James Green of the WOFC loses appeal against Canterbury City Council
An appeal was heard by District Judge JS Barron on 24th August 2021 from James Green of the Whitstable Oyster Fishery Company against the refusal of Canterbury City Council to grant a new premises licence for the sale of alcohol at premises known as the Forge, Sea Wall, Whitstable, Kent.
The application was submitted on the 1st July 2020 and it was heard by the Council Licensing Sub Committee on the 28th August 2020. The premises was already trading and licensed for the sale of alcohol but purpose of the application was to incorporate an unlicensed outside seating area for 120 people on the beach adjacent to the Premises. It was proposed that the new licence would be subject to conditions limiting its use.
The appeal was dismissed by Judge Barron and the full judgment is very lengthy but here is the final section: 11. DECISION, OBSERVATIONS AND REASONS leading to the Judge Barron’s CONCLUSION – which makes for interesting reading on this important community issue.
NB This is not the judgment on the Whitstable Oyster Fishery Company’s Trestle Development which is to be decided by Planning Inspector, Katie Peerless, following the recent Public Inquiry. The decision on that is not expected until October.
DECISION, OBSERVATIONS AND REASONS
11.1. I substantially agree with and adopt the closing submissions of Mr Kolvin and for that reason have already set them out in some detail. I do not, however, accept the extent of his personal criticism of Mr Green.
11.2. I largely reject the appellant’s case and the submissions of Mr Rankin.
11.3. I find that the appellant has failed to satisfy me that the decision of the Licensing Sub- Committee is wrong.
11.4. I make this finding taking into account the changes to the application and evidence since the application was heard by the Committee. This consideration has included, for example, the reduction of numbers in the proposed licensed area; the removal of the licensed area from the right of way; agreement of satisfactory toilet provision; table service together other proposed conditions; and other issues.
11.5. In reaching my decision I have been particularly conscious of the need to separate licensing issues from other issues that may be relevant concerns to the general public but not grounds to reject a licensing application or for refusal of this appeal.
The Appellant
11.6. Mr Green’s character and suitability as an operator of licensed premises has been called into question both by those making representations against the grant of a licence and by Mr Kolvin in his closing submissions.
11.7. From the information available to me Mr Green is an able and determined businessman who through force of will and personality drives forward his projects to commercial success. He does not appear to be afraid to take on public opposition to his plans (although he may be irritated by it) and to fight it out to a conclusion. This attitude has generated some public animosity towards him personally.
11.8. Looking at the evidence available to me I cannot give much weight to events in 2009. As Mr Green points out that was a long time ago and there have been no similar issues in the intervening years.
11.9. Incidents and breaches more recently have in my judgment evidenced someone who is prepared to push the boundaries in licensing matters where it suits him, for example, by putting stools on the opposite side of the sea wall to the Forge. It was described in one of the written representations as a “cavalier approach.”
11.10. The off-sales in July 2020 were, I accept a mistake, but a mistake he should not have made as an experienced operator. The sales were also as Mr Kolvin points out a criminal offence.
11.11. I find that these issues are not reasons for refusal but Mr Green must ensure that he strictly complies with licensing and planning conditions in future. They are not an elastic concept to be stretched in accordance with his commercial objectives.
11.12. I found Mr Green’s evidence at court to be unimpressive. For the most part it amounted to assertions that he was right, without any additional supporting evidence, and that everyone else was wrong. He blamed the Yacht Club for the preponderance of the objections without seeing to the heart of the matter.
11.13. In my judgment, despite all his undoubted ability, he failed to grasp or deliberately ignored the very particular sensitivities of this location to the general public and residents of Whitstable. That it is a Site of Special Scientific Interest (SSSI), a RAMSAR (wetland site of international importance) and a special protection area (protected areas for birds); it is a much-loved open space; close to a popular and well supported Yacht Club; and in an area very well served by licensed premises and already beset with issues of disorder, anti-social behaviour and litter. Of course, not all of these are licensing issues, and to the extent they are not, I do not take them into account in reaching my decision. They are, however, relevant in appreciating the strength of local feeling.
