Agenda item

Ward CIA* SCZ**	Site Name & Address	Application Type	Licensing Reference No.
St James’s West End* None**	Diageo, 28-32 Shelton St, WC2H 9JE	New Premises Licence	22/02733/LIPN
*Cumulative Impact Area ** Special Consideration Zone

 

WESTMINSTER CITY COUNCIL LICENSING SUB-COMMITTEE NO. 2

 

 30^th June 2022 – ITEM 2

 

Membership:      Councillor Maggie Carman (Chair) Councillor Md Shamsed   Chowdhury and Councillor Melvyn Caplan

 

Officer Support: Legal Adviser:              Viviene Walker

                           Policy Officer:               Kerry Simpkin

                           Committee Officer:       Jack Robinson-Young

                            Presenting Officer:       Emanuela Meloyan

 

Present:            Craig Baylis (Kingsley Napley LLP), Tom Johnson (Project   Director), Ian Watson (Environmental Health Service), Roxsana Haq (Licensing Authority), PC Reaz Guerra (Metropolitan Police), David Kaner & Robert Thompson (Covent Garden Community Association), Richard Brown (Soho Society and Covent Garden Community Association) Marina Tempia (The Soho Society), Sophie Levenson & Alun Thomas, (The Mercer Company) and Robert McCraken QC.

 

Application for a New Premises Licences in respect of Diageo 28-32 Shelton Street London WC2H 9JE 22/02733/LIPN

 

 

                                                     Full Decision

 

Premises

 

28-32 Shelton Street

London WC2H 9JE

 

Applicant

 

Diageo Great Britain Limited

 

Cumulative Impact Area

 

West End

 

Ward

 

St. James’s

 

Special Consideration Zone

 

None

 

 

 

 

 

Summary of Application

 

The Sub-Committee has determined an application for a new Premises Licence under the Licensing Act 2003 (“The Act”). The Premises are over six floors offering supply of alcohol ancillary to food with ancillary demonstration kitchens, function spaces and areas for local community use.

 

There is a resident count of 79.

 

Representations received

 

•        Metropolitan Police Service (PC Reaz Guerra)

•        Environmental Health Service (Ian Watson)

•        Licensing Authority (Jessica Donovan)

•        Covent Garden Community Association (David Kaner)

•        Covent Garden Area Trust (Miriam Holland)

•        The Soho Society (Marina Tempia)

•        The Mercers Company (Simon Taylor)

•        19 Local residents

 

 

Summary of issues raised by objectors

 

·       These applications taken together and individually, will fail to promote the licensing objectives of the Prevention of Public Nuisance if granted as applied for. This is because of the impact of the operation of the individual premises and the process of arrival and dispersal of customers towards the end of the hours applied for, which are in all cases Westminster City Council’s Core Hours. The proposed process of dispersal will also harm the Public Safety Licensing Objective.

·       The distress and nuisance this is going to cause within our neighbourhood is intolerable. We already have a huge development at 90 Long Acre on one side of our residential site that is going to have bars and restaurants and now we will be under further stress when the Guinness Group try and move in.

·       The site is close to several residential developments and as a result residents will be adversely affected.

·       These premises are in close proximity to Soho, and we are concerned that if successful these premises will increase cumulative impact within the West End Cumulative Impact Zone and fail to promote the licensing objectives of the prevention of crime and disorder and the prevention of public nuisance.

·       A suggestion to review the entire operation after one year from commencing to see what impact, if any, on residents and businesses. This way the residents and businesses in the area can monitor the impact on their lives.

·       The Mercers Company supported the applications and stated:

We have spent a long time with Diageo to ensure that the applications are appropriately balanced and drafted so that they do not add to cumulative impact, are within Core Hours and subject to appropriate model conditions. If granted, “Guinness at Old Brewer’s Yard is scheduled to open in Autumn 2023. The Mercers commend the application to you we hope for your approval.

 

Policy Position

 

CIP1

 

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 vary hours within core hours under Policy HRS1, and/or vary the licence to reduce the overall capacity of the premises. Applications for other premises types within the West End Cumulative Impact Zones will be subject to 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.

 

HRS1

 

Applications within the core hours 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 would 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.

 

RNT1 (B)

 

Applications inside the West End Cumulative Impact Zone will generally be granted subject to 1. The application meeting the requirements of policies CD1, PS1, PN1 and CH1. 2. The hours for licensable activities are within the Council’s Core Hours Policy HRS1.

 

SUBMISSIONS AND REASONS

 

Ms Emanuela Meloyan, Senior Licensing Officer, summarised the application set out in the report before the Sub-Committee.

 

Mr Craig Baylis, solicitor for the Applicant introduced the applications by explaining that all alcohol is ancillary to foods and dining has an average cost of £40/£50 a head per person. The restaurant covers 3 separate floors, the ground floor, the first floor and the sixth floor. The sixth floor has an external terrace which Mr Baylis was happy to accept a condition for this to be vacated by 21:00 to reduce noise disturbance to residents. The second floor has an “Innovation Kitchen” which is for demonstration only and is not part of the restaurant. Mr Tom Johnson, the Project Director, explained that the Innovation Kitchen was to help new and upcoming talent to have a residency and build up their skills. The third floor of the venue is for private events that need to be pre-booked with floors four and five for back-office operations. The exit is through the ground floor via Old Brewers Yard. On Shilton Street there were concerns raised about the pavement access, due to this the front is the only fire escape that persons would be directed to.

 

Mr Johnson explained that there is also an on-site brewery across ten hectares, and they aim to use this as a location to brew Guinness, but the layout will also allow for tours and experiences. Although based on one floor, elements do rise throughout the building. A tour would start here with a tasting at the end with a capacity of 15 people per guided tour with soft drinks available for anyone under the legal drinking age. All guided tours will be prebooked.

 

Mr Baylis explained that the gift shop/souvenir shop would be part of the venue and there is a need for a Licence here as they will be selling Guinness but not alcohol wider than this like a traditional off-licence.

 

Mr Ian Watson for Environmental Health Service stated that the terrace area is smaller than others in the surrounding area and the designated smoking area was welcomed as this will keep smokers off the street. He sought clarity that the gift shop would use counter service and have a shutter when the shop is closed. Also, that there will be a shutter over the alcohol beverages.

 

PC Guerra for the Metropolitan Police Service stated that they had made the majority of their representations to the Sub-Committee in their detailed objections but would welcome any questions from members of the Sub-Committee. He asked if only those on a guided tour will have access to the shop and whether the retail store would only be for those on a guided tour. In response Mr Baylis explained that all visitors to the site can purchase from both sites not just those on a tour. He confirmed that there was an agreed challenge 21 condition.

 

Mr David Kaner for the CGCