Agenda item

Five Guys, Unit 1, Ground Floor, Trocadero, 13 Coventry Street, W1

17/01024/LIPN

1.

Late Night Refreshment (Indoors)

Amendments to application advised at hearing:

The application was originally for late night refreshment (indoors and outdoors).  However, this was amended to indoors only prior to the hearing.

Decision (including reasons if different from those set out in report):

The Sub-Committee heard from Ms Palmer, representing the Applicant.  She addressed Members on the reasons as to why she believed the application should be granted in the West End Cumulative Impact Area.  These included the nature of the proposed conditions, the fact that there were three other existing Five Guys sites in the West End Cumulative Impact Area, that it was proposed that there would be a small variety of beers sold and alcohol sales are only responsible for 1.1% of turnover across the Five Guys establishments.  It was also not a very residential area.  Ms Palmer expressed the view that the premises at Trocadero would have a positive benefit to the Cumulative Impact Area.  She referred to the locality having a number of fast food outlets.  However, Five Guys whilst a fast food outlet had a focus on fresh food and the premises at Trocadero would be large, open and spacious.  There would be fixed seats, a capacity had been agreed and there would be no vertical drinking.  The premises would be brightly lit in the evening, it would be monitored by staff and it would keep people who were attracted to fast food off the street.  Takeaway and off sales were not being applied for.

In response to a question from the Sub-Committee, Ms Palmer confirmed that there was no waiter or waitress service at the Five Guys establishments.  There was also no bar and alcohol was not displayed, being served from behind a counter.  A Challenge 25 condition was being proposed.  She stated that the primary concern in the Council’s Statement of Licensing Policy about fast food was about what happened outside the premises.  There was a large capacity for eating inside at the premises.  Customers were likely to leave more quietly.

In respect of the conditions, Ms Palmer referred to a proposed condition being agreed with Environmental Health that the premises would operate similarly to a restaurant in that alcohol would be ancillary to substantial table meals and customers would be seated.  She clarified in response to a question from the Sub-Committee that in addition to the condition not being in keeping with the Council’s model restaurant condition MC66 due to there being no waiter or waitress service, it was also the case that the crockery is disposable at Five Guys premises. 

The Sub-Committee heard from Ms Thomas on behalf of Environmental Health.  She stated that she had visited the site and the building was yet to be fitted out.  She had agreed a capacity figure with the Applicant of 270, being content from a public safety point of view.  Ms Thomas referred to the proposed condition which was amended from MC66.  Customers would have to be seated and consume a substantial table meal.  There would be disposable crockery and no waiter or waitress service and therefore the establishment was not able to operate completely in keeping with MC66.  She was satisfied that the proposed conditions assisted in preventing public nuisance and promoting public safety.  Her representation had been maintained as there were aspects within the application that were contrary to policy in the West End Cumulative Impact Area.

PC Lewis, addressing the Sub-Committee, stated that the Police supported the Council’s policy.  Five Guys was not in keeping with the model condition’s definition of a restaurant and the Police maintained their representation on policy grounds.

Mr Sycamore on behalf of the Licensing Authority drew the Sub-Committee’s attention to the fact that there was a proposed capacity of 270 people who would have access to alcohol in the heart of the West End Cumulative Impact Area.  It was the Licensing Authority’s view that due to the size of the operation the application would add to cumulative impact.  He stated that the Council’s Statement of Licensing Policy referred in paragraph 2.4.21 to on sales of alcohol not adding to cumulative impact if they ceased at 20:00.  However, on sales was being sought until Core Hours and therefore would add to cumulative impact.  The nature of the operation meant that it did not comply fully with MC66.  He was therefore maintaining his representation.

Mr Wroe provided policy advice to the Sub-Committee.  He confirmed that the condition that had been amended from MC66 was not in keeping with a restaurant as defined in the Council’s policy.  MC66 encapsulated the characteristics of a licensed premises which can be regarded as a bona fide destination style restaurant where customers are going there primarily to eat and they are staying there for some time.  He advised that there were two aspects that the Sub-Committee could take on board when considering the cumulative impact area policy.  The first related to the sale of alcohol.  13 Coventry Street was not a premises whose primary purpose would be for the sale and consumption of alcohol as it would be ancillary to substantial table meals.  Public houses and bars policy did not apply here.  The relevant policy was that the application would be judged on its individual merits but the Applicant must show why this particular aspect would not add to cumulative impact.  The second point related to the fast food element of the application.  The application would provide for the sale and consumption of fast food on the premises after 23:00 from Monday to Saturday. There was a presumption against the grant of late night refreshment/fast food and the Applicant needed to demonstrate why the application was an exception to policy in this regard.

