Decision Maker: Licensing Sub-Committee (2)
Decision status: Recommendations Approved
Is Key decision?: No
Is subject to call in?: No
Present: Mr NimetOner (applicant); Ms Ilkay Cinco Oner (representing the applicant); Mr Richard Brown, Citizens Advice Westminster, Licensing Project (representing residents); Mr Gareth Hughes, Counsel (representing the Langham Court Hotel); Mr Yoram Blumann, representing the Fitzrovia Neighbourhood Association; Mr Christopher Sharp, Mr Austen Callison, and Ms Barbara Corr (objectors).
Representations: Representations had been received from the Environmental Health Service (EHS); The Licensing Authority, and Residents.
Applicant: Mr Nimet Oner
Ward: West End
CIA: Not applicable
Summary of Application
The application was for a new premises licence.
The Chairman welcomed everyone to the meeting and introduced the Members of the Sub-Committee and the Council Officers who would be supporting the Sub-Committee. The Chairman explained the procedure that would be followed at the meeting before inviting the Presenting Officer, Ms Jessica Donovan, to present the report.
PRESENTATIONS AND SUBMISSIONS
Ms Jessica Donovan, Senior Licensing Officer
Ms Donovan summarised the application as set out in the report before the Sub-Committee, noting that, during the consultation process, the applicant had withdrawn the application for the “Performance of Dance”.
Ms Donovan stated that representations had been received from the Environmental Health Service (EHS), residents, and the Langham Court Hotel, represented by Mr Gareth Hughes, Counsel, Keystone Law. The Metropolitan Police Service (MPS) had also made representations but these had subsequently been withdrawn following agreement with the applicant on proposed conditions to be attached to the Premises Licence.
An additional submission had been received from Mr Richard Brown and this had been included in the Additional Information Pack circulated to Members.
Ms Ilkay Cinco Oner, Premises Leaseholder (On Behalf of the Applicant)
Ms Oner, stated that she was the leaseholder of the premises which were managed by Mr Oner. Having reviewed the objections to the application, it had been decided to withdraw the application for “Performance of Dance” and to prepare a response to the queries raised by neighbours, which had been circulated with the papers before the subcommittee.
Ms Oner stated that the applicant did not wish to cause any nuisance or disruption to the neighbours. She stated that it was a very small restaurant accommodating 28 people upstairs and 30 people downstairs. The application was for an extension of the premises’ hours on Thursday to Saturday with the Performance of Music restricted to downstairs.
Ms Oner stated that, regarding the dispersal of patrons and management of the smoking area, the applicant was willing to consider any proposals that might be put forward by residents. In addition, a member of staff would be employed to manage the door and ensure there was no disturbance as patrons left the premises.
The reason for applying to extend the hours during which the premises could operate was because the limited space within the premises meant that, if customers arrived at 8 PM, there was not enough time to do a second cover during the evening. Therefore, by extending the hours, it would be possible to cater for two covers during the evening. Also, the downstairs area was used primarily for group bookings of between 10 and 15. If a group arrived at 9 PM, the tendency was for that group to want to stay later in the evening.
Ms Oner noted that concerns had expressed about the premises becoming a bar. She emphasised that the premises would not become a bar: there would be no vertical drinking, and the sale of alcohol would be ancillary to a meal and would be by table service only.
In conclusion, Ms Oner stated that the applicant was willing to discuss any concerns anyone might have about the application, noting that the applicant had accepted the conditions proposed by the MPS.
In response to questions by Members, Ms Oner and Mr Oner provided the following information.
(a) Regarding the music proposed for the basement area, this would be background music or a person playing a saxophone or a guitar. There would not be hard-core drum and bass and/or a resident DJ. In addition, the music would be unplugged, acoustic music and would not be amplified.
(b) Regarding noise nuisance complaints, the applicant had never received any noise abatement or other documentation relating to noise complaints.
(c) Regarding bookings by large groups, if this was an evening booking, often the menu would have been agreed in advance and would consist of 3 to 4 courses with an expectation that the group would stay for 2 to 3 hours.
(d) The proposed door staff would be SIA registered door supervisors who would be employed on Thursday, Friday and Saturday evenings.
Mr David Nevitt, Environmental Health Service
Mr Nevitt stated that the Environmental Health Service (EHS) had maintained its representation as there were several objections by residents and because the application was beyond the Council’s policy on Core Hours.
