Agenda item
Shadow Licence, 4 - 5 Duke Of York Street, London SW1Y 6LA
|
Ward |
Site Name & Address |
Application |
Licensing Reference No. |
|
St James’s None* None** |
Shadow Licence 4 - 5 Duke Of York Street, SW1Y 6LA |
New Premises Licence |
21/10307/LIPN |
|
*Cumulative Impact Area |
|||
Minutes:
WESTMINSTER CITY COUNCIL LICENSING SUB-COMMITTEE NO. 3
(“The Committee”)
Thursday 16th June 2022
Membership: Councillor Aicha Less (Chair), Councillor Robert Eagleton and Councillor Melyvn Caplan.
Officer Support Legal Advisor: Horatio Chance
Policy Officer: Aaron Hardy
Committee Officer: Sarah Craddock
Presenting Officer: Emanuela Meloyan
Others present: Niall McCann (Solicitor, Joelson JD LLP), Jason Brown (Crowdale Limited, Director) and Mr and Mrs Walker (local residents)
Application for a New Premises Licence - Shadow Licence, 4-5 Duke of York Street, London SW1Y 6LA - 21/10307/LIPN
FULL DECISION
Premises
Shadow Licence
4-5 Duke of York Street
London
SW1Y 6LA
Applicant
Crowndale Limited
St James’s
Cumulative Impact
N/A
Special Consideration Zone
N/A
Activities and Hours applied for
Sale by retail of alcohol (On and Off sales)
Monday to Saturday 10.00 to 03:00 hours
Sunday 12:00 to 00:00
Late Night Refreshment (Indoors)
Monday to Saturday 23:00 to 03:30 hours
Sunday 23:00 to 00:00 hours
Live Music (Indoors)
Monday to Sunday 09:00 to 03:00 hours
Recorded Music (Indoors)
Monday to Sunday 00:00 to 00:00 hours
Performance of Dance (Indoors)
Monday to Saturday 09:00 to 03:00 hours
Sunday 09:00 to 00:00
Anything of a similar description to Live Music, Recorded Music or Performance of Dance (Indoors)
Monday to Saturday 09:00 to 03:00 hours
Sunday 09:00 to 00:30 hours
Opening Hours
Monday to Saturday 09:00 to 03:30 hours
Sunday: 09:00 to 00:30 hours
Adult Entertainment: The Premises has the benefit of a sexual entertainment venue licence (21/09720/LISEVR)
The Sub-Committee has determined an application for a New Premises Licence under the Licensing Act 2003 (“The Act”). The Applicant seeks a Shadow Licence to be held by the freeholder of the Premises Crowdale Limited on the same terms as the existing licence 21/07741/LIPDPS. The Premises has had the benefit of a premises licence since 2005. The Premises also holds a Sexual Entertainment Venue licence (21/09720/LISEVR) which is valid until 30th September 2022. The Premises are located within the St James’s Ward but not within the West End Cumulative Impact Zone nor Special Consideration Zone. There is a resident count of 50.
Representations Received
· Metropolitan Police Force (withdrawn 23 November 2021)
· 11 Local Residents (opposing)
Summary of Representations
· Resident concerns were that that if a shadow licence were granted to Crowdale Ltd they would have the potential to operate as a late Night Club or late Night Bar with very late hours throughout the week. There would an increase in public nuisance with patrons leaving the Premises and the quiet enjoyment of their properties would be no longer be possible.
Policy Position
HRS1
Applications within the core hours set out below in this policy will generally, be granted for the relevant premises uses, subject to not being contrary to other policies in the Statement of Licensing Policy. Applications for hours outside the core hours set out in Clause C will be considered on their merits, subject to other relevant policies, and with particular regard to the following:
The demonstration of compliance in the requirements of policies CD1, PS1, PN1 and CH1 associated with the likelihood of the effect of the grant of a licence for later or earlier hours on crime and disorder, public safety, public nuisance and the protection of children from harm.
SCEV1
· It is the Licensing Authority’s policy to only grant applications for Sexual Entertainment Venues and Sex Cinemas in exceptional circumstances and subject to:1. The application meeting the requirements of policies CD1, PS1, PN1 and CH1. 2. The premises are not located in the proximity of:
· Residential accommodation.
· Schools.
· Places of worship.
· Community facilities or public buildings.
3. The hours for licensable activities being within the council’s Core Hours Policy HRS1.
4. The sale by retail of alcohol, regulated entertainment and/or late-night
· refreshment must be an ancillary function to the primary purpose of the venue as providing nudity, striptease or sex related entertainment.
· 5. The operation of any delivery services for alcohol and/or late night refreshment meeting the council’s Ancillary Delivery of Alcohol and/or Late-Night Refreshment Policy DEL1. 6. The applicant has taken account of the Special Consideration Zone Policy SCZ1 if the premises are located within a designated zone. 7. The application and operation of the venue meeting the definition of a sexual entertainment venue or as a sex cinema as per Clause B.
The Presenting Officer, Ms Emanuela Meloyan , introduced the application. She advised that the Applicant seeks a Shadow Licence under the Act in respect of 4-5 Duke of York Street, London SW1Y 6LAto be held by the freeholder of the Premises Crowdale Limited on the same terms as the existing licence 21/07741/LIPDPS. The Premises currently operate as a gentleman’s club and has the benefit of a Sexual Entertainment Venue licence. The Premises has been licensed since 2005.
Ms Meloyan advised that representations had been received by 11 local residents. She confirmed that the Metropolitan Police Force had withdrawn their representation on the 23 November 2021 following the agreement of conditions with the Applicant. She outlined that the Premises is within the St James’s Ward but not within the West End Cumulative Impact Zone nor Special Consideration Zone.
Mr Niall McCann Solicitor appearing on behalf of the Applicant addressed the Sub-Committee. He advised that this was an application for a shadow Premises Licence and that normally such applications were not controversial and were granted under delegated authority. He confirmed that a new 15-year lease had been agreed with the current operator, Mr Less, and Mr Less had now withdrawn his representation opposing the application. Mr McCann advised that the Applicant had not been in contact with the residents, however, he hoped that his written submission that had been circulated to all Parties would alleviate their concerns regarding the Premises becoming a nightclub.
Mr McCann explained that a shadow Premises Licence was granted on the same terms as the original operating Premises Licence to the superior lessee or freeholder. They were common when the operating Premises Licence was of commercial value as they lessened the impact of the operating licence permanently lapsing due to insolvency as the shadow Premises Licence could be transferred to the new tenant in such circumstances. He further explained that a shadow Premises Licence also protected the superior lessee/freeholder if the operating Premises Licence was fettered following a Review application, albeit it was often the case that both the operating and shadow Premises Licence was reviewed simultaneously.
Mr McCann advised that if the Premises wished to change its use and become a nightclub the operators would need to apply for a variation to the Premises Licence to remove/change the conditions on the current Premises Licence. The application would then be circulated for consultation to the Responsible Authorities and residents and would come before the Licensing Sub Committee for determination.
Mr McCann advised that Crowdale Limited was involved with their portfolio of properties and did not use third party agents. He stated that the Premises was not located in either a Cumulative Impact Area or a Special Consideration Zone. He highlighted to the Sub Committee the condition proposed by the Metropolitan Police Force (proposed condition 37) and which had been agreed by the Applicant that stated ‘The shadow licence will not take effect when the current licence is in operation, until the current licence lapses, is surrendered or revoked and an application has been approved for a minor variation to remove this condition’.
In response to questions from the Sub Committee, Mr McCann advised that a Shadow Premises Licence was in effect an insurance policy against the operating licence permanently lapsing due to insolvency or Review as the shadow licence could be transferred to a new tenant. He outlined that when tenants were financially struggling the landlord was usually the last one to find out as rent for such businesses were usually paid on a quarterly basis. He stated that it was his experience that the Responsible Authorities usually reviewed the operating licence and not the Premises themselves unless, for instance, there was noise emanating through the building. He hoped that Mr Less would operate the Premises for the full term of his new 15-year lease.
Mr Gavin Walker, local resident opposing the application, advised that he lived in one of the 18 flats in Bray House which was adjacent to Gaslight. He explained that the building was not freehold as residents had to buy a share in the building’s director company which managed the building. He advised that Gaslight was a known quantity and did not cause noise nuisance. He emphasised that the current operator did not take full advantage of his Premises Licence which was why the Premises did not currently disturb the residents. He advised that the Shadow Licence represented an unknow quantity as Crowdale Limited could find a new tenant who would operate the Premises as a night club. This would prevent the residents the opportunity to object to such a change in the operation of the Premises. He emphasised that a nightclub would bring people and noise nuisance to the area.
Mr Walker advised that it was difficult for people to obtain a mortgage when there was a Premise Licence operating in the basement of the building. He further advised that each flat paid around £20,000 per annum for the maintenance of the building. He outlined that sometimes booming vibrating music travelled up the lift shaft from the Gaslight to the flats. He requested that residents were consulted on applications made for licensable activities for this Premises.
Mrs Lyndsay Walker advised that she could frequently feel the music vibrations from the Gaslight. She outlined that she was surprised that such a Premises Licence had been granted in a residential building. She considered that the Premises Licence should be revoked as such a Premises should not be allowed to operate in such a beautiful area. She added that the residents, particularly the ladies living in the flats, wanted the Premises closed. She advised that there was a church located near the Premises.
In response to questions from the Sub Committee, Mr and Mrs Lyndsay advised that their residential block was very old and the upkeep cost thousands of pounds annually. They emphasised that residents should have the opportunity to review any applications for new Premises Licence to assess the potential business model. Mrs Lyndsay advised that she was unhappy with the Gaslight because it operated as a sexual entertainment venue.
Mr Horatio Chance, Legal Advisor to the Sub Committee, advised the residents to contact the Responsible Authorities if they had serious concerns regarding the operation of the Premises.
Mr McCann advised the Sub Committee that this was not a Review Hearing application. He added that the Premises Licence was for the actual Premises and not for an individual. He advised the residents that the Applicant was happy to contact them regarding their concerns after the hearing.
Conclusion
The Sub-Committee realises that it has a duty to consider each application on its individual merits and did so for the purposes of this application. It was noted by the Sub-Committee that the Metropolitan Police Service had withdrawn their objection and that the Environmental Health Service and the Licensing Authority had not made representations against the application.
The Sub-Committee in light of the evidence before it and the arguments advanced by Mr McCann in his submissions to the Sub-Committee considered Paragraph D20 on page 28 of the SLP which reads:-
“The Licensing Authority may consider granting applications for licences that duplicate the terms and conditions of the current operational licence for that same premises but are issued to the landowner, or other person with an interest in the property and that the licence has no affect by condition. These ‘Shadow Licences’ are normally sought by the landowner to protect the interest of their property due to the Policy to refuse certain new applications. A Shadow Licence will, in the event that a licence lapses, is surrendered or is revoked the property own can look to market the property with the licence. The holder of the Shadow Licence would in those circumstances need to apply to the Licensing Authority to vary the licence to remove any conditions preventing the use of that licence. At that point the Licensing Authority will consider whether the operation of the premises is likely to be an exception to policy. It will be for the Shadow Licence licensee to demonstrate that they are an exception within the applications operating schedule”
The Sub-Committee using its discretionary powers concluded that Paragraph D20 of the Policy had been met by the Applicant on the basis that this was an application for a shadow licence identical to the existing Premises Licence in terms of hours and conditions. Therefore, the Sub-Committee could see no real justification for rejecting the application. The Sub-Committee would request that the Licensing Authority should be informed of who eventually takes over the shadow licence.
Having taken into account all the evidence and the individual circumstances of this case the Sub-Committee decided to grant the application. The Sub-Committee was satisfied that the application was suitable for the local area and had addressed any concerns raised. The Sub-Committee further considered the conditions were proportionate to ensure that the licence promoted the licensing objectives.
The Sub-Committee arrived at this decision based upon the merits of the application and the various safeguards and measures the Applicant is to implement in the running of the Premises that will uphold the promotion of the licensing objectives.
