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Agenda item

Tomato, 54 Frith Street, London, W1

 

App

No

Ward /

Cumulative Impact Area

Site Name and Address

Application

Licensing Reference Number

1.

West End/ West End

Tomato,

54 Frith Street

London

W1D 4SL

New

20/05045/LIPN

 

Minutes:

WCC LICENSING SUB-COMMITTEE NO. 5

 

Thursday 20th August 2020

 

Membership:           Councillor Murad Gassanly (Chairman), Councillor Margot Bright

                                and Councillor Aziz Toki.

 

 

Officer Support:       Legal Advisor:         Horatio Chance

                                Policy Officer:          Aaron Hardy

                                Committee Officer:  Andrew Palmer

                                Presenting Officer:  Kevin Jackaman

 

 

Application for a New Premises Licence [20/05045/LIPN]

 

Full Decision

 

Premises  

 

Tomato

54 Frith Street

London

W1D 4SL

 

 

Applicant

 

NW3 Frith Limited

 

Represented by Alun Thomas of Thomas & Thomas Solicitors

and Daniel Herbert for the Applicant Company

 

 

Cumulative Impact Area?

 

West End

 

 

Ward

 

West End

 

 

Summary of Application

 

The Sub-Committee considered an application for a New Premises Licence from NW3 Frith Limited, for a new restaurant and bar. The previous licence ref:18/03323/LIPDPS had lapsed in March 2020 following the licence holder going into liquidation, and a new licence was being sought to reinstate on the same terms with the difference that the Applicant has removed private entertainment. As the Applicant will not immediately be selling alcohol, there is no Designated Premises Supervisor nominated. The application sought permission for regulated entertainment, late night refreshment (indoors only) and the sale of alcohol on and off the premises. The Sub-Committee noted that the operating hours licensable activities that had been applied for fell outside of Westminster’s core hours.

 

Additional submissions had been submitted by the Applicant and circulated to all parties. 

 

Proposed licensable activities and hours

(Ground, first and second floor)

 

Late Night Refreshment [Indoors only]

 

Monday to Saturday: 23.00 to 01.30

Sunday                    : 23.00 to 01.00

 

The terminal hour for late night refreshment on New Year's Eve is extended to 05:00 on New Year's Day.

 

 

Recorded Music - Unrestricted [Indoors only]

 

Monday to Sunday  : 00.00 to 00.00

 

On New Year's Eve from the end of permitted hours on New Year's Eve to the start of permitted hours on the following day.

 

 

Sale by Retail of Alcohol [On and Off Sales]

 

Monday to Saturday : 10.00 to 01.00

Sunday                    : 12.00 to 00.30

 

On New Year's Eve from the end of permitted hours on New Year's Eve to the start of permitted hours on the following day.

 

 

Hours premises are open to the public

 

Monday to Saturday : 10.00 to 01.30

Sunday                    : 10.00 to 01.00

 

On New Year's Eve from the end of permitted hours on New Year's Eve to the start of permitted hours on the following day.

 

 

Representations Received

 

·       Environmental Health – represented by Maxwell Koduah

·       The Metropolitan Police – represented by PC Bryan Lewis

·       The Licensing Authority – represented by Angela Seaward

 

 

Summary of issues raised by objectors

 

  • The provision and hours requested for the supply of alcohol, late-night refreshment and playing of recorded music may have the likely effect of causing an increase in public nuisance may affect public safety within the West End Cumulative Impact area and undermine the Licensing Objectives.

·       The application may cause further policing problems in a locality where there is traditionally high levels of crime and disorder.

 

Policy Position

 

Policies CIP1, HRS1, RNT2 and PB2 apply under the City Councils Statement of Licensing Policy (“SLP”)  Paragraph 2.1.8 of the SLP states ‘In cases where licences have lapsed through insolvency or death, the council will generally grant a new licence on similar terms to the lapsed licence as a replacement. However, the council will take into account the previous history of the premises, the length of time the premises have been closed, and any problems at the premises, and will impose conditions that reflect current good practice for the type of business proposed at the premises.’

 

Applications for hours outside the core hours would also be considered on their merits, subject to other relevant policies. The Premises are situated in a Cumulative Impact Area, therefore  the Applicant must  demonstrate that the granting of the application would not add to cumulative impact.

