Agenda item

Café Pushkin, 20 Berkeley Street, W1

17/08117/LIPV

1.

Late night refreshment

Amendments to application advised at hearing:

None.

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

Mr James Rankin (Barrister, representing the Applicant Company) began by stating that the premises already had planning permission granted on 18th September 2017 to provide late night refreshment and sell alcohol until 00:30 Monday to Saturday and this application intended to mirror these hours. He stated that the premises was not in a cumulative impact area and it was to operate as a restaurant. As such, he referred to paragraph 2.5.14 of the Council’s Statement of Licensing Policy that recognised that restaurants remained open for later hours than some other types of premises in order to provide sufficient time for customers to enjoy their dining experience. Furthermore, Mr Rankin asserted that there was no assumption in the Policy to refuse applications from restaurants that sought to provide alcohol up until 01:00, and this application only sought hours up until 00:30. Mr Rankin added that prior to the Licensing Act 2003, the Licensing Act 1964 had also recognised restaurants remaining open to later hours.

Mr Rankin advised that the premises was to be a high end Russian restaurant and he stated that it was on course to be rated 2 Michelin stars. The target audience was the over 40s who will be well versed in quality dining and it was anticipated that customers would be paying around £150 per head. Mr Rankin referred to the Dr Phil Hadfield report that had been commissioned by the Council to provide an independent study to consider cumulative impact areas in Westminster. The report had stated that the area the premises was located in was suitable to become a cumulative impact area. However, Mr Rankin stated that the report had highlighted premises that had dancing facilities and DJs and operated as, or like, nightclubs later in the evening as those that were causing public nuisance and not the restaurants that were located in the area. He therefore felt that it was appropriate for this premises to be granted later hours. Notwithstanding the Dr Hadfield report, Mr Rankin emphasised the need to consider the application on its own merits and he stated that the granting of this application would not set a precedent in compelling the Council to grant other such applications.

Mr Rankin advised that although the premises licence had been granted in 2014, the premises was yet to open due to issues concerning underground water that was in the process of being resolved. The restaurant was due to open in late spring 2018 and would employ around 100 staff, including a maître d’, that would ensure a high staff to customer ratio. The Applicant Company only intended to offer 2 evening sittings for dinner to include both a pre and post theatre clientele, hence the need for later hours. Mr Rankin confirmed that the opening times would mirror those for licensable activities and he advised the Sub-Committee to ignore his reference to a 01:00 closing time in the Applicant Company’s supporting documents in appendix 1 of the report and he confirmed that planning permission limited opening hours to 00:30 Monday to Saturday and 23:00 Sunday.  Mr Rankin referred to the pre-application advice that the Applicant Company had obtained from Environmental Health, whose stance to the application had remained neutral. They were, he asserted, maintaining their representation due to concerns raised by residents in their representations. Mr Rankin confirmed that the Applicant Company was happy to agree with all conditions requested by Environmental Health as set out in pages 38 and 39 of the report, apart from proposed condition 32, which duplicated existing condition 24 and would help address concerns raised by Councillor Jonathan Glanz on behalf of 17 Berkeley Street Residents Association. Mr Rankin felt that the entrance to the premises along Hay Hill would help reduce public nuisance as it would avoid dropping off and picking up of customers along Berkeley Street where there were a number of residential properties. It was anticipated that around 99% of customers would have pre-booked.

Mr Rankin then concluded his initial submission by stating that the hours requested were modest compared to other licensed premises in the area and he felt that the application was consistent with policy. There were already a number of restricting conditions imposed on the premises through its planning permission and additional conditions had been agreed with Environmental Health. The layout of the premises meant there were no blind spots and there was to be no vertical drinking or drinks offers. The Applicant Company had made attempts to engage with local residents and Councillor Glanz and Mr Thomas O’Maoileoin (Solicitor, representing Applicant Company) had played a role in undertaking this on behalf of the Applicant Company. Mr Rankin stated that the Applicant Company was willing to co-operate and co-exist [PB2] with local residents and he referred to a photograph in the report of the interior of the Applicant Company’s restaurant in Moscow which he described as lavish and luxurious and a similar interior was planned for these premises. There was also a Noise Management Policy in place as set out in pages 30-31 of the report. Finally, Mr Rankin suggested amending proposed condition 27 by deleting the date at the end.

Mr Alexander Zaitsev (Company Director, Applicant Company) then addressed the Sub-Committee. Mr Zaitsev began by stating that the Applicant Company had a significant presence in both Russia and France and had an abundance of international experience. The Applicant Company had supplied food for the 2014 Winter Olympics held in Sochi, Russia, however its main business was restaurants. The Applicant Company had a restaurant operating in central Paris and there were huge opportunities for the Applicant Company to make a Worldwide impact. The Applicant Company had spent the last 20 years building up its business in providing high end restaurants and it had been careful not to disturb local communities in all locations where premises operated and showed respect to residents, customers and its staff. Mr Zaitsev stated that when these premises opened in London, this would be the second restaurant the Applicant Company had in Europe and it would help its business model. He added that the delays to the opening of the premises had been challenging and expensive.

Members asked what the total number of covers and the timings for the 2 dinner sittings would be. Mr Barry Panto (Legal Adviser) asked in relation to proposed condition 30 whether the Berkeley Street Best Practice Policy was now in place.

In reply, Mr Rankin stated that the Applicant Company would be capable of complying to the Berkeley Street Best Practice Policy, however it was awaiting further details of the Policy before it could be fully implemented. He confirmed that the premises would have 125 covers. Mr Zaitsev advised that the first dinner sitting would take place from around 19:00 to 22:00 and the second sitting from 22:30 to closing time.

Mr Anil Drayan (Environmental Health) then addressed the Sub-Committee and confirmed his relatively neutral stance to the application. He stated that he did not anticipate that the proposed activities within the premises would disturb local residents. Checks had been carried out in respect of ventilation plants and other potential noise sources and it was not expected that there would be a risk of noise breakout, nor excessive disturbance caused by customers arriving and leaving the premises. Mr Drayan confirmed that he had no particular concerns with the hours proposed. In respect of problems in the area highlighted in the Dr Hadfield report, Mr Drayan suggested that these could be addressed by the Applicant Company adhering to the Berkeley Street Best Practice Policy and also to the Community Accreditation Scheme that was monitored by the Metropolitan Police. He added that problems generally in the area could be reduced if more premises participated in such schemes and he added that if in future the area did become a cumulative impact area, it would only help prevent new premises opening at later hours.

Mr Richard Brown (Solicitor, Citizens Advice Bureau) addressed the Sub-Committee and confirmed that he was representing Mrs Jaleh Zand, a local resident. Mr Brown informed Members that Mrs Zand had been involved in addressing problems experienced in Berkeley Street that were attributable to licensed premises operating in the area and that she objected to any premises applying for later hours because of the noise and public nuisance already being experienced. Mr Brown acknowledged that as the premises was conditioned as a restaurant, it was less likely to be a source of problems than other types of premises such as bars and nightclubs. In respect of the Dr Hadfield report that had referred to nearby Green Park London Underground station being well connected, Mr Brown stated that a number of people coming and going from the area at night did not use this and they were more likely to use private cars and taxis, adding to noise and traffic on the roads.

Mr Brown referred to the additional representation made by Mrs Zand that had been circulated to the Sub-Committee and all relevant parties which stated that the number of licensed premises operating in the area had led to a considerable increase in nuisance being experienced by local residents. He felt that the problems identified by Mrs Zand in her representation were of the nature that were experienced in cumulative impact areas and the Dr Hadfield report had not only recommended that this area become a cumulative impact area, but that there was also scope to include restaurants as being subject to cumulative impact area policies in this particular area. Notwithstanding this, Mr Brown acknowledged that the area was not currently a cumulative impact area and the application should be considered in the context of its individual merits. However, although policy HRS1 stated that there was a general presumption to grant applications from restaurants up to core hours, any granting of an application beyond core hours, which this application sought on some days, was dependent upon the individual merits of the application. Mr Brown stated that, in accordance with guidance under section 182 of the Licensing Act 2003 (paragraph 14.33), residents could raise concerns about cumulative impact even if the premises in question was not located in a cumulative impact area. Mr Brown concluded his submission by stating that the planning permission approval should not be a factor in considering this application as it was a separate piece of legislation.

