Agenda item
Whyte and Brown, Ground Floor, Unit 2 and 1.4 to 1.6
Minutes:
WESTMINSTER CITY COUNCIL LICENSING SUB-COMMITTEE NO. 5
(“The Committee”)
Thursday 17 March 2022
Membership: Councillor Murad Gassanly (Chairman)
Councillor Jacqui Wilkinson and Councillor Aziz Toki
Officer Support: Legal Advisor: Viviene Walker
Policy Officer: Kerry Simpkin
Committee Officer: Georgina Wills
Presenting Officer: Karyn Abbott
Application for a Variation of Premises Licence in respect of Whyte and Brown Ground Floor Unit 2 and 1.4 to 1.6 Kingly Court W1B 5PW 21/10287/LIPV
FULL DECISION
Premises
Whyte And Brown
Ground Floor Unit 2, 1.4 to 1.6
Kingly Court
W1B 5PW
Applicant
Cumulative Impact Area
West End
Ward
West End
Special Consideration Zone
N/A
The Applicant sought to amend condition 19 on the Premises Licence to read:
Condition 17 on the Premises Licence shall be suspended for a limited period until 30 September 2022 save that substantial food shall be available throughout the premises at all times after which time the condition shall be reinstated and remain to have full force and effect.
Licensable Activities and Hours
Late Night Refreshments (Indoors and Outdoors)
Monday to Thursday: 23:00 to 23:30
Friday to Saturday: 23:00 to 0:00
Sunday: N/A
Sale by Retail of Alcohol (On and Off Sales)
Monday to Thursday: 10:00 to 23:30
Friday to Saturday: 10:00 to 00:00
Sunday: 12:00 to 22:30
Opening Hours of the Premises:
Monday to Thursday: 07:00 to 23:30
Friday to Saturday: 07:00 to 00:00
Sunday: 10:00 to 22:30
Summary of Application
The Sub-Committee has determined an application for a variation of a Premises Licence under the Licensing Act 2003 (“The Act”).
The premises trade as a restaurant. The Applicant sought to amend condition 19 to read: Condition 17 on the Premises Licence shall be suspended for a limited period until 30 September 2022 save that substantial food shall be available throughout the premises at all times after which time the condition shall be reinstated and remain to
have full force and effect. The Premises have had the benefit of a Premises Licence since 2013.
There is a resident count of 22.
Representations Received
· Licensing Authority (Kevin Jackaman)
· The Soho Society
Summary of Objections
· The Licensing Authority expressed concerns in relation to the application and how it would promote the four licensing objectives.
· The Soho Society objected to the application as it was presented, on the grounds of prevention of crime and disorder, prevention of public nuisance, public safety and cumulative impact in the West End Cumulative Impact Zone.
Policy Position
Under Policy CIP1, A. It is the Licensing Authority’s policy to refuse applications within the West End Cumulative Impact Zone for pubs and bars, fast food premises and music and dancing and similar entertainment, other than applications to: 1. Vary the hours within Core Hours under Policy HRS1, and/or 2. Vary the licence to reduce the overall capacity of the premises. C. applications for other premises types within the West End Cumulative Impact Zones will be subject to other policies within this statement and must demonstrate that they will not add to cumulative impact. D. For the purposes of this policy the premises types referred to in Clause A are defined within the relevant premises use policies within this statement.
Under Policy HRS1, applications within the core hours set out in the policy will generally be granted for the relevant premises uses, subject to not being contrary to other policies in the Statement of Licensing Policy and applications for hours outside the core hours set out in the Policy 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, B. It is the Licensing authority’s policy to refuse applications within the West End Cumulative Impact Zone other than 1. Applications to vary the existing licence hours within the Council’s Core Hours Policy HRS1. 2. Applications that seek to vary the existing licence so as to reduce the overall capacity of the premises, subject to the matters set out in the Policy.
SUBMISSIONS AND REASONS
Ms Karyn Abbott, Senior Licensing Officer summarised the application set out in the report before the Sub-Committee. She explained that the application was for a variation of a Premises Licence which sought to vary Condition 19 of the Licence. There were representations received from the Licensing Authority and Mr Richard Brown for the Soho Society. The Premises are situated in the West End Ward and located in the West End Cumulative Impact Zone.
