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LICENSING (SCOTLAND) ACT 2005 – APPLICATION
FOR MAJOR VARIATION OF PREMISES LICENCE - HEARING – THE
BANCHORY LODGE HOTEL
 

1.   
The applicant was represented by Janet Hood,
solicitor, Edzell. Christopher Hodgens,
Director, was also in attendance at the hearing as an
Observer.

2.   
PC Ian Duthie, Police Scotland represented the
Chief Constable.

3.   
Lisa Godini, Licensing Standards Officer
represented Keith Simpson Senior Licensing Standards Officer who
was unable to attend the Hearing.

4.   
Mr Alan Jackson, Objector was neither present nor
represented at the hearing.  He had
lodged written submissions which had been circulated to all parties
and Board Members in advance of the meeting.  His  written representation and submissions were
considered by the Board in determining the
application.

5.   
Mr Coutts, objector, had withdrawn his objection
and did not therefore take part in the hearing.

6.   
Mr Gray was unable to attend the
meeting.  His objection was considered
by the Board in determining the application.

7.   
Dr and Mrs Shanks were present at the hearing by
phone.

8.   
Mr Wilson was present at the hearing by
phone.

9.   
Preliminary Issue

a.   
Mr Wilson requested that the meeting be postponed
on the basis that he had not been provided with proper notice of
the hearing and had not had adequate time to engage legal
representation or prepare for the hearing.

b.   
The Board heard the applicant’s agent in
respect of the request for the postponement and argued that Mr
Wilson had lodged an objection on time, had received the required
legal notice of the hearing and that her client was ready to
proceed.

c.    
The Depute Clerk acknowledged that Mr Wilson had
not received 14 days’ notice of the meeting as was the
Board’s standard practice, but that Mr Wilson had received
formal notice 8 days in advance of the hearing.  The statutory requirement under the Licensing
(Procedure)(Scotland) Regulations 2007 was for 7 days’ notice
of hearing to be given to all parties which had been
met.

d.   
The Board concluded they had sufficient evidence
upon which to make a decision in
relation to the preliminary matter.

e.   
Mrs Black, seconded by Mr Adams, moved as amotion
that sufficient notice had been given and that the hearing should
proceed.

f.     
No amendment was proposed.

g.   
The Board confirmed that the decision to proceed
was unanimous.

10.
The applicant was invited to speak to the
application

11.
PC Duthie spoke to the Chief Constable’s
Representation

12.
Lisa Godini spoke to the Licensing Standards
Officer’s representation

13.
Dr Shanks spoke to his objection.

14.
Mr Wilson spoke to his objection.

15.
The applicant was afforded an opportunity to
respond to the submissions made by the other parties

16.
An opportunity was afforded to Members to ask
questions of all parties

17.
The Board invited concluding remarks in reverse
order

a.   
Mr Wilson made concluding remarks

b.   
Dr Shanks made concluding remarks

c.    
Lisa Godini made concluding
remarks.

d.   
PC Duthie made concluding remarks

e.   
Mrs Hood made concluding remarks

18.
No legal advice was required from the Depute
Clerk

19.
The Depute Clerk read out the terms of the legal
test, advising Members of which sections were relevant and not
relevant to the application under consideration.  She also reminded Board Members that planning
matters, noise matters, land ownership, and public access to land
in Scotland were all matters regulated by other
legislation/regulatory bodies and could not be taken into account by the Board in determining
whether the application could be granted, as was enforcement of any
breach of operation under the Covid Regulations.  The purpose of the hearing also for the Board to
determine the whether the terms of the variation application could
be granted and not whether there were any issues with the operation
of other parts of the licensed premised in terms of the premises
licence currently held.

20.
The Board opted not to adjourn to deliberate the
application

21.
 The Board was
satisfied they had sufficient information to make a decision

22.
Mr Mason, seconded by Mr Menard, moved as a
motion that the application be granted on the basis that there was
no relevant evidence before the Board to engage any of the relevant
grounds of refusal set out in the Legal Test under the
Act.  This was subject to local
condition 31 having a terminal hour of 2230, as agreed to by the
Applicant during the hearing.

23.
 No amendment was
proposed.

24.
The Board confirmed that support for the motion
was unanimous
The
decision of the Board was therefore that the APPLICATION WAS
GRANTED subject to the recommended local and specific conditions
set out at Section 3.11 and 3.12 of the report with Local Condition
No 31 having a terminal hour of 2230 hours.
 
The Board
further agreed to recommend that the Licensing Standards Officers,
using their mediation role, bring together the Licence Holder, the
neighbours, and the relevant Council Services to see if a solution
could be found to some of the issues raised during the hearing
which fell outwith the remit of the
Board for consideration.