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Agenda Document Pack - Licensing Committee - 08/02/2023

Moray Council · 8 February 2023
Back to Licensing Committee — 8 February 2023 and its agenda

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Licensing Committee 
Wednesday, 08 February 2023 
NOTICE IS HEREBY GIVEN that a Meeting of the Licensing Committee is to be
held at Council Chambers, Council Office, High Street, Elgin, IV30 1BX on
Wednesday, 08 February 2023 at 09:30. 
BUSINESS 
1. Sederunt 
2. Declaration of Group Decisions and Members Interests * 
3. Resolution
Consider, and if so decide, adopt the following resolution:
"That under Section 50A (4) and (5) of the Local Government
(Scotland) Act 1973, as amended, the public and media
representatives be excluded from the meeting for Item 8 of business on
the grounds that it involves the likely disclosure of exempt information
of the class described in the relevant Paragraphs of Part 1 of Schedule
7A of the Act.”   
4. Minute of the meeting of the Licensing Committee of 16
November 2022
5 - 8
5. Written Questions ** 
6. Application for Grant of a Public Entertainment Licence -
Case No PEL-23-001
Report by Depute Chief Executive (Education, Communities and
Organisational Development)
9 - 14
7. Question Time ***
Consider any oral question on matters delegated to the Committee in
terms of the Council's Scheme of Administration. 
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Item(s) which the Committee may wish to consider with
the Press and Public excluded   
8. Application for Grant of a Late Hours Catering Licence -
Case No LHC -23-001 [Para 14]
• Information relating to action taken, or to be taken, in connection
with the prevention, investigation or prosecution of crime. 
Summary of Licensing Committee functions:
To deal with all aspects of the issue of licenses by Local Authorities as
required by Government; to deal with matters of Licensing and
registration not falling within the functions of any other Committee.     
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GUIDANCE NOTES 
* Declaration of Group Decisions and Members Interests - The Chair of the
meeting shall seek declarations from any individual or political group at the
beginning of a meeting whether any prior decision has been reached on how
the individual or members of the group will vote on any item(s) of business on
the Agenda, and if so on which item(s).  A prior decision shall be one that the
individual or the group deems to be mandatory on the individual or the group
members such that the individual or the group members will be subject to
sanctions should they not vote in accordance with the prior decision.  Any such
prior decisions will be recorded in the Minute of the meeting. 
** Written Questions - Any Member can put one written question about any
relevant and competent business within the specified remits not already on the
agenda, to the Chair provided it is received by the Proper Officer or Committee
Services by 12 noon two working days prior to the day of the meeting.  A copy
of any written answer provided by the Chair will be tabled at the start of the
relevant section of the meeting.  The Member who has put the question may,
after the answer has been given, ask one supplementary question directly
related to the subject matter, but no discussion will be allowed. 
No supplementary question can be put or answered more than 10 minutes after
the Council has started on the relevant item of business, except with the
consent of the Chair. If a Member does not have the opportunity to put a
supplementary question because no time remains, then he or she can submit it
in writing to the Proper Officer who will arrange for a written answer to be
provided within 7 working days. 
*** Question Time - At each ordinary meeting of the Committee ten minutes will be
allowed for Members questions when any Member of the Committee can put a
question to the Chair on any business within the remit of that Section of the
Committee.  The Member who has put the question may, after the answer has
been given, ask one supplementary question directly related to the subject
matter, but no discussion will be allowed. 
No supplementary question can be put or answered more than ten minutes
after the Committee has started on the relevant item of business, except with
the consent of the Chair.  If a Member does not have the opportunity to put a
supplementary question because no time remains, then he/she can submit it in
writing to the proper officer who will arrange for a written answer to be provided
within seven working days. 
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THE MORAY COUNCIL 
Licensing Committee 
SEDERUNT 
Councillor Paul McBain  (Chair)
Councillor Peter Bloomfield  (Depute Chair)  
Councillor James  Allan  (Member)
Councillor Neil Cameron  (Member)
Councillor Tracy Colyer  (Member)
Councillor Theresa Coull  (Member)
Councillor John Divers  (Member)
Councillor Jérémie Fernandes  (Member)
Councillor Donald Gatt  (Member)
Councillor Juli Harris  (Member)
Councillor Graham Leadbitter  (Member)
Councillor Kathleen Robertson  (Member)
Councillor Ben Williams  (Member)  
Clerk Name: Lindsey Robinson
Clerk Telephone: 07966 120593
Clerk Email: committee.services@moray.gov.uk 
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MORAY COUNCIL 
Minute of Meeting of the Licensing Committee 
Wednesday, 16 November 2022 
Council Chambers, Council Office, High Street, Elgin, IV30 1BX 
PRESENT 
Councillor James  Allan, Councillor Peter Bloomfield, Councillor Neil Cameron,
Councillor Tracy Colyer, Councillor Theresa Coull, Councillor John Divers, Councillor
Jérémie Fernandes, Councillor Donald Gatt, Councillor Juli Harris, Councillor Paul
McBain, Councillor Kathleen Robertson, Councillor Ben Williams 
IN ATTENDANCE 
Also in attendance at the above meeting were Sean Hoath, Senior Solicitor, Lindsey
Robinson, Committee Services Officer, as Clerk to the Committee, both Moray
Council, and PC Mitch Dickson, Police Scotland. 
