Agenda item

Ward CIA*	Site Name & Address	Application Type	Licensing Reference No.
Warwick	58-60 Lupus St, London SW1V 3EE	New Premises Licence	20/08598/LIPN
*Cumulative Impact Area

 

Present:                   Mr Manuel Rocha (representing the applicant); Councillor Jacqui Wilkinson (witness for the applicant); Mr Richard Brown, Citizens Advice Westminster (representing residents); and Parthe Ward & Pauline Moran (local residents).

 

Representations:    Representations had been received from

Applicant:                Atlantico (UK) Ltd

Ward:                       Warwick

CIA[1]:                         Not applicable

Summary of Application

The application was for a new premises licence.

INTRODUCTION

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 then explained the procedure that would be followed at the meeting before inviting the Presenting Officer, Ms Michelle Steward, to present the report.

PRESENTATIONS AND SUBMISSIONS

Ms Michelle Steward, Senior Licensing Officer

Ms Michelle Steward, Senior Licensing Officer, summarised the application as set out in the report before the Sub Committee. In so doing, Ms Steward noted that the applicant, Mr Antonio Lopez Vieira, would be represented by Mr Manuel Rocha, and that Councillor Jacqui Wilkinson would speak on behalf of Mr Vieira in supporting the application.

Ms Steward stated that, during the consultation period, the applicant had agreed to reduce the terminal hour to 20:00 hours, Monday to Saturday; and 18:00 hours on Sundays. Representations on the application had been received from the Environmental Health Service (EHS) and several residents, represented by Richard Brown of Citizens Advice Westminster. During the consultation period, and after agreement on proposed conditions, the Metropolitan Police Service (MPS) had withdrawn their representation on the application.

Mr Manuel Rocha, On Behalf of the Applicant

Mr Rocha stated that the application was for a new delicatessen shop which had opened in December. He stated that the applicant had previously owned a shop in Victoria [43a Warwick Way, Lillington and Longmoore Gardens, London SW1V 1QS], but when the lease on the premises was not renewed, it was necessary for the applicant to find alternative premises and had chosen these premises in Pimlico as the business had a lot of customers in the area.

 

 

[Mr Rocha, referring to his representation at Appendix 2 of the papers, described the wholesale import business operated by Atlantico (UK) Ltd, noting that the company imported a vast number of products from Brazil and Portugal for distribution to retail shops, hotels and restaurants, including its delicatessen premises, Delicias de Portugal].

Mr Rocha stated that the applicant wished to sell alcohol as a complement to its deli products and that it was not a typical off-licence. Having read the representations from residents, he stated that, to address residents’ concerns, the application had been amended to reduce the opening hours, noting that the application was for the Sale by Retail of Alcohol (Off Sales Only) and, therefore, there would be no “On Sales” of alcohol to customers either inside the premises or seated at the tables outside the premises.

[Mr Rocha then described how the premises would operate with regard to deliveries and waste collection; service at the tables and chairs outside the premises; and the conditions that had been agreed with the Police, including the requirement that the premises have suitable CCTV installed; implementation of “Challenge 21” in respect of sales of licensable products; and regular staff training on the sale of alcohol].

Mr Rocha stated that the applicant had agreed to numerous conditions to promote the Licensing Objectives, as set out at Appendix 4 of the report of the Director of Public Protection and Licensing.

In response to questions from Members of the Sub Committee, Mr Rocha provided the following information.

(a)    Only teas, coffees, soft drinks and sandwiches would be served to customers sitting outside. As the applicant was applying for Off Sales only, there would be no sale of alcohol to customers for consumption on the premises or seated outside the premises.

In response to a proposal by the Chairman, Mr Rocha stated that the applicant would be willing to accept a condition on the licence that alcohol would not be served to customers seated outside the premises.

(b)    At 6 PM, the tables and chairs outside the premises would be brought inside and there would be no service to customers outside the premises after 6 PM.

(c)    The applicant would be willing to accept a condition on the licence that the premises would operate primarily as a delicatessen.

Mr Ian Watson, Environmental Health Service

Mr Watson stated that he would divide his presentation into three parts, as follows –

(1)    The application;

(2)    The concerns set out in the representations; and

(3)    The ongoing discussions between the Council and the applicant about the complaints about noise and vibration emanating from the premises.

The Application

The Environmental Health Service (EHS) had no objections to the proposed hours of operation as submitted by the applicant as these were within the Council’s core hours and the applicant had agreed to proposed conditions on the licence. The applicant had subsequently applied for a number of Temporary Event Notices (TENs) to allow it to sell alcohol while the premises licence application was awaiting determination.

In response to concerns by residents, the applicant had subsequently amended the application and it was the amended application that was before the Sub Committee.

Concerns Raised by Residents

In summary, most of the concerns raised by residents were about the proposed opening hours and the On Sale of alcohol to customers inside the shop and to customers seated outside the premises using the tables and chairs, the applicant having been granted planning permission to place tables and chairs outside premises.

Mr Watson noted that the applicant had amended the hours applied for and that the application was for Off Sales only. Therefore, the obligation on the applicant was to sell alcohol that was in sealed containers and this extended to wine tastings on the premises unless the wine used in tastings was provided free of charge.

Permission had been granted for the use of external tables and chairs until 6 PM. However, in accordance with the Coronavirus Regulations and the current lockdown conditions, the applicant was not permitted to use the tables and chairs outside the premises.

Regarding concerns about the terms and conditions of the Planning approval for the premises, Mr Watson stated that there may have been some misunderstanding on the part of residents as to the relevance of the Planning Permission to the current application. He stated that the planning application was not relevant to this application.

Residents had expressed concerns about street drinking and antisocial behaviour. Mr Watson noted that Westminster City Council had addressed this issue by making the whole of Westminster a Controlled Drinking Zone (CDZ) which allowed the Police[2] to confiscate alcohol, if necessary, from anyone on the street. In addition, the Police[3] could establish a dispersal zone in a particular area if this was deemed necessary. Therefore, there were powers in place to address these particular concerns.

Regarding deliveries and collections, following a site visit, it had been confirmed that the applicant was capable of complying with the conditions that had been proposed by the EHS.

Referring to the plans of the premises, Mr Watson noted that the double doors in the basement area were no longer there. Therefore, the premises’ plans should be amended with the red line demarcating the proposed licensable area redrawn along the wall where the double doors had been located. This would reduce the area to be licensed as it would exclude the yard area. In addition, the plan should be amended to show the basement toilet lobby area. It was noted that, if the application was approved, it would be necessary to submit up-to-date and accurate plans.

Referring to the Additional Information Pack and the photographs on page 82 of the yard area at the back of the premises, Mr Watson noted that the fridge/freezer cooling units in the rear walls of the premises had now been relocated inside the premises. The fridge/freezer cooling units that remained on the outside walls, and for which there was no planning permission, were now the subject of planning enforcement action and had been turned off until such time as the planning issues had been resolved.

Referring to the windows shown in the photographs, Mr Watson noted that, at the top of one of the windows, there was an extractor unit which, at the time of his site visit, was switched on. The noise from the unit was a potential source of nuisance and Mr Watson had proposed to the applicant that a limiter could be installed on the unit that would reduce the noise while allowing the unit to operate in an effective manner. In addition, a timer could be installed in the unit to ensure that it was automatically switched off when the premises closed. As yet, he had not had a response from Mr Rocha and it may be that Mr Rocha could advise the Sub Committee regarding the proposals.

Referring to the fridge freezer units in the premises, Mr Watson noted that these were mounted on anti-vibration units (one of which could be described as a substantial anti-vibration unit). However, further investigation was necessary to determine if the units were free of the fabric of the building thereby preventing any vibration travelling through the structure of the building.

An inspection of the premises had not identified any noise from the fridge/freezer cooling units that had been relocated within the premises. However, noise was audible from the extractor unit discussed and that there was some vibration in the building from the freezer units inside the premises. Consequently, there was ongoing discussion between the City Inspector, Mr Franks, and residents regarding their complaints about noise and vibration.

In response to questions by Members, Mr Watson provided the following information.

(a)  The rear door under the cooling unit identified as No. 9 on page 82 of the Additional Information Pack, when closed, provided very good acoustic control over the noise of the fridge/freezer units inside the premises. As the applicant did not require access to the rear yard for storage, he proposed that this door kept closed except for emergencies.

(b)  The basement area was required to be licensed as this was where the wines were displayed i.e., there was no wine display on the ground floor of the premises.

Mr Richard Brown, Citizens Advice Westminster (on behalf of residents)

Mr Brown referred the Sub Committee to his submission on page 75 of the Additional Information Pack and to the paragraph on page 80 where it was stated:

“Residents do not object to an OFF license sale of alcohol but simply wish to align the hours with the opening hours of the shop, in accordance with licensing guidelines in order to protect the general public and prevent long hours from becoming a nuisance.”

Although residents did not object to the Off Sales of alcohol, they strongly disagreed with some of the assertions made in the applicant’s submission. He stated that this may be the result of a misunderstanding on the part of the applicant, for example, the application, if granted, would allow customers seated outside the premises to consume alcohol purchased on the premises. Mr Brown acknowledged that the applicant had stated he was willing to accept a condition on the licence that would prohibit customers from consuming alcohol while seated outside the premises, and suggested that the condition might be extended to include not just the tables and chairs but the immediate vicinity.

Regarding noise nuisance, Mr Brown stated that complaints by residents centred on noise from within the premises which was disturbing residents during the night[4]. He noted that Mr Watson had stated that this was the subject of ongoing investigations and that, to date, it had not possible to assess any noise nuisance from within residents’ flats because of the restrictions imposed by the current Coronavirus Regulations.

Regarding the proposed opening hours, Mr Brown stated that residents had no objection to Off Sales of alcohol during the hours of 9 AM to 6 PM, in line with the operation of other licensed premises in the area, and subject to a condition that there would be no consumption of alcohol in the seated area outside the premises. He noted that the tables and chairs licence and the premises planning approval both referred to operating hours of 9 AM to 6 PM. Therefore, it was appropriate to marry up all the hours of operation, including the premises licence. In addition, there was a reference in the Statement of Licensing Policy that operators should not apply for licensable hours that exceeded the proposed hours of operation.

Regarding delivery services such as Deliveroo, Mr Brown referred to Paragraph 4.2.6 of his submission where he noted that a later licence/closing time would mean that noise nuisance from such services would continue to later in the evening.

Mr Brown then noted that the concerns of residents regarding waste and recycling collections, as set out in Paragraph 4.2.7 of his submission, had been addressed by Mr Watson in his presentation.

In conclusion, Mr Brown referred to Council Policy PN1: Prevention of Public Nuisance, of which the relevant parts relating to noise nuisance, including noise, vibration and the proximity of residential accommodation, were set out in his submission at Paragraph 5.

Representation by Parthe Ward, Resident

Ms Ward, noting that this part of Lupus Street was largely residential, stated that residents were particularly concerned that the premises operating hours should not extend beyond 6 PM, and should be in line with the operating hours of other commercial premises in the retail parade.

She stated that residents valued the shopping parade and welcomed the opening of the delicatessen. However, residents were concerned about the proposal for outside seating and the possibility that customers could be using this area after 6 PM thereby causing a nuisance to residents, in particular, those residents living directly above the premises. In addition, residents would like a reassurance that alcohol would not be served to customers seated outside the premises.

Regarding the noise and vibration from the cooling units which had been installed at the rear of the premises in November of last year, Ms Ward stated that these had been a source of substantial nuisance to residents (the premises having previously operated as a carpet shop with no need for [industrial] refrigeration). She noted that the block in which the premises was located was a 1950s build with no sound insulation. The noise and vibration, which it was believed was coming from the refrigerator units, travelled through the building from the ground floor to the second floor. Because the units were on all the time, the noise and vibration was disturbing residents’ sleep, but it had not been possible to carry out a noise assessment at the present time.

In conclusion, Ms Ward asked that the Sub Committee take the concerns of residents into account when deciding the application.

Representation by Ms Pauline Moran, Resident

Ms Moran stated that she was speaking on behalf of several residents who lived opposite the premises and that she concurred with the points made by Ms Ward.

She stated that the residents were not antibusiness and welcomed the delicatessen and wished the applicant every success in his new premises. She stated that this part of Lupus Street was unique in that there were residential properties on both sides of the street. The windows of the ground floor commercial properties at No’s. 52 to 80 Lupus Street were opposite ground floor residential accommodation at No’s. 53 to 59 Lupus St. Therefore, any nuisance caused by customers, lights or noise from these commercial premises affected the ground floor residents living opposite, particularly those living in Neate House.

