Agenda item

Muse Soho, Basement, 23 Frith Street, W1D 4RR (“The Premises”)

17/08037/LIPV

1.

Performance of Live Music

Amendments to application advised at hearing:

Ms Tricker, representing the Applicant, confirmed at the hearing that there were some amendments to the application.  It was proposed that the Premises would no longer operate on Sundays and this part of the application was withdrawn. All regulated entertainment (including Performance of Live Music) which was originally proposed to cease at 03:30 Monday to Saturday was now proposed to end at 03:00.

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

The Sub-Committee heard from Ms Tricker, representing the Applicant.  She began by confirming the amendments to the application which had been set out in additional information circulated to the Sub-Committee after the report had been published.  These included that the Premises would no longer operate on Sundays.  All regulated entertainment which was originally proposed to cease at 03:30 Monday to Saturday was now proposed to end at 03:00.  60 seats would now be available in the basement area of the venue rather than 30 at all times of operation.  In addition, the Applicant was also bringing forward the last entry time from 02:30 to 02:00.

Ms Tricker stated that there were proposed changes to the conditions on the existing licence as part of the application.  The Applicant also sought to amend the plans which included that the cross hatched area would operate as a restaurant and not the whole Premises as previously.  As clarified by Ms Tricker approximately half of the capacity of 60 would be in the restaurant area of the Premises.   

Ms Tricker explained that currently after 01:00 only members were able to attend the Premises and membership was specific to the Lesbian, Gay, Bisexual, Trans and Queer (‘LGBTQ’) community.  This was being brought forward to 00:30. She said that the advantages of the membership scheme were that patrons were known and had gone through an application procedure with at least 48 hours being an application being submitted and subsequently granted.  It was submitted that the membership scheme had worked as there had been no real crime and disorder or anti-social behaviour associated with the Premises. 

Ms Tricker acknowledged that the Premises is located in the West End Cumulative Impact Area and that it was necessary to demonstrate to the Sub-Committee that the application would not add to cumulative impact.  She stated that it was accepted by Environmental Health that there would be no noise escape from the Premises, including from regulated entertainment.  She also made the point that it is sandwiched between two restaurants which were able to operate 24 hours a day.  She also referred to residents above the Premises supporting the application. 

The Sub-Committee was advised by Ms Tricker that the hours the Premises were open to the public, the hours for the sale of alcohol and that the capacity was not being increased.  The Premises had previously been licensed with a capacity of 120 and the current capacity was remaining at 60. Ms Tricker spoke of a wind down period where last entry would take place at 02:00, on-sales would cease at 02:30, regulated entertainment would cease at 03:00, late night refreshment would cease at 03:30 and that the Premises would have no customers after 04:00 hours.  She believed this would mean that not all customers would leave at the same time so a staggered dispersal is most likely to occur.

Ms Tricker stated that food was available at all times throughout the Premises, including in the area which would no longer be subject to the Council’s model restaurant condition.  It was stated that the cuisine was French/Asian.  There would also be waiter or waitress service throughout the Premises.  Ms Tricker commented there had been TENs operated when the restaurant conditions had been relaxed and no complaints had been received by the Council.

Ms Tricker spoke about the outside area.  There were no issues with queues and SIA regulated door staff were in place, predominantly at the front of the Premises, from midnight onwards.  Ms Tricker referred to the letter of support from Councillor Glanz that he had not heard of the Premises prior to the current application as he had not received any complaints in relation to noise.   

Ms Tricker referred to the support for the application from the LGBTQ community and the reduced number of Premises which were catering for this community.  A LGBTQ venue closure list had been included in the Applicant’s submissions which had been noted by the Sub-Committee.  A letter in support of the application from Amy Lamé, the Night Czar at Greater London Authority had stated that the number of LGBT+ venues had reduced from 125 venues in 2006 to 53 in 2017 which again had been noted by the Sub-Committee.  Ms Tricker concurred with the view of Ms Lamé that such premises provided a safe space for the community to socialise.  Ms Lamé’s letter had also mentioned a 12% increase in homophobic hate crime in London over the last year.  Ms Tricker added that the objective at Muse Soho was for customers to remain at the Premises rather than leave to go elsewhere and enjoy food and entertainment without every person being required to eat at the venue.   

