Agenda item

85 Piccadilly, W1

17/01572/LIPN

1.

Late Night Refreshment (Indoors)

Amendments to application advised at hearing:

None.

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

The Sub-Committee heard from Mr Walsh, representing the Applicant.  He explained that the information relating to the planning application had been submitted as part of the report because many of the objections from residents were of a planning nature.  The report included sound attenuation information.  The view on behalf of the Applicant was that the granting of planning permission in 2013 was material to the current application.  The planning permission was for the use of the basement, ground and mezzanine floors as a restaurant and included the location of the main entrance.  The planning application permitted a capacity of 330 and a closing time of 01:00.  Mr Walsh advised that the Applicant was seeking a capacity of 250 and closure at 01:00.  The sale of alcohol was sought until 00:40.

Mr Walsh referred to the premises history, including that the building had been constructed in 1970.  Permission for restaurant use had been granted at ground and mezzanine floor level and nightclub use had been granted at basement level.  These premises had traded on this basis until 2011 when the nightclub licence was revoked.  However, the planning status for the basement remained as a nightclub until the 2013 planning application.  There was a car park level which separated residents from the restaurants and nightclub.

Mr Walsh advised the Sub-Committee that the Applicant Company, Hedonism Drinks Limited, is a fine wine merchant with a wine shop in Davies Street, Mayfair.  Following the granting of planning permission, £10m had been invested already in the premises with £5m being spent on acquisition and £5m on internal and external improvements, including triple glazing and sound attenuation measures. A further £9m to £10m was due to be spent on the operation.

Mr Walsh stated that assurances had been made to the Council that the premises would operate as a fine dining restaurant.  The Applicant had waited to make an application until they had a chef and management team in place.  Ollie Dabbous, the head chef whose Dabbous Restaurant had earned a Michelin Star, had been identified.  He had given up his restaurant to take on the new venture.  The aim was to gain one Michelin Star for the ground floor restaurant and cellar area and two Michelin Stars for the Mezzanine floor.

Mr Walsh informed the Sub-Committee that the Applicant had opted for a capacity of 250 because of the fine dining operation.  Space and quiet was needed for the operation as was a longer dwell time.  The intention behind the 01:00 closure was in order to accommodate two sittings during the evening. 

Clarification was provided to the Sub-Committee that it was proposed that the basement, which had been the site of the Vendome nightclub, would be the Cellarage where customers would be seated and able to have a drink prior to being shown to their table upstairs.  In this area hatched black on the plans as set out in the proposed conditions, alcohol could only be served by waiter or waitress to seated customers before, during or after a meal consumed at the premises.  There would be private dining areas and a kitchen in the basement. 

Mr Walsh addressed the Sub-Committee on other proposed conditions.  These included that there would be no off-sales after 23:00.  No noise would be permitted to emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.  Mr Walsh made the point that there had been issues with noise emanating from Vendome.  However, there would now be no regulated entertainment or nightclub at the premises.  Another proposed condition was that if the application was granted, the Applicant’s licences for the ground and first floors would be surrendered.  Mr Walsh requested that a condition proposing a designated smoking area was removed.  It was the Applicant’s view that the level of smoking would be limited at this premises and that if a customer smoked outside it was likely to have a limited impact on residents who were on the third floor of the premises.

Mr Walsh referred to a table in the report submitted by the Applicant which set out the existing permitted uses for 85 Piccadilly and the proposed uses.  He said that if the basement was left out of the equation (the premises licence had been revoked in 2011), the current combined capacities on the ground and first floors were 229.  This was 29 more than the Applicant was seeking for these floors in the application.  If the proposed capacity of 50 was added for the basement there was a total capacity of 250 which was 21 more than the current total capacity on the ground and first floors.  Mr Walsh added that he did not believe this to be a substantial increase.  He drew Members’ attention to the fact that there had been a capacity of 260 for the nightclub, Vendome.  He expressed the view that a single restaurant with a capacity of 250 on three floors rather than what had been present before with two restaurants and a nightclub was a significant improvement in terms of enforcement and also for residential amenity.

Mr Walsh drew the Sub-Committee’s attention to the Applicant’s summary of the representations made in relation to the application which was included as part of the report.  It was the Applicant’s view that almost all of the residential concerns related to residential amenity and all these matters were considered at the planning stage in 2013.  He wished to put on record that there had been a consultation process which had taken place for the licensing application.  There had been correspondence with a West End Ward councillor between December 2016 and January 2017.  On 16 January 2017, letters had been sent on behalf of the Applicant to 85 residential and business addresses close to the site and also to all West End councillors and the residents’ associations.  Mr Walsh also placed emphasis on a significant consultation process taking place at the time of the planning application.  He made the point that the Residents’ Society of Mayfair and St James’s had supported the proposals in the planning application.

