Thursday 29 April 2021
Membership: Councillor Tim Mitchell (Chairman), Councillor Jacqui Wilkinson and Councillor Aziz Toki
Officer Support: Legal Advisor: Viviene Walker
Policy Officer: Aaron Handy
Committee Officers: Cameron Maclean
Presenting Officer: Kevin Jackaman
Application for a Variation of a Premises Licence – Sophies 42-44 Great Windmill Street London W1D 7ND – 21/00317/LIPV
Sophies 42-44 Great Windmill Street London W1D 7ND
Sophie’s Soho Limited
Cumulative Impact Area?
Proposed Licensable Activities and Hours
The application was for a variation of a premises licence as follows –
· To extend the permitted hours for all licensable activities within the basement area of the premises to 02:30 hours Fridays and Saturdays for a period of two years
· Licensing Authority (Roxsasna Haq)
· Metropolitan Police Service (PC Bryan Lewis)
· Environmental Health Service (Dave Newitt)
· Anna Moscato (local resident)
· Katarzyna Bogatek (local resident)
· Piotr Cybulak (local resident)
· Orsolya Kocsis (local resident)
· Jose Moutinho (local resident)
· Franck Alves Scarduelli (local resident)
· The Soho Society
Summary of Objections
· The Licensing Authority expressed concerns in relation to this application and how the premises would promote the licensing objectives. The LA noted that as this application is seeking to increase licensable activity for up to 400 persons within the West End Cumulative Impact Zone for additional hours the applicant must demonstrate an exception to policy
· The Metropolitan Police Service objected on the basis that the application would undermine the licensing objectives, noting the location of the Premises within the West End CIA;
· EHS stated they believed the proposals would be likely to increase the risk of public nuisance, noting the hours sought are in excess of the Core Hours and the potential for impact on occupiers of residential dwellings in the vicinity;
· Local residents expressed concerns about disruption caused by the additional hours sought, in particular noise and congestion, groups of people gathering and generally impacts on crime and disorder and public nuisance;
· The Soho Society objected to this application on the grounds of prevention of crime and disorder, prevention of public nuisance, public safety and cumulative impact in the West End Cumulative Impact Area
Summary of Application
This is an application for a variation of an existing premises licence to extend the permitted hours for all licensable activities within the basement area of the premises to 02:30 hours Fridays and Saturdays for a period of two years.
Under Policy HRS1, applications for hours outside the core hours will be considered on their merits, subject to other relevant policies, and with particular regard to the matters identified in Policy HRS1.
Under Policy PB1 it is the Licensing Authority’s policy to refuse applications within the West End Cumulative Impact Zone other than applications to vary the existing licence hours within
the council’s Core Hours Policy HRS1 and applications that seek to vary the existing licence so as to reduce the overall capacity of the premises.
Under Policy MD1 it is the Licensing Authority’s policy to refuse applications within the West End Cumulative Impact Zone other than applications to vary the existing licence hours within
the council’s Core Hours Policy HRS1, and/or, applications that seek to vary the existing licence so as to reduce the overall capacity of the premises.
SUBMISSIONS AND REASONS
Mr Kevin Jackaman, Senior Licensing Officer, outlined the application. The application was originally to extend permitted hours for licensable activities in the basement until 02:30 hours Monday to Saturday, closing 30 minutes thereafter, but was amended to be only for Fridays and Saturday and for a temporary period of 2 years. Representations received from Metropolitan Police, Environmental Health and the Licensing Authority as well as 7 representations from interested parties. The Premises are situated within the West End Ward and fall within the West End CIA.
Mr Alun Thomas, on behalf of the Applicant, explained that the Applicant had taken heed of comments made by the Licensing Authority as reflected by changes in the submission. He further noted that they had submitted a comprehensive dispersal strategy.
Mr Thomas stated the application is one of the best exceptions that he has presented to the Sub Committee due to the huge reduction in capacity proposed. This reduction is linked to the extension of hours, which has been asked for a 2-year period for Fridays and Saturdays only. Mr Thomas submitted the application was in accordance with policy and promotes the licensing objectives.
In response to comments made by interested parties, Mr Thomas stated this was not a test case noting the unique circumstances of the case. Mr Thomas explained that business did not respond to normal following the third Covid lockdown. Mr Thomas noted this is not a high-volume vertical drinking premises (given alcohol must be ancillary to food and music and dancing) which is the type of premises which causes the most problems within the West End CIA. Mr Thomas explained that most of the basement is laid out with seating and this is why they are willing to propose a smaller capacity because that is an appropriate way to operate a premises such as this in the extended hours.
