required to be responsible for the children they accompany may hinder the adults’ ability to make sound judgements and keep children out of harm’s way.  The Committee noted the proposals the applicant had put forward in terms of the use of a wristband when in the trampolines arena and the immediate removal of the same by the café staff as soon as the adult purchased alcohol.  The Committee considered the measure suggested by the applicant of having sufficient staff to monitor the admission into the arena and the same being denied to individuals without the wristband and their shoes on (these being removed when a participant enters the arena and being put back on in the café area).  

The Committee was satisfied about the training and number of staff allocated; however, it expressed its concern as to the staff’s ability ‘to patrol’ drinking by proxy when one individual purchases alcohol for others who can then still access the arena and also expressed concern about a responsible adult’s ability to give permission to children to undertake potentially dangerous or unsuitable activities, in relation to their skills, if alcohol had been consumed.  

The Committee’s concern around this was the adult’s judgment being potentially impaired by the use of alcohol.  This also impacted upon public safety as adults are also  allowed to use the trampoline.  The Committee was aware of the well-known, scientifically proven effect of alcohol on human beings and of some of the effects of this being the impaired judgment to make decisions; loss of inhibitions; reduced ability to feel pain and an increased risk taking attitude.  The Committee recognised that this was subjective and not all individuals would experience all of any of the typically recognised effects of alcohol on the human body; however it could not disregard those overall. 

The Committee considered the existing proposed conditions and any other it had at its disposal to address its concerns and promote the four Licensing Objectives and especially the two in question stated above.  The Committee also considered the representation made by Mr Payne, representing the applicant, which was emailed after the hearing had ended on 14 May.  The Committee took the representation into consideration as part of the overall assessment of all the relevant documents and the oral representations received.  Mr Payne’s had not been able to obtain his client’s instructions during the hearing due to the nature of the hearing, this being a virtual one via the Zoom platform.  Therefore, even though Mr Payne’s email was received after the hearing, the Committee included it in the main body of its deliberation as if it had been made at the hearing.

The further condition proposed by the applicant was for the retail sale of beverages with an alcohol content over 6.5% (with the exception of wine) not be sold at the premises.  The applicant suggested this, combined with the average one hour stay at the venue, would address the issues raised, in particular the RA’s representation.

The Committee, having considered all of the above, concluded the retail sale of alcohol in any form would not be compatible with the activity of using a trampoline or permit a child to use one.  For these reasons, the Committee was not satisfied that the two licensing objectives of 1) Public safety and 2) The protection of children from harm could be met and promoted.  The Licensing and Entertainment Sub-Committee decided to refuse the application with regard to this licensable activity.

The Licensing and Entertainment Sub-Committee determination is as follows:

 

1) The provision of late night refreshment from 11:00pm to 05:00 every day Licence: GRANTED;

2) The retail sale of alcohol on the premises and indoors only Licence: REFUSED

 

The Licence shall be subject to the following conditions:

I. A colour recording CCTV system that captures images from the main public areas must be fully operational whilst licensable activities are taking place. In the event of a technical failure of the CCTV equipment, a member of staff shall notify the police within 24 hours of the fault.  The system shall be able to cope with all levels of illumination.

II. The system clock shall be checked for accuracy taking account of GMT and BST. Digital systems shall have sufficient storage capacity for 28 days evidential quality recordings (minimum 4 frames per second).  The images produced shall be date and time stamped.

III. A notice shall be displayed at the entrance to the premises advising that CCTV is in Operation.

IV. A member of staff trained to operate the CCTV equipment shall be present at all times the premises are open to the public.

V. Subject to GDPR guidance and legislation, the management of the premises will ensure that key staff are fully trained in the operation of the CCTV, and will be able to download selected footage onto a disk (or other electronic portable device acceptable to Sussex Police) for the police without difficulty or delay and without charge to Sussex Police.

VI. All staff will be provided with training in relation to the licensing objectives that are commensurate with their duties. This training will take place prior to the selling of such products. This will include the individual’s responsibilities, age verification and licensing offences, as appropriate. Details of the training will be recorded in a personnel file or log book and will be refreshed at regular intervals, with a maximum of one calendar year between refreshed at regular intervals, with a maximum of one calendar year betweenrefresher training sessions.