Agenda item

48 Albemarle Street, London, W1S 4JP (“The Premises”) 19/00705/LIPN

1.

Sale by retail of Alcohol: On the premises

Monday to Wednesday: 10:00 to 23:30

Thursday to Saturday: 10:00 to 00:00

Sunday: 12:00 to 22:30

Seasonal Variations/Non-standard timings:

From the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day. 

An additional hour from the end of permitted hours on the morning following Valentine’s Day, Christmas Eve and Boxing day.

Sunday before Bank Holidays 12:00 to 00:00

Amendments to application advised at hearing:

None.

2.

Sale by retail of Alcohol: Off the premises

Monday to Saturday: 10:00 to 23:00

Sunday: 12:00 to 22:30

Seasonal Variations/Non-standard timings: None

Amendments to application advised at hearing:

None.

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

Ms Michelle Stewart (Presenting Officer) confirmed the application, advising the Sub-Committee that this was a new premises license application for a ‘shadow licence’.  She advised that the Environmental Health Service (EH) and the current licence holder had made representations, however EH had since withdrawn their representation, whilst the current licence holder had maintained their representations, objecting to the application.  Ms Stewart advised the Sub-Committee that the premises was in West End Ward and not in the Cumulative Impact Area (CIA).

Mr Barry Panto (WCC legal Adviser) addressed the Sub-Committee and all parties advising that a number of issues had been raised as to whether the application made was valid and suggested that the Sub-Committee deal with these issues first.

Before dealing with those issues, Mr James Rankin (Applicant’s Solicitor), informed the Sub-Committee he questioned why Mr Julian Skeens (Solicitor, Representing the currently licence holder) and Mr Luke Elford (Representing the current licence holder) were in attendance and their motives for attending.  Mr Rankin advised that Trophaeum, who is the parent company of Tizzola Ltd (Applicant Company) let the premises to Gazelle Bar Ltd (Objector) and for some time had concerns regarding the solvency and otherwise of Gazelle Bar Ltd.  He advised that Gazelle Bar Ltd stopped trading in January 2019 and that his client had received an e-mail dated 25^th March from Anthony Batty and Co, who advised that the Directors of Gazelle Bar Ltd had filed a notice of intention to appoint joint administrators of the company.  Mr Rankin advised the Sub Committee that Gazelle Bar Ltd was currently going bust. Mr Rankin wanted it made clear who Mr Skeens was representing and who had instructed him.

Mr Skeens addressed the Sub-Committee and confirmed that the licence had been transferred directly to Mr Conigliaro and he instructed him to attend today. Mr Rankin informed the Sub-Committee that all correspondence supplied, including the objection, had been presented by Gazelle Bar Ltd. Mr Rankin felt that if Mr Skeens was instructed by someone with no authority to take part in the proceedings then Mr Skeens should not be in attendance and sought further clarity from Mr Skeens.  Mr Skeens advised the Sub-Committee that Mr Conigliaro was one of the directors of Gazelle Bar Ltd and is now the current licensee.

Mr Rankin advised that this was an application for a shadow licence. He informed the Sub-Committee that concept of a shadow licences is well known and they are often applied for by landlords when they want to protect their interests.  Mr Rankin referred to the High Court case of Extreme Oyster in 2013, successfully judicially reviewing a decision by a Guildford Borough Council.  Mr Rankin went on to advise that Shadow Licenses were recognised by Westminster Council’s policies and referred to paragraphs 3.2.11 to 3.2.14 of the Statement of Licensing Policy 2016.  Mr Rankin advised the Sub-Committee that in the event of insolvency landlords can move more quickly to protect their interests and not be held to ransom by tenants. He stated that the license would be on exactly the same terms as the current licence. 

