Agenda item

Sophisticats, 3-7 Brewer Street, London, W1F 0RD

16/14145/LISEVV

1.

Variation of a Sexual Entertainment Venue Premises Licence

The application was to vary the sexual entertainment venue premises licence to:

·         Extend the terminal hour for relevant entertainment on Sunday's until 03:00 the following morning.

and to add the following condition:

·         At times when a Temporary Event Notice under the Licensing Act 2003 is in force extending the permitted hours for the premises, the hours for the provision of relevant entertainment (as defined by the Local Government (Miscellaneous Provisions) Act 1982) will be similarly extended without the need for a separate application in respect of this licence. The licence holder will make clear in writing in the Temporary Event Notice that the effect of the notice will also be to extend the hours for the provision of relevant entertainment.

Amendments to application advised at hearing:

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

The Sub-Committee considered an application by Devine Restaurants Limited to vary the sexual entertainment venue premises licence in respect of 3-7 Brewer Street, London, W1F 0RD.

The Sub-Committee considered an application by Devine Restaurants Ltd for a variation of a sexual entertainment venue premises licence in respect of 3-7 Brewer Street, London, W1F 0RD.

The Chairman confirmed that the applicant had submitted two different applications for the premises, a variation of the premises licence under the Licensing Act 2003 and a variation of the Sexual Entertainment Venue (SEV) premises licence. With the agreement of all the parties present it was decided to hear both applications simultaneously.

The Licensing Officer provided an outline of the applications to the Sub-Committee and confirmed that with regard to the variation of the SEV three of the four residential objectors had waived their right to anonymity.

The Council’s Legal Adviser confirmed to all parties present that the Sub-Committee consisted of three Members of the Majority Party. The Sub-Committee could proceed with the hearing as the political balance requirements in the Local Government and Housing Act 1989 would not apply to any matters referred to the Licensing Sub-Committees. The 1989 Act only applied to any ordinary committee or ordinary sub-committee of the authority. These were defined to include the authority’s social services committee or any other committee of the authority appointed under section 102(1)(a) of the Local Government Act 1972 [Schedule 1, paragraph 4(2) of the 1989 Act]. The Licensing Committee and the Licensing Sub-Committees were all appointed under the Licensing Act 2003.

Ms Le Fevre, representing the applicant company, explained that both applications were very narrow in scope and simply proposed to extend the permitted hours for licensable activities to 03:00 on Sunday and introduce a mirroring provision for when Temporary Event Notices (TENS) were applied for to also allow the relevant entertainment to be extended accordingly without making a separate application. The SEV variation was not an uncommon application and the Police had no objections regarding this.

Ms Le Fevre explained that the application represented a careful reflection on the issues raised when previous applications had come before the Sub-Committee on 1 December 2016. Those applications had been granted until 03.00 every day of the week (06.00 had been sought) except for Sunday where the hours restricted to 23.00. The Sub-Committee then was of the opinion that there was a lack of evidence to suggest that the application was an exception to policy. The Sub-Committee had accepted the professionalism of the applicant however further evidence was required of the operation in practice. It had been indicated that once evidence could be provided of how the operation would impact on the local area a new application could be made. The evidence required was now available, details of which would be provided to the Sub-Committee. The proposed applications were restricted however a degree of flexibility was required regarding extending the hours on a Sunday. The evidence would provide reassurance that the applicant was a responsible operator who was attempting to try to become a valuable member of the local community. The Sub-Committee was advised that since the original application had been made in December 2016 the number of residential objections received when the new application had been made had reduced significantly. The Police’s previous concern that their resources diminished after 03:00 had been recognised and explained why the new application was only seeking to extend the hours until 03:00 on Sundays. Environmental Health also recognised that premises of this type were heavily regulated and if successfully operated posed no threat to the licensing objectives under either regime.

Ms Le Fevre made reference to some of the representations made and references to policy concerns about the character of the locality and the layout and character of the premises. None of these had changed since the hearing in December with nothing to give rise to concern under the Council’s Licensing Policies. The application was still a very recent and fundamental change from what was previously operated at the site which had been alcohol driven and a source of nuisance to local residents. The applicant had invested £1.68 million into the premises and reduced its capacity from 300 persons to 100, both aspects of which were capable of making it an exception to policy. The applicant was grateful that the Council had recognised that the venue came under Policy PEC2 as it was a performance venue and this was a proper characterisation of the operation in place. The Policy stated that such premises, even if they were located within a Cumulative Impact Area (CIA), would be granted if they could demonstrate they wouldn’t add to the cumulative impact in the area. The applicant had evidence this was the case and the application would not increase cumulative impact in the area and would in fact benefit the local community. A system was in place where if the venue was at capacity or customers were having to queue to enter the premises arrangements could be made to take these customers to the applicants other venue in Marylebone. The Sub-Committee was advised though that during the four months the premises had been open no queues had formed outside the venue even during their busiest periods. When a customer arrived it would take them a period of ninety seconds to enter the premises and have access to the regulated entertainment inside. A high ratio of staff to customers was operated at all times to provide a greater degree of control at the premises, resulting in approximately seventy-eight staff usually in attendance. Tisbury Court, located at the rear of the premises, was recognised as a problem area in Soho however the applicant had subsequently introduced high visibility security staff to monitor the thoroughfare resulting in a significant improvement. Positive feedback had been received from local businesses and the Sub-Committee was advised that Charing Cross Police Station had contacted the applicant to work cooperatively to monitor the area. This revealed the positive impact the applicant was having on the local area. A dispersal policy for the premises had been implemented and the applicant was willing to ensure this was appropriately conditioned to provide reassurances to a concern raised by the Police. All staff had been instructed in ensuring there was no noise nuisance generated from the premises and this would be reinforced through regular training sessions. As part of this drive to minimise noise disruption monitoring had been undertaken of the rear door at Tisbury Court which was used by the performers. This had revealed that there was only limited use of the door.

Ms Le Fevre addressed the Police’s concern that only a limited amount of communication had been undertaken with local residents. In fact a great deal of communication had been instigated including commissioning an acoustic report at their properties and sending a written letter to them following the submission of the applications before the Sub-Committee. The applicant was unaware of any noise complaints being submitted apart from the banging of the rear door at Tisbury Court which had since been addressed.

With regards to the application for the SEV variation Ms Le Fevre acknowledged that the applicant had a statutory number of TENS it would be able to operate. What the applicant wished to do, and what the dual licensing precluded them from doing unless that mirroring condition was in place, was ensure licensable activities would be permitted at the same time without making a separate application. It was recognised that residents did not receive notice of a TENS application and unfortunately this was a function of the relevant legislation. Both the Police and Environmental Health would be notified and they could make an objection if they had any concerns with regards to the TENS upholding the licensing objectives. The Sub-Committee was advised the applications were very narrow and provided a proper basis to depart from the Policy.

Mr Drayan, representing Environmental Health, advised that as the applicant was seeking to extend the hours for licensable activities to 03:00 hours in a CIA it had to demonstrate that it would not create a nuisance, particularly within the premises. It was acknowledged that acoustic work had been undertaken to soundproof the venue and aside from an issue with the rear door this had been regarded as successful. As such Environmental Health had no issues that noise was emanating from the premises. In terms of dispersal of customers the operation had significantly improved any issues which had arisen under the previous operators. There was no evidence the premises created any noise nuisance, even on a Sunday night, and therefore with the dispersal policy in place Environmental Health had no issues with granting the proposed extension of hours until 03:00. To minimise the use of the rear door which had created a noise issue it was requested that a condition be placed on the licence to ensure staff used the Brewer Street entrance to enter and exit the premises. The Sub-Committee examined the monitoring undertaken by the applicant of the use of the rear door at Tisbury Court and highlighted a period where staff were talking outside the premises for ten minutes and the potential noise disturbance this could cause. Mr Drayan explained that this had not been reported to Environmental Health and Tisbury Court was recognised as already being a noisy area.

Mr Sycamore, representing the Licensing Authority, explained that the core hours for an SEV was 22:30 on a Sunday and this application was a significant departure from those hours. It was acknowledged that the area where the premises was located was busy however any noise levels did significantly quieten down on Sundays. If the application was granted for an extension in hours to 03:00 on Sundays this had the potential to create public nuisance. With regard to the TENS application concern was raised that residents would not be fully aware of any extended hours for sexual entertainment applied for.

Sgt Paul Hoppe, representing the Metropolitan Police, was of the opinion that it was a considerable increase to extend the hours for licensable activities by four hours. The dispersal plan in place was only an outline plan and unless this was conditioned it was not enforceable. It was also suggested that if the Sub-Committee was minded to grant the application security staff should remain in the area for thirty minutes after the premises closed to ensure the safety of customers leaving and minimise any potential noise impact. The residents’ concerns had been noted and it was acknowledged the increase in hours could potentially impact on local residents having to wake up early to go to work on Monday mornings. In terms of what police resources were available on a Sunday evening Sgt Hoppe confirmed that staffing was scheduled according to need. Friday and Saturday nights were usually required the greatest Police resources with Sunday traditionally not regarded as a period when people sought late night entertainment.

Mr Brown, from Westminster Citizens Advice Bureau, addressed the applicants claim there been a significant drop in residents’ objections from December 2016 and cautioned very strongly against extrapolating from that statement that there was now less residential concern. The original decision in December granted the new licence application and restricted the hours to 03:00 Monday to Saturday and 23:00 on Sundays. The residents had been disappointed by the hours granted but it was recognised that there had been no noise disturbance emanating from inside the premises. The Sub-Committee in December 2016 stated that it had not heard any evidence that would provide it with confidence that granting the licence to 06:00 would promote the licensing objectives. The importance of communication had also been stressed however there had subsequently been very little liaison from the applicant. Some noise testing had been undertaken and the residents had received a letter from the applicants’ solicitor but no direct contact had been entered into. It was confirmed that the original decision was in the process of being appealed and what the Sub-Committee was being asked to do was go behind that original decision and essentially acknowledge that that decision was wrong. This was something that could potentially be damaging to the Council’s case on the appeal. It was suggested that the Sub-Committee was not the proper forum for this and rather than apply for a variation three weeks after the original decision was made to grant the current hours this should be dealt with by the appeal. It was also suggested that the assertion that the premises had been operating without any issues for four months was not a proper snapshot and any meaningful evidence could only be obtained over a longer period of time.