Mr Craig Baylis, Solicitor acting on behalf of the Applicant, outlined the nature of the variation sought the Application was purely a Policy Issue. He stated that there were no objections raised by either Environmental Health Service or the Metropolitan Police. He advised that the previous Application was submitted by the Applicant following the passing of the Business and Planning Act 2020. Mr Baylis advised that due to the Premises’ location, Kingly Court, the Applicant was unable to benefit from the pavement licences and had loss trade to neighbouring establishments in Kingly Street and Carnaby Street and other surrounding streets. The Sub-Committee were informed that these establishments were able to apply for pavement licences and this reduced the number of footfalls in Kingly Court. Mr Baylis advised that the former Application had been agreed by the last Sub-Committee due to the Applicants trade been affected by Covid-19 Pandemic and loss in footfall during these periods. He advised that during the former Application, the Applicant had produced figures regarding trade.
Mr Baylis advised that a new Application had been made as there had been no change in in the Applicant’s circumstances and the same difficulties encountered remained. He stated that it was acknowledged that it was now a different environment following the removal of all restrictions which had been implemented during the Covid-19 Pandemic. Mr Baylis explained that the Applicant had sought for the suspension of the restaurant condition in the Courtyard area only. He advised that there would be no vertical drinking on any areas of the Premises. The Sub-Committee was informed that the ‘bar aspect’ of the Application would only be in operation until 21:00 hours and that the restaurant condition would apply after this time frame. He advised that the flexibility would enable patrons to consume alcohol without food and confirmed that the food provision would be available throughout operations. This trade would ensure that the Premises continue to remain viable.
Ms Sarah Clark, Managing Director Whyte & Brown Limited, explained the Sub-Committee that the Applicant operated three restaurants which included two in the Southbank, London and one in Kingly Court. She stated that the Premises were acquired in 2013 and since that period they had not received any complaints regarding the style of operation. She advised that the previous Application which had been granted during the Covid-19 Pandemic had a significant impact on trade and that there had been a significant drop in sales following the end of the temporary extended Licence. Ms Clark informed the Sub-Committee that the Premises operated fully as restaurant and there were no live music and vertical drinking. She advised that during the pre-Convid-19 pandemic alcohol amounted to 40% of the overall sales. This figure increased to 52% when the previous Application was granted. Ms Clark stated that these sales related to patrons who were seated whilst consuming alcohol. She advised that since last September sales of alcohol had reduced to 42% and this has had a significant impact on the business not having that flexibility.
Ms Clark informed the Sub-Committee that the applicant operates a professional business and were seeking more flexibility as this is still the recovery period and it is a difficult market to operate at present.
Mr Baylis advised the Sub-Committee that there was a financial need and the Application had been made for these reasons. He stated that there was still a ‘hang over effect’ following the Covid-19 Pandemic and this had been demonstrated by the extension of the Business and Planning Act 2021.
Mr Kevin Jackaman, for the Licensing Authority explained that the Licensing Authority had maintained their representation as the Premises fall within in the West End Cumulative Impact Zone. Mr Jackaman advised that the Applicant wished to suspend Condition 17 by way of a variation to condition 19 would bring the premises within Policy PB1. B and there is a presumption to refuse applications that fall within the Cumulative Impact Zone. He stated that it was for Applicant to demonstrate that the variation would not add to the cumulative impact. Mr Jackaman noted that the Applicant had amended the Application and commented that Policy D13 stated that after 21:00 hours there is an increase in terms of crime and disorder. The general presumption is to refuse; however, this could be taken as an exception to the policy where there is a terminal hour of no later than 21:00 hours.
Mr Richard Brown, speaking on behalf of the Soho Society, stated that this application replicated the previous application. However, it was noted that the current Application had been amended and would only be applicable to certain areas of the Premises and operations would be restricted to 21:00 hours. He advised that the Applicant was required to demonstrate that the application was exception to Policy.
Mr Brown advised that there were no concerns regarding the Premises style of operation and noted that Kingly Court housed several food and beverage premises. He stated that the Soho Society strongly objected to any new bar styles establishment being brought into operation in the locality. The ‘bar use’ accounted for a significant proportion of the overall layout of the Premises. Mr Brown advised that the extension of the external dinning under the Business and Planning act 2020 caused less imbalance between the Applicant and neighbouring establishments. He advised that it was acknowledged that Policy D13 indicated that crime and disorder rose after 21:00 hours and commented that activities which occurred prior to this time frame contributed to the anti-social behaviour that occurred in the later hours.
Mr Brown informed the Sub-Committee that the Soho Society were sympathetic to the financial difficulties experienced by the Applicant. He advised the proportion of the ‘bar usage’ should be considered and commented that neighbouring Premises in Kingly Court did not have the same flexibility as the Applicant. Mr David Gleeson, for the Soho Society, advised that activities in Soho had now returned to the same levels prior to the Covid-19 Pandemic. Mr Glesson stated that Cumulative Impact Assessment 2020 indicated that cumulative impact continued to increase each year. He advised that the Soho Society had previously objected and that there were no viable reasons to allow the Application to be granted. He advised that Kingly Court was a singular space and would be attractive to patrons.
In response to the Sub-Committee, Mr Baylis explained to the Sub-Committee that there was evidence that the variation had been beneficial to the Applicant and no concerns had been raised regarding the operation of the Premises during this period. He stated that the applicant cannot apply for a pavement licence, so they were at a disadvantage to other premises. The Sub-Committee noted that the absence of complaints was not sufficient, and this could not solely be used as exception to Policy.
In response to the Sub-Committee, Ms Clark explained that between September 2021 and March 2022 sales had dropped by 5% and this equated to a loss of £2500 per week. She commented that the alfresco dinning had been extended by Central Government and this was indicative that the economy was still at the recovery stage, and these should be considered as exceptional circumstances. Ms Clark advised that the Premises had loss trade to neighbouring establishments who were permitted to have pavement licence and offered alfresco dinning. She advised that less barriers were required which would enable patrons to be served drinks without a meal and commented that the Application was only until 21:00 hours and would be time limited.
In response to questions from the Sub-Committee, Ms Clark confirmed that there was no vertical drinking at the Premises and that patrons in the Courtyard would be informed that consumption of alcohol without a meal was not permitted after 21:00 hours. She stated that patrons would be informed before 21:00 hours when offered a menu. Ms Clark confirmed that a Condition is agreed which required for a signage noting that alcohol cannot be consumed without a meal after 21:00 hours.
Mr Simpkin, the Policy Officer advised the Sub-Committee that Policy D13 referred to Premises whose operational hours concluded at 21:00. The Sub- Committee was advised that Policy D13 was introduced following the Cumulative Impact Assessment 2020 and that the former Policy had a blanket approach and required for there to be a presumption to refuse all establishments. The Sub-Committee was advised that the primary use of a premises was a determining factor under the Policy and was aimed primarily at establishments such as cafés who had a small selection of alcohol. The Sub-Committee were advised that they were required to determine whether the Application was exception to policy and take into consideration the primary use of the Premises.
Mr Baylis advised the Sub-Committee that the Premises primary use was a restaurant and highlighted that there was120 covers and that the 34 covers in the Courtyard. He advised that the Courtyard would revert back under the restaurant condition after 21:00 hours and there would be signage displayed which informs of this, and staff would also advise patrons of this requirement.
Mr Brown advised that it was acknowledged that there were no concerns raised about the Premises and stated that the wider impact should be considered.
Mr Glesson advised that the Soho Society was supportive of local businesses and did not wish for bars, cafes and restaurants to cease trading. Mr Glesson advised that there were concerns with restaurants becoming drink led. In response, Ms Clark stated that there were no plans to turn the Premises into a drink led establishment and that a further extension should not be required as it was anticipated that footfalls would increase alongside trade from international tourist.
Conclusion
The Committee has determined an application for variation of Premises Licence under the Licensing Act 2003 (“The Act”).