11.14. To put it bluntly, the people of Whitstable, just do not want a licensed area on the beach at this particular location.
11.15. That it is the location, and not Mr Green, the Company or bias against them that has led to the avalanche of objections is apparent by how other similar applications have been received. This thought occurred to Mr Kolvin too. The Lobster Shack also owned by Mr Green and the Company is in an area of an entirely different character has permission for tables on the beach, on Council land, and its licensing application had no objections.
11.16. It is difficult not to conclude, as Mr Kolvin did, that Mr Green has identified a significant commercial opportunity and is pursuing it at all costs. Whilst I accept Mr Green’s assurances that he has no current plans for a more widescale development of the area other than that which is already in the public domain I do wonder where his commercial interests for the area will develop in the medium to longer term.
The application
11.17. The application before the Committee and this court has been criticised on two principal grounds, that it is precipitate and that it is poorly prepared.
11.18. I agree with both of those criticisms. It would have been eminently more sensible if Mr Green had sought to resolve some of the maelstrom of outstanding disputes and issues he is embroiled in, concerning the beach and foreshore, by obtaining planning permission before submitting the licensing application. Planning, the trestle tables, the dispute with the Yacht Club, the village green, all remain live issues.
11.19. I accept entirely there is no legal obligation on Mr Green to make a planning application first and failure to do so is not a good ground of refusal. I also accept Mr Crofton-Martin’s and Mr Green’s explanation as to why the planning has been delayed. Nevertheless, I do find obtaining planning permission would have given greater focus and clarity to this application particularly because of the specially protected nature of the beach. I do not go as far as Mr Kolvin in saying that it adds force to the reasons to dismiss the appeal.
11.20. I do not find the Licensing Committee’s policy is unlawful because it strongly encourages applicants to resolve any planning issues before any licensing application is made and I do not find the Committee is wrong to note that. It is apparent from their decision it was not a ground of refusal.
11.21. The Committee was also critical of the deficiencies in the application and again I agree with them. It is something that I find has persisted into this appeal. The appeal has a cobbled together feel to it with changes made on the hoof. The evidence is thin with little thought and time given to supporting evidence, such as the risk assessment.
The Yacht Club
11.22. There is no doubt that the dispute with the Yacht Club has generated considerable opposition to the licensing application. Many of the witnesses and those who have made representations are members of or connected with the Club.
11.23. I see nothing wrong with that. Members of the club are part of the community and they are perfectly entitled to make representations as they relate to the Licensing objectives and the Club is entitled to encourage them to do so. I can choose to give the representations little or no weight if I decide that the primary reason for the objection is to further the civil dispute and not because of any genuine licensing concern.
Crime and Disorder
11.24. I find that the Committee were entitled to have regard to the cumulative impact of a further licensed area for 96 covers operating throughout the day on the beach and into the early evening. There is overwhelming evidence in the representations before me that there is already a significant problem with excessive alcohol consumption, rowdy and drunken behaviour on the beach and foreshore in the vicinity of the premises.
11.25. The area has become a destination venue for alcohol consumption for visitors from outside Whitstable.
11.26. I take into account that there is no evidence that customers of the Forge have engaged in such behaviour however there are 22 licences nearby and I find that the Committee is not wrong to say further expansion onto the beach would add fuel to an already difficult situation.
11.27. Mr Rankin argues that insufficient weight has been given to the lack of police objection and he refers me to the decision in Thwaites. I have balanced the lack of police objection against the evidence I have read from residents and those who know the area well including three Councillors who refer to the frequent police call outs to the beach to disperse groups of young people drinking, and complaints from residents about abusive and intimidating behaviour and fighting on the beach. I remain satisfied that there will be a cumulative impact and the Committee is not wrong to reach the conclusion it did.
Public Nuisance
11.28. The Committee found a public nuisance would be caused by increased congestion, litter and lack of toilet facilities.
11.29. The sufficiency of toilet facilities has now been resolved by proposals to the satisfaction of the Council. I would not describe the proposed facilities as generous or particularly convenient, but I accept that they are sufficient by current standards and need be considered no further in this appeal.