Mr Rankin advised the Sub-Committee that TLT Solicitors had sent many letters raising points which he felt were entirely without merit.   Mr Rankin advised the Sub-Committee that Mr Skeens was suggesting that the entire licence application was defective, as firstly his client had failed to identify the DPS (Designated Premises Supervisor) which is a mandatory requirement under section 17 and secondly, because his client failed to submit a copy of the plan.  Mr Rankin referred to the practical difficulty with the portal and the processes of the online application, where one is unable to proceed with the application unless the appropriate boxes are ticked.  Mr Rankin advised the Sub-Committee that while the boxes for the DPS and plans were ticked, it was made clear in the application what was being sought. 

Mr Ranking referred to the letter from TLT Solicitors dated 15^th February where it alleged abuse of process, claiming that the application was invalid and fundamentally flawed. Further correspondence was sent on the 6^th March which amplified the reasons why it was said that the application was defective.  Mr Rankin advised that that the applicant’s solicitors responded to the letters on the 25^th March and copies had been circulated to all parties.  Mr Rankin explained that the letters from TLT had been forwarded to the WCC Licensing Service, where legal advice was sought.  In response to the first letter, WCC Licensing Service advised on 27^th February that the application could not be ruled as invalid. 

Mr Rankin referred to the application form advising the Sub-Committee that it was very clear that the application was for a Shadow licence.  He referred to page 90 of the additional bundle where the text stated to “Please use plans attached to licence no. 17/07479/LIPN”; and page 94 where they had ticked the box for the DPS and indicated “N/A Mr Shadow Licence, DOB 17.01.2019”, because they had to fill something in that box or the application could not be submitted online.

Mr Rankin advised that the plans were accessible to the public via the council’s website and demonstrated this with a screenshot which was sent as a part of the additional pack (page 110) and circulated to all parties, highlighting that no one would be prejudiced by the application form.  Mr Rankin then referred to the case of D&D Bar Services v Romford Magistrates 2014 (page 169 of the additional bundle), where the claimant’s suggestion that the licensing review process should be invalidated solely because of two minor errors was held to be entirely without merit.  Mr Rankin informed the Sub-Committee that Judge Blackett (Sitting as a judge of the High Court Judge) stated: “It could never have been Parliament's intention that minor errors on a notice or advertisement for a licensing review should make any subsequent consideration of a licence void. Such an approach would lead to absurd consequences. There had to be substantial compliance with regulations 38(1)(a) and reg.39(c) but the process should not be frustrated by minor errors. The suggestion that there had been a total failure to comply with a significant part of a requirement did not reflect the reality of what had occurred. The District Judge in the Magistrate’s’ Court had considered the errors in the notices to be "minor irregularities", and in the context that was an entirely reasonable conclusion and he had been right to follow the principle that the court should consider what consequences flowed from a breach.

Mr Rankin explained that Mr David Matthias QC representing the interested party (LB Redbridge) argued that “It would be extraordinary if Parliament intended the whole review to be a nullity solely because there were some errors in the notice. The legislation did not disclose an intention to render the process invalid because of minor and inconsequential errors.  It is only where legislation specifies what will happen if there is a breach or failure (a stage 1 case) that the issue can be resolved by applying the legislation.  Where it does not so specify (a stage 2 case) the intention of Parliament must be imputed.  In this case the legislation does not specify the consequences of a breach of the regulations, therefore there is no need to impute Parliament’s intention from the wording of ss 51 and 52 of the Act.  At the time the Act was passed, Parliament would not have intended the review process to be invalidated because of a failure to comply to the letter with every detail of Regulations which has not yet been written.  The words “this section applies” is not determinative – it is not a clear enough form of words to discern an express intention of Parliament to say what happens in the event of a breach of Regulations.” 

Mr Rankin advised that this was a stage 2 case, though he then advised that Mr Skeens was suggesting that the two issues identified by him at this hearing were mandatory and non-compliance meant that the whole application was invalid.  Mr Rankin referred to the “Discussion” in (paragraph 19 of the D&D Bar Services case at page 173 of the additional bundle) and advised the Sub-Committee that if these were irregularities, then they were minor (a stage 2 case) and were a consequence of the online procedure.

