Agenda item

The Playhouse, 91 Jermyn Street, SW1

16/12363/LISEVN

The Sub-Committee initially consulted the parties present as to whether they were content for any matters relating to the Sexual Entertainment Venue (‘SEV’) application (16/12363/LISEVN) and the variation to the premises licence (16/13620/LIPV) to be raised during the one hearing.  All the parties, including the Applicant, confirmed they were content to proceed in this way.  It was made clear to the parties that the Sub-Committee would take separate decisions in respect of the two applications.

The Sub-Committee heard from Mr Kolvin, representing the Applicant.  Mr Kolvin apologised that sufficient clarity had not been given of the essence of the SEV application prior to the hearing.  He intended to explain during the hearing what the application involved, why the SEV application was completely different from that applied for at the premises in 2014 and why the proposal was not contrary to the Council’s policies or the licensing objectives.  He also would refer to the suitability of his clients in relation to correspondence which had been submitted by objectors to the application.

Mr Kolvin advised that customers entered a doorway on Jermyn Street and would head down into the basement.  The basement and sub-basement were the two main trading floors.  The basement from the Jermyn Street entrance was effectively the ground floor of the entrance from Ormond Yard which explained why there was some confusion in the papers regarding the description of the floors. At the far end of the basement there was a door which led directly to Ormond Yard.  Mr Kolvin confirmed that this door was effectively being taken out of commission so that there would be no access or egress from Ormond Yard.  Mr Kolvin stated that from the basement there were a further set of stairs to the sub-basement.  Both of the trading floors had a bar.  There was an existing premises licence under the Licensing Act 2003 legislation which permitted opening until 03:30 seven days a week.  The basement capacity was 135 people and the sub-basement was 100.  Mr Kolvin referred to the fact that the premises had previously operated as a nightclub, Abracadabra and that representations had expressed concerns regarding anti-social behaviour and noise when the club had been open over two years previously.  Mr Kolvin believed that the question now was whether the premises reverted to its use under its current premises licence or if a new and different model could be introduced which his client was seeking to do. 

Mr Kolvin explained that it was proposed that there would be an a la carte restaurant in the basement.  At 23:00 and thereafter, the public would be required to leave and the only people who would be allowed in this area would be club members and their guests.  In respect of the sub-basement, this would be for club members and their guests only.  Mr Kolvin stated that the sub-basement would contain two private rooms and a small retractable stage.  There would be no dance floor, loud music or any other aspects in keeping with a nightclub.

Mr Kolvin sought to emphasize that as part of the proposals there would be a bona fide membership club at the premises where nominations for membership would have to come from an existing member and these would be considered by a membership committee which would meet periodically.  The intention was to have a membership which was 50% male and 50% female.  The base membership fee would be £800.  The target market would be people who shop in St James’s for art and fashion.  The entertainment offer at the premises would potentially include musicians, comedians, magicians, table hosts and burlesque performers.  Mr Kolvin added that there was sometimes a debate about whether burlesque entertainment required a SEV licence and his client therefore wished to ensure that he was in possession of such a licence.  It was intended that the entertainment would be suitable for club members who were both men and women and this would not involve striptease, table dancing, pole dancing or private booths.

Mr Kolvin clarified it was proposed that the two private rooms in the sub-basement and three private rooms in the basement could be booked by a group for sexual entertainment if requested.  He commented that his client did not expect many bookings for sexual entertainment and that potentially weeks could go by without any nudity occurring at the premises.  Sexual entertainment was not the main driver of the business.  Mr Kolvin stated that his clients were highly respectful of the location and the sensitivities relating to it.  There would be no reference to sexual entertainment outside the premises or any advertising in newspapers or on the internet relating to sexual entertainment.  Mr Kolvin expressed the view that life in Jermyn Street would be unaffected and that there would be a benefit to residents in Ormond Yard in comparison to a nightclub. The proposed condition 16 was crucial as it indicated that relevant entertainment would be ancillary to the main use of the premises as a private members club. The public would never be able to get access to the sexual entertainment as the SEV licence would not operate in the basement until 23.00.