Referring to the existing Premises Licence at Appendix 1 of the report before the subcommittee, Mr Nevitt noted that there was nothing in the conditions to prohibit the applicant from operating the basement area as a bar. The only caveats to this were that substantial food and suitable beverages other than intoxicating liquor should be available during the whole of the permitted hours in all parts of the premises where intoxicating liquor was sold; and that intoxicating liquor would only be served at the external tables if it was ancillary to a table meal, and not after 22:00 hours.
Mr Nevitt then referred to the Plans in the report before the subcommittee, noting that, in relation to the proposal for live entertainment, there was no acoustic lobby at the entrance to the premises.
The applicant, having been advised by the EHS that the hours applied for would attract a lot of representations from residents, the applicant had subsequently amended the application and reduced the proposed applied-for hours the premises would be open to the public and the hours for licensable activities. In response, the EHS proposed that Model Condition (MC) 38: alcohol will only be supplied to people who are seated and taking a table meal, should apply after 23:00 hours. This would mean that, at the later hours, the premises could only operate as a restaurant and not become a late-night bar. It was also proposed that, after 23:00 hours, entertainment be restricted to the basement thereby containing any noise to the basement area.
In addition, the EHS had requested there be door supervisors from 10 PM, and that there be an agreed designated smoking area.
Mr Nevitt stated there was no history of noise complaints from these premises which had been operating for quite a long time as a restaurant. In addition, the Sub-Committee had granted licences to premises to operate as a restaurant up until 1 AM where there had been no history of complaints relating to the premises; where there were appropriate conditions attached to the licence; and where there were measures in place to promote the Licensing Objectives.
Mr Richard Brown, Citizens Advice Westminster, Licensing Project (On Behalf of Residents & Others)
Mr Brown noted that the premises was in the middle of Fitzrovia in a residential area and not near to any tube stations thereby giving rise to concerns about dispersal and possible noise nuisance.
It was apparent from the representations made by residents that there was a lot of goodwill towards the restaurant and residents wished the restaurant success when it reopened. However, it was not accurate to say there had been no noise complaints about the premises. In so doing, he noted that one of the representations referred to a visit by Council officers to the premises in response to a noise complaint about a speaker outside the premises. In addition, complaints had been made to Mr Blumann of the Fitzrovia Neighbourhood Association (FNA). Mr Brown then referred to specific complaints set out in the representations.
Having summarised the complaints set out in the representations, Mr Brown proposed that, should the application be granted, this would exacerbate existing concerns about noise nuisance which might otherwise be managed within the existing licence conditions. He noted that the applied-for hours were beyond core hours and, therefore, a stricter policy regime would apply when considering any extension of the existing hours. This was set out in Paragraph 6 of his submission on Page 8 of the Additional Information Pack.
The location of the premises and its proximity to the nearest underground stations meant that customers using public transport would have to walk through residential areas as late as 2 AM to get to the underground stations.
Regarding the use of the outside tables and chairs, it was noted that the premises licence conditions required the sale of alcohol to persons seated outside to cease at 10 PM. If the Sub-Committee was minded to extend the operating hours, it may wish to consider a condition that the outside tables and chairs are not available for use after 10 PM.
Mr Brown stated that residents were opposed to the application to allow live music until midnight, noting there was no acoustic lobby at the entrance to the premises, and no proposals to install a sound limiter. There was, therefore, a concern on the part of residents that, if granted, the application would allow the premises to become a late-night venue and not simply a restaurant.
Residents would also like to see conditions restricting servicing of the premises to suitable times.
Mr Brown referred to the policy considerations set out in Paragraph 6 of his Submission, in particular, Paragraph E8 of the Core Hours Policy (HRS1) in the Council’s Statement of Licensing Policy (SoLP), which emphasised the link between a late terminal hour and dispersal; and Policy PN1 (Prevention of Public Nuisance) and the application of that policy in accordance with the criteria and consideration set out in the SoLP,
In conclusion, Mr Brown stated that, to grant the application, any extension of the hours the premises were open to the public to 01:00 hours or 01:30 hours would cause a nuisance notwithstanding the best intentions of the applicant.
Presentations by Residents
At this stage of the proceedings, the subcommittee, at the invitation of Mr Brown, heard representations from some of the residents who were present at the meeting and who had submitted written representations opposing the application.