In conclusion, Ms Moran stated that, as the applicant had relocated his premises from a busy commercial area to a street that was largely residential, consideration had to be given to the potential problems that might affect the residents’ quality-of-life as a consequence of relocating the business.

At this point in the proceedings, the Chairman asked Mr Rocha if he might respond to the points made in the various presentations

Mr Rocha: Response to the Presentations

Mr Rocha provided the following information in response to the various points made in the preceding presentations.

(a)    The applicant would –

·       Instruct his architect to revise and update the Basement Plan, a copy of which would be submitted to the Council.

·       Arrange with the manufacturers of the extraction unit for a suitable limiter and timer, or other suitable mechanism, to be fitted to the unit, as suggested by Mr Watson.

·       Arrange for the rear door of the premises to be kept closed with appropriate signage to that effect.

·       Liaise with the manufacturers of the refrigeration units on the installation of antivibration brackets and/or suitable insulation.

(b)    The applicant was anxious to work with residents to resolve the issues of noise nuisance and vibration caused by the refrigeration and chiller units and the extractor unit.

(c)    Regarding the amended operating hours –

Monday to Saturday: 08:00 hours to 20:00 hours

Sale of Alcohol by Retail (Off Sales Only): 10:00 hours to 20:00 hours

Sunday: 09:00 hours to 18:00 hours

Sale of Alcohol by Retail (Off Sales Only): 10:00 hours to 18:00 hours

Mr Rocha stated that the applicant was of the view that the amended hours were reasonable when there were other businesses in the area that did not close until 10 PM. Also, a lot of customers arrived late on their way home from work and if the premises closed at 6 PM, the applicant would lose that market.

(d)    The applicant would be willing to accept a condition that there would be no alcohol sold to customers seated outside the premises and that the applicant would use his best endeavours to ensure that no alcohol was consumed by customers within the immediate vicinity of the premises.

In response to a question by the Chairman, Mr Rocha stated that the applicant had no plans to use delivery services such as Deliveroo or Uber as that was not the applicant’s type of business. Furthermore, the applicant would not, in any case, offer a delivery service that went beyond the premises’ operating hours.

Presentation by Councillor Jacqui Wilkinson On Behalf of the Applicant

Councillor Wilkinson stated that she had been contacted by Mr Vieira to ask if she might support the application. She had also been in contact with the residents about their concerns about the application and had been involved in both the planning and licensing stages of the application. It was her hope that a successful resolution to the various issues might be achieved.

Councillor Wilkinson noted that Mr Vieira’s previous operation in Warwick Way had been very successful and the opportunity of having a successful business in Lupus Street would be of benefit to everyone. She went on to say that she had been encouraged by the conversation today and was sure that residents’ concerns and the concerns of the business were capable of resolution.

ADJOURNMENT

At this stage of the proceedings, the Chairman stated that the Sub Committee would adjourn for 10 minutes to allow Members of the Sub Committee to consider the various parties presentations and the conditions that had been proposed. The Sub Committee would do this before asking the parties to sum up their presentations.

Re-Commencement of Proceedings

Having adjourned the meeting for 15 minutes, the Sub Committee reconvened. The chairman stated that he had asked for the various conditions that had been proposed by the Environmental Health Service (EHS) and others to be displayed. Ms Viviene Walker, Legal Officer, then read out the following conditions that had been proposed during the course of the proceedings –

10. There shall be no consumption of alcohol by customers at the outside tables and chairs

11. The sale of alcohol authorised by this license and provided at the premises shall be ancillary to the main function of the premises as a delicatessen

12. The tables and chairs shall be removed from outside the premises at 18:00 hours.

13. All windows and external doors at the rear of the building shall be kept closed at all times except for immediate access and egress.[5]

14. Revised drawings must be submitted to the Licensing Authority; the licence will not take effect until such drawings are provided.

In addition, proposed Condition 21 in the list of conditions being displayed[6] would be amended to read –

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.”

In response to a question by the Chairman, Mr Rocha stated that the applicant would be willing to accept the conditions proposed by the EHS and the Police, as amended, and the conditions further five conditions proposed by the subcommittee.

In response, Mr Watson confirmed that that it was the view of EHS that the proposed additional five conditions were appropriate.