Ms Tricker said that there had previously been a nightclub at the venue prior to it being operated as Muse Soho.  When the licence holder had sought to transfer the licence it had become apparent that the company of a previous licence holder had gone into administration and the licence had therefore lapsed.  The Applicant had been required to apply for a new licence which had been granted to Core Hours. The hours had since been extended.

Additional points made by Ms Tricker included that the clientele was on average aged 30 and over, each member could bring in two guests, no issues had been raised in City Inspectors’ reports and that dispersal was assisted with public transport in the area including underground stations and local taxis.  She also emphasised that the two letters of objection were not specific in terms of the operation of the venue. 

Ms Tricker requested that a movement of waste condition was amended as proposed.  This had been asked for by the Council so that the hours included in the condition were in keeping with collection times and the condition was not breached in the future.

In response to questions from the Sub-Committee, Ms Tricker and Ms Sirrell advised that there were ten staff employed at the venue in addition to security staff and that there were 3000 members on the books with approximately 900 having paid the annual membership fee (£129).

The Sub-Committee heard from Ms Parker, who spoke and provided a video in support of the venue.  She was a performer at the Premises  and as a member of the LGBT and specifically the Transgender community was seeking that London supported the community.  She said that there were not any entertainment venues which catered specifically for this audience.  She asked that the conditions were relaxed which required everyone from the community being required to have a substantial table meal.  She referred to the reduction in LGBTQ venues and the need to have such a premises for the Community.   

The Sub-Committee was addressed by Mr Sycamore on behalf of the Licensing Authority.  He advised that the Licensing Authority was maintaining its representation as it was felt that the application would now fall within the Council’s policy MD2.  This is the provision of music and dancing or similar entertainment or the provision of facilities for music and dancing or similar entertainment within the Cumulative Impact Areas.  As set out in the City Council’s Statement of Licensing Policy (“SLP”) it is the Licensing Authority’s policy in respect of MD2 to refuse applications in the Cumulative Impact Areas, other than applications to vary hours within the Core Hours.  Mr Sycamore stated that the application sought to extend licensable activities for hours that were well beyond Core Hours. 

Mr Sycamore explained that the Licensing Authority was also concerned about the removal of the Council’s model restaurant condition, MC66 in significant areas of the Premises.  He sought more explanation from the Applicant on how the areas would be managed where MC66 would no longer be in operation. It was submitted that there was the potential for vertical drinking in those areas where the seating was not necessarily fixed and was moved aside.  He queried how the Council’s policy could be supported with the change in style of operation following the proposed removal of conditions 41 and 43 on the Premises licence. 

Ms Tricker was given the opportunity to respond to the Licensing Authority’s questions.  She said there would be accommodation for 30 customers in the booth seating areas and the remaining seating would be on the main floor of the Premises.  The model restaurant condition would apply to the booth seating areas.  In respect of the relaxation of MC66 and the potential for vertical drinking, Ms Tricker responded that the Premises would be laid out with loose tables and chairs.  The Applicant was content to mark these on the plans if required.

Ms Tricker was asked by the Sub-Committee how the large numbers of members were accommodated.  She replied the numbers could be strictly limited by way of a reservation booking system.  Members were able to book online and via the website.  Ms Sirrell added that in the event members did turn up unannounced, they would be informed of the situation regarding availability.  If any issues did arise and none had to date, security staff would be at the Premises from 20:00 (although they were not required to necessarily be on duty until midnight). 

Ms Sirrell was asked how often the membership committee met.  She replied that it met monthly.  Ms Tricker clarified that any membership forms submitted would not be approved until the membership committee met.  

The Sub-Committee heard from Mr Drayan on behalf of Environmental Health. He advised that it was safe to have seating for 60 people at the Premisesand also have areas where regulated entertainment and dancing could take place.  The capacity had been reduced from 120 because of the means of escape that are available.