In response to a question by the Chairman, Mr Nevitt (EHS) stated that consideration had been given to possible noise nuisance as a consequence of using the basement area for live music. As the basement area was of limited capacity and self-contained, and as the music would not be amplified, it was his considered opinion that playing live music in the basement area would not give rise to a nuisance.
Mr Nevitt went on to say that, on checking the Council’s records for noise complaints relating to these premises, there had been a complaint in 2017 about the use of speakers outside the premises which had resulted in Council officers visiting the premises. On that occasion, it was not held that the speakers constituted a nuisance. He also noted that live and recorded music were not regulated activities before 11 PM. Therefore, he felt it was a reasonable compromise to restrict live music to the basement area.
Gareth Hughes, Counsel (on behalf of the Langham Court Hotel)
Mr Hughes stated that he represented the Langham Court hotel which was immediately adjacent to Bellaria Restaurant. It had been noted that recorded and live music was not subject to regulation before 23:00 hours. However, both were subject to noise controls and environmental protection.
It was Mr Hughes’ submission there was too little evidence in the application to support the late hours sought by the applicant. Therefore, the application must fail. He proposed that the existing hours, which were within the Council’s Core Hours, were reasonable for premises operating as a restaurant, and his client had no objection to the current operation of the premises.
Mr Hughes noted the Sub-Committee had previously considered an application in respect of these premises which had subsequently been withdrawn. He noted that the present application did not improve upon that previous application or present any additional evidence. He suggested that the Sub-Committee might have expected to see Dispersal and Management Plans as part of the application. Most importantly, there was no acoustic report.
Regarding the Licensing Objective of the Prevention of Public Nuisance, there was nothing in the application to say how the applicant would promote this objective or measures to ameliorate possible noise nuisance, particularly given there was a party wall between the premises and the Langham Court hotel next door.
Mr Hughes then referred to the Council’s Statement of Licensing Policy (SoLP) as set out in his letter on Page 82 of the papers before the subcommittee. In his letter, he had referred to the Council’s Core Hours policy, in particular, the provisions of Paragraph B which referred to the proximity of residential accommodation. He stated that, even if music was restricted to the basement area, there was a concern that, because there was a party wall between the applicant’s premises and the Langham Court hotel, guests staying in the neighbouring property would be disturbed. Furthermore, without an acoustic report, there was no evidence to indicate there would be no transmission of sound through the party wall.
In conclusion, Mr Hughes stated it was a poor application that did not satisfy the Council’s SoLP; did not comply with the requirements of the Licensing Objective of the Prevention of Public Nuisance; and that the existing premises licence was a perfectly satisfactory licence.
In response to a number of questions, Mr Hughes provided the following information.
(a) There were two entrances to the restaurant as indicated on the Plans in the papers before the subcommittee: an entrance on the corner of great Titchfield Street and Langham Street; and an entrance on Langham Street, adjacent to the Langham Court hotel.
Ms Oner confirmed that the entrance on Langham Street, which led into the premises’ kitchen area, had never been used, including use as an emergency exit, in the 15 years that the applicant had operated the premises.
(b) The concern was not the use of the doors on Langham Street, but the late-night use of the tables on the pavement outside these doors which were close to guest bedrooms in the adjacent Langham Court hotel.
(c) On the other side of the party wall in the basement area of the restaurant was an unoccupied room in the Langham Court hotel. The concern was that any sound in the restaurant basement area would transmit up through the party wall causing a disturbance to residents in the guest bedrooms adjacent to the applicant’s premises.
(d) The Langham Court hotel had a 24-hour Hotel licence but there was no late-night drinking in the Hotel, and the hotel restaurant was open only at breakfast time when it offered continental breakfasts.
The Chairman referred to the licence conditions proposed by the Responsible Authorities and Ms Oner confirmed that the applicant had agreed to these conditions. In addition, Ms Oner said that the applicant would be willing to reduce the applied-for hours that the premises were open to the public on Thursday to Saturday from 1:30 AM to 1 AM.
Questions by Officers
In response to questions by the subcommittee’s Legal Officer, Ms Viviene Walker, Ms Oner provided the following information.
(a) Use of the tables and chairs outside the restaurant, in keeping with the present arrangement, would not be permitted after 11 PM.