Mr Thomas explained there is a substantial food menu and many customers (25-35% was the applicant’s estimation) will have eaten upstairs already. Mr Thomas submitted this is a really nice comfortable venue that is well managed and there have been no complaints or incidents.
Mr Thomas explained that in August 2017 when extended hours were not granted the Applicant did come close to having them granted. That application was for a new premises licence to replace the licence currently held by the Grace Bar (capacity 975, 650 of which in the basement). A new licence was applied for, surrendering that licence, reducing basement capacity to 325 and introducing other conditions promoting the objectives such as smoking and dispersal policies. Mr Thomas submitted the licence was granted erring on the side of caution, with no extended hours but no reduced capacity. As a result of this, Mr Thomas explained they still have a licence with a capacity of 975 persons.
Mr Thomas submitted that the Applicant needs this licence granted in order for the business to survive. He noted that if they fail then the current licence could be taken on by another business trading as the previous premises did.
Mr Thomas explained there are only three ways to get into the Premises – there is no direct entrance from the street.
Mr Thomas clarified the variation sought was Fridays – Saturdays, reducing capacity from 650 to 250, and temporary for 2 years. Mr Thomas stated there had been no issues with the Premises.
Mr Thomas explained there is now the infrastructure in place to deter anti-social activity which is the primary concern of residents.
Ms Sophie Bathgate explained the Applicant had fallen in love with the history of the Premises and wanted to fly the flag for Soho’s history. Customers for the Premises were hand-picked from the restaurant above. The Applicant aimed to have customers not have to leave the building for their night’s entertainment. The variation was being sought in order to allow for this holistic experience in the building.
Ms Bathgate explained that their initial investment was beginning to be realised, having been opened for roughly 3 years, prior to Covid. The Applicant is now down easily £1,000,000 and Ms Bathgate explained this as similar to starting again.
Mr Rupert Power further explained that Jack Solomon’s is like a well-kept secret – customers are carefully picked and it is a place for anyone and everyone provided they are in the right spirit of mind.
Mr Thomas explained the key differences from the 2017 application is that it was 6-days a week, it had a capacity of 325, it was a permanent extension and it was before the Windmill was re-licenced with all the additional conditions and controls recently imposed. Mr Thomas explained by reference to an acoustic report that the ambient noise levels did not change between 00:00 hours and 03:00 hours.
In relation to the bodycam condition requested by the Police, Mr Thomas stated that the Applicant did not think they needed it and it was also an additional cost for them.
In response to questions from the Committee:
(a) Mr Thomas explained the licence capacity is 975 of which 650 can use the basement. However, based upon the numbers of toilets the Premises has the basement is restricted to 400. Mr Thomas explained that if they put additional toilets in or assigned the licenced the capacity would be 650 again even though they are currently operating at 400;
(b) Mr Thomas explained the current licence condition only requires bags to be searched which the Police now want to change to searching persons. Mr Thomas stated searching bags is bad enough and they do not want to have to search persons.
PC Bryan Lewis, Metropolitan Police, explained the Police maintain their objection based on the cumulative impact area policy. He stated he is very familiar with the Premises and he confirmed it has never been a problem for the Police. However, in his view 03:00 hours closure is more risk because people will consume more alcohol.
PC Lewis explained he hadn’t requested normal nightclub conditions because the Premises is not a nightclub but rather a cocktail bar which may attract older and more responsible customers. He explained he had requested 7 conditions, 2 of which were not agreed. PC Lewis explained he had requested full searching from 23:00 hours because in his view the risk goes up the later the Premises is open and this makes it safer. PC Lewis explained he had requested body worn footage on this basis too. PC Lewis stated he had offered to Mr Thomas to reduce body worn video to 2 door staff – he explained it is only engaged if there is a problem so people shouldn’t be concerned about being filmed.
In response to questions from the Committee:
(a) PC Lewis explained that 2 door supervisors wearing body worn cameras would be adequate;
(b) PC Lewis explained there is a substantial terrorist risk and this was one of the main factors behind asking for searching. He noted that nearly all nightclubs open until 03:00 hours have searching policies;
(c) PC Lewis stated in his view the risk increases as premises are open later.
Ms Jo Feinstein who confirmed she lives within 30 seconds of the Premises has had no problems with the Premises and looks forward to their return. She stated this part of Soho is very quiet at night and would like a venue like this to be open to put security on the streets at night. She stated she would feel a lot safer with late-night venues like this.
In response to questions from the Committee:
(a) Ms Feinstein confirmed she had lived in her current location since during lockdown.
Mr Dave Newitt, Environmental Health, stated he had maintained his representation because what is sought exceeds the core hours and is in a cumulative impact area. He stated it is true to say that the Premises has operated satisfactorily – there were no complaints or concerns on the Council’s system, so he was happy to say it has operated well.
In his view there was a balancing act between having extended hours and whether they could be offset by a reduction in capacity. Mr Newitt referenced paragraph F89 which states there has to be a “significant reduction” in capacity, which in his view the application sounded like. However, Mr Newitt noted that even with that reduction there would be 250 people in the CIA later in the night.
In relation to the acoustic report, Mr Newitt stated the background noise levels do change a bit but the levels are not massively different – they gradually decline from 03:00 hours but then pick up from 05:00 hours. Mr Newitt stated the important parts of the graph are the light-grey spikes (LaMAX) which are impact sounds – short but loud and high-intensity sounds. Mr Newitt noted there are quite a few of these at 03:00 hours and it is this which disturbs local residents. It is this which concerns EHS.
In relation to cumulative impact, Mr Newitt stated the reduction in capacity was a good offer, the fact that it is time-limited is helpful and the fact that it is Fridays and Saturdays only is helpful. In his view it is possible for them to operate later without causing too much problem.
Mr Newitt stated there is nothing in the current licence to stop vertical-drinking, however condition 41 requires the sale of alcohol to being ancillary to the use of the Premises for music and dancing or substantial refreshment. Mr Newitt noted this didn’t require customers to sit down or have a meal but rather it is the use of the Premises that is important. Mr Newitt stated he is pleased by the Police’s proposed condition in relation to last entry time. What was of concern to EHS are people who have not been in the Premises but who want to turn up to the Premises as a destination venue – the last-entry time makes this quite a different experience in terms of impact on customers who are already in the Premises.
Mr Newitt clarified in relation to capacity – one assessment is a “safe capacity” and another is based on toilet provision. At present, the limiting factor is the latter.
In response to questions from the Committee:
(a) Mr Newitt confirmed he maintained his representation because it was a significant extension in a CIA and these matters should be considered by the Sub-Committee.
Ms Roxsana Haq, Licensing Authority, explained the Licensing Authority have maintained their representation as the Premises is within the West End CIA. She stated members must consider the application under Policy MD1, where it states at paragraph B –
“it is the Licensing Authority's Policy to refuse applications within the West End Cumulative Impact Zone other than:
2. Applications that seek to vary the existing licence so as to reduce the overall capacity of the premises”
Ms Haq noted the amendments to the variation application. She noted in summary that although the Applicant is reducing the capacity they are requesting an increase in the terminal hour on Friday and Saturday. Therefore, the Licensing Authority ask the Sub Committee whether the reduction in capacity is genuinely exceptional to the increase in hours.
Mr Richard Brown, on behalf of the Soho Society and local residents, submitted that financial reasons cannot and should not outweigh the licensing objectives. Mr Brown stated that in a nutshell to grant this variation would be to drive a coach and horses through the newly published SLP at a time when the cumulative impact assessment provided very strong evidence that cumulative impact was getting worse and stricter policy requirements may be required.
Mr Brown stated what is sought falls squarely within what the SLP seeks to prevent except in exceptional circumstances. Mr Brown stated that finding exceptional circumstances in this case would put the Council in a difficult position for future applications.
Mr Brown stated he did not think the licence says what Mr Thomas says in relation to capacity.
Mr Brown clarified that Soho had gone back to normal, not businesses. The Soho Society’s experience is that the footfall in Soho has gone back up.
Mr Brown said his recollection is not that the applicant came close to getting their application in 2017, noting the decision states the Sub Committee gave thought to refusing the application entirely. Mr Brown noticed that because this application was in 2017 it was before the bulk of evidence for the CIA had been gathered.
Mr Brown noted there is no requirement for alcohol to be ancillary to substantial refreshment under the current licence.
In relation to precedent, Mr Brown accepted it is correct that applications have to be dealt with on their merits but noted that this exercise must include an examination of the wider implications of a decision, particularly in a CIA.
Mr Brown stated that the application is contrary to Policy. He stated the Sub Committee needs to have regard to the reasons underlying the policy, noting paragraph D4.
Mr Brown submitted the application only being Friday and Saturday is no comfort to the Soho Society as these are the busiest days of the week. In relation to capacity, Mr Brown stated he is not clear where the figure of 650 comes from, noting condition 28 of the premises licence limits the Premises to 400 which can be increased if sanitary accommodation is improved. Mr Brown also stated the 2-year limit was no comfort.
Mr Brown submitted the Windmill is a red herring. The conditions added to that licence were not to enforce against customers of other premises.
Mr David Gleeson stated this is one of the loudest areas in the West End. It can be very difficult to sleep at night. Mr Gleeson stated the Soho Society is extremely sympathetic to businesses. However, he stated that because they have made a loss doesn’t mean the hours should be changed. Mr Gleeson stated the doormen at the Windmill is a red herring as they have little say as to what their patrons do when the leave the venue.
In response to questions from the Committee:
The Sub Committee has a duty to consider the application on its individual merits and took into account all of the committee papers, supplementary submissions made by the Applicant and the oral evidence given by all parties during the hearing in its determination of the matter.
The Sub Committee noted that the Applicant had amended its original application, the reduction of the capacity and that the application was time limited.
The Premises are situated within the West End Cumulative Impact area and so the policy presumption is to refuse the application unless exceptional circumstances can be proven under the SLP.
The Sub Committee noted that representations were received from the Metropolitan Police Service, Environmental Health Service, the Licensing Authority, the Soho Society and six local residents, all cited public nuisance as an issue in relation to the later hours. All representations were considered by the Sub Committee.
It was noted that the Responsible Authorities maintained their representations because the Premises are within the Cumulative Impact Area.
On balance, the Sub Committee decided that the Applicant had not provided sufficient reasons as to why the granting of the application would promote the licensing objectives and therefore refusedthe application for the extension of hours for licensable activities.
The Sub Committee noted that the Premises have had the benefit of a Premises Licence since 2017.
The Sub Committee was advised that the premises are not a high volume vertical drinking venue because drinking is ancillary to food, there is a substantial food menu, and twenty five per cent of the customers would dine in the restaurant on the ground floor of the premises, then go to the basement for a nightcap after their meal.
The Sub Committee was informed that the capacity of the basement would not exceed 250 customers (reduced from a potential 650).
The Applicant stated that there have been no complaints or incidents at the premises and that they need the variation to the licence in order for the business to survive.
The Sub Committee welcomed the additional conditions that had been agreed with the Police with regard to the dispersal policy, no admittance or re-admittance to the premises after 01:00 hours.
However, the Sub Committee did express concern that the Applicant did not agree to two of the conditions, namely, search by a SIA member and a minimum of two licensed SIA door staff on duty equipped with Body Worn Video. The Applicant stated that these requirements would be additional costs to them.
It was the Sub Committee’s considered view, however, that the increase in the hours would lead to increased public nuisance in the West End CIA.
In terms of the policy considerations, the Sub Committee had regard to Policy HRS1 which states: “Applications for hours outside the core hours set out in this policy will be considered on their merits, subject to other relevant policies in the Statement of Licensing Policy”.
The Sub Committee appreciated it has discretion when considering the merits of the application but took the view that granting the application would be contrary to other policies. The Sub Committee had regard to all relevant policies under the SLP in particular Policy PN1: the prevention of Public Nuisance.
Policy PN1 states: “To prevent public nuisance the Licensing Authority will apply the following criteria and take into account the following considerations, where relevant, in determining applications and reviews”.
Paragraphs 1-3 on pages 32-33 of the SLP set out the various considerations the Sub Committee should have regard to and the reasons for the policy are contained on pages 34-35 of the SLP.
The Sub Committee felt that it needed to strike the right balance when considering the merits of the application and the evidence before it and did not arrive at the decision to refuse the application lightly having regard to the full set of circumstances of the case. It did properly consider whether the proposed conditions offered would mitigate the concerns of residents but was not persuaded by the Applicant that these would go to the heart of the problems associated with nuisance and exceptionality.
The Sub Committee was of the view that exceptional reasons had not been provided.
It sympathised wholly with the Applicant that businesses are struggling in the current climate, but exceptionality must first and foremost be proven in accordance with the policy aims and objectives. Regrettable on this occasion it had not been demonstrated as to why the Sub Committee should be departed from the policy requirements. The Sub Committee came to the overall conclusion that the additional hours would have a negative impact on the cumulative impact area leading to the licensing objectives being undermined.
This is the Full Decision reached by the Licensing Sub-Committee.
This Decision takes immediate effect.
The Licensing Sub-Committee
29 April 2021