 

 

DECISION

 

Mr Thomas addressed the Sub-Committee and explained that following the previous tenant going into liquidation, the landlord was applying to reinstate the Premises licence to enable the Premises to be marketed to a new tenant. The application for the new licence was being made on the same terms as the licence which had lapsed in March, with the removal of 24-hour private entertainment which would reduce cumulative impact. The Applicant had also agreed all of the conditions reflecting good practice which had been proposed by Environmental Health. The Sub-Committee noted that since the Premises had been operated as the Barrafina, there had been two pop-up operators while the landlord was looking for a more permanent tenant. The Applicant was not aware of any issues of crime and disorder and sought to re-let the unit to a food operator while maintaining some flexibility to serve alcohol without food before 23.00 hours similar to the lapsed licence.

 

Mr Thomas stated that although most of the conditions proposed by the Metropolitan Police had been agreed, the Applicant had been unable to agree to conditions that would not permit any new entry after midnight and would require an SIA doorman. Mr Thomas also submitted that while the local authority had indicated a preference for the licence to be subject to a model restaurant condition, this would only be appropriate if the application was for a new use and not the reinstatement of a recently lapsed licence.  No condition for an SIA doorman had been included on the previous licence. The Premises were not large and had a modest capacity, and Mr Thomas suggested that the proposed conditions and cost of maintaining an SIA doorman could prevent the Applicant securing a good tenant, and would lead to the Premises inevitably being let to a pure bar operator.

 

Mr Thomas referred to the Licensing Policy which stated that the Council would generally regrant licences which had lapsed due to insolvency and impose conditions appropriate to good practice in the area. Mr Thomas suggested that the guidance recognised that different premises had different impacts, and that SIA conditions were usually only imposed on high-volume venues. The Applicant asked that the Sub-Committee grant the same licence as before, with conditions that reflected good practice and made sure the licensing objectives were promoted.

 

Mr Koduah addressed the Sub-Committee on behalf of Environmental Health and stated that he had maintained his representation in order to be able to offer any help to the Sub-Committee in discussing the application. Mr Koduah had sought to replicate the conditions of the lapsed licence, and the Sub-Committee noted that all of the conditions proposed by Environmental Health had been agreed.

 

Ms Seaward addressed the Sub-Committee and confirmed that the Licensing Authority had maintained their representations as the Premises were in a Cumulative Impact Area. The Licensing Authority had been satisfied with the conditions agreed with Environmental Health, and Ms Seaward confirmed that no complaints had been received regarding previous operators.

 

The Sub-Committee heard from PC Lewis, who confirmed that the Police were maintaining their representation on the grounds that the venue was located in the West End Cumulative Impact Area, which was a locality with traditionally high levels of crime and disorder. The Police had concerns that the application would cause further policing problems in an already demanding area, and if granted would undermine the licensing objectives.

 

PC Lewis noted the proposal for the sale of alcohol after 23.00 hours to be ancillary to food but was concerned that this would be difficult to enforce as people already in the Premises may not co-operate.  He also suggested that people would be attracted to the Premises as it had large pitched windows which looked straight into the bar area. The Sub-Committee noted that although the Premises had previously operated as a bar offering vertical drinking, there was no history of problems.

 

The Police had requested a condition providing for a last entry time on Thursday, Friday and Saturday nights, to avoid potential nuisance in what was already a very busy area.  PC Lewis also suggested that it would be good practice to provide a minimum of 1 SIA door supervisor until 01.00 hours to control who went into the Premises during late hours. PC Lewis acknowledged that although not all premises had door supervision, many had security conditions on their licence in case there was a problem.  

 

Mr Thomas noted that the lapsed premises licence had been granted under delegated powers in 2005 during the Licensing Transition, and that a separate Supper Hours Certificate had been needed to serve drinks after 23.00 hours.  Mr Thomas submitted that the Premises had been food led, which the Applicant wished to maintain.  The Applicant had also not previously experienced a rush of people after 23.00 hours, and no complaints had been made. Mr Thomas stated that the temporary pop-up short-term tenancies had been in place to cover business rates while looking for a more permanent solution. The Applicant was seeking a food led operator but needed to keep his options open due to the ongoing difficulties caused by the current Covid-19 pandemic.

 

In conclusion, Mr Thomas submitted that the proposed conditions that had not been agreed by the Applicant were not appropriate for the intended operation of the Premises. Mr Thomas also suggested that the evidence of how the Premises had been used in the past with no problems, incidents or complaints needed to be taken into account; and that having an SIA doorman might also attract the type of customer that was not wanted.  It was noted that the Applicant would be willing to introduce the new tenant to the Police to discuss what security arrangements might be needed.