1.         Chair 
Councillor Paul McBain, As Chair of the Licensing Committee, chaired the meeting. 
2.         Declaration of Group Decisions and Members Interests * 
In terms of Standing Order 20 and the Councillors’ Code of Conduct, there were no
declarations from Group Leaders or Spokespersons in regard to any prior decisions
taken on how Members will vote on any item on the agenda or any declarations of
Member’s interests in respect of any item on the agenda. 
3.         Resolution 
The Meeting resolved that under Section 50A (4) and (5) of the Local Government
(Scotland) Act 1973, as amended, the public and media representatives be
excluded from the meeting for Item 9 of business on the grounds that it involves the
likely disclosure of exempt information of the class described in the relevant
Paragraphs of Part 1 of Schedule 7A of the Act.  
Paragraph Number
of Minute Paragraph Number of Schedule 7a and Reason
9 14 - Information relating to any action taken in connection
with the prevention, investigation or prosecution of crime 
4.         Minutes 
The minutes of the meetings of the Licensing Committee of 7 September 2022 and
the Special Licensing Committee of 21 September 2022 were submitted and
approved. 
Item 4.
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5.         Written Questions ** 
The Committee noted that no written questions had been submitted. 
6.         Madatory Review of Taxi Fares and Charges 
A report by the Depute Chief Executive (Education, Communities and
Organisational Development) asked the Committee to consider the responses
received as part of the formal consultation carried out in relation to the review of the
maximum fares and charges applicable to taxis and, in light of those responses, to
agree a new fare card.  There are no powers delegated to officers in this regard. 
During consideration, Councillor Gatt moved that the recommendations be agreed
and expressed his disappointment in the lack of responses.  This was seconded by
Councillor Harris who also expressed her disappointment. 
Thereafter, the Committee agreed: 
i. to note the views received from the formal consultation process; 
ii. the maximum fares and charges applicable to taxis in Moray to have effect form
10 December 2022; and 
iii. to instruct the Head of Governance, Strategy and Performance to publish the
fare structure and issue a new fare card to all operators.  
7.         Annual Functions Report 
A report by the Depute Chief Executive (Education, Communities and
Organisational Development) sought approval from the Committee to publish the
draft functions report which incorporates a report from the Licensing Standards
Officer. 
During consideration, Councillor Robertson sought clarification as to why some
short term let applicants were being charged for advice from planning even though
there are no control zones in Moray.  She asked for information to be added to the
FAQ section of the website. 
In response, the senior solicitor advised that the information relating to no control
zones would be added to the FAQs.  The charge raised against some applicants is
a planning charge that they levy for advice and is currently looked at on a case by
case basis.  The Scottish Government were due to issue a circular to planning
teams with a definitive view on short term lets, but this has been delayed as the
draft was withdrawn after feedback. 
Thereafter, the Committee agreed to note the draft annual functions report at
Appendix 1 of the report, and agreed the final report to be published. 
8.         Question Time *** 
Councillor Gatt sought clarification on how staff shortages within the legal
department has affected licence processing. 
In response, the Senior Solicitor advised that staffing had been an issue for some
time. The legal department is split into a number of teams and the licensing team is
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one member down.  The majority of licence applications are dealt with through
delegated powers and processed by the admin team.  Moray has a quick turn
around for these and this has not been affected by the staff numbers. 
9.         Application for the grant of a Taxi Driver Licence  - Case No TD-22-004 -
[Para 14] 
A confidential report by the Depute Chief Executive (Economy, Environment and
Finance) asked the Committee to consider an application for the grant of a taxi
driver licence received on 6 September 2022 subject to an adverse representation
received from a consultee.  
The Senior Solicitor introduced the report and confirmed to the Committee that it
was a representation from Police Scotland, not an objection.  
The Committee noted that the applicant was in attendance.  The Chief
Superintendent was represented by PC Mitch Dickson.  
On the invitation of the Chair, PC Dickson addressed the Committee and responded
to questions form Members.  
On the invitation of the Chair, the applicant addressed the Committee and
responded to questions from Members.  
Councillor Fernandes moved that licence should be granted.  The was seconded
unanimously by the other Committee Members.  
There being no one otherwise minded, the application was granted. 