Additional points made by Mr Walsh included that the nightclub had operated until later hours than the 00:40 sought for alcohol and 01:00 closing time.  Mr Studd, the Licensing Consultant, had advised that the terminal hour for 01:00 would not result in a large percentage of customers leaving at the same time as they would from a nightclub.  Customers would leave a fine dining restaurant in smaller numbers and in a quieter, more relaxed way. He quoted the Council’s planning department that there was likely to be a more gradual dispersal from a restaurant with fewer customers remaining at the terminal hour.  It was also the view of planners that customers were less likely to congregate outside the premises than at a nightclub.  Mr Studd had set out in his report that there were high quality restaurants which operated until the early hours which were well managed and food led such as Hakasan in Bruton Street and The Wolseley in Piccadilly.

Mr Walsh stated that the Applicant was very aware of residential amenity within 85 Piccadilly.  This was why a detailed management plan had been submitted and very substantial acoustic works had been carried out.  The exterior of the premises had been triple glazed.  The acoustic integrity was as important to the restaurant as it was to the residents.  It was disputed that the restaurant was an over intensification of the licensing use because of the history of the building. 

In respect of potential smokers, Mr Walsh referred to Mr Studd’s comments that smoking was rarely a problem in well run premises.  There was not a culture of patrons going out at the same time and coming back into the premises as was the case in a nightclub or pub. 

In respect of the location of the entrance changing from Clarges Street to Piccadilly, Mr Walsh made the point that the concerns of residents that there were residential units above the entrance had been carefully considered in relation to the planning application.  The report of DKN Acoustics commissioned by the Applicant had found that the internal noise transmission would be adequately controlled to ensure that residential amenity was not affected.  It had also found that the noise of underground trains which was a concern of some local residents was barely audible. Mr Walsh emphasised that there was no regulated entertainment applied for, triple glazing had been installed for the restaurant and there is a car park floor located between the residents and the restaurant.  In the event that there was a public nuisance, the Applicant Company would not be complying with the proposed condition that they had agreed that ‘no noise shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance’. Mr Walsh added that there were continuing acoustic works taking place.

The Sub-Committee requested clarification as to the nature of the off-sales sought.  Mr Thomas replied that it was acceptable to the Applicant Company for customers to be recommended to go to Hedonism’s shop in Mayfair should they require off sales.  Customers would be able to take home part consumed bottles of wine in keeping with the Council’s model restaurant condition, MC66.  It was agreed that the Council did not regard this as an off-sale of alcohol. Mr Walsh confirmed to the Sub-Committee that the bar and bar seating would not exceed 10% of the total floor area as required under the planning permission.  Any bar use would be ancillary to food.  Mr Dabbous advised the Sub-Committee that there would be no delivery service.

The Sub-Committee heard from Mr Nevitt on behalf of Environmental Health.  He stated that he had considerable experience of the issues raised by Vendome and he had visited one or two of the residential flats when there had been nuisance caused to residents.  He informed the Sub-Committee that there had been helpful pre-application meetings between Environmental Health and representatives of the Applicant, including meeting with contractors and designers to look at all the aspects that might affect local residents now.  One of Environmental Health’s concerns was future occupiers of flats in a new residential development. 

Mr Nevitt said that the front entrance had been a matter which was considered by the Council’s planning committee.  Mr Nevitt had been consulted and there had been an acoustic report submitted.  It had been found that Clarges Street was a source of disturbance for local residents.  It was felt that there would be less potential for nuisance if the entrance was in Piccadilly.

Mr Nevitt advised that the advantages of the application included that it reduced the number of licences for the site which was likely to lead to better regulation.  It was proposed that two premises licences would be surrendered.  Also, potentially 300 plus people could be accommodated on the three floors.  The Applicant was seeking 250.  There was the removal of high risk activities, notably regulated entertainment.  The nightclub use was being replaced with restaurant use with up to date model conditions.

The Sub-Committee heard from Mr Nevitt that he had considered the acoustic integrity of the building structure.  He was satisfied that the restaurant would contain any noise from activities there.  The planning process had dealt with the potential for noise from plant and ventilation systems and Mr Nevitt was content that there were arrangements in place in relation to them.  In terms of noise transmission which had existed when there had been a nightclub in the basement, Mr Nevitt did not have concerns as there was no regulated entertainment.  He had been in discussions with the Applicant and works were continuing.  Environmental Health would be able to assess the situation as the works continued.

