Minutes:
The Committee reconvened on Thursday 19th May 2011 at 7pm.
After introductions around the table, the Chair clarified for the record that both he and Cllr Jenks had bought petrol from the premises in the past. The Chair explained that, further to a request from the Committee for greater clarity on the primary use of the premises, the issue of primary use needed to be addressed first and foremost as, if the Committee were not convinced that the primary purpose was not that of a garage, then the Committee would not be able to grant a premises licence. Following a presentation from the applicant on primary, the Committee would adjourn to deliberate on this particular issue.
The applicant’s representative, Mr Grant, addressed the Committee on the issue of primary use. Mr Grant presented the current position in respect of petrol stations and the competition faced from supermarkets, and the low level of profit derived from fuel sales in the current economic climate. Mr Grant spoke about the way in which the exemption of garages from sale of alcohol had come about and that this was based on perception, despite evidence demonstrating there was no link in sale of alcohol at garages and drink-driving levels.
The Committee was advised that there was no standard definition of primary use and Mr Grant outlined the different ways in which this could be measured. Turnover was not seen as the preferred test for assessing primary use on the basis that a single significant transaction could distort the picture, and Mr Grant argued that footfall was a fairer test, as the Licensing Objectives would be engaged by the people visiting the premises.
Mr Grant took the Committee through the additional data provided by the applicant in relation to footfall, and proposed that this clearly demonstrated that the majority of transactions at the premises were non-fuel related. The Committee was also asked to consider the financial data comparing profit on fuel and non-fuel sales, and it was proposed that this also demonstrated that the primary use of the site was non-fuel. The Committee was advised that were a licence granted and the position changed such that the primary use of the premises did become that of a garage, it would no longer be legal for the premises to supply alcohol.
In response to a question from the Committee regarding whether there was any record of the way in which customers physically arrived at the site, it was reported that there were no records of this kind available. It was also confirmed that the figures provided did not include any data relating to the car wash. The Committee asked about the figures provided and what was included in these figures, in response to which the applicant confirmed that operating costs were deducted for all transactions at point of sale.
The Committee asked about the different means of assessing intensity of use, in response to which Mr Grant emphasised that, for the reasons outlined previously, he felt that footfall was a fairer test than turnover.
The Committee adjourned to consider the issue of primary use.
RESOLVED
The Committee carefully considered the issue of primary use. For the record, the Committee’s entitlement to consider the issue was objected to by the applicant at the initial part of this hearing on 26 April 2011 but was expressly not objected to at the resumption of the hearing today.
The Council’s Statement of Licensing Policy, Section 182 Guidance and the existence of written representations were considered as well as the case of R (on the application of) Murco Petroleum Ltd v Bristol City Council (2010) along with the cases referred to therein.
The test the Committee applied was that of intensity of use as reflected in paragraph 5.24 of the Section 182 Guidance, October 2010 publication. In determining this, the Committee took into account both the number of customers and evidence of turnover, as it considered it entitled to do following the judgement of Murco. In terms of customer numbers, the Committee considered all the numerical data submitted by the applicant. The Committee noted that, were the number of fuel-only and mixed transactions combined, it did not necessarily indicate that the primary use in terms of transactions was not that of a garage. The difference was not considered sufficient for a determination to be made. The Committee did not consider primary use to be defined simply as over 50%. The Committee noted that the fuel element of the mixed transactions was not broken down and although told it could not be broken down, was not of the view that that should necessarily go in the applicant’s favour. The Committee took the view that it was most likely that the fuel element would weigh heavily in those mixed transactions.
The Committee took into account the footfall data along with, and not in isolation from, turnover, which was the second test it applied. Turnover was considered to mean sales less duty and VAT in accordance with the case of Green v Justices for the Inner London Area (1994). This definition did not appear to be disputed during the hearing. The Committee did not consider it was required to remove operating costs to determine the turnover. The Committee noted that turnover for fuel sales for January to December 2010 was £2,704,448.95 and the equivalent figure for non-fuel sales was £788,956.50. It therefore considered that, based on the turnover test, the primary use of the premises was that of a garage.
In summary, the evidence presented did not persuade the Committee that the primary use of the premises was not that of a garage, consequently the Committee’s decision is that the applicant is not entitled to a premises licence at this time for the Wellington Service Station for the sale of alcohol.
The day after the Committee meeting, it became apparent that the late night refreshment aspect of the application had not been considered. This omission did not appear to be observed by any of the parties including the Applicant at the time. The borough’s Local Licensing Procedure Rules permits the Chair of a committee meeting to be advised on steps to remedy procedural errors such as the aforementioned omission after a decision has been made. The Chair consulted with the other members of the committee meeting and it was decided that the application for late night refreshment as applied for would be granted without the attachment of any discretionary conditions. Reconvening the hearing was not considered necessary since the view of the committee was that the written representations related to the sale of alcohol.
The decision of the committee is therefore that a premises licence is permitted for the provision of late night refreshment but not for the sale of alcohol for the reasons outlined above.
The meeting closed at 21:45hrs.