(b) There would be a designated smoking area outside the premises and the number of persons allowed to use the designated smoking area at any one time would be restricted to 6 persons, or possibly 2 or 3 persons, if required by the subcommittee.
Mr Nevitt, Environmental Health Service (EHS)
In summing up his representations, Mr Nevitt stated that, in response to questions in the Meeting Chat, he could provide the following information.
(a) The applicant already provided live music in the basement area and there had been no complaints from the Langham Court hotel that there was noise nuisance affecting guests. Also, Mr Hughes had confirmed there was an unoccupied space on the other side of the party wall in the basement area of the restaurant. Therefore, he was of the opinion that any transmission of sound through the party wall was not sufficient to create a nuisance. However, should that change, the EHS could deal with any concerns at that time.
(b) Regarding the tables and chairs outside the premises, 11 PM was a standard terminal hour for the use of tables and chairs outside restaurants. Regarding the use of tables and chairs by smokers, it would be for the applicant to show that they were managing the designated smoking area in an appropriate manner.
There was scope for an area outside the premises under one of the awnings to be to accommodate a designated smoking area. In addition, the applicant had proposed that the door supervisor would be responsible for managing the smoking area.
In conclusion, the EHS was satisfied that the proposed conditions agreed with the applicant were sufficient to address the concerns that had been raised. The only matter that remained outstanding was that of the application being beyond the Council’s Core Hours policy, and that was a matter for the Sub-Committee to determine.
Mr Brown, Citizens Advice Westminster, Licensing Project
Mr Brown noted that Mr Nevitt’s explanation that the speaker outside the premises (referred to in an objector’s representations on Page 12 of the report before the subcommittee) was not deemed to be causing a nuisance would explain why there was no record of complaints associated with the premises.
Regarding tables and chairs, if these were not to be used after 11 PM, and they could not be taken inside the premises, then it would be necessary to render them unusable from 11 PM, should the application be granted.
Mr Brown stated that those objecting to the application remained of the view that the current operating hours were appropriate, and that case law made the appropriateness of the proposed operating hours a prime consideration for the subcommittee.
Mr Brown proposed that, extending the hours of operation would allow people to drink more and, therefore, there would be increased levels of noise until later into the night with a greater likelihood of residents’ sleep being interrupted as people dispersed.
Regarding Mr Nevitt’s comments that the Council had granted 1 AM licences to restaurants where there had been no previous complaints, Mr Brown noted that there had been complaints in relation to these premises. There had also been 24 representations from residents objecting to the application and this was highly relevant when determining the application.
Mr Brown noted the comments by the Fitzrovia Neighbourhood Association (FNA) when it stated –
“There are quite a few long-established restaurants and cafés, coexisting with a large residential population. This has long been the case. It is part of the character of the area. Typically, those establishments hold premises licences for core hours, and there is a good relationship between the residents and those restaurants.”
Mr Brown asked that the sensitive balance in this area be maintained, noting that residents supported the restaurant, including the alfresco dining scheme, and wished the premises luck when it reopened.
In conclusion, Mr Brown stated that any increase in the operating hours would not promote the Licensing Objectives. Therefore, the application should be refused.
Mr Hughes On Behalf of the Langham Court Hotel
Mr Hughes stated that this was an unsatisfactory application and, on behalf of the Langham Court hotel, he echoed the comments of Mr Brown regarding the number of representations that had been received from residents opposing the application.
He stated that the Sub-Committee might be prepared to exercise some latitude where there were only a few objectors to an application. However, on this occasion, there were a lot of objectors.
Mr Hughes went on to say that, when an application for a premises licence for premises adjoining a sensitive property, be it a hotel or residential property, there was an expectation that the applicant would submit an acoustic report. Because of the party wall, it was to be expected that noise from the restaurant basement area when live music was performed would be transmitted through the party wall up the building and into the adjoining guest rooms of the Langham Court hotel.
People exiting the premises at 1:30 AM and walking past the Langham Court hotel would be only yards away from the hotel bedroom windows. As such, any noise made by people at that sensitive hour, notwithstanding their being a SIA door supervisor at the premises, would cause a disturbance to the hotel residents in those guest rooms.