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REPORT TO: LICENSING COMMITTEE ON 8 FEBRUARY 2023 
SUBJECT: CIVIC GOVERNMENT (SCOTLAND) ACT 1982 – APPLICATION FOR
GRANT OF A PUBLIC ENTERTAINMENT LICENCE (Case No.
PEL/23/001) 
BY:  DEPUTE CHIEF EXECUTIVE (EDUCATION, COMMUNITIES AND
ORGANISATIONAL DEVELOPMENT) 
1. REASON FOR REPORT 
1.1 To consider an application for the grant of a public entertainment licence
received on 8 November 2022 subject to objections and adverse representations
received from consultees. 
1.2 This report is submitted to Committee in terms of Section III (H) (1) and (2) of the
Council's Scheme of Administration relating to exercising the function of the
Council as licensing authority for the Moray Council area and issuing and
suspending, revoking and refusing applications for all licences in terms of the
Civic Government (Scotland) Act 1982. 
2. RECOMMENDATION 
2.1 The Committee is invited to consider the application in light of the matters
referred to in this report and the provisions of the Civic Government
(Scotland) Act 1982 and thereafter:- 
(i) Grant the licence; or 
(ii) Grant the licence and (either or both):
(a) disapply or vary any standard conditions applicable to the  
licence; and/or
(b) impose conditions in addition to any mandatory or standard
conditions to which the licence is subject; or 
(iii) Refuse to grant the licence. 
3. BACKGROUND 
3.1 The licensing authority must consider the application within 3 months of it having
been made and reach a final decision on it within a further 6 months.  The
application must therefore be decided by 8 August 2023. The applicant has
scheduled the public event to take place on 29 and 30 April 2023.  Powers are
Item 6.
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delegated to the Head of Governance, Strategy and Performance to grant or
where appropriate, renew licences only if there are no objections or adverse
representations received from a consultee.  In light of circumstances detailed
within this report, it is appropriate that this matter be dealt with by the Licensing
Committee. 
3.2 A copy of the application is provided in Appendix 1. 
3.3 The following letters of objection were received and copies are provided in
Appendix 2: 
(a) Letter dated 14 December 2022 received on behalf of the Chief
Constable.
(b) Letter dated 15 December 2022 received from Moray Council
Environmental Health Service. 
3.4 The following letters of representation were received and copies are provided in
Appendix 3: 
(a) Letter dated 13 December 2022 received from Moray Council Open
Spaces Service.  
(b) Letter dated 15 December 2022 received from Moray Council Emergency
Planning Service. 
(c) Letter dated 16 December 2022 received from Moray Council Building
Standards Service.   
3.5  Both objections and all representations were received within the statutory time
limit.   
3.6 The Licensing Standards Officer is not in agreement with the licence being
granted unless and until an approved event safety plan is in place and the
matters in Appendices 2 and 3 are addressed.   
3.7 The applicant and all parties who have lodged objections and representations
have been invited to attend the meeting.  The applicant has been provided with a
copy of both objections and all representation letters. 
3.8 Whilst objections and representations are in place, the applicant and parties are
still in constant dialogue.  All parties are working towards the event taking place
but taking place safely.  There have also been a number of meetings.  The
applicant is updating event documents and the events group, including external
partners, is providing advice and assistance to the applicant.  It was hoped that
the parties could reach a mutually acceptable agreement such that any
objections/representations could be withdrawn prior to the meeting and the
licence simply granted.  Unfortunately the matter is not at that stage yet but
dialogue is still ongoing.  In the meantime, the licence application must follow the
legal process and if the Committee is required to make a decision then it had to
follow the Committee diary.  Therefore a further Committee date has been set
aside in case it is required.   
4. SUMMARY OF IMPLICATIONS 
(a) Corporate Plan and 10 Year Plan (Local Outcomes Improvement Plan
(LOIP))
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The provisions of licensing directly relate to the priorities within the 10
Year Plan (Moray 2026) in relation to a growing and diverse economy and
safer and healthier communities.  The various licenseable activities within
industry all aid a growing economy in terms of production, retail and the
positive effects on tourism.  Regulation of the licensed activities
contributes to a safer community by ensuring those providing licenseable
goods and services are fit to do so. 
(b) Policy and Legal 
Under the Civic Government (Scotland) Act 1982 (“1982 Act”) where an
application for the grant or renewal of a licence is received, a licensing
authority can:- 
• grant (or renew) the licence; or 
• grant (or renew) a licence and in doing so disapply or vary any
standard conditions applicable to the licence; or (failing which)
• grant (or renew) a licence and impose additional conditions to the
licence; or (failing which)
• refuse to grant (or renew) the licence. 
Considerations to which the Committee may have regard 
In considering whether or not to grant a licensing application, the
Committee may have regard to any misconduct on the part of the
applicant which in its opinion has a bearing on his fitness to hold a licence. 