Mr Nevitt said that potential risks included the lateness of the terminal hour being beyond Core Hours.  This was to be judged on its merits and was one of the reasons why Environmental Health had maintained its representation.  Also there was a risk from customers outside, including people arriving, leaving and smoking.  There was a management plan in place.  There needed to be good management procedures and also conditions attached to the premises licence.  There were no tables and chairs outside.  Mr Nevitt took the view that 10-12 smokers were still quite a lot.

Mr Brown addressed the Sub-Committee.  He clarified that Mr Andrew Jones had made representations on behalf of himself and 29 individuals from 85 Piccadilly and 47 Clarges Street.  In total there were 19 individual representations.  He commented that Mr Jones had put in a laudable amount of work, putting the representation together, co-ordinating the residents, researching information and engaging with the freeholder.  He had been committed to putting in this workload since at least 2010 when Vendome had been a major issue.

Mr Brown wished to put on record that the objectors were not requesting that the application be refused.  Residents supported the principle of a fine dining restaurant at 85 Piccadilly.  It was the scale and scope of the restaurant which was the concern.  The residents’ main concerns were capacity, the proposed hours, the location of the entrance and exit, internal noise transmission and smokers.  These should not be seen in isolation.

Mr Brown stated that his interpretation of the significance of the planning process was significantly different from Mr Walsh’s.  He did not believe that as much weight should be given to the planning permission.  He made the point that Vendome had not operated since 2011 and was not licensed.  There were two existing restaurants, one with Core Hours and one with the old supper hours.  Mr Brown expressed the view that planning had determined the application in 2013 on the lawful use.  In this case the fact that there was no existing licence for the basement was relevant.

Mr Brown explained that as far as residents were concerned if the main entrance was on the corner of Clarges Street and Piccadilly the application would be less of an issue to them.  The Applicant had insisted that it should be below the residents’ flats because of the planning permission.  However, Mr Brown took the view that this had been due to the problems with Vendome and the nightclub did not exist anymore.

The Sub-Committee asked Mr Brown about his interpretation of Mr Nevitt’s earlier comments and that there was a likelihood that future residents of the new block of flats were more likely to be affected if the entrance was on the corner of Clarges Street and Piccadilly.  Mr Brown replied that the previous entrance was on Piccadilly as well although nearer to the corner.  This was nearer living rooms of the residents of 85 Piccadilly not bedrooms.  He accepted that the fact there would be future residents in a new block of flats was clearly a relevant matter in the Sub-Committee’s decision making.

Mr Brown stated that the capacity being proposed was greater than the two existing restaurant licences.  The terminal hour was exacerbated by the large capacity and the location of the entrance.  Residents were concerned there would be noise from people dispersing, smoking and waiting for taxis or hire cars beneath approximately 20 residential bedrooms.  Mr Brown advised that residents were of the view that internal noise transmission was being heard because of internal works that had taken place at the building.  Noise was being heard from underground trains which had not been heard before.  There was the concern that this would happen with the restaurant.  Residents were aware that there would be further attenuation works.

Residents, Mr Brown said, accepted that the restaurant would have a top chef and management team.  However, it was noted that Mr Dabbous’ previous premises had been much smaller.  The average size of a Michelin starred restaurant was considerably less than was being proposed in this case.  Hakasan was on a largely non-residential street.

In respect of the Council’s policy, Mr Brown wished to point out that 01:00 was mentioned as a possible terminal hour for restaurants because crime and disorder became more of a factor after that time.  It was not setting out that 01:00 was an acceptable terminal hour.  The application needed to be considered on its own merits. 

Mr Brown requested that if the application was granted, there should be a condition which required the operation to be ancillary to fine dining.  Another option was that the premises could only be operated by the Applicant Company although this he believed would have to be proposed by the Applicant.  He recommended that there was a no entry or re-entry time up to an hour prior to the closing time due to the fact that the Applicant was saying that there would be a significant dwell time for the sittings.  Customers would not be able to start their meal a matter of minutes before the closing time.  In terms of smokers outside, Mr Brown commented that there was no ideal solution or location.  It was imperative that staff oversee the smokers in order to prevent noise nuisance to residents.

The Sub-Committee heard from Mr Andrew Jones.  He said that he and other residents were generally in favour of the proposal.  They recognised the quality of Hedonism’s shop and the Dabbous restaurant.  However, the application required careful fine tuning so that people living in the flats above were not disturbed.  It was residents’ experience that there were two types of noise.  One was a consistent noise such as traffic.  However, there was intermittent noise such as a voice or a car door being slammed which inconvenienced residents. 

