Dundee City Licensing Board - 26/06/2025

At a MEETING of the LICENSING BOARD held remotely on 26th June, 2025.

Present:-

COUNCILLORS

Heather ANDERSON	Ken LYNN	George McIRVINE
Stewart HUNTER	Roisin SMITH	Daniel COLEMAN
	Georgia CRUICKSHANK

Councillor Stewart HUNTER, Convener, in the Chair.

The minute of meeting of this Board of 15th May, 2025 was held as read.

I LICENSING (SCOTLAND) ACT 2005

(a) NEW GRANTS

Premises

Applicant

Frasers

ASMU

Overgate Shopping Centre

Dundee

Sportsdirect.com Retail Limited

The Board, having heard from an agent on behalf of the applicant and the Board's Legal Adviser, agreed to grant the above application.

Gumnam Restaurant

19 Union Street

Dundee

PJMH Hospitality PVT Ltd

Spar

78-80 Dunholm Road

Dundee

Ravantly Ltd

The Board agreed to defer this application in order that a site visit be held. (Site visit subsequently arranged for 11th August, 2025).

The Small Town Club

Upper Floor

3 Session Street

Dundee

Small Town Club Limited

The Board, having heard from an agent on behalf of the applicant, a Licensing Standards Officer and the Board's Legal Adviser, agreed to grant the above application, subject to the conditions that a full Noise Impact Assessment shall be carried out at the premises and all recommendations by the qualified noise engineers and comments by Public Health Officers of Dundee City Council shall be implemented before the premises could submit a confirmation application. Once all works had been carried out and it was shown that music noise did not escape from the premises, then before the full licence was issued this local condition could be removed, and also all late-night operation conditions detailed below should be attached to the licence:-

- A person trained to the satisfaction of the Licensing Board in administering first aid must be present on the premises from 1:00am (on any day when the premises are open at that time) until whichever is the earlier of (a) the time at which the premises next close; and (b) 5:00am.

- A designated person who is the holder of a personal licence must be present on the premises from 1:00am (on any day which the premises are open at that time) until whichever is the earlier of (a) the time at which the premises next close; and (b) 5:00am or such other time as the Licensing Board may specify.

There must be written policies in existence concerning (a) the evacuation of the premises; and (b) the prevention of the misuse of drugs on the premises.

- A CCTV system must system must be installed on the premises to the satisfaction of the appropriate Chief Constable and must be kept in good working order.

- There must be persons responsible for checking on the safety and wellbeing of persons using any toilet facilities on the premises.

- A person who holds a licence granted under section 8 of the Private Security Industry Act 2001 must be positioned at every entrance to the premises from 1:00am (on any day when the premises are open at that time) until whichever is the earlier of (a) the time at which the premises next close; and (b) 5:00am or other such time as the Licensing Board may specify.

- A minimum charge (3.50) for entry to the premises , applicable to all persons eighteen years of age and over should be charged; this charge shall be fixed by the Licensing Board at its meeting in June of each year for the year beginning 1st July and ending 30th June; and the above minimum charge shall not be offset in anyway; for the avoidance of doubt offsetting the minimum charge includes, but is not limited to (a) the issue of complimentary tickets or vouchers, and (b) the advance purchase of tickets granting entry on more than one evening.

(b) VARIATIONS (MAJOR)

The Snug Bar

75 Church Street

Dundee

Linda A Townshend

The Board, having heard from a Licensing Standards Officer and the Board's Legal Adviser, agreed to grant the above variation to allow the premises to allow hot food to be made and sold on the premises, to open premises to prepare tea/coffee and food etc for funerals and coffee mornings, with no alcohol to be sold on the premises outwith core hours, subject to the conditions that consent for Musical Entertainment within the premises is limited to the following: TV, Juke Box, automatic playback system during and outwith core hours, live bands (maximum two artistes), that all amplifies music and vocals shall be so controlled as to be inaudible within the nearest residential accommodation and that for the avoidance of doubt there shall be no live performances after 12pm, only low level music.

The Tartan Lounge

144-146 High Street

Lochee

Dundee

James Boyle

The Board, having heard from the Board's Legal Adviser, agreed to grant the above variation to extend the opening hours to 1.00am on Friday and Saturday and from 11am on Sunday.

II DUNDEE CITY LICENSING BOARD - SUPPLEMENT TO STATEMENT OF LICENSING POLICY 2025

There was submitted Agenda Note AN26-2025 by the Boards Legal Adviser advising that the Licensing Board was periodically obliged to publish a Statement of Licensing Policy in terms of Section 6 of the Licensing (Scotland) Act 2005 (the 2005 Act). The current Policy was adopted in January 2024. The Board had considered, inter alia, including revised provisions concerning the issue of music noise from licensed premises in the Policy but decided to await the outcome of an appeal involving another Board which was due to be heard at that time and which involved the consideration of the extent of the public nuisance licensing objective in this context. That appeal had since been heard and a judgment issued so the Board may wish to look at putting forward proposals concerning music noise nuisance as a supplement to the Policy.

