Agenda item

The Union, 88-90 George Street, London, W1U 8PA

17/04023/LIREVP

An application was submitted by Mrs Rosemary Hook for a review of the premises on 18 April 2017 on the grounds of Public Safety and Prevention of Public Nuisance. The main concern related to noise emanating from the outside area to the rear of the premises in which patrons congregated to drink and smoke. A photograph at page 103 of the report, taken at 18.40 hours in March 2017, was a recent example of the problem being experienced. The Environmental Health Service and the Licensing Authority supported the review application on the grounds of Public Safety and the Prevention of Public Nuisance.

Decision:

The Sub-Committee carefully considered the review application, the various statements that had been made by the applicant and supporting neighbours and all of the material received from the parties involved.  The Sub-Committee also heard submissions and evidence at the hearing prior to Members retiring to reach a decision.

Mr Brown, from the Westminster Citizens Advice Bureau, addressed the Sub-Committee on behalf of the applicant. It was explained the application had been submitted in April 2017 after a number of years of noise nuisance experienced by residents. The main issue was in fact very narrow in scope and centered on three areas at the rear of the premises, i) the terrace area, ii) the narrow pavement area and iii) the car park. Large numbers of customers congregated in these rear areas generating lots of noise. Uncontrolled use of these areas had therefore given rise to noise disturbance to local residents which included preventing them from enjoying the use of their balconies. Due to the ‘canyon effect’ of the area noise levels were greatly increased for neighbours, particularly for those living in the higher flats. With regards to the car park there were two main reasons why the licence holder would not want customers congregating in this area. Firstly due to public safety as the car park was used by large lorries to drop off deliveries. Secondly, residents had been working with the Police to combat drug dealing in the area. Therefore what the applicants were requesting were conditions added to the licence prohibiting the use of the rear area after 21:00 hours in line with another nearby licenced premises, Carousel.

Mr Brown provided the Sub-Committee with a background to the review application. The Sub-Committee’s attention was drawn to photos providing a snapshot of the large number of customers who often drank at the rear of the premises. The generation of excessive noise would generally start in the early evening and carry on until late in the evening. During that time the number of customers using the rear area would reduce but their levels of intoxication would increase. The issues were generally weather dependant with disturbance increasing usually towards the end of the week. Issues of noise disturbance had even been recorded in March and this was exacerbated through lots of the nearby residential properties only having windows consisting of single pane glass.

The Sub-Committee was informed by Mr Brown that what distinguished this review from others was that this premises had an outside area located at the front where tables and chairs where situated allowing customers to drink outside until 23:00 hours. Restricting the use of the rear area would therefore not prevent customers from drinking in the outside area at the front of the premises. The noise generated at the rear terrace was negatively impacting on the residents’ ability to sleep on an evening, especially young child who went to bed earlier. Evidence provided in the form of emails from the applicant to Environmental Health (EH) and the photos circulated supported the claims of the residents. In 2016 the residents had experienced a summer of disruption but had given the premises an opportunity to improve. Unfortunately these improvements had not been forthcoming this year. The evidence provided by noise officers corroborated the issues experienced by residents. It was recognised that the licence holders had introduced some ‘patio rules’ (set out at page 137 of the report) but it was apparent these were not working and therefore it would be appropriate to add conditions to the licence. The Sub-Committee noted that the rules did not ban the use of the car park until 10 pm, though evidence provided by Mr Franks did indicate that the premises did agree to prevent the use of the car park entirely a few weeks later. A visit from the Council’s noise officer recorded in excess of eighty customers using the rear area one evening in May 2016 and therefore it was requested that the use of the car park be prohibited with restrictions also imposed on the rear terrace.

Mr Brown updated the Sub-Committee on recent events which highlighted that, despite assurances from the licence holder that more control had been imposed, unfortunately the same levels of disruption were being experienced. The applicant had made numerous attempts to engage with the licence holder before a review application was submitted. This had not reduced noise levels and the previous Designated Premises Supervisor (DPS) had even used threating behaviour towards the applicant. Concern was expressed that the owner of the premises would hire this type of DPS. The Sub-Committee was cautioned against evidence submitted by the licence holder stating that a significant food offer was provided at the rear terrace area. There were currently no tables and chairs located in the terrace and it was predominantly used for drinking alcohol. The conditions proposed by the licence holder were deficient in that they did not address the use of the car park. Restricting the use of the terrace after 23:00 did not take into account the evidence provided that the disturbance generally started from 17:30. It was suggested that any potential conditions should restrict use of the terrace after 21:00 and limit the number of customers able to use it to twelve. A condition could also be added to the licence to ensure the area was constantly supervised. It was recognised that more control over the area had been exerted recently however it was of concern that it had taken until this stage for this to happen.