Mr Jones made the point that residents did not originally have a problem because the door where the main entrance was now proposed to be was closed.  The restaurant door was on the corner of Piccadilly and Clarges Street so there was equal access from both directions.  The bedrooms were not above the entrance.  He believed that even if there were occasional sounds from the restaurant, this was sufficient to adversely affect residents.  Gradual dispersal of residents had the potential to result in a constant trickle of noise. 

Mr Jones expressed the view that moving the restaurant door and having a later terminal hour causes problems which had nothing to do with restaurant management or how it was operated, it was a design flaw.  He believed there should be a trade-off between the hours and the numbers.  There were concerns that the capacity of the restaurant would be significantly bigger than other Michelin starred restaurants in Mayfair.  Hakasan, for instance, did not have residents above.  In terms of smokers, Mr Jones recommended that if they used the traffic light controlled crossing and smoked on the other side of the road this would prevent residents being inconvenienced by noise.  He also was of the view that waiting cars should be across the road.

Mr Jones recommended that the licence should only be able to be operated by the Applicant Company.  He was of the view that noise would reach the residents’ flats and whether the restaurants had triple glazing was irrelevant.  He believed that an atrium had been created as a result of the internal works to the building which meant that the underground trains could be heard.

Mr Huw Jones asked that the restaurant was granted Core Hours given that residents live at 85 Piccadilly.  He was concerned by the terminal hour of 01:00 and that customers would potentially leave at the same time at the end of the two sittings, including from the bar on the ground floor.  He was also concerned at the impact of customers waiting for taxis and the impact on parking.

Ms Hodgson addressed the Sub-Committee on internal noise transmission.  She also took the view that works inside the building meant that sound travelled more than it had before.  She was concerned about noise transmission from the restaurant.

Mr Walsh was given the opportunity to respond on behalf of the Applicant.  He stated that it was absurd if the expert reports, submitted when the planning application was considered in 2013 were ignored.  Planning matters were material and were able to carry great weight.  He disputed that a mega restaurant was proposed.  The Applicant was seeking to replace two restaurants with existing premises licences that have a capacity of 229 which could trade again.  The capacity was being reduced for these by 29.  The building had been constructed specifically for two restaurants and a nightclub.  The Applicant was then looking for a minor usage with an extra capacity of 50 in the basement.  Mr Walsh re-iterated that if there was noise disturbance to the residents, there would be a breach of condition 10.  There had been significant sound attenuation works carried out as described by Mr Nevitt.

Mr Walsh and Mr Dabbous wished to make the point that it was not the case that Mr Dabbous’ only experience was at Dabbous restaurant.  He had been a senior chef at Le Manoir aux Quat saisons with a similar operation to that proposed for 85 Piccadilly (120 covers in the main restaurant and 60 in the private dining room).  Mr Dabbous also disputed that customers at the second sitting would leave at the same time.  He informed those present that they would eat at different speeds.  A larger number of people would eat more slowly than a lesser number. 

Mr Walsh wished to respond on the Council’s policy.  The application was outside the cumulative impact areas so there was no presumption to refuse.  The hours of the restaurant depended on whether the licensing objectives would be promoted.  He believed it was appropriate to look at whether this form of operation is better not only for the licensing authority in terms of enforcement but also because it is one quality operator providing a fine dining operation.  This was rather than a bar operation which happens to do food on the first floor which was what could be operated there under an existing licence.  It would have less impact than the former use.

Mr Walsh said that it was accepted that the operation of the premises should not cause disturbance to residents above and that was what the planning and licensing applications had focussed on.  This could be more easily enforced as there would only be one premises licence.

The Sub-Committee asked a number of questions.  These included whether another location had been considered for the main entrance door.  Mr Thomas and Mr Nevitt both replied that they believed that there had been two separate acoustic reports relating to the door at the planning committee.  Mr Nevitt added that there had been an emergency escape door from Vendome in the basement to the entrance’s current location.  There had also been discussion during the planning stage about the use of a canopy or awning to screen presence of people from the entrance door.  Mr Nevitt had expressed the view that this could improve the situation.

Mr Walsh was asked about Mr Jones’ proposal for smokers and waiting cars to be located across the street.  Mr Walsh replied that it was an arterial road.  There would be limited numbers of smokers and they were likely to spend limited time outside.  There would be a SIA registered member of staff to monitor them.  The Applicant now recognised that outside the carpet shop was not an appropriate location.  Mr Walsh advised that in relation to waiting cars, as set out in Applicant’s Management Plan, on Thursdays, Fridays and Saturdays, in addition to the SIA registered member of staff the Applicant would be employing a vehicle marshall from 21:30 onwards.