Mr Hughes noted that a similar application had been submitted and subsequently withdrawn by the applicant at the end of last year. He stated that the present application before the Sub-Committee showed no improvement on the previous application and was not supported by accompanying reports. The application had done nothing to address the concerns previously expressed and, therefore, nothing had changed since the previous application. Accordingly, he asked that the Sub-Committee refuse the application and that the premises be allowed to continue to operate in accordance with its existing satisfactory premises licence.
Ms Ilkay Cinco Oner, on Behalf of the Applicant
The Chairman invited Ms Oner to sum up her presentation and address a number of issues raised during the course of the proceedings.
In response, Ms Oner stated that the restaurant opened at 12 midday and there were no deliveries before that 10 AM. Regarding refuse collections and the use of the tables and chairs, the applicant worked with Westminster City Council on arrangements for refuse collection, and external tables were folded and the tables and chairs stacked against the wall after 11 PM.
Regarding noise and the Council’s policy on Core Hours, Ms Oner stated that there were many restaurants within the vicinity, two of which had late-night licences and which had been operating for many years. She said that she was not aware of any noise complaints having been made about these two late-night premises.
Measures to reduce noise levels included the proposal to employ a SIA door supervisor to ensure that people did not congregate outside the premises. The applicant would also make arrangements to order taxis, including Uber, for customers, or to provide them with the telephone numbers of taxi firms. In addition, the premises was located no more than a 7-minute walk from Oxford and Great Portland Street Underground stations.
The applicant did not wish to cause any nuisance to its neighbours. In response to complaints about the speaker outside the premises, the applicant had taken the speaker down. Ms Oner stated that the applicant wished to live in harmony with the neighbours and that the applicant would do everything possible to ensure there was no noise nuisance and to comply with any conditions that the Sub-Committee might attach to the premises licence.
At this stage in the proceedings, the Chairman adjourned the meeting to allow Members to retire to consider their decision. He stated that the Sub-Committee would not announce its decision today but that a summary of the decision would be sent to the various parties within five working days.
The Chairman then closed the live part of the virtual meeting.
It was the Sub-Committee’s decision to Approve the application, as set out in the Summary Decision attached to these minutes as an Appendix.
REASONS FOR THE DECISION
Having read the report by the Director of Public Protection and Licensing that was before it; the written submissions of the applicant and those parties objecting to the application; and, having heard presentations and representations by, and/or on behalf of, those parties present at the proceedings, as well as the responses by those parties to questions put to them by Members of the Sub-Committee, the Sub-Committee was satisfied that, in accordance with the Home Office Guidance, and on the evidence before it, it was reasonable, appropriate and proportionate, in all the circumstances, to APPROVE the application.
In reaching its decision, the Sub-Committee took the following matters into consideration.
1. Having agreed proposed conditions with the applicant, the Metropolitan Police Service (MPS) had subsequently withdrawn its representations on the application.
2. Following discussions with Environmental Health Services (EHS) officers, the applicant had agreed to a number of proposed conditions and had agreed to amend the application to reduce the hours that the premises would be open to the public Thursday to Saturday, as set out in the application.
3. During the course of the proceedings, the applicant had stated that he would be prepared to reduce further the hours the premises were open to the public on Thursday to Saturday, as set out in the amended application.
4. Live and recorded music was played in the basement area of the premises and, during the time the applicant had operated these premises, this had not given rise to any noise complaints from residents or the adjoining Langham Court hotel.
5. The reason given by the applicant for wishing to extend the hours for licensable activities on Thursdays to Saturdays was to allow the applicant to cater for two covers on those evenings. Extending the hours that the premises were open to the public by one hour on Thursdays to Saturdays would allow the applicant to achieve that objective.
6. The measures proposed by the applicant to promote the Licensing Objective of the Prevention of Public Nuisance, including the employing a SIA badged door supervisor from 10 PM on Thursdays to Saturdays, along with the licence conditions agreed with the MPS and the EHS were sufficient.
The meeting ended at:
 Cumulative Impact Area
 Agenda: page 70 of the report of the Director of Public Protection & Licensing.
 In response to the complaint, the applicant had removed the speakers notwithstanding that council officers were of the view that they did not cause a nuisance.
 Fitzrovia Neighbourhood Association representation; page 22 of the report of the Director of Public Protection & Licensing
 Revised Guidance issued under section 182 of the Licensing Act 2003, April 2018
Publication date: 29/03/2021
Date of decision: 18/03/2021
Decided at meeting: 18/03/2021 - Licensing Sub-Committee (2)