11.30. Congestion of the footpath at the Forge is an important issue for many objectors. The Committee considered that clientele from the premises had consistently blocked the footway along the promenade. Mr Green argues that his proposals will in fact ease congestion by moving his customers to a defined area where they can be managed and more effectively supervised.
11.31. The Committee also had concerns about the separation of the food and drink servery from the seated area and the difficulties of staff crossing and recrossing the public path with food and drink. Mr Green accepted his staff would cross the footpath but pointed out the alternative was 96 people crossing the footpath to get food and drink. He did not see it as a problem which would increase congestion or risk.
11.32. In his submissions Mr Kolvin draws attention to lack of detailed proposals to manage congestion that could still arise from the new seating area.
11.33. I find that there is substantial evidence that the current operation of the Forge causes considerable congestion at what is regarded as a pinch point on a public right of way and the intersection of another. I can see that moving customers into a defined seating area may ease some of the congestion, but the Forge will continue to provide takeaways, people will still presumably have to wait to be seated, there will be a movement back and forth to the toilets, and crucially staff will be back and forth over the right of way throughout the day carrying food, drink and empty plates.
11.34. Mr Green sees no issue with this staff movement however I find that it is a significant concern that has not been adequately addressed in the case before the court or the application before the Committee. To service 96 covers throughout the day will mean staff moving back and forth almost continually. On busy days staff will be threading in and out of those using the footpath adding to the congestion by traversing the flow of pedestrian traffic and possibly creating a risk in relation to hot food and drink with spillages or collisions.
11.35. It is highly unusual for a licensed premises to have the licensed area and the kitchens separated by a busy right of way. I can think of many premises where tables and chairs are placed on a pavement immediately outside the licensed premises but cannot think of any with a similar arrangement to that proposed by the appellant. Apart from his assertion that it will not be an issue, he has called no evidence (such as a specific and perhaps independent risk assessment), to satisfy me that the Committee’s concerns or decision is wrong.
11.36. Litter also featured highly in the statements and representations that I read. On the evidence seen by the Committee it inferred that a significant quantity of litter had come from the Forge.
11.37. In evidence before me Mr Green flatly denied that litter seen by Sissy Dewhurst in front of the premises had anything to do with his customers and he effectively accused her of being a stooge for the Yacht Club.
11.38. I accept the evidence of Melanie Green from the Whitstable Environment Group on the problems of litter. She is something of an expert on the subject. The group of volunteers has in recent years collected 3 tonnes of litter from a section of beach of less than a mile long and which is well known for its extreme and year round litter problem. It is not, of course, suggested that it is all from the Forge but the premises is on that beach and most of the litter the volunteers collect is debris from local food and drink outlets.
11.39. Her evidence is that the Forge contributes to this litter and “we feel not enough is being done now, or is planned for, to mitigate the increase in the problem which this licence, if granted, will bring.” She notes that “there may be a planned litter protocol statement but there is little evidence of this in practice and of the company/management taking the litter generated by their business and customers seriously…the small single bin provided is usually full…”
11.40. Mr Rankin submits that unfair blame is being placed on the premises and that photos displayed items not sold at the premises or were snapshot of tables at moments when the plates had not yet been cleared.
11.41. I found Mr Green dismissive of Melanie Green’s evidence and of the problem of litter. He clearly felt that he was doing enough at his premises and that litter outside the immediate vicinity was someone else’s problem, specifically that of the volunteers who he gave permission to come and clean up the beach for him.
11.42. Even taking into account Mr Rankin’s observations I find that the problem of litter on that section of beach is extremely bad, that the Forge significantly contributes to it, does little to resolve it, and without a change in attitude by management the issue will inevitably get worse with an increase in capacity.
11.43. On the issue of congestion and litter as it impacts public nuisance and taking into account the changes in the evidence before me I find that the Committee is not wrong in the decision it reached.
Protection of Children
11.44. The Committee found that young children on the beach will be adversely affected by the behaviour of those in the seated area. It took into account, on this issue, representations from the Yacht Club which runs a junior section (I heard at court from Richard Maltby the club principal of training) and that the local infants school visit this part of the beach. The Committee noted the context of the application with no visual separation from the recreational and refreshment uses.