Mr Drayan said that the reasons for the maintained representation were the same as that of the Licensing Authority.  There was a reduction in the areas where the Council’s model restaurant condition applied and there was a danger of vertical drinking although a membership scheme was in operation which would give the Applicant some controls.  He did not have any concerns about noise breakout or public safety at the Premises.

Mr Drayan requested that the Sub-Committee approved the proposed amendment to the movement of waste condition.  Commercial waste had been identified as an issue at the Premises and the amended condition would contain the hours that were in keeping with Council collection times. 

The Sub-Committee heard from PC Guerra on behalf of Metropolitan Police.  He had maintained his representation as the application sought to go beyond Core Hours for licensable activities in the West End Cumulative Impact Area.  He advised that there had been no significant crime and disorder associated with the Premises, including when operating under Temporary Event Notices.  He made the point that when there were issues at venues with membership schemes generally it was often the actions of guests which caused problems rather than those of the individual members themselves.  Ms Tricker responded that the names of members and guests were kept at reception.  Under membership rules, members were responsible for the conduct of the guests and would suffer the consequences if the guests misbehaved.  It was stated that Members had a membership card which needed to be shown at the front door of the Premises.  There were also reservations.  It was submitted that there had not been any issues previously in relation to members or their guests. 

The Sub-Committee was addressed by Mr Brown, representing the Soho Society and a local resident.  He stated that they both accepted that the Premises were well run.  It was also accepted that the residents above the Premises supported the application and that the venue was supported by the LGBTQ community.  It was also noted that there were no proposals to extend the closing time or the terminal hour for on sales.  However, Mr Brown made the point that this was not about the operation of the Premises but the Council’s policy regarding cumulative impact in the designated cumulative impact areas and that the application was nonetheless contrary to policy.

Mr Brown observed that there was a high hurdle in place with regard to justifying an exception to the Council’s policy.  Any exception which was made to it could potentially be used as grounds for a precedent.  He requested that the Sub-Committee be certain that there was a very genuine exception in order to grant the application. 

Mr Brown said that the potential for increase in public nuisance needed to be assessed.  He believed that it was indisputable that as a result of the proposals the licence would become more drink led.  The Sub-Committee was licensing the Premises not the operation which was a key consideration.  He referred to the history of the Premises and that the Sub-Committee had originally granted Core Hours for the operation.  Mr Brown expressed the view that the incremental increases in the hours that had been granted had been built up over time to what was now a generous licence. He queried whether the previous licence for the Premises had been a nightclub licence.

Mr Brown raised concerns about the removal of the Council’s model restaurant condition in significant areas of the Premises.  It was submitted that the licence would, if granted, permit a vertical drinking bar to the public until 00:30 when the membership scheme only condition would come into force which could have the potential to change the style and nature of the Premises.

Ms Tricker was given the opportunity by the Sub-Committee to set out the reasons she believed that the application justified being an exception to policy in the West End Cumulative Impact Area.  She responded initially to the points made by Mr Brown.  This included that if the application was granted it would not set a precedent because each application would be dealt with on its own merits.    In response to Mr Brown’s point that the Sub-Committee was licensing the Premises and not the operation, she said that there was no intention on the part of the Applicant to sell the premises.  She also made the point that there was regulated entertainment already on the premises licence.

Ms Tricker expressed the view that the conditions on the licence were exceptional including having a membership scheme in place with the membership being restricted to members of the LBGTQ community plus two guests.  She referred to additional restrictions being proposed, including a last entry time, providing 60 seats at the Premises where everyone would be allocated a seat (and the placing of the seats could be set out in any conditions and on the plans) and there would be waiter or waitress service throughout the Premises at all times.  Ms Tricker emphasised that food was still an important component at the Premises with approximately half the number of people at the Premises being subject to the Council’s model restaurant condition.  She stated that overall in terms of cumulative impact there had been the loss of LGBTQ specific 4.600 capacity venues in the last couple of years.  There was the benefit to the community that people would not be required to leave the Premises for a secondary form of entertainment.  She also re-iterated the points about public transport being available and there being no crime and disorder associated with the premises, including when Temporary Event Notices had been submitted with the relaxation of the Council’s model restaurant condition.

The Sub-Committee gave careful consideration to both the written and also verbal representations at the hearing in respect of this application.  The Sub-Committee in particular noted the reasons given on behalf of the Applicant as to why the application was an exception in the West End Cumulative Impact Area. 

The Sub-Committee considered that, as set out in the licensing history in the papers, previous Sub-Committees had enabled the Applicant a number of extensions in the hours for licensing activities and an extension to the closing time.  The licence permitted the Premises to remain open until 04:00 Monday to Saturday.  Members of the Sub-Committee had taken account of the fact that the Applicant was seeking to provide a safe environment for the LBGTQ community and that the facilities would only be available later in the evening to members of the private members club.  These hours had been permitted because the Applicant was operating a venue with the Council’s model restaurant condition operating throughout the premises and with regulated entertainment taking place within the Council’s Core Hours policy.

The Applicant was now proposing aspects that were contrary to policy.  The sale of alcohol would not be ancillary to a substantial table meal in significant areas of the Premises and to approximately half of the clientele.  Whilst Ms Tricker had emphasised the significance of the membership scheme, it was the case as mentioned by Mr Brown that up to thirty members of the public would be able to drink alcohol without having any food until 00:30 in the West End Cumulative Impact Area before the membership scheme came into effect. The Sub-Committee therefore formed the view that this aspect of the application could potentially change the character and nature of the Premises and were not persuaded that the licensing objectives would be promoted in this regard because there would be a relaxation of the model restaurant condition allowing customers to drink alcohol without buying food.

The application was also contrary to policy in that regulated entertainment was now being applied for well beyond Core Hours.  As set out in the SLPand referred to by Mr Sycamore it is the Licensing Authority’s policy in respect of MD2 to refuse applications in the Cumulative Impact Areas, other than applications to vary hours within the Core Hours.

The Sub-Committee considered that the application would add to cumulative impact.  The Sub-Committee also considered that for an application to be regarded as an exception to policy, it had to demonstrate that it would not have a detrimental effect in the Cumulative Impact Area.  The Sub-Committee was not satisfied that the reasons provided justified a genuine exception to the Cumulative Impact Area Policy.

Conclusion

The Sub-Committee noted that the Premises are well managed and have no issues inside the venue, however, the Sub-Committee took the view that this is a responsible attitude any competent licence holder should display in any event when carrying out licensable activities under the Licensing Act 2003 and did not consider this as a justifiable exception to the policy.  The Sub-Committee did recognise however, the importance of the venue within the LGBTQ community and took fully into account its duty to have due regard to its Public Sector Equality Duty contained under section 149 of the Equality Act 2010 (“The 2010 Act”) so as not to discriminate the Applicant within the meaning ofsection 149 (7) of the 2010 Act, which defines the relevant protected characteristics as age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

The Sub-Committee aforesaid considered all of the evidence pertaining to the application when looking at its Public Sector Equality Duty. The Sub-Committee in its discharging of that duty had due regardto the need to:-

(a)           eliminate discrimination harassment, victimisation and any other conduct that is prohibited by or under this Act

(b)           advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.

(c)           foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

The Sub-Committee in determining the matter also took into consideration the Applicants rights under the Human Rights Act 1998 (incorporating the European Convention on Human Rights). The right to peaceful enjoyment of possessions (Article 1 of the First Protocol) and freedom of expression (Article 10) in addition to balancing the rights of local, Residents, who are also afforded the right to privacy and family life under Article 8.

The Sub-Committee was mindful that this duty places an obligation on it to ensure that the need to promote equality is taken into consideration with, regard to every aspect of its decision making and this approach, was adopted by the Sub-Committee when considering this type of Premises in respect of the LGBTQ Community under the terms of its Cumulative Impact Policy and Government Guidance.

The Sub-Committee also considered the potential financial implications of the Applicants business when considering the matter and had sympathy with the Applicants submissions in relation to the loss of premises for the LGBTQ Community. However, the Sub-Committee had to consider the policy implications based on the written and oral evidence by all parties and with that requirement in mind the Sub-Committee considered that the view it had taken overall to refuse the application was appropriate and proportionate in all the circumstances of the case.

The Sub-Committee accordingly refused the application except for an amendment to condition 20 on the Premises licence.  As requested by Ms Tricker and Mr Drayan and in order to promote the licensing objectives, the revised condition that ‘no rubbish, including bottles, shall be moved, removed or place in outside areas between 23:00 to 06:00 or as in compliance with Westminster City Council’s own waste contractor collection hours’ was attached to the premises licence.

2.

Playing of Recorded Music

Amendments to application advised at hearing:

Ms Tricker, representing the Applicant, confirmed at the hearing that there were some amendments to the application.  It was proposed that the premises would no longer operate on Sundays. All regulated entertainment (including Playing of Recorded Music) which was originally proposed to cease at 03:30 Monday to Saturday was now proposed to end at 03:00.

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

This aspect of the application was refused by the Sub-Committee (see reasons for decision in Section 1).

3.

Performances of Dance

Amendments to application advised at hearing:

Ms Tricker, representing the Applicant, confirmed at the hearing that there were some amendments to the application.  It was proposed that the premises would no longer operate on Sundays. All regulated entertainment (including Performances of Dance) which was originally proposed to cease at 03:30 Monday to Saturday was now proposed to end at 03:00.

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

This aspect of the application was refused by the Sub-Committee (see reasons for decision in Section 1).

4.

Anything of a similar description to live music, recorded music or performances of dance

Amendments to application advised at hearing:

Ms Tricker, representing the Applicant, confirmed at the hearing that there were some amendments to the application.  It was proposed that the premises would no longer operate on Sundays. All regulated entertainment (including Anything of a similar description to live music, recorded music or performances of dance) which was originally proposed to cease at 03:30 Monday to Saturday was now proposed to end at 03:00.

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

This aspect of the application was refused by the Sub-Committee (see reasons for decision in Section 1).

5.

Seasonal variations / non-standard timings

Performance of Live Music, Playing of Recorded Music, Performances of Dance and Anything of a similar description to live music, recorded music or performances of dance

Amendments to application advised at hearing:

Ms Tricker, representing the Applicant, confirmed at the hearing that there were some amendments to the application.  These included that it was proposed that the premises would no longer operate on Sundays.

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

This aspect of the application was refused by the Sub-Committee (see reasons for decision in Section 1).

6.

Conditions proposed to be deleted

Condition 41

Regulated entertainment at the premises shall only be provided ancillary to its use as a restaurant.

Condition 43

Notwithstanding condition 33, alcohol may be supplied and consumed prior to a meal in the designated bar area, by up to a maximum at any one time, of 10 persons dining at the premises.

Amendments to application advised at hearing:

None.

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

This aspect of the application was refused by the Sub-Committee (see reasons for decision in Section 1).

7.

Conditions proposed to be varied

Amendments to application advised at hearing:

None.

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

This aspect of the application was refused by the Sub-Committee except for the amendment to condition 20 relating to the movement of waste (see reasons for decision in Section 1).

8.

Conditions proposed to be added

i)       A minimum number of 30 seats shall be maintained in the basement area at all times of operation.

ii)      The retail sale of alcohol shall be ancillary to the provision of regulated entertainment and/or substantial refreshment.

iii)     One the morning that Greenwich Mean Time changes to British Summer Time one hour will be added to the terminal hour of any activities and to the closing time for the premises where the existing terminal hour for the activities and/or closing hour for the premises ends after 01:00.

Amendments to application advised at hearing:

Ms Tricker, representing the Applicant, confirmed at the hearing that there were some amendments to the application.  These included that the minimum number of seats being maintained in the basement area at all times of operation were being increased from 30 to 60.

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

This aspect of the application was refused by the Sub-Committee (see reasons for decision in Section 1).