Agenda item

MRH Dorset House, 170-172 Marylebone Road NW1

17/08439/LIPN (“The Premises”)

1.

Sale by retail of alcohol (Off)

Amendments to application advised at hearing:

None.

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

The Sub-Committee was advised by Ms Wade, the Presenting Officer, that the records of the Licensing Service indicated that the previous licence for the premises had been surrendered.  However, this was currently being investigated as an e-mail had recently been received from the previous licence holder who had stated that the site was closed on 30 September 2012.

The Sub-Committee heard from Mr Botkai, representing the Applicant.  He said that this was an application for a new Premises licence.  If the licence had not been surrendered, the Applicant Company would be keen for the licence to be transferred to them.  It was the Applicant’s understanding that the Premises licence had lapsed some years ago. 

Mr Botkai explained that the previous licence had permitted the sale of alcohol from 08:00 to 23:00 Monday to Saturday and 10:00 to 22:30 on Sundays.  There had been no conditions on the previous Premises licence at all.  The Applicant was seeking to reinstate what had previously taken place at the Premises.  There had been a petrol station at the foot of Dorset House for many years prior to its closure.  The petrol station was one of thirteen with protected status under the Westminster Development Plan.  This meant that there was a policy not to grant any other planning use at this site. 

Mr Botkai drew the Sub-Committee’s attention to the list of the Council’s model restaurant conditions which had been proposed in the operating schedule.  A condition had also been proposed that the entrance door to the shop would be locked to customers between the hours of 23:00 and 05:00.  Any sales between these hours would be made through the night pay window.  There were proposed conditions offered to deter street drinkers, including no high strength beer or single cans sold.  Mr Botkai made the point that there would be a very small range of alcohol sold at what would be a relatively small shop.  Following the agreement of conditions between the Applicant and the Police, the latter had withdrawn their representation.

Mr Botkai referred to the Council’s policy and in particular that there was no presumption against off licences.  The proposed hours for off sales in the application were within the Council’s Core Hours policy.  It was the case that premises which do cause a problem would be dealt with on review.

Mr Botkai spoke of the experience of the Applicant.  It was submitted that MRH owns 312 licensed petrol stations, the majority of which are licensed 24 hours a day.  MRH adopts a Challenge 25 policy and trains staff accordingly.  Staff training was refreshed every six months.  Staff were equipped to refuse sales where appropriate to do so.

Mr Botkai wished to emphasise, in response to the concerns set out by residents in their written representations, that there are a number of petrol stations in Westminster that are situated beneath residents’ properties.  The site would be monitored 24 hours a day.  Every 20 minutes a third party contractor would be monitoring it for any signs of leakage in order to prevent any potential for a fire.

Mr Botkai referred to residents’ representations questioning the primary use of the Premises and that if the Premises are primarily used as a garage the licence would have no effect.  This is set out in Section 176 of the Licensing Act 2003 (“The Act”).  He believed that he and Mr Brown, representing residents, were in agreement that the Act does not require an application to demonstrate primary use as part of the application process.  The Applicant would be required to monitor the situation once the licence is in effect as is the case with its other petrol stations.  If it was found that the Premises were primarily used as a garage, the Applicant would voluntarily suspend its sales of alcohol.  Mr Botkai informed those present that MRH forecasted how a store was likely to perform in order to satisfy itself that it the shop would not be primarily a garage.  This was achieved by studying other stores in its network of petrol stations which may have similarities.  Mr Botkai had shared data with Mr Brown prior to the hearing in order to respond to his concerns about the primary use.  In response to a question from the Sub-Committee, Mr Botkai advised that MRH’s Park Lane petrol station was one of the comparable premises which had been studied in detail by the Applicant Company.

Mr Botkai made the point that the residents’ objection to a petrol station operating at this location was not a matter for the Sub-Committee to consider.  It was the proposed licensable activities there.  The petrol station would be opening as the Applicant had been given the relevant consents.  MRH was a very experienced operator.  Mr Botkai referred to the incident where a lady had set herself on fire in the car park adjacent to the petrol station and commented that this did not have anything to do with the operation of the petrol station.  He disputed that there were any specific risks to pedestrians at this location.  He also believed that there was no evidence to show that begging, drug use or drunken behaviour at this location would increase if the application was granted.  Mr Botkai also disputed that the garage would be specifically targeted by students for alcohol or that pollution would increase.  There was no evidence to show that there was a link between petrol stations selling alcohol and drink-driving.