With regard to completing the DPS on the online portal, Mr Rankin went on to inform the Sub-Committee that this was a practise that TLT Solicitors adopted themselves when applying for licences and referred to examples of other licences application submitted by TLT Solicitors. (1) The Flying Pie Limited where under DPS, TBC was entered and (2) 29 Floral Street where under DPS Mr Elford (from TLT Solicitors) was entered as the DPS, with clearly no intention to trade.  Mr Rankin advised that this demonstrated that this was an acceptable practise.  Mr Rankin asked the Sub-Committee to make a preliminary ruling on the points that Mr Skeens had raised and if there had been some breach of the statute then it was minor (a stage 2 case) and should impute the will of Parliament.  He argued that they had not substantially failed to comply with the statute, and there had been no substantial prejudice or injustice.

After checking online, Mr Alun Thomas (Representing the Applicant Company) advised the Sub-Committee that there had been a transfer of the existing license on the 18^th March to Mr Conigliaro.  Mr Thomas advised the Sub-Committee that he was concerned, as Gazelle Bar Ltd submitted the objection and Mr Skeens was representing Mr Conigliaro and was not instructed by Gazelle Bar Ltd, therefore why is he in attendance.

Mr Skeens addressed the Committee and advised that it would be absurd if his client (Mr Conigliaro) could not adopt the objection that had been made by his company, especially as he had himself been substantially prejudiced by the application for the shadow licence. He also pointed out that Mr Thomas would have been alerted to the transfer application being made had his client given the appropriate notice of his property interest in the premises under section 178 of the 2003 Act. 

Mr Skeens advised the Sub-Committee that Mr Conigliaro either as himself or as a company negotiated a lease with the Landlord and agreed to invest in the application for a licence, he also negotiated a condition that the Landlord would not make any applications for a shadow licence or any other kind of licence. Mr Skeens suggested that usually where there is conflict between tenant and landlord parties tend to resolve themselves not via a shadow licence.  Mr Skeens felt that the application was prejudicial to his client and the Landlord could not simply say that the agreed condition did not exist. 

Referring to Mr Thomas’s letter dated the 25^th February, Mr Skeens advised the Sub-Committee that Mr Thomas advised that it was not his fault, but the fault of the online portal.  He also advised that on the application Mr Thomas ticked the box stating that “I have attached the plan” and that it was an offence under section 158 to make a false statement.  Mr Skeens advised the Sub-Committee that the portal was there to a facilitate the application and there was nothing to stop Mr Thomas from making a paper application, where he could have provided further details regarding why the application was not adhered to.  Mr Skeens also informed the Sub-Committee that one of the things that the applicant must do when applying for a transfer is enclose a notice with the consent of the existing licensee and, if they are unable to obtain that, they can ask the Licensing Committee for a waiver of that requirement under the Committees jurisdiction and discretion.

Mr Skeens addressed the course of a stage 2 case application and whether someone who has not followed the regulations can be penalised. He referred to Regulation 31 of the Hearings Regulations which states “Any irregularity resulting from any failure to comply with these regulations before the authority has made a decision shall not of itself render the condition void.  That is not the same as saying that if you do not comply with the Act of Parliament you can carry on regardless. 

With regard to 29 Floral Street, Mr Skeens advised that the application was lawful, and that Mr Elford does hold a personal licence, what was different is that case was consenting to a named individual and the proper way to make an application.  Mr Skeens advised the Sub-Committee that with regard to D&D Bar Services v Romford Magistrates the applicant complied with the Act requirements, however in relation to the premises licence the area of minor irregularities can be challenged if they are not correct. Mr Skeen advised that the guidance referred to a personal licence and regulations cannot be challenge.

Mr Thomas requested that Mr Skeens clarified who he was representing and who instructed him to attend today’s hearing.  Mr Skeens confirmed that he was only made aware recently of the possible intention to wind the company up and that he was acting on the instructions of Mr Conigliaro.  Mr Panto addressed the Sub-Committee and asked if the representation was made by Gazelle Bar Ltd as a company and not by its director. This was confirmed as correct.  If was also confirmed by Mr Elford that the company had not yet been dissolved and had provided notice, but had not yet appointed any administrators.  Mr Panto asked if Mr Conigliaro remained a director of Gazelle Ltd and this was confirmed by Mr Elford. Mr Panto sought confirmation that the Gazelle Bar Ltd had not actually been dissolved as yet and therefore continued as a legal entity. That confirmation was also forthcoming.

After a short retirement, the Sub-Committee returned and advised all parties that it believed that it had a valid objection from Gazelle Bar Ltd, albeit that there was some ambiguity as to who is actually represented by Mr Skeens. The matter was allowed to proceed on the basis that Mr Skeens was still representing the licence holder, albeit that the licence holder was now Mr Conigliaro (on an interim basis) and that Mr Conigliaro was and remained a Director of Gazelle Bar Ltd. 

However, the Sub-Committee did not agree that the application for the shadow licence was invalid.  The Sub-Committee confirmed that despite the irregularities in the application they would consider the application in front of them for the reasons argued by Mr Rankin. The Sub-Committee agreed that the irregularities were of stage 2 type and acknowledged that there were some defects in the application but did not consider that they substantially prejudiced the objectors and did not consider that they gave rise to an injustice. The Sub-Committee then asked Mr Skeens why it should refuse the application, and if the Sub-Committee were minded to grant the application, why it should impose the two suggested conditions as per the TLT Solicitors letter dated 15^th March. 

Mr Skeens advised the Sub-Committee that he was no longer concerned with the proposed conditions.  Mr Skeens advised the Sub-Committee that he felt shadow licenses were abhorrent and undermined the licensing authority objectives.  Mr Skeens felt that shadow licenses created problems within enforcement, as it was unclear which licence to enforce. Mr Skeens advised that it was an abuse of process in that the Applicant has no present intention to use the licence themselves. He could not fathom what the advantage of a shadow licence was to the licensing authority.

The purpose of a shadow licence is to have a licence ready to bring into force immediately without having to apply for a new licence and to avoid the notice period and potential objections. What it does is it denies members of the public a chance have a say in whether a licence should be granted at the relevant time. Equally importantly, it denies the Licensing Authority an opportunity to consider whether a new licence should be granted at the relevant time and in those circumstances, it must be contrary to the Licensing Objectives.

Mr Skeens advised the Sub-Committee that TLT Solicitors acted on behalf of Gazelle Ltd in obtaining the licence and they also acted for Gazelle Ltd in the negotiation of its lease of the premises from Tizzola Properties Limited ("the Applicant").  Mr Skeens informed the Sub-Committee that during the negotiation of the lease between Gazelle Ltd and the Applicant there was much discussion about whether the Applicant would apply for a Premises Licence or whether the Premises Licence would be applied for by Gazelle. The lease was negotiated on the basis that Gazelle would apply for a Premises Licence. A clause was also inserted into the lease prohibiting the Applicant from making any application for a Premises Licence.

Mr Skeens advised that the clause 7.5 of the lease states “that the Landlord shall not (and shall not authorise any other person to) make an application for a Premises Licence for the Property”.  Mr Skeens felt that the application was made in breach of an express provision of the lease between Gazelle Ltd and the Applicant.  Mr Skeens stated that this had been pointed out to the Applicant via the Applicant's solicitors, Thomas & Thomas Partners and they had invited the Applicant to withdraw their application. The Applicant has thus far refused to do so and Gazelle Ltd are considering legal action in relation to the wilful breach of clause 7.5 by the Applicant. 

In response to Mr Skeens statement regarding the Extreme Oyster case Mr Rankin advised the Sub-Committee that Mr Justice Turner approved the Shadow licence regime.  Mr Skeens challenged Mr Rankin’s view as to whether Justice Turner had actually approved of the Shadow licence regime.  Mr Rankin went on to advise the Sub-Committee that there is nothing in the licensing Act that prohibits shadow licenses and simply registering one’s interest did not protect Landlords from rogue tenants.  Mr Rankin specifically mentioned section 27 where, if a current licence holder becomes insolvent, there is only a 28-day period in which the Landlord has an opportunity to make a transfer.  

Mr Rankin further pointed out that if the primary licence is ever reviewed, there is always the potential to also review the shadow licence. He noted that this was specifically referred to in the Councils licensing policy. With reference to the alleged breach of the lease agreement, he said that was not a matter for this Licensing Sub-Committee and, in any event, it would be necessary for Mr Skeens to prove damage to his client. He denied that a shadow licence had an adverse impact on the value of the primary licence. What it did do was to prevent the holder of the primary licence from seeking to gain an advantage by refusing to consent to the transfer of the primary licence to the landlord without the payment of compensation. That enabled the tenant to hold the landlord to ransom and that was considered to be abhorrent.

It was recognised that each decision made by the Licensing Committee was made on its individual merits. However, it was acknowledged that the Council has granted many licenses that were deemed to be “Shadow Licenses” and it was considered that the Extreme Oyster case was clear authority for being able to do that in principle. The licensing authority did share some of the concerns that had been expressed about the granting of shadow licences, but it was also recognised that those concerns had been addressed by Mr Justice Turner in the Extreme Oyster case and it would be wholly wrong to decide that the granting of any shadow licence was somehow abhorrent to the operation of the Licensing Act 2003. Moreover, the Council’s approach to shadow licence applications was now clearly set out in its Statement of Licensing Policy as explained by Mr Rankin.

In those circumstances, the Licensing Sub-Committee had to go on to decide whether to grant the application on its individual merits. It was noted that there were no objections from any of the responsible authorities and no objections from any local residents or businesses. Bearing in mind the conclusions reached above by the Licensing Sub-Committee and the fact that the licence sought would be in identical terms to the existing licence, the only issue to consider was whether any weight could be given to the assertions that had made regarding the leasehold negotiations between the applicant and the objector.

Whilst there were some concerns in that regard, the matter was not one for the Licensing Sub-Committee to rule on as it had no impact on the licensing objectives themselves. It was a matter of a contractual dispute between the parties that would have to be resolved elsewhere. The mere allegation that the applicant had breached the terms of the lease did not mean that the granting of the licence application would undermine any of the licensing objectives. Having regard to all the written and oral submissions made by both parties, the Licensing Sub-Committee therefore concluded that the application would be granted as applied for. It was recognised that the granting of the licence was potentially prejudicial to the interests of the objecting licence holder but that was not a reason to refuse the application. The terms and conditions would be identical to the existing primary licence as set out in Appendix 6 to the report.

3.

Late Night Refreshment: Indoors

Monday to Wednesday: 23:00 to 23:30

Thursday to Saturday: 23:00 to 00:00

Sunday: None

Seasonal Variations/Non-standard timings:

From the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day. 

An additional hour from the end of permitted hours on the morning following Valentine’s Day, Christmas Eve and Boxing day.

Sunday immediately before Bank Holidays 23:00 to 00:00

Amendments to application advised at hearing:

None.

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

The Sub-Committee granted the application (see reasons for decision in Sections 1 and 2 above).

4.

Exhibition of a Film

Monday to Wednesday: 10:00 to 23:30

Thursday to Saturday: 10:00 to 00:00

Sunday: 12:00 to 23:00

Seasonal Variations/Non-standard timings:

From the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day. 

An additional hour from the end of permitted hours on the morning following Valentine’s Day, Christmas Eve and Boxing day.

Sunday before Bank Holidays 12:00 to 00:00

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

The Sub-Committee granted the application (see reasons for decision in Sections 1 and 2 above).

5.

Hours Premises Open to the Public

Monday to Wednesday: 08:00 to 00:00

Thursday to Saturday: 08:00 to 00:30

Sunday: 12:00 to 23:00

Seasonal Variations/Non-standard timings:

From the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day. 

An additional hour from the end of permitted hours on the morning following Valentine’s Day, Christmas Eve and Boxing day.

Sunday before Bank Holidays 12:00 to 00:00

Amendments to application advised at hearing:

None.

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

The Sub-Committee granted the application (see reasons for decision in Sections 1 and 2 above).