 

The Sub-Committee concluded that the Premises would not add to negative cumulative impact with the area. It properly considered whether public nuisance would be caused during the later hours but felt that the conditions it had imposed would mitigate the concerns raised particularly condition 16 which requires the Premises after 23:00 hours Monday to Saturday and 22:30 hours on Sunday, where the supply of alcohol shall only be to a person seated taking a table meal and for consumption by such a person as ancillary to their meal. This condition would mean that the Premises would not turn into a bar operation which was the original fear of the Police into the later hours and the Sub-Committee was persuaded that this would not be the case.

 

The Sub-Committee was reassured by the undertakings given by the Applicant that he would work in close consultation with the Police as regards further security for the Premises which would promote the crime and disorder licensing objective.

 

Having carefully considered the committee papers and the submissions made by all of the parties, both orally and in writing, the Sub-Committee has decided, after taking into account all of the individual circumstances of this case and the promotion of the four licensing objectives: -

 

1.        To grant permission for Late Night Refreshment (Indoors only) Monday to Saturday from 23:00 to 01:30 hours and Sunday from 23:00 to 01:00 hours.

 

2.        To grant permission for the Sale of Alcohol On and Off the Premises Monday to Saturday from 10:00 to 01:00 hours and Sunday from 12:00 to 00:30 hours.

 

3.        To grant permission to Play Recorded Music (indoors) Monday to Sunday unrestricted (00:00 to 00:00 hours)

 

4.        To grant permission for the Hours the Premises are Open to the PublicMonday to Saturday 10:00 to 01:30 hours Sunday 10:00 to 01:00 hours.

 

5.        To grant permission for the Seasonal Variations in accordance with the hours and times specified below in Condition 9. 

 

6.        That the Licence is subject to any relevant mandatory conditions.

 

7.        That the Licence is subject to the following additional conditions imposed by the Committee which are considered appropriate and proportionate to promote the licensing objectives.

 

Conditions imposed by the Committee after a hearing

 

 

8.        Substantial food and suitable beverages other than intoxicating liquor (including drinking water) shall be available during the whole of the permitted hours in all parts of the premises where intoxicating liquor is sold or supplied.

 

9.        Alcohol may not be sold, supplied, consumed in or taken from the premises except during permitted hours.

 

In this condition, permitted hours means:

 

(a) On weekdays, other than Christmas Day, Good Friday or New Year's Eve, 10:00 to 23:00

(b) On Sundays, other than Christmas Day or New Year's Eve, 12:00 to 22:30

(c) On Good Friday, 12:00 to 22:30

(d) On Christmas Day, 12:00 to 15:00 and 19:00 to 22:30

(e) On New Year's Eve, except on a Sunday, 10:00 to 23:00

(f) On New Year's Eve on a Sunday, 12:00 to 22:30

(g) On New Year's Eve from the end of permitted hours on New Year's Eve to the start of permitted hours on the following day (or, if there are no permitted hours on the following day, midnight on 31st December).

(ii) Alcohol may be sold or supplied for one hour following the hours set out above other than Christmas Day and New Year's Eve and on Christmas Day, between 15:00 and 19:00 to persons taking table meals in the premise in a part of the premises usually set apart for the service of such persons and for consumption by such a person in that part of the premises as an ancillary to his meal. For other purposes or in other parts of the premises the hours set out above shall continue to apply.

(iii) (a) Alcohol may be sold or supplied until 01:00 in the morning following weekdays (other than Good Friday and Christmas Day), 00:30 in the morning following Sundays (other than Christmas Day) and 00:30 the morning following Good Friday to persons taking table meals in the premises in a part of the premises usually set apart for the service of such persons and for consumption by that person in that part of the premises as an ancillary to his meal.

(b) That part of the premises must also be used for the provision of entertainment by persons present and performing to which the sale or supply of alcohol is also ancillary.

(c) The alcohol must be sold or supplied at a time before (i) the provision of entertainment by persons present and performing or (ii) the provision of substantial refreshment, has ended. For other purposes or in other parts of the premises the hours set out above shall continue to apply.

(d) This condition does not authorise any sale or supply of alcohol to any person admitted to the premises after midnight (23:00 on Sunday) or less than half an hour before the entertainment is due to end, except in accordance with 5(ii)

above.