The Sub-Committee asked Mr Kolvin to explain the practicalities of how the membership would work and the Applicant would achieve a 50/50 split of male/female membership.  Mr Kolvin replied that there would be a marketing partner, Quintessentially, and it was intended that there would four individuals with established connections and it would be their connections who would be invited initially.  Mr Kmetz provided the additional information that the managers would be the initial vetters of those applying to be members.  They would not discriminate on gender grounds but would not establish quotas.  Mr Kolvin clarified that his point was that this was not an all-male club.

Mr Kolvin addressed the Sub-Committee on the aspect that he did not believe the application was contrary to the Council’s policies or the licensing objectives.  His submission in respect of the application being considered under the Licensing Act 2003 legislation what that it was in certain respects neutral and in others an improvement in terms of the promotion of the licensing objectives.  Mr Kolvin referred to the licensed area and the proposed hours of operation being the same.  He expressed the view that the conditions strengthened the obligation to prevent any activity in Ormond Yard.  The premises would be converted from a nightclub to a private members club with a likely improvement in behaviour.

Mr Kolvin responded to the Police’s and the Licensing Authority’s written point that the hours were beyond the Council’s Core Hours policy.  The Licensing Authority had also set out that this was contrary to policy NS1.  He stated, by reference to paragraph 2.5.66 of the policy that his interpretation of policy NS1 was that it did not apply when the licence operates under the SEV legislation.  In terms of the proposed hours, Mr Kolvin referred to 2.5.1 of the SEV policy that ‘where a premises is licensed under the 2003 Act for hours beyond the “core hours? the council will have regard to those hours and generally grant a SEV licence to the hours authorised for other licensable activities, subject to the provision of a winding down period if appropriate’.

Mr Kolvin stated that the starting point in terms of SEV policy was to grant an application.  There was only a refusal in the event that there was inappropriateness relating to harmful impact or unsuitability.  He commented that in relation to Policy NO1, 91 Jermyn Street is located in Core CAZ North.  Mr Kolvin believed it was unfair to suggest, as had been set out in the objections, that the application could be refused on the grounds in paragraph 2.3.15 of the SEV Statement of Licensing Policy that ‘the number of sexual entertainment venues in the more immediate locality of the proposed venue is equal to or exceeds the number which the council considers appropriate for that more immediate locality’.  There would be three in total but one of these, Scotch St James was not currently being operated as a SEV premises and there was no immediate risk of all three SEV licences being used in the locality.

In terms of Policy L01, Mr Kolvin made the point that the Sub-Committee had the discretion to refuse applications relating to SEVs on the grounds that the grant or renewal of the licence would be inappropriate, having regard to the character of the relevant locality.  Mr Kolvin referred to paragraph 2.4.7 as examples of what could raise concern such as the visual impact of sexual entertainment premises, including in the form of signs, shop front design, promotional material, staff or customer queuing and made the point that none of these were issues at 91 Jermyn Street.  He expressed the view that the premises would not be harming or adversely affecting the character of Jermyn Street.  The nature of the clientele would be members who had a link to the local area.  There would be no prostitutes or clippers outside the premises.

In terms of Policy L02, this referred to what was in the immediate vicinity and this as Mr Kolvin stated included premises used for religious worship.  Mr Kolvin did not believe that St James’s Church representatives had objected.  Gaslight was itself in the vicinity of the Church and he did not believe that the look of the venue at 91 Jermyn Street would impact on St James’s Church at all.

In respect of the suitability of the Applicant, Mr Kolvin said that the Police were well aware of those involved with the venue.  Mr Kmetz would be the operator, Mr Traviss was the investor and Mr Serlui, who was previously the Designated Premises Supervisor at the venue, had been retained on a consultancy basis and was a director for the time being.  Mr Kolvin asserted that all of these men were of good character and had not been disqualified as a director or been the subject of bankruptcy proceedings.