Mrs Hook, the applicant, described the extensive level of noise disturbance experienced by residents. It was explained that the rear terrace normally had a couple of tables at lunch times but on an evening it was purely for customers standing, drinking alcohol. The premises was not frequented by local residents and the residents who had supported the application lived in the area permanently with many having young children. The lack of engagement from the licence holders had been very disappointing despite frequent attempts by residents to discuss the issues. The ‘patio rules’ previously mentioned had not been introduced until May 2017 and these were considered more effective in controlling the noise but something more permanent was required as noise disturbance was still a big issue. Concern was expressed that the customer notice on the terrace apologised to customers for asking them to be quiet but it should be expected for the premises to be a good neighbour. Stronger controls were required to control the terrace area and it was not until the review application had been brought that noticeable changes had been instigated. Her application clearly stated that she was not averse to customers drinking outside, even to the rear of the premises, provided that was to a reasonable time and in reasonable numbers.

Mr Koduah, representing Environmental Health, confirmed that on 26 May 2016 a City Inspector had visited the premises and reported noise levels that were considered excessive. Discussions had been undertaken with the DPS with regards to how to reduce the noise but another noise complaint had been made the very next day. Again it was reported that there were lots of patrons outside the premises generating substantial levels of noise. EH therefore had no confidence that the premises was managed in an appropriate and effective manner and subsequently supported the review application. Mr Koduah then provided the Sub-Committee with an overview of the complaints received regarding the premises. These mainly related to dates in May and June 2016 and all but one was on a Friday night. Concern was also expressed over the frequent DPS changes at the premises and how this would impact on any continuity with regards to managing the establishment. The conditions proposed by the applicant were supported and it was also suggested that model conditions 12, 21, 22 and 57 be also added to the licence to provide further control over the rear terrace area.

Mr Rowe, representing the Licensing Authority, supported the review application in order to allow the applicant an opportunity to review their resources with regards to the premises history and any enforcement actions that had been undertaken. Mr Franks, a Licensing Inspector, was also present to provide any information on enforcement history if any parties required it.

In response to a question Mrs Hook advised that the terrace area was not widely used at lunch times. The problems started in the evening and were largely dependent on the weather. On the day prior to the hearing thirty-eight customers had congregated at the rear of the premises but they had been well-contained and had been made to re-enter the premises at 22:00 hours. Even though this was an improvement it was still regarded as a lot of people and the noise disturbance was still significant. This highlighted that even when the problems had been contained it still posed issues to residents.

Mr Shields, representing the premises, explained that the review could be split into three sections, i) the history of the premises, ii) May-June 2016 and iii) 2017 and the review application. Mr Shields confirmed that the licence holder was not in opposition to conditions being added to the licence. The premises had been operating for forty years and no one was aware for how long the rear area had been in use. The current owner purchased the property in 2001 during which time an external rear terrace area with the same current dimensions had always been in continual operation. There was also a private car park to the rear, adjacent to which was a House of Fraser Store. Many people using the car park were staff from the House of Fraser and they often congregated in it which generated noise. The licence holder had no control over these people or the use of the car park. In 2016 residents had made noise complaints and it was suggested that the DPS at the time had been rude and threatening. The owner had not been aware of these allegations until the review application had been brought but the company did not condone such behaviour and would have taken action if they had been notified.

Mr Shields brought to the Sub-Committee’s attention that in summer 2016 complaints had been made in May and June however no complaints had been received in July and August. It was in this context that he asked the Sub-Committee to look at this review as complaints were not being made every day or week or month of the year. The record submitted of the complaints made stopped in June 2016. It was acknowledged that there had been instances of noise disturbance however the introduction of the ‘patio rules’, the erection of a barrier and improved supervision had been introduced in May/June 2016. Once it had bedded in no complaints had been received after June 2016. It would therefore be unfair to suggest the premises ignored any complaints and carried on regardless. The complaint received on 6 May 2016 was not clear on whether any disturbance was being created. The visit on 9 June 2016 states any noise was not excessive. The area at the front of the premises was not part of the review and no complaints had been received against it. It was a separate area and it would be impossible to say what impact restricting the use of the rear terrace would have on this area. The complaint received on 12 August 2016 appeared to relate to employees from the House of Fraser. A visit undertaken on 24 June 2016 by the Licensing Inspector confirmed that thirty customers were drinking at the rear patio area without the creation of any disturbance. The car park was not being used.

Mr Shields advised that a new DPS was now in place and the premises did attract local residents. Food was provided at the rear terrace, mainly during the day, and later in the evening it would comprise mostly of customers standing, drinking alcohol. The DPS had had no contact from residents since he took over on 1 December 2016 and was unaware of any complaints having been made. Therefore to suggest there had been wilful inaction was incorrect. The photos of people congregating at the rear of the premises drinking was not an issue with a long history and the photos mainly appeared to be from the same evening. Noise disturbance may have been an issue at one point but it was wrong to suggest no action had been taken. In fact the issues raised had now basically been resolved. Two local residents had submitted representations supporting the review. It was stressed that neither wanted to prohibit the use of the rear terrace but to impose restrictions on it and it was unclear if any had made a complaint to the Council.