In reaching its decision, the Sub-Committee concluded that the conditions attached to the licence would alleviate the residents’ concerns and were appropriate and would promote the licencing 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 taking into account all the individual circumstances of this case and the promotion of the four licensing objectives: -
1. To grant permission for Sale by Retail of alcohol (On and Off Sales) Monday to Sunday 10:00 to 03:00 hours and Sunday 12:00 to 00:00 hours.
2. To grant permission for Late Night Refreshment (Indoors) Monday to Sunday 23:00 to 03:30 hours and Sunday 23:00 to 00:00.
3. To grant permission for Live Music (Indoors) Monday to Sunday 09:00 to 03:00 hours.
4. To grant permission for Recorded Music (Indoors) Monday to Sunday 00:00 to 00:00 hours.
5. To grant permission for Performance of Dance (Indoors) Monday to Sunday 09:00 to 03:00 hours and Sunday 09:00 to 00:00.
6. To grant permission for the Anything of a similar description to Live Music, Recorded Music or Performance of Dance (Indoors) Monday to Saturday 09:00 to 03:00 and Sunday 09:00 to 00:00 hours.
7. To grant permission for the Opening Hours for the Premises Monday to Saturday 09:00 to 03:00 hours and Sunday 09:00 to 00:30 hours.
8. That the Premises Licence is subject to any relevant mandatory conditions.
9. That the Premises Licence is subject to the following conditions imposed by the Committee which are considered appropriate and proportionate to promote the licensing objectives.
10. All persons guarding premises against unauthorised access or occupation or against outbreaks of disorder or against damage (door supervisors) must be licensed by the Security Industry Authority.
Conditions attached by the Committee after a licensing hearing
11. From 8:00pm on Thursdays, Fridays and Saturdays when licensable activities are taking place and premises are being used as a hostess club, then at least one personal licence holder shall be present on the premises.
12. CCTV with time and date recording facility shall be installed at the premises in accordance with the advice of a Metropolitan Police Officer Prevention Officer. Recordings shall be made and retained for at least thirty-one days and shall be readily available for inspection by the Police or Westminster City Council.
13. On Mondays to Saturdays, when the premises are being used as a hostess club, after 11:00pm intoxicating liquor shall not be sold or supplied to persons unless a minimum entry fee of £7 has been paid for admission to the premises or an annual admission fee of £250 (not to be credited against consumables). However, notwithstanding the above, intoxicating liquor may be sold or supplied after 11:00pm to the following persons who have not paid an admission fee:-
a) Persons who are taking a table meal where the consumption of alcohol is ancillary to that meal;
b) Any person attending a bona fide private function at the premises;
c) Artistes or persons working at the premises;
d) Bona fide guests of the proprietor, a list of whom shall be kept at the reception for inspection by the appropriate authorities;
14. Suitable beverages other than intoxicating liquor including drinking water shall be available at the premises.
15. The sound limiting device shall be set at such a level and sealed and maintained to the satisfaction of the Environmental Health Office and noise and vibration from mechanical equipment or from music provided at the premises shall not be audible in nearby residential property so as to constitute a nuisance.
16. Should there be any change to the management structure plan, deposited with Westminster City Council Licensing Authority, the licensee shall notify the Licensing Authority as soon as reasonable practical and, in any event, within seven days.
17. Whenever the premises are used for the provision of regulated entertainment, the internal lobby doors shall remain closed except for customer access and exit and in the event of emergency.
18. Clearly legible notices shall be displayed at all exits from the premises requesting patrons to respect the needs of the local residents and to leave the premises and area quietly.
19. The licensee and managers shall ensure that staff do not cause noise or disturbance when entering or exiting the premises or when carrying out their duties at the door or outside the premises.
20. Noise and disturbance arising from taxis picking up and setting down clients at the premises shall be minimised as far as possible.
21. At least one registered door supervisor shall be employed at the premises when the premises are open for the provision of regulated entertainment to the public.
22. Whenever hostesses are working at the premises, customers shall be informed as soon as their bills reach £2,000 (such figure may be adjusted with the written agreed of the Police or Licensing Authority to take inflation into account) and customers should sign their agreement at this point and again upon the bills reaching £4,000, £6,000 and such further multiples of £2,000. All bills shall clearly show the numbers of customers in the party and the number and names of the hostesses who have entertained them and be signed by the customer. All bottles of champagne shall be signed for. These bills shall be retained for ninety days and shall be readily available to the Police and/or the Licensing Authority upon reasonable request.
23. Menus and drinks price lists shall be clearly displayed at the front entrance of the club, reception area, tables and bar at such a position and size as to be easily read by customers. This price list shall show all consumable items and any minimum tariff including charges and fees applicable to hostesses.
24. A permanent written record shall be maintained in the form of a "refusals book" kept at the premises. This record shall be signed by or on behalf of the licensee on a daily basis and record the details of any customer who refuses to pay his/her bill giving details of the customer's name, contact details and a detailed copy of the bill. These records shall be retained for a period of ninety days and be made available to the Police and/or the Licensing Authority upon reasonable request.
25. A notice outlining the Code of Conduct for the customer "as agreed with the Police" shall be positioned at the entrance, reception, bar area and table menus. It shall be of an adequate size (font 16) so that it can be easily read by the customer.
26. All hostesses activities shall be conducted openly and at no time shall hostesses entertain customers in areas to the premises that are screened, hidden by curtains or not in public use.
27. No payment shall be made by on behalf of the licensee to unlicensed minicabs for bringing customers to the premises and there shall be no soliciting of custom by means of persons on the public highway other than by means of handing out flyers outside the vicinity of the premises.
28. All refuse is paid, properly presented and placed out for collection no earlier than thirty minutes before collection time. Refuse cannot be left on the highway for more than two hours and thirty minutes.
29. No unauthorised advertisements of any kind (including placard, poster, sticker, flyer, picture, letter, sign or other mark) is indicated or affixed up on the surface of the highway or up on any building, structure, works, street furniture, tree or any other property or is distributed in the street to the public that advertises or promotes the establishment its premises or any of its events, facilities, goods or services.
30. The maximum capacity at the premises when licensable activities consisting of the sale of supply of alcohol or the provision of late night refreshment are taking place shall be 150 persons (including staff). Whenever regulated entertainment is also provided or provided independently, then the maximum capacity of the premises shall be 110 (excluding staff). After 2.30am on Mondays to Saturdays and after 22.30 pm on Sundays the number of persons on the premises (excluding performers and staff) will be reduced from 110 to 70 save for any private pre-booked functions in respect of which the booking shall have been made at least 24 hours beforehand and the records relating to such booking shall be retained for a minimum period of 30 days following the function.
31. Draught beer shall not be sold or supplied within the premises without the approval of the Environmental Health Officer and if necessary an amendment to the layout drawings of the premises.
32. Music and/or dancing and/or food shall be available within the premises.
33. No admission or re-admission to the premises shall be permitted, except for smokers, later than half an hour before the terminal hour for the sale of alcohol, Mondays to Saturdays and on 22.30pm on Sundays.
34. After 02:00 on the morning following Monday to Saturday the sale of alcohol must be ancillary to the use of the premises for relevant entertainment (as defined in the Local Government (Miscellaneous Provisions) Act 1982).
35. There shall be no off-sales after 02:00 hours.
36. Customers will be encouraged to utilize the preferred taxi company of the licence holder and also to remain in the premises whilst awaiting arrival of their taxi.
37. A direct telephone number for the manager at the premises shall be publicly available at all times the premises is open. This telephone number is to be made available to residents and businesses in the vicinity.
38. The shadow licence will not take effect when the current licence is in operation, until the current licence lapses, is surrendered or revoked and an application has been approved for a minor variation to remove this condition.
This is the Full Decision of the Licensing Sub-Committee which takes effect forthwith.
The Licensing Sub-Committee
16 June 2022
Supporting documents:
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4 - 5 Duke Of York Street report_Redacted, item 2.
PDF 2 MB - Restricted enclosure View the reasons why document 2./2 is restricted
- Restricted enclosure View the reasons why document 2./3 is restricted
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