Mr Wroe asked whether the Applicant was willing to accept a last admission or re-admission time and also whether the Applicant was willing to be conditioned on the basis of the premises being a fine dining restaurant.  Mr Walsh replied, having consulted his client, that the Applicant was content for the premises to be conditioned as a fine dining restaurant and that given the dwell time, there would be no new entry to the premises after midnight.  

Mr Brown made the point that Mr Jones had asked him to explore with the Sub-Committee whether if Members were minded to grant the application they were willing to consider not granting the Applicant’s proposed terminal hour for all three floors.  The basement had historically had a later hour.  Mr Walsh said that different hours for different floors would give the Applicant difficulties as there were also private dining areas in the basement.

The Sub-Committee considered that the premises had been problematic in the past.  There had been a number of reviews of the basement premises, Vendome, which had led to the revocation of the premises licence.  It was appreciated what the residents had had to put up with and they were quite naturally concerned that any replacement licensable activities could potentially give rise to public nuisance and even crime and disorder.  The Chairman thanked Mr Andrew Jones for a very thorough representation which was very helpful to the Sub-Committee in highlighting the areas of concern.

The Sub-Committee, in carefully considering the application, noted that what was being proposed at 85 Piccadilly was a restaurant.  The restaurant would be outside the West End Cumulative Impact Area.  There was no policy presumption to refuse the application.  It was being considered on its merits.  Members of the Sub-Committee were satisfied that subject to appropriate conditions, the 01:00 closing time sought was appropriate in these circumstances.

The Sub-Committee decided that the appropriate conditions on the licence should include Mr Brown’s suggested condition that the premises shall only operate as a fine dining restaurant.  The Sub-Committee did not have any concerns about the operators of the premises but wished to ensure on behalf of residents that another occupier did not obtain the premises licence in the future and undermine the licensing objectives. The Sub-Committee also attached the condition proposed by Mr Brown and agreed on behalf of the Applicant that ‘there shall be no new entry to the premises after midnight’. 

There was also a condition attached which had been agreed by the Applicant that ‘no noise generated on the premises, or by its associated plant or equipment, shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance’.  This was a key condition which would mean that if there was a public nuisance caused as a result of noise from the restaurant then residents would have the ability to make complaints to the Council’s Noise Team and could potentially bring a review of the premises licence if there were persistent issues.  The Sub-Committee noted Mr Nevitt’s representation that he had considered the acoustic integrity of the building structure and was satisfied that the restaurant would contain any noise from activities there.  The planning process had dealt with the potential for noise from plant and ventilation systems and Mr Nevitt was content that there were arrangements in place in relation to them.  The Sub-Committee noted that sound attenuation works would continue and Environmental Health would be able to assess these.  The onus was on the operator to ensure that once the restaurant was operating local residents were not adversely affected by noise.

The Sub-Committee did not attach a specific condition but did take note that the Applicant would seek to employ a traffic marshall on Thursday, Friday and Saturday evenings.  The Applicant would need to ensure that the impact from waiting cars was minimised.  The Sub-Committee also noted that the Applicant would employ a member of staff to oversee the outside area, including managing smokers. 

The Sub-Committee did not consider it appropriate to licence off-sales at a fine dining restaurant.  The Applicant had agreed to withdraw off-sales.  Customers would be able to take home partly consumed bottles of wine, in keeping with the Council’s model restaurant condition.

In keeping with the Applicant’s commitment to conclude on-sales twenty minutes prior to the closing time Monday to Saturday, Members decided that it was appropriate to conclude on-sales twenty minutes prior to the closing time on Sundays.  The terminal hour for on-sales would therefore be 23:10.

2.

Sale by retail of alcohol (On and Off)

Amendments to application advised at hearing:

It was confirmed at the hearing that the Applicant had amended the terminal hour Monday to Saturday to 00:40.

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

The Sub-Committee granted the amended terminal hour for on sales Monday to Saturday of 00:40.  The Sub-Committee granted a terminal hour for on sales on Sundays of 23:10.  Off-sales were not permitted.  The Applicant had offered to withdraw off 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):

Granted, subject to conditions as set out below.

4.

Seasonal variations / Non-standard timings

Amendments to application advised at hearing:

None.

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

Granted, subject to conditions as set out below. Off-sales were not permitted.  The Applicant had offered to withdraw off sales.  See reasons for decision in Section 1.