Mr Panto made some additional points to those set out by Mr Wroe.  Takeaway was not being proposed after 23:00 but as there was no waiter or waitress service people would have to obtain their food or drink from a counter and customers would not be taken to their seats.  In response to Ms Palmer’s point that fast food policy was largely about what happened outside the premises and that Five Guys would not cause any problems in terms of its internal operation, Mr Panto referred to the Council’s Policy that fast food premises are considered to attract people to them, including those who may have been drinking elsewhere, and the premises would therefore keep people in the cumulative impact areas.  It was then a question of what people would do once they left the premises.

Ms Palmer was given an opportunity to respond to points which had been made previously.  She stated that faster food is the trend of the moment.  People would be going to fast food outlets in the Council’s cumulative impact areas whether the application was granted or not.  She reiterated that customers in Five Guys would be safely kept off the street and that paragraphs 2.5.18 and 2.5.19 of the Council’s Statement of Licensing Policy referred to issues that took place outside the premises such as consumption of takeaway food and levels of crime and disorder.  Being in a quieter environment than premises that were more alcohol led, customers would be more relaxed and leave quietly.  Ms Palmer added that if the Licensing Authority’s point about the sale of alcohol after 20:00 was of concern, the Applicant was willing to cease the sale of alcohol at that time.

The Sub-Committee considered that as applied for the application would add to cumulative impact.  Members of the Sub-Committee granted a terminal hour of 20:00 for on sales in keeping with paragraph 2.4.21 of the Council’s Statement of Licensing Policy.  This sets out that ‘where applications for licenses to sell alcohol for consumption on the premises are made and (i) are appropriately conditioned so that the consumption of alcohol is not, and cannot become, a significant part of the operation of the premises and is regulated to promote responsible drinking; (ii) where the character of the premises is such that its customers are not likely to be involved in sustained or heavy drinking at later hours; and (iii) when the sale of alcohol is not permitted beyond 20.00 hours; then permitting the sale of alcohol for consumption on the premises is unlikely to add to cumulative impact in the cumulative impact area’.  The Sub-Committee was satisfied that the application was appropriately conditioned so that the consumption of alcohol would not become a significant part of the operation of the premises being ancillary to a substantial table meal.  After 20:00 the Sub-Committee did take the view that on sales would add to cumulative impact in the West End Cumulative Impact Area.  A condition was attached to the licence by the Sub-Committee that ‘the consumption of alcohol on the premises shall cease at 20:00’.

The Sub-Committee noted that Five Guys is a fast food premises and that late night refreshment (indoors) had been applied for until 23:30 Monday to Thursday and midnight Friday and Saturday.  This was contrary to policy in the Cumulative Impact Area.  The Sub-Committee did not consider that there was a genuine exception to the policy which should result in this aspect of the application being granted.  It did not accept the submission made by Ms Palmer that customers would be kept off the street, other than for the relatively short time that it would take to consume the food, and did not agree that they would necessarily leave quietly. Despite the inability to sell alcohol after 20.00 hours, many of the customers will have been drinking alcohol elsewhere and it was their behaviour when they left the Five Guys that was of concern. The premises would add to the high concentration of fast food premises in the West End Cumulative Impact Area.  Up to 270 people on any given evening would be attracted to come to the fast food premises, including those who may have been drinking elsewhere and they would be retained in the cumulative impact area.  The Sub-Committee permitted customers to leave the premises no later than 23:30 Monday to Saturday and 22:30 on Sunday.

In respect of the conditions, the Sub-Committee decided that given the reduced hours granted, the amended version of MC66 would not be applied.  The original condition that ‘the sale of alcohol for consumption on the premises shall only to be persons purchasing a meal and as an ancillary to that meal, which is to be eaten at a table or counter’ was attached to the licence.  Two other amendments made to the proposed conditions was that the reference to the first floor was amended to the mezzanine floor which was in keeping with the plans and that it was agreed by the parties that ‘no super-strength beer, lagers, ciders or spirit mixtures of 5.5% ABV (alcohol by volume) or above shall be sold at the premises’ which was in keeping with the Council’s model condition.  The proposed condition had set a maximum of 6% ABV.

2.

Sale by retail of alcohol (On)

Amendments to application advised at hearing:

The application was originally for on and off sales.  However, this was amended to on sales only prior to the hearing.

Decision (including reasons if different from those set out in report):

The Sub-Committee granted a terminal hour of 20:00 for on sales (see reasons for decision in Section 1).

3.

Hours premises are open to the public

Amendments to application advised at hearing:

None.

Decision (including reasons if different from those set out in report):

The Sub-Committee permitted customers to leave the premises no later than 23:30 Monday to Saturday and 22:30 on Sunday.

4.

Seasonal variations / Non-standard timings

Amendments to application advised at hearing:

This was withdrawn by the Applicant prior to the hearing.

Decision (including reasons if different from those set out in report):

The Sub-Committee was not required to consider this aspect of the application as it had been withdrawn by the Applicant.