Mr Rankin, in his final submission, felt that it would not be good practice to refuse the application on the grounds that the premises may be in a cumulative impact area in future and it should be considered under the current policy. He reiterated his earlier point that the Dr Hadfield report had identified premises with DJs and dancing facilities as the main sources of noise and disturbance in the area at later hours.

The Sub-Committee, after careful consideration, refused the application. In determining the application, the Sub-Committee noted that the premises licence already allowed for licensable activities beyond core hours on Thursdays and Sundays and the hours sought in this application would mean the premises operating beyond core hours 7 days a week. As such, it felt that approving the application for such hours was not appropriate in view of the number of residents living within the vicinity of the premises and the number of objections raised by residents living in Berkeley Street.

The Sub-Committee noted that the residents had raised significant concerns about permitting any new applications that would allow premises to operate at later hours because of the high concentration of establishments in this area already operating at these later times. Furthermore, the Sub-Committee considered that residents had themselves provided evidence that the area was already experiencing the effects of cumulative impact, even though the area was currently not in a designated cumulative impact area. This evidence, and particularly the detailed submission from Mrs Zand, expressed similar concerns to the evidence produced by Mr Hadfield which, it is understood, suggested that restaurants in the area could potentially be included in any new policy measures for the area. The Sub-Committee did recognise that this was an application for a restaurant that was not licensed for any regulated entertainment but nevertheless considered that the application for later hours beyond core hours for this premises in this particular location, would potentially add to the cumulative impact already being experienced by residents in Berkeley Street. In particular, the application would allow later hours for the consumption of alcohol and the evidence suggested that many customers attracted to premises in this area would be using black cabs and private vehicles rather than using public transport. The extension of hours was also to accommodate a second sitting after 22.30 so there was the potential for most of the customers to leave the premises at the same later hour which coincided with the time that customers left other premises in the area. The application was accordingly refused.

The Sub-Committee emphasised that in reaching its decision, the application had been considered on its own merits and under the Council’s existing policy.

2.

Sale by retail of alcohol: On and off sales

Amendments to application advised at hearing:

None.

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

Refused (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):

Refused (see reasons for decision in Section 1).

4.

Conditions proposed to be added

30. The licensee shall operate the premises in accordance with a Berkeley Street Best Practice Policy which shall be created to promote the four licensing objectives. The best practice policy will be reviewed from time to time with the Licensing Authority and the local licensing police. The best practice policy shall cover the following:-

a) The arrival and gradual dispersal of customers to minimise any noise and     disturbance from both Berkeley Street and Hay Hill entrances/exits

b) The Taxi and Valet parking provision

c) Delivery and collections

d) Smoking policy

The best practice policy shall be available for inspection at any time and a copy shall be provided to the police or licensing authority or local resident upon request.

31. The licensee shall meet with local residents not less than once every 3 months (if necessary) to review the best practice policy. The licensee shall advertise the meeting on their group website and notice will be given to the 17 Berkeley Street Residents Association and Mayfair Residents Group by email.

32. There shall be no queues outside the premises.

33. The licence holder will support any neighbourhood monitoring scheme that may exist (from time to time) including contributing financially to any paid for policing scheme on Berkeley Street.

34.   No person on behalf of the premises or on behalf of a person carrying or attempting to carry on a licensable activity shall cause, permit, employ or allow, directly or indirectly, whether on payment or otherwise, any person(s) to importune, solicit or tout members of the public on any public highway within the specified area outlined below for the purpose of bringing customers to the premises. The distribution of leaflets or similar promotional material is also prohibited within the specified area.

For the purpose of this section,

‘Directly’ means:- employ, have control of or instruct.

‘Indirectly’ means allowing / permitting the service of or through a third party.

Amendments to application advised at hearing:

None.

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

Refused as, having decided to refuse the variation application in respect of the hours for the licensable activities, it was not considered appropriate to impose new conditions (see full reasons for decision in Section 1).