The Sub-Committee was interested in why the licence holder was willing to accept extra conditions on the licence but none restricting the use of the car park? Mr Shields advised the Sub-Committee that there were concerns over the imposition of any conditions regarding the car park as it was private and therefore they could not control the area. Measures had been imposed to provide greater control over the rear terrace but it would be difficult to control people in the car park when it was often used by people who were not customers of the premises.

Mr Pelizza, the Designated Premises Supervisor, highlighted how House of Fraser employees often congregated in the car park with glasses of alcohol. It was not just customers of the premises and therefore this was why there was concern over the potential to impose conditions on the licence with regards to the car park. Mr Shields confirmed that the use of the barrier at the rear of the premises had been very successful in controlling people trying to use the car park area.

Mr Brown suggested that it was wrong to assert that this was not an issue with a long history. Complaints had been received in 2015 and just because there was a lack of complaints prior to 2015 this did not mean there were no concerns. It was not the residents’ experience that the premises had attempted to adequately resolve any issues. The photos circulated reflected the levels of disturbance generated throughout the year and not just May and June last year. A new DPS had been introduced in December 2016 but this was the eighth change in DPS since 2014. Residents would be unaware of any changes and the lack of continuity was resulting in complaints being inadequately resolved. The nearby premises Carousel had its rear terrace restricted to 21:00 hours. Mrs Hook also did not recognise the claim that it was often House of Fraser staff congregating in the car park at evenings. Mrs Hook stated that she was only aware of one instance of House of Fraser staff using the car park. Mr Brown finally brought to the Sub-Committees attention that there was a detailed log of City Inspectors visiting the premises when excessive noise was being generated. The instances where they did attend the premises but found the noise not excessive was hard to assess as it may not have been excessive to them but it would be to a person trying to sleep.

Mr Shields concluded that it was obvious that the different parties were at odds. It was highlighted that the residents were obviously aware of how to make complaints. Recorded complaints were important statistics and these showed that after June 2016 they virtually stopped suggesting any issues had now been resolved. It was acknowledged some issues had been encountered in May to June 2016 but it was difficult to use as evidence suggestions that complaints had been made but not recorded. The Sub-Committee could impose conditions on the licence to limit the numbers of customers able to use the rear terrace but the City Inspector’s visits highlighted how thirty-five people could use this area in a safe and considerate manner. As long as the area was properly supervised it would not create a noise disturbance. Written submissions proposed a number of other conditions that the licence holder was prepared to agree, including the clearing of the external patio after 23.00 hours. Mr Shields stated that the Sub-Committee had to be proportional in making its decision and was reminded only one complaint against the premises had been recorded in 2017.

After carefully considering the application the Sub-Committee stressed the importance, going forward, to ensure there was regular engagement between all parties. It was obvious problems had arisen through the high turnover in DPSs and it was vital for the owner of the premises to ensure any future DPS holders conduct in constructive dialogue with residents if any further issues arose. There was also an onus on local residents to engage as well, not only with the licence holders but, if they had a complaint, with the Council. Complaints statistics were important and if residents did not log complaints with the Council then it would be difficult for them to provide evidence of the issues arising. It was recognised by all parties, including the licence holder, that problems had arisen in the past and conditions could be added to the licence to ensure there was a greater level of control over the rear external area. As such all the options available to the Sub-Committee had been considered and it had reached the decision that imposing additional conditions on the licence was the most proportionate and appropriate step to take. These included ensuring that a telephone number of the manager at the premises be publically available to aid with the process of engagement. It was considered the use of the rear terrace could be used for the consumption of alcohol however a condition would be added to prevent any customers from overspilling into the adjoining car park. It was felt this would help in bringing a higher degree of control into the area and also ensure that all customers could be properly supervised. A limit on the number of customers allowed to use the terrace was not imposed as the Sub-Committee considered it was proportional to restrict the time it could be used instead. Most of the issues arising were related to what time the noise disturbance was created rather than the numbers involved and it was therefore felt prohibiting the use of the area after 21:00 struck the right balance. Further conditions would be added to ensure there was no nuisance or obstruction on the public highway and ensuring all external windows and doors to the rear of the premises should be kept closed after 21:00 hours. Finally model conditions twelve and twenty-one would also be included to minimise noise disruption and ensure signs were prominently displayed at the rear terrace requiring customers to respect local residents.

The Sub-Committee was of the opinion that the additional conditions would minimise the impact of the rear terrace and help alleviate any noise disruption to local residents. The additional conditions were considered proportionate and would help ensure the premises promoted and upheld the licensing objectives.