This includes, but is not limited to, previous and spent convictions. 
Granting the Application 
The licensing authority is obliged to grant the licence unconditionally
unless it considers that any of the criteria below apply to justify granting it
with conditions or refusing it altogether.  In granting the application the
Committee may choose to grant a licence and disapply or vary any of the
standard conditions (i.e. local conditions agreed by the licensing authority)
which ordinarily apply to the licence, if there is a justifiable reason for
doing so. 
Where the Committee is not minded to grant the application
unconditionally, it should first move to consider whether the application
should be granted with additional conditions.  Additional conditions may
include conditions restricting the licensable activity, for example restricting
the activity to certain times. Where the Committee chooses to impose
additional conditions to a licence, the additional conditions must be
reasonable (Paragraph 5 (2) Schedule 1, 1982 Act) and they must not
relate to fire safety or any other matter dealt with under the Fire (Scotland)
Act 2005 (Paragraph 5 (2A) Schedule 1, 1982 Act). 
In addition, it is important that the removal, variation or addition of
conditions is not inconsistent with any of the mandatory licence conditions
(Paragraph 5 (2B) Schedule 1, 1982 Act). 
Refusal of an Application 
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There are certain circumstances under which the Committee is obliged to
refuse an application to grant or renew a licence.  These are provided at
paragraph 5(3) of Schedule 1 to the 1982 Act and are:-   
(a)       the applicant or, where the applicant is not a natural person, any
director of it or a partner in it or any other persons responsible for
its management is either:- 
(i)        for the time being disqualified from holding a licence
under section 7(6) of the Act; or 
(ii)       not a fit and proper person to be the holder of the
licence. 
(b)      the activity to which it relates would be managed by or carried on
for the benefit of a person other than the applicant who would be
refused the grant or renewal of such a licence if he made the
application himself. 
(c)       where the licence applied for relates to an activity consisting of or
including the use of the premises or a vehicle or a vessel those
premises are not or as the case may be that vehicle or vessel is
not suitable or convenient for the conduct of the activity having
regard to:- 
(i)        the location, character or condition of the premises or the
character or the condition of the vehicle or vessel; 
(ii)       the nature and the extent of the proposed activities;     
(iii)       the kind of person likely to be in the premises,
vehicle  or vessel; 
(iv)       the possibility of undue public nuisance;   and 
(v)       public order or public safety; or 
(d)    there is other good reason for refusing the application. 
Where none of these conditions apply, the licensing authority is 
obliged to grant the application. 
(c) Financial implications 
None. 
(d) Risk Implications 
None. 
(e)  Staffing Implications 
None.
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(f)   Property 
None. 
(g) Equalities/Socio Economic Impact 
In considering this matter the Committee should have regard to the
subject’s rights under the European Convention on Human Rights (and
the Human Rights Act 1998). 
In particular: 
Article 8 - access to private and sensitive information about the person
could give rise to interference with the subject’s right to respect for private
and family life. 
Article 1 of Protocol 1 - the decision may also interfere with the right to
property, in that, depending on the outcome, the decision may deprive the
subject of income. 
Article 6 - the right to a fair trial means the proceedings must be 
conducted fairly to arrive at a reasoned decision. 
Article 8 and Article 1 of Protocol 1 are qualified rights, meaning these can
be restricted in order to protect the rights of another or the wider public
interest. This will require an objective justification. To be able to
objectively justify a decision, the Committee has to demonstrate that any
decision is a proportionate means to achieve a legitimate aim. 
A legitimate aim must be a real consideration that is legal and not
discriminatory. 
Examples of legitimate aims include: Public health; Public safety;
Efficiency; Enabling elderly people to live at home longer. Saving cost
may be relevant but is not an aim in itself. 
Any measure taken to achieve the legitimate aim must also be
proportionate i.e. necessary and the least intrusive/discriminatory way of
achieving the aim. 
Lastly, when any of the Articles are engaged, it will also mean Article 14
should be considered. That is the right not to be discriminated against in
relation to the convention rights. The definition of discrimination under this
Article covers a much wider spectrum than the protected characteristics
under the Equality Act 2010. The Committee should therefore have regard
to all the applicant’s circumstances. 
(h) Climate Change and Biodiversity Impacts 
None identified. 
(i) Consultations 
The Chief Constable, Fire Scotland, the Council’s Environmental Health,
Open Spaces, Communications, Emergency Planning, Development
Management Services and the Licensing Standards Officer have been
consulted in terms of the Act.  The relevant objections and
representations are detailed above.  Fire Scotland and the Council’s
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Development Management Service, have made no representations
regarding the application. 
5. CONCLUSION 
5.1 That the Committee considers the recommendations set out in section 2 
of the report. 
Author of Report: Sean Hoath, Senior Solicitor
Background Papers:  There are no background papers.
Ref:     SAH       
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