The Sub-Committee considered the application on its individual merits. In reaching their decision, the Sub-Committee considered all 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 Policy exceptions and that the Applicant had reduced the operational hours to 21:00 and that the variation would only apply to the Courtyard which had 34 covers and this number could not be exceeded. The Sub-Committee noted that the Application was time limited, and the nature of the business would not be altered. The Sub-Committee also noted the financial impact on the Premises in particular the Applicants inability to benefit from the pavement licence.
The Sub-Committee noted that the Applicant was a good operator, and the locality was well managed. The Sub-Committee noted the importance of supporting local business and also addressing the concerns of local residents and their roles in balancing the needs of all parties. The Sub-Committee also noted that the decision was specific to the Application and site and therefore would not create a precedent.
The Sub-Committee were mindful of the fact that the Licensing Authority had maintained their representation, on the basis that the Premises fall within the Cumulative Impact Zone, therefore, the application needs to be considered under CIP1, HRS1 and PB1. B. As such, the Sub-Committee had to be satisfied that the application will not add to the cumulative impact in the Cumulative Impact Zone.
Accordingly, the Sub-Committee decided that the Applicant had provided valid reasons as to why the granting of the application would not add to negative cumulative impact in the Cumulative Impact Zone and thus promote the licensing objectives.
Having carefully considered the committee papers and the submissions made by all the parties, both orally and in writing the Committee has decided, after considering all of the individual circumstances of this case and the promotion of the four licensing objectives:
1. To grant permission to amend condition 19 in the terms specified below.
2. That the varied licence is subject to any relevant mandatory conditions.
3. That the existing conditions on the Licence shall apply in all respects except in so far as they are varied by this Decision.
Conditions consistent with the Operating Schedule
9. 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 are open for licensable activities and during all times when customers remain on the premises and will include the external area immediately outside the premises entrance. 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.
10. 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 are open to the public. This staff member must be able to show a Police or authorised council officer recent data or footage with the absolute minimum of delay when requested.
11. All waste shall be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.
12. No noise shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.
13. The supply of alcohol shall be by waiter or waitress service, save in the respect of the area hatched black on the approved plan.
14. No striptease, no nudity and all persons to be decently attired at all times except when the premises are operating under the provision of a Sexual Entertainment Venue Licence.
15. There shall be no sale of alcohol for consumption off the Premises after 23:00 hours.
16. The external seating shall not be used after Core Hours, being 22:30 hours Sunday, 23:30 hours Monday to Thursday and Midnight Friday and Saturday.
17. The premises (including the external seating area) shall only operate as a restaurant:
(i) in which customers are shown to their table,
(ii) which provide food in the form of substantial table meals that are prepared on the premises and are served and consumed at the table using non disposable crockery,
(iii) which do not provide any takeaway service of food or drink for immediate consumption, and
(iv) where intoxicating liquor shall not be sold, supplied, or consumed on the premises otherwise than to persons who are seated in the premises and bona fide taking substantial table meals.
18. 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, which will record the following:
(a) all crimes reported to the venue
(b) all ejections of patrons
(c) any complaints received regards crime and disorder
(d) any incidents of disorder
(e) all seizures of drugs or offensive weapons
(f) any faults in the CCTV system
(g) any refusal of the sale of alcohol
(h) any visit by a relevant authority or emergency service.
19. Condition 17 on the Premises Licence shall be suspended for the outside courtyard area up until 21:00 hours for a limited period until 30 September 2022 save that substantial food shall be available throughout the premises at all times after which time the condition shall be reinstated and remain to have full force and effect.
Conditions imposed by the Committee after a hearing with the agreement of
the Applicant
20. There shall be no vertical drinking allowed on the premises.
21. Only up until the 30 September 2022, the supply of alcohol at the premises (including the external seating area) shall be by waiter or waitress service only.
INFORMATIVE
22. The Premises Licence Holder has agreed to place signage around the premises informing patrons that the use of the Courtyard shall cease at 21:00 hours.
This is the Full Decision reached by the Licensing Sub-Committee.
This Decision takes immediate effect.
The Licensing Sub-Committee
17 March 2022
Supporting documents:
-
Whyte and Brown report_Redacted, item 3.
PDF 1 MB - Restricted enclosure View the reasons why document 3./2 is restricted
- Restricted enclosure View the reasons why document 3./3 is restricted