Mr Botkai confirmed that the Applicant had agreed a condition with the Police that there would be ‘no sales of hot food for consumption off the premises after 23:00 and before 05:00’.  The application for late night refreshment would therefore be limited to the sale of hot drinks.  He expressed the view that there was unlikely to be any anti-social behaviour or public nuisance caused by the sale of hot drinks from the night pay window.  He gave a commitment that if Environmental Health or the Police raised any concerns about the sales of hot drinks in the evening the Applicant would cease to provide this.  In response to a question from the Sub-Committee, Mr Botkai replied that the vast majority of MRH stores did sell hot drinks during the night.

The Sub-Committee heard from Mrs Fabbricatore on behalf of Environmental Health.  She stated that she had maintained her representation to assist as there were residents’ representations.  She advised that the Applicant’s proposed conditions were likely to minimise the potential for public nuisance, including that the public would not be able to enter the premises after 23:00.

The Sub-Committee was addressed by Mr Brown, representing two residents who lived above the petrol station.  He said that they were not keen on the petrol station being re-introduced to this location or the Premises licence being granted.  Mr Brown confirmed that he did agree with Mr Botkai that there was not a requirement for the Applicant to demonstrate beyond doubt that the primary use of the Premises was not a garage.  However, he believed it was important to look at the specific wording in Section 176 of the Act  because the Sub-Committee was required to exercise its functions with a view to promoting the licensing objectives.  If the store was an excluded premises, in selling alcohol staff would be committing a criminal offence.  If the application was granted without the Sub-Committee being privy to this information and the Applicant was likely to be committing a criminal offence, Mr Brown queried how the crime and disorder licensing objective was being promoted.  Mr Brown added that the parameters for making a decision were the likely effect of a grant, not whether it would happen.  The Sub-Committee was perfectly entitled to look at the likely effect of the operation of the premises in its determination of the matter.

Mr Brown remarked that residents in their written representations had spoken with one voice objecting to the application.  There was concern about the risk of having a petrol station at this location underneath a residential block.  Mr Brown believed it was feasible to make the case that there would be more pollution due to engines idling.  There were also public safety concerns with cars crossing over the pavement into the petrol station.

Mr Brown stated, in respect of the sale of alcohol, that there were concerns in relation to increased footfall at this location.  He made the point that the Applicant had to demonstrate the footfall in order to demonstrate that the primary use was not that of a garage.  It was the view of the residents that the the attraction of the convenience store could encourage anti-social behaviour and public nuisance in the area.  Mr Brown referred to residents’ representations mentioning street drinking in the area.

There was also concern from residents, Mr Brown said, regarding the potential for public nuisance from a 24 hour a day operation.  There was a reference in the residents’ representations to noise circulating upwards in the residential block.  Mr Brown questioned the benefit of the night hatch/pay window from the point of view that customers would be speaking to staff from outside the store.

Mr Brown also addressed the Sub-Committee on the previous licence at the Premises.  He advised that it did permit the sale of alcohol until 23:00 but had not permitted late night refreshment.

The Sub-Committee also heard from Mr Norman.  He stated he was a leaseholder in the residential block, that there were 110 people who belonged to the Dorset House Residents’ Association and the Association had objected to the application.  He made the point that over the last two years anti-social behaviour had gone up in the area.  There was defecation, the smell of urine and litter around the building.  Mr Norman believed the application would add to anti-social behaviour if granted.  He said that there were a number of people who congregated in the area.  He was also concerned that the traffic situation was becoming more dangerous, including as a result of the Baker Street Two Way traffic system.