The Board was obliged to consult with a number of categories of persons before making a final decision on the contents of such a supplementary statement. The persons who were to be consulted for this purpose under Section 6 of the 2005 Act were:-

- The Local Licensing Forum.

- Representatives of persons listed in Paragraph 2 (6) of Schedule 2 to the 2005 Act whose interests the Board considers are not represented on the Local Licensing Forum.

- The Local Health Board.

- Such other persons as the Board thinks appropriate.

Music noise from licensed premises

Currently, the Board generally attached a condition to licences where live music was to be provided which required all amplified music to be inaudible in the nearest residential accommodation. The Board considered whether this was an appropriate condition to maintain and the following approach was suggested for consultation. The relevant licensing objective was the prevention of public nuisance (emphasis added). A question arose as to whether noise caused by music within licensed premises could be regarded as public in that sense. Case law from England had suggested that, to be a public nuisance, the effect of the noise should be sufficiently widespread and sufficiently indiscriminate to amount to something more than private nuisance. Scots Law does not recognize the same distinction between public and private nuisance. The 2005 Act had therefore innovated on the common law by creating this concept. Public nuisance under the 2005 Act was not the same as statutory nuisance under the Environmental Protection Act 1990. That does not mean to say that Board might, or should, leave matters to action under the 1990 Act or for complainers to raise an action in the civil courts. Public nuisance and what might be done about was now a matter for the Licensing Board to consider. In the context of that particular licensing objective, especially when taken in conjunction with the references in the statutory 2005 Act Guidance to the effect upon local residents and communities, this tended to support an argument that the objective would only be engaged when the noise had that wider level of impact and that where that public character of the nuisance was lacking, then an individual complainer would have to seek a remedy either via the statutory nuisance route (by complaining to the local authority noise control section) or a private law action for nuisance in the civil courts. However, there was a qualification to this approach where the nature of the noise nuisance (such as the duration, frequency, quality, time of day, etc.) would support a conclusion that the nuisance had gone beyond the mere discomfort of one person and had reached a level such that it could be considered to be likely to be a public nuisance in the sense above referred to. Where there was evidence before the Board that could allow that inference to be drawn, then a public nuisance might still arise. Whatever view a Board takes, it could only act if there was a proper basis in fact to find, directly or by inference, that a nuisance is public. This issue was discussed in the case of Bengal Dish v. Aberdeenshire Licensing Board1. In that case, Sheriff Principal Pyle agreed with the proposition that a complaint from one person will generally be insufficient to engage the public nuisance objective and that there would be a need to show that a nuisance was affecting an identifiable class of persons before the Licensing Board could consider taking any action on the basis of that objective. In that case the only complaint came from the owner of an adjacent flat and there was no evidence to show that the alleged noise was capable of being heard outside of the flat. In terms of Board policy, the Board could include a statement which indicates that the Board is concerned with public nuisance which has a reasonable link to the provision of alcohol on the premises. In such a statement, the Board may generally consider that such a nuisance might exist where there is evidence that what is complained of impacts on a sufficiently large number of members of the public by reference to one act or a series of acts, or, where the effect was sufficiently widespread or indiscriminate. There would generally need to be evidence from more than one source to support the matter being a public nuisance, but in cases where even one source of evidence existed, that might, if the evidence was sufficiently strong, allow the Board to draw the inference that the nuisance was likely to be a public one. In considering whether there is a public nuisance, this could involve, amongst other considerations, the matter complained of, duration, frequency, quality (shrillness, grating, impulsivity, sporadic, repeated) and the hour of it. Therefore, as part of any such supplementary Policy statement, the Board might stress that it can only consider public nuisance and that may mean that in many cases involving noise complaints only affecting adjacent property, that the appropriate recourse might be through the environmental health department or through the common law of nuisance. 3 There are also other issues with an inaudibility condition. The idea of nuisance included a threshold for a nuisance to arise. Noise in itself, was not a nuisance, but can become so having regard to the whole circumstances of a case, including the competing claims of licenced premises to operate and provide music and those of neighbours and the wider public to enjoy their own space or situation without noise becoming a problem for them. The law has recognised the need for a threshold.

Thereafter, having considered the content of the Agenda Note, the Board agreed to approve the commencement of a consultation process in respect of the Supplement to the Statement of Licencing Policy noting that the results of this process would be reported to the September Board meeting.

III PERSONAL LICENCE UPDATE

(i) STACY REID

The Licensing Board at its meeting on 12th December, 2024 agreed to grant the application and to bring it back for an update in 6 months. Having heard from the Chief Constables representative and the Boards Legal Adviser, the Board agreed that no further action be taken.

IV PERSONAL LICENCE NEW APPLICATION

(i) MUHAMMAD ZEESHAN ABDUL HAMEED

The Board agreed to defer consideration of this item to allow the applicant to be in attendance.

V PERSONAL LICENCE REVIEW HEARING

(i) SAMANTHA BUCHAN

The Board agreed to defer consideration of this item to allow the applicant to be in attendance.

Stewart HUNTER, Convener.