The Sub-Committee then heard from the Responsible Authorities.  Mr Sycamore, representing the Licensing Authority, stated that the primary concern was the new SEV application.  In respect of Policy LO1 of the Council’s SEV policy, the Licensing Authority took the view that the location with its entry and exit onto Jermyn Street was not suitable taking into account the properties and other businesses in the area.  St James’s Church and surrounding gardens would be in full view of the premises.  2.4.6 of the Council’s SEV policy set out that ‘in considering whether granting a licence would be inappropriate the council will specifically consider whether the character of the locality is predominately residential, high profile retail, of historic importance or iconic in nature, or one of family entertainment or leisure’.  Mr Sycamore referred to the area being predominantly residential and with high profile retail units.

Mr Sycamore stated that there are two SEVs in close proximity to 91 Jermyn Street which is the same as when the application for a new SEV licence had been refused in 2014.  Whilst the nature of the entertainment, as alluded to by Mr Kolvin, might be different from that proposed in 2014, there was still the potential for sexual entertainment being provided, including in the private rooms.  Mr Sycamore believed it was necessary for the Applicant to satisfy the Sub-Committee why the application should be granted as an exemption to policy.  The Licensing Authority was maintaining its objection to the application.

Mr Watson, on behalf of Environmental Health, addressed Members on the layout of the premises including that access to Ormond Yard would only be as an emergency escape.  He made the point that Mr Kolvin’s description of the way the premises would be used was not reflected in the application itself or in the proposed conditions.  He advised that if granted, conditions should be tailored to restrict where Sexual entertainment took place. Mr Watson commented that 91 Jermyn Street is in Core CAZ North.  From an enforcement point of view, SEVs did not tend to raise issues in the way that nightclubs often do.  He added that he had no concerns regarding the variation of the premises licence under the Licensing Act 2003 legislation.

PC Janes, on behalf of the Police, also took the view that the original application had not reflected what was now being proposed on the Applicant’s behalf by Mr Kolvin.  He believed that the proposed conditions for the variation of the premises licence were more restrictive and promoted the crime and disorder licensing objective.  He added that the Police had found in general that SEVs did cause less crime and disorder than nightclubs.

The Sub-Committee then heard from Mr Grant.  He informed those present that his clients were content to have their anonymity waived.  He was representing the St James’s Conservation Trust including specific trustees Mr Turner, Ms Chichester and their professional adviser, Mr Heath.  Mr Grant made the point that the significance of the Sub-Committee being asked to grant a new SEV licence in Jermyn Street should not be underplayed.  The objections of his clients were based on the character of the locality, the uses to which other premises in the vicinity are put particularly St James’s Church directly opposite, the risk of clustering of SEVs and the suitability of the Applicants to hold a SEV licence.

Mr Grant stated that SEV licence holders have a commercial imperative, would seek to maximise the potential of what was granted and would operate to the conditions on the licence.  He recommended that the submissions made on behalf of the Applicant regarding the limited SEV use should be treated with a healthy scepticism.  He believed that if the Applicant was to describe the SEV use as being an integral part of the application then there was the likelihood that the application would not be granted.  The application as it stood permitted striptease, pole dancing and table dancing.  Mr Grant referred to there being a frequency exemption under the legislation which meant that even without a SEV licence a premises could provide sexual entertainment on up to eleven occasions a year.  It was his view therefore that it could be expected that there would be more frequent use of the SEV licence than that.  The Applicant had also given the indication that the variation of the premises licence under the Licensing Act legislation was dependent on the granting of the SEV licence which demonstrated its importance.

Mr Grant drew Members’ attention to the previous decision taken by the Sub-Committee to refuse a new SEV licence at 91 Jermyn Street in 2014.  He made the point that whilst the Applicant might currently have a different concept the core rationale for the Sub-Committee in reaching the decision in 2014 had not changed.  The extent of the SEV use did not in his view make the granting of a licence any less inappropriate when having regard to the character of the relevant locality. Jermyn Street was not just another area.  Its historical nature included St James’s Church which had been designed and built by Sir Christopher Wren and was a focal point for community events.  The Playhouse was not located in a side street as was Gaslight.  He described Jermyn Street as a prestigious street of national importance and international renown and holding more royal warrants than any other street in the United Kingdom.  He added that it had conservation area status and special policy status.  There were families in the area and the Royal Academy of Arts and Fortnum and Mason were in the locality.   

Mr Grant referred specifically to 2.4.17 of the Council’s SEV Statement of Licensing Policy that SEVs ‘may be inappropriate in the vicinity of other premises depending on their use. This may include premises in the vicinity used for religious worship, by children and families, or vulnerable adults. It may also include sex establishments and other premises providing sexual entertainment where the council considers it inappropriate to create a cluster of such premises’.  He expressed the view that with there already being Gaslight and Scotch St James in the vicinity, if another SEV licence was granted at 91 Jermyn Street this would begin to create a cluster of such premises and the locality would gain a reputation for having SEVs.  Mr Grant also made reference to paragraph 2.3.12 that Visit London, the official visitor organisation for London, had advised that if the balance and mix of uses in areas such as Soho, St James, Mayfair, and Covent Garden, were to change and become more dominated by sex related entertainment this could deter visitors and have a negative impact overall.  In respect of paragraph 2.4.6 Mr Grant concurred with the Licensing Authority that the application could be considered inappropriate on the grounds that the character of the locality is predominately residential, high profile retail, of historic importance or iconic in nature, or one of family entertainment or leisure.  He also referred to paragraph 2.1.11 that the council would apply the policy strictly where applications are made for licences for premises at locations where sexual entertainment has not previously been provided.  Mr Grant also considered paragraph 2.4.12 to be relevant that ‘localities characterised as areas of historic importance, or iconic in nature, will be particularly attractive to, and used by, visitors, both adults and children. The council may consider it inappropriate for these localities, which in many cases will be of national and international significance, to be associated with SEVs and their associated character, because of the effect that such an association would have on visitors and on the image of London and Westminster in particular’.

Mr Grant questioned the suitability of Mr Serlui and Mr Traviss based on Mr Serlui’s involvement with Ghost in Farringdon Road, EC1 and Mr Traviss’ involvement with Centroand The Den (also known as “Jet Black”), 16A West Central Street, WC1.  This information had been submitted to the Sub-Committee prior to the hearing.

Mr Grant also made the point that his clients did not appreciate the ‘gun to the head’ approach of the Applicant that if the SEV application was not granted with the private members’ club concept then the premises could revert back to a nightclub with the problems which had existed previously.  He added that if the nightclub did return and any issues arose, the premises licence could be reviewed.

Mr Brown addressed the Sub-Committee and advised Members that his client agreed with Mr Grant’s submissions.  This included Mr Grant’s points on the relevant aspects in the Council’s SEV policy, that there was likely to be more use of the SEV licence than was indicated by the Applicant at the hearing and that the Applicant was putting a ‘gun to the head’ of residents.  He expressed the view that it was a particularly unattractive argument to indicate that the nightclub could return if the current application was refused given the residents’ representations regarding Abracadabra and that Mr Serlui had been involved with the premises for four years.

Mr Brown stated that his client, Mr Adler was prepared to waive his anonymity in order to explain his personal circumstances.  Mr Adler shares a party wall with the premises and Mr Brown set out what his concerns were in relation to the premises.  He had been inconvenienced recently by constant noise from building works and he was concerned that there was equally the potential for him to be inconvenienced by music once The Playhouse was operating.  Mr Adler was seeking that noise would not be able to emanate from the premises via Ormond Yard.  He was aware that Mason’s Yard was vulnerable to being used for nefarious purposes and any additional activity at 91 Jermyn Street could be detrimental.  Mason’s Yard was easily accessible from Jermyn Street.

Mr Brown referred to the 2014 decision and that previously the proposed capacity had been reduced to 200.  In the current application there would be no change to the capacity.  Mr Brown informed Members that there were twenty one SEVs in CAZ Core North and therefore under the Council’s policy, four more could be designated.  He believed that there must be a more appropriate location for a SEV than Jermyn Street. 

The Sub-Committee asked Mr Kolvin for clarification on his client’s position in respect of the variation of the premises licence should the SEV application be refused.  Mr Kolvin replied that the variation application would be withdrawn in that instance.  It was agreed that there would be further discussion on the second item should the SEV application be granted.

Mr Kolvin was given the opportunity to respond to some of the points made by objectors to the applications.  He stated that there were two representations of support from people living in flats in 91 Jermyn Street.  The Applicant did not require an exemption to SEV policy as suggested by the Licensing Authority.  The proposals would not impact on the character of Jermyn Street.  He agreed with the Police and Environmental Health that there was less likely to be potential for the licensing objectives to be undermined if a SEV application was granted at the premises rather than it re-opening as a nightclub.

Mr Kolvin responded to a point made by both Mr Grant and Mr Williams who had waived his anonymity.  This was that the Applicant’s vision of limited SEV use was misleading.  Mr Kolvin commented that it was possible for the Sub-Committee to condition what took place in the premises including preventing private booths or restricting where sexual entertainment took place.

Mr Kolvin believed it was unfair to suggest that SEV use was not ancillary because the Applicant was minded to withdraw the variation application.  It was, he stated, the case that the current design of the premises anticipated a particular sort of club.  The conditions reflected that alcohol would only beg served as part of a private members’ club.  If the SEV was not permitted, his client could operate the premises as a private members’ club under the current licence.

Mr Kolvin stated that the impact of the application was different from the one refused in 2014 because that application had been for a SEV which would operate as a lapdancing club and was available to members of the public.  It would also have been advertised.

Mr Kolvin referred to policy 2.4.17 and that this did not set out that there was a presumption that SEV applications near places of worship or near other SEV premises should be refused.  It was only that they ‘may be inappropriate in the vicinity of other premises depending on their use’.

Mr Kolvin apologised in the event that Mr Adler was being disturbed by works the landlord was carrying out.  He added that there was a condition that no noise would be permitted to emanate from the premises.  There would also be a works condition attached to the licence which would not be signed off by Environmental Health officers until they were content.

In response to questions from the Licensing Sub-Committee, Mr Kolvin informed the Sub-Committee that he was content for pole dancing to be removed from the application.  Mr Kmetz said that the frequency of sexual entertainment would be driven by the demands of the members.  It was anticipated that this would be several occasions per week.  Mr Kolvin was asked whether it was intended that the burlesque entertainment would be limited to a stage.  He replied that he would be content for a condition to be attached to a licence where any nudity would be in a defined area.  It was possible that the entertainment would straddle the stage as it was very small. 

The Sub-Committee noted that as referred to in the Council’s policy and in Mr Kolvin’s submission, Members had the discretion to refuse applications on specific grounds.  This was a relatively wide ranging discretion.  After having carefully considered all the representations received, the Sub-Committee had found that it was an inescapable fact that Jermyn Street was one of the most prestigious areas in the City of Westminster, in London and the whole of the country.  This included its history and its character up to the present day.  The Chairman stated it was clear from previous decisions and from the Council’s policy that the Council was not opposed to SEVs.  Members had noted what was envisaged by the Applicant in terms of the operation that was proposed at the premises.  Members, however, were firmly of the view that Jermyn Street was not appropriate for a SEV licence.  It was not a situation where conditions would result in it becoming appropriate to grant the licence, even if those conditions had been tightly drafted to restrict the type of sexual entertainment that might be permitted.

The Sub-Committee had particularly taken into account policies L01 and L02 when finding that granting the new SEV application would be inappropriate, having regard to the character of the relevant locality (specifically Jermyn Street)and also the use to which premises in the vicinity of the proposed sexual entertainment venue are put.  The Sub-Committee specifically considered that the character of the locality includes particularly high profile retail units, is of historic importance or iconic in nature and has a premises in the vicinity used for religious worship which is of historic significance, St James’s Church. The Sub-Committee also wished to avoid the potential for a concentration or clustering of SEVs forming in the vicinity of Jermyn Street.

The Sub-Committee in reaching the decision to refuse the application did not take into account the suitability of the operators.