Mr Botkai was given an opportunity to respond to the comments of the objectors.  He said it was the Applicant’s understanding that the petrol station had previously operated 24 hours a day.  He clarified that he had not made the point that the petrol station would not add to pollution but that the specific application for licensable activities would not add to pollution.  Mr Botkai re-iterated that street drinkers would not be able to enter the premises after 23:00.  If they sought to purchase alcohol at the night pay window after that time they would be refused.  He also stated that it was the case that there were numerous places where people could buy alcohol in the area and that MRH’s price point would be higher than most other retailers in the area.  The conditions would make it unattractive to street drinkers to obtain alcohol at the Premises.  Anyone entering the Premises would have to engage with the cashier at the relatively small store.  During the day there would be two members of staff on duty in the store.

Mr Botkai also responded to the concerns Mr Norman expressed regarding the rise of anti-social behaviour with the point that the petrol station site had been derelict.  It would now be much brighter and well lit and would be well managed.  The Applicant was willing to accept the Council’s Model Condition 42 being attached to the Premises licence that ‘during the hours of operation of the Premises, the licence holder shall ensure sufficient measures are in place to remove and prevent litter or waste arising or accumulating from customers in the area immediately outside the premises, and that this area shall be swept and or washed, and litter and sweepings collected and stored in accordance with the approved refuse storage arrangements by close of business’.  Mr Botkai added that none of MRH’s premises licences had been reviewed.  In order for a petrol station to survive it needed to have a good store and alcohol was part of the offer.

The Sub-Committee asked Mr Botkai whether he would be minded to disclose the projected data for the store, which had been provided to Mr Brown, to assist in their consideration of the application.  Mr Botkai replied that he was content to do so.  This was based on information from two other comparable stores.  Primary use was based on customer transactions/usage rather than turnover.  The forecast fill volume was £4m and sales at the shop were £800,000.  Mr Botkai remarked that it was most unlikely that the store at Marylebone Road would be below the 50% transactions to turnover threshold.  The projections for Park Lane and Edgware Road had been accurate.  If the forecast was not accurate at Marylebone Road, the store would not be profitable.  There were cases where data had been supplied to officers at licensing authorities.  Mr Timbers provided examples of off-sales being removed voluntarily, at Wellington Road and in Vauxhall Bridge Road, because they did not meet the primary use test.

After careful consideration of the representations received, including those of the residents, the Sub-Committee decided to grant the application.  The Sub-Committee noted that it was not part of their deliberations to consider whether there should be a petrol station at the Premises.  The matter for consideration was whether licensable activities should be permitted at the Premises.  In reaching the decision to grant the application, the Sub-Committee took into account that the Applicant was a very experienced operator of petrol stations with off licences and that were able to sell hot drinks.  There was no evidence to demonstrate that the Applicant would not promote the licensing objectives.  The Applicant had agreed conditions with the Metropolitan Police which placed a number of restrictions on the store.  The conditions would not encourage street drinkers or children under the age of 18 to obtain alcohol at the premises.  The store would be closed at 23:00 when the night pay window would open, there would be no sales of single cans or bottles of beer and a Challenge 25 policy would be in place.  The Sub-Committee also accepted Mr Botkai’s point that there was no evidence of a link between the purchase of alcohol at petrol stations and drink-driving in the same way there was no evidence of a link between the purchase of alcohol at other off licences and drink-driving.  In the event that the Premises did not comply with the conditions or undermined the licensing objectives, there was the option to review the premises licence. 

The Sub-Committee noted that following the agreement of proposed conditions, the Metropolitan Police had withdrawn their representation.  Environmental Health had maintained their representation in order to assist residents and the Sub-Committee but did not have any specific concerns regarding the potential for public nuisance or public safety.  The Applicant had offered to have Model Condition 42 attached to the Premises licence and the Sub-Committee considered that this would assist in cleaning and removing litter immediately outside the Premises.         

2.

Late Night Refreshment (Indoors and Outdoors)

Amendments to application advised at hearing:

Mr Botkai, the Applicant’s Representative, confirmed at the hearing that the Applicant had agreed a condition with the Police (prior to the Police withdrawing their representation) that there would be ‘no sales of hot food for consumption off the premises after 23:00 and before 05:00’.  The application for late night refreshment would therefore be limited to the sale of hot drinks.

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

Granted, subject to conditions as set out below (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.  As set out above, licensable activities were not permitted 24 hours a day.