Mr Brown drew the Sub-Committees attention to the fact that a lot of the evidence provided related to Monday to Saturday whilst the application was concerned with Sundays. A Sunday night in Soho was very different from any other day of the week as it was much quieter and section 2.3.3 of the Licensing Policy acknowledged that residents could expect additional respite on Sundays. Section 2.5.5 of the SEV Policy stated that earlier closing hours should be implemented when there was a working day the next day. Residents had commented that the relative peace they did receive on Sundays made the noise nuisance from Monday to Saturday endurable. The applicant had submitted information which detailed other SEV premises which operated until 03:00 on Sundays, what this information did not reflect was that there were also numerous premises which were restricted to 23:00 on Sundays including Stringfellows. So it was not the case that all SEV licences operated later than 23:00 on Sundays. The Sub-Committee had to make a decision on these applications based on their merits and stressed that the residents in Soho required some respite on a Sunday from noise disturbance.

Mr Brown commented on the instruction provided to performers that they had to enter the premises from the front door and only use the rear door in exceptional circumstances. Having assessed the monitoring log provided of the back door it was suggested that it appeared to be used on a very regular basis. The dispersal policy put in place was the same as the one provided at the hearing in December 2016 and finally any extra noise generated on the street by customers on a Sunday evening would be disruptively loud to local residents. In conclusion the Sub-Committee was requested to uphold the decision made in December 2016.

Ms Le Fevre commented that the activity log detailing the usage of the back door of the premises did detail a ten minute period when staff were talking outside. This though provided evidence of the comprehensive nature of the log provided to the Sub-Committee and of the honest nature of the applicants. Environmental Health had confirmed that the premises, and the increase in hours on a Sunday, were of no concern.

Mr McKeown, representing the applicant company, confirmed that a great deal of communication had been entered into with local residents. Subsequently two major issues had been dealt with, one regarding waste actually related to nearby newsagents and the other related to staff talking outside which it was discovered worked at another premises. There had been less communication since January 2017 and this was a result of there being no problems arising. The premises was able to operate effectively on Sundays without causing any disturbance and it was requested that an opportunity be provided to prove this. The capacity of the venue had been reduced to one hundred persons and it was hoped the extension in hours would make the premises more financially viable.

There were two distinct aspects to the application made under the 1982 legislation. The first concerned the application to extend the hours on a Sunday night to match the hours being sought in relation to the application under the 2003 Act. It was recognised that the policy was to typically grant such hours for an SEV licence where the hours have already been granted under the 2003 Act. However, the Licensing Sub-Committee had decided not to grant the extended hours on a Sunday night in relation to the licensable activities sought under that Act. The question arising was whether a different approach should be taken with regard to the application under the 1982 Act. It was noted that the core hours that would generally be granted on a Sunday extended to 22.30 and midnight on Sundays immediately prior to a bank holiday. Whilst there was no policy to refuse hours beyond the core hours there was nevertheless a concern that the application was seeking extended hours until 03.00 on the Monday morning.  

In reaching its decision the Licensing Sub-Committee had specific regard to paragraphs 2.5.3 to 2.5.5 of its SEV policy statement. Paragraph 2.5.3 stated that the authority wished to retain opportunities for residents to have an additional respite on Sunday. Paragraph 2.5.5 stated that, in general, the conditions will be framed to ensure that closing hours on nights when residents had to get up for work the next morning were earlier than when it was less likely that they would have to do so. In those circumstances, the members did not think that they heard any evidence that could justify the granting of the additional hours until 03.00 on a Monday morning. Even in the absence of any sale or consumption of alcohol, the concerns expressed by the local residents were understandable and it was not considered appropriate for an SEV use to continue beyond 23.00.

The Sub-Committee carefully considered the second aspect of the application and was concerned that if the application was granted the right of residents to be able to object to such applications would be removed. Additional SEV legislation had been introduced over and above the Licensing Act 2003 to address concerns over proper consideration of objections. That legislation specifically allowed relevant entertainment to be provided on eleven occasions within a twelve month period without the need for an SEV licence. It was not considered to be appropriate to allow relevant entertainment to be provided as of right for any longer period simply because licensable activities could be provided under the 2003 Act by means of a Temporary Event Notice. That was particularly so when residents had no right to object to the giving of a Temporary Event Notice. Residents should have a right to be notified if a premises was seeking to extend its hours for sexual entertainment and if necessary raise legitimate concerns. The Sub-Committee was not prepared to take away such rights available to the residents simply in order to streamline the application process for the applicant. The Sub-Committee therefore resolved that the application should be refused.