Mr Brown, on behalf of residents, stated that proposed additional conditions were appropriate. However, it would be residents’ preference that the following wording be added to Proposed Condition 10 –

“or the immediate vicinity”.

The Chairman stated that the Sub Committee had concerns about whether Condition 10, as amended by Mr Brown, would be enforceable i.e., if the prohibition on the consumption of alcohol at the tables and chairs outside the premises was extended to include the immediate vicinity. Accordingly, it may be preferable to include such a provision by way of an Informative, rather than adding it to the condition.

Mr Brown stated that the condition he had proposed was that there should be “No sale of alcohol for consumption at the tables and chairs or immediate vicinity”. He said the intention behind the wording was to provide the applicant with some protection with regard to the sale of alcohol. However, it was a matter for the Sub Committee to decide if it wished to deal with this by way of an informative.

SUMMING UP

The Chairman then invited the various parties to sum up their presentations and representations.

Mr Watson, Environmental Health Service (EHS)

Mr Watson stated that the EHS would be willing to work with the City Inspector, Mr Franks, to achieve a satisfactory outcome for the residents with regard to nuisance caused by noise and vibration.

Regarding the application, as the proposed hours were in accordance with the Council’s core hours, the EHS was satisfied with the application and the proposed conditions.

Concerning carrying out an assessment of noise levels within residents’ flats, he would arrange for remote equipment to be provided which would allow noise levels to be assessed without contravening the current Coronavirus Regulations.

Mr Brown, Citizens Advice Westminster (on behalf of residents)

Mr Brown stated that he had been requested by Ms Moran to emphasise the importance of limiting the premises opening hours because of the effect a later opening time would have on the residents living in ground floor properties opposite the applicant’s premises.

Mr Rocha On Behalf of the Applicant

Mr Rocha stated that he wanted to thank all the parties involved for the positive and professional way in which the hearing had been conducted.

He stated that the sale of alcohol was complementary to the main business of the delicatessen and the applicant was of the view that the applied-for opening hours were reasonable and that the proposed conditions, if accepted, would promote the Licensing Objectives. If residents had an issue with the premises, they could always contact Mr Manuel, the Designated Premises Supervisor (DPS).

In conclusion, Mr Rocha stated that there were a lot of potential customers in the building and, hopefully, they would see them [in the shop] in the future.

ADJOURNMENT

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.

 

DECISION

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; and having heard representations by the applicant, Mr Brown of Citizens Advice Westminster, and local residents, the Sub Committee was satisfied that it was appropriate and proportionate to grant the application, for the following reasons.

1.     The main concerns of residents in relation to the licensing aspects of the application were the hours of operation and potential nuisance if the consumption of alcohol was permitted at the tables and chairs outside the premises. These concerns have been addressed, as follows: the applicant –

(a)  In response to resident’s concerns, had amended the application to reduce the operating hours during the week by two hours from 10 PM to 8 PM; and

(b)  Had agreed to the following conditions: That –

·       No alcohol would be served to customers seated at the tables and chairs outside the premises; and

·       That the sale of alcohol would be ancillary to the main function of the premises as a delicatessen.

2.     Regarding residents’ concerns about noise and vibration emanating from the freezer and chiller units both inside and outside the premises, and the extractor unit at the rear of the premises, it was noted by the Sub Committee that these concerns had been addressed, as follows –

(a)  The applicant was liaising with the Council’s Planning Enforcement officers in relocating the external units at the rear of the premises, and that several of these units had already been relocated.

(b)  The applicant was liaising with the Council’s Environmental Health Services (EHS) team on measures to reduce noise nuisance, including –

·       Installing a limiter on the extraction unit to reduce the noise level of the unit when it was in operation, and a timer and to ensure that the unit operated for no longer than was necessary.

·       Keeping the rear door nearest to the chiller and refrigeration units in the premises closed at all times except for emergencies.

·       Liaising with the manufacturers of the refrigeration and chiller units about installing appropriate anti vibration devices and noise insulation.

 

 

3.     In addition, the Sub Committee was satisfied that incorporating the terms of Model Condition 12:

“The 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.”

within proposed Condition 21:

“No noise shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.”

was a reasonable and proportionate requirement intended to meet residents’ concerns about noise and vibration, and to promote the Licensing Objective of the Prevention of Public Nuisance.