11.45. Ms Lambirth the head teacher at Westmeads Community Infant School described in her letter of objection that as part of an initiative for local schools to “adopt” a beach they chose the beach adjacent to the Yacht Club and the Forge because of the education opportunities it offered and because of its proximity to the school and other points of interest for children. They have continued to visit the beach on a weekly basis, teaching a variety of lessons there, and including a weekly litter pick during summer months. She said that the proposal to increase and move the seating area to the beach would have a huge impact on her outdoor curriculum and would also lead to an increase in litter, noise and congestion.
11.46. She said that more importantly, she had safeguarding concerns, for children from the school and other children visiting the beach and feared that because alcohol would be served there there would be an increase in the use of foul language and there would be a realistic possibility of the children witnessing drunken and threatening behaviour.
11.47. Mr Green’s response was that the schools visit the beach with his permission, there were vast sections of the beach they could visit and why would they need to go to that section in front of the Forge. The proposed licensed area would likely be visited by families with children in any event.
11.48. Mr Rankin in his skeleton argument pointed out that the premises operated as a restaurant selling a small quantity of alcohol compared to food sales; it did not partake in any irresponsible drinks’ promotions; prices are expensive; no spirits are sold; there is no complaint about the behaviour of the current patrons and that no one says they are drunken or loutish, or that they fight and generally behave badly. There are plenty of examples of premises in Whitstable with outdoor eating and drinking spaces and there was no evidence that those areas had ever adversely affected any child in Whitstable. To suggest that sea cadets who are being trained for a life at sea will in some way be depraved or corrupted by the sight of people eating oysters and drinking wine is fanciful.
11.49. During the hearing Mr Rankin drew attention to the use of the Yacht Club’s bar on a terrace in hearing and site of children and passers-by.
11.50. I have no doubt that were the children to witness some of the alcohol fuelled crime, disorder and behaviour described by witnesses or that led to the dispersal orders issued by the police then it would be a terrifying and harmful experience and even more so for infants and very young children.
11.51. That, however, did not form part of the Committees reasoning in relation to the protection of children as it related to the licensing application. Their concern was that children using the beach would be adversely affected by the behaviour of those in the seated area. I can find no reliable evidence that would be the case if this application were granted. I am satisfied that on this point the Committee is wrong.
Public Safety
11.52. The Committee were concerned by reports of the Company continuing to trade at the start of lockdown and was mindful that the applicant was suspended from operating another facility although some time ago.
11.53. I have already found that the events in 2009 are too far in the past to carry any real weight and I have discounted them when reaching my final conclusion in relation to whether the decision of the Committee is wrong.
CONCLUSION
12.1. Taking into account all the relevant evidence on the appeal, based on the findings that I have made and for the reasons I have given I do not find that the decision of the Licensing Sub-Committee of Canterbury City Council is wrong.
12.2. I dismiss the appeal of James Green on behalf of the Whitstable Oyster Company Limited.
12.3. It is not therefore necessary for me to consider the unargued further submissions of both parties in relation to the topic of the Habitats Regulations 2017.
District Judge J S Barron
Folkestone Magistrates’ Court
24th August 2021
Press release from Canterbury City Council:
Reacting to the decision, Cllr Ashley Clark, Chair of the Licensing Committee and the council’s Lead Councillor on Enforcement, said: “The committee, and no doubt the majority of the public in Whitstable, will be pleased with the court’s decision.
“I would like to thank everyone who played a part in helping the District Judge reach his verdict, especially council officers and those that made their submissions to the original Licensing Committee hearing.
“In this day and age, people are deeply cynical about their voices being heard by the powers-that-be.
“This judgement proves that is not always the case and they should always make sure they have their say.”
The appellants were ordered to pay the council’s costs which were just over £50,000.
25th August 2021
Read the complete press release here: https://news.canterbury.gov.uk/news/article/261/district-judge-throws-out-beach-booze-licence-appeal
Read more on the beach development here: https://whitstableviews.com/2020/07/16/reeves-beach-development-by-cj-stone/
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