NOTE - The above restrictions do not prohibit:

(a) during the first twenty minutes after the above hours the consumption of the alcohol on the premises;

(b) during the first twenty minutes after the above hours, the taking of the alcohol from the premises unless the alcohol is supplied or taken in an open vessel;

(c) during the first thirty minutes after the above hours the consumption of the

alcohol on the premises by persons taking table meals there if the alcohol was

supplied for consumption as ancillary to the meals;

(d) the sale or supply of alcohol to or the consumption of alcohol by any person residing in the licensed premises;

(e) the ordering of alcohol to be consumed off the premises, or the despatch by the vendor of the alcohol so ordered;

(f) the sale of alcohol to a trader or registered club for the purposes of the trade or club;

(g) the sale or supply of alcohol to any canteen or mess, being a canteen in which the sale or supply of alcohol is carried out under the authority of the Secretary of State or an authorised mess of members of Her Majesty's naval, military or air forces;

(h) the taking of alcohol from the premises by a person residing there;

(i) the supply of alcohol for consumption on the premises to any private friends of a person residing there who are bona fide entertained by him at his own expense,or the consumption of alcohol by persons so supplied;

(j) the supply of alcohol for consumption on the premises to persons employed there for the purposes of the business carried on by the holder of the licence, or the consumption of liquor so supplied, if the liquor is supplied at the expense of their employer or of the person carrying on or in charge of the business on the premises.

In this condition, any reference to a person residing in the premises shall be construed as including a person not residing there but carrying on or in charge of the business on the premises.

 

10.      No person under fourteen shall be in the bar of the licensed premises during the permitted hours unless one of the following applies:

(a) He is the child of the holder of the premises licence.

(b) He resides in the premises, but is not employed there.

(c) He is in the bar solely for the purpose of passing to or from some part of the premises which is not a bar and to or from which there is no other convenient means of access or egress.

(d) The bar is in railway refreshment rooms or other premises constructed, fitted and intended to be used bona fide for any purpose to which the holding of the licence is ancillary.

In this condition "bar" includes any place exclusively or mainly used for the consumption of intoxicating liquor. But an area is not a bar when it is usual for it to be, and it is, set apart for the service of table meals and alcohol is only sold or supplied to persons as an ancillary to their table meals.

 

11.      The terminal hour for late night refreshment on New Year's Eve is extended to 05:00 on New Year's Day.

 

12.      The premises shall install and maintain a comprehensive CCTV system as per the minimum requirements of the Westminster Police Licensing Team. All entry and exit points will be covered enabling frontal identification of every person entering in any light condition. The CCTV system shall continually record whilst the premises is open for licensable activities and during all times when customers remain on the premises. All recordings shall be stored for a minimum period of 31 days with date and time stamping. Viewing of recordings shall be made available immediately upon the request of Police or authorised officer throughout the entire 31 day period.

 

13.      A staff member from the premises who is conversant with the operation of the CCTV system shall be on the premises at all times when the premises is open. This staff member must be able to provide a Police or authorised council officer copies of recent CCTV images or data with the absolute minimum of delay when requested.

 

14.      A Challenge 21 or Challenge 25 proof of age scheme shall be operated at the premises where the only acceptable forms of identification are recognised photographic identification cards, such as a driving licence, passport or proof of age card with the PASS Hologram.

 

15.      An incident log shall be kept at the premises, and made available on request to an authorised officer of the City Council or the Police. It must be completed within 24 hours of the incident and will record the following: all crimes reported to the venue all ejections of patrons any complaints received concerning crime and disorder any incidents of disorder all seizures of drugs or offensive weapons any faults in the CCTV system, searching equipment or scanning equipment any refusal of the sale of alcohol any visit by a relevant authority or emergency service.

 

16.      After 23:00 hours Monday to Saturday and 22:30 hours on Sunday, the supply of alcohol at the premises shall only be to a person seated taking a table meal there and for consumption by such a person as ancillary to their meal.

 

17.      There shall be no sales of alcohol for consumption off the premises after 23.00 hours.

 

18.      There shall be no sales of hot food or hot drink for consumption off the premises after 23.00 hours.

 

19.      Save for alcohol consumed at the licenced pavement area, all sales of alcohol for consumption off the premises shall be in sealed containers only.

 

20.      Substantial food and non-intoxicating beverages, including drinking water, shall be available in all parts of the premises where alcohol is sold or supplied for consumption on the premises.

 

21.      No noise generated on the premises, or by its associated plant or equipment, shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.

 

22.      All windows and external doors shall be kept closed after 23:00 hours, or at any time when regulated entertainment takes place, except for the immediate access and egress of persons.

 

23.      All tables and chairs shall be removed from the outside area by 23.00 hours each day.

 

24.      All waste shall be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.

 

25.      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.

 

26.      The means of escape provided for the premises shall be maintained unobstructed, free of trip hazards, be immediately available and clearly identified in accordance with the plans provided.

 

27.      There shall be no drinks taken outside the premises by customers after 23:00 hours.

 

If problems are experienced, then an application for a review of the Premises licence can be made.

 

The Licensing Sub-Committee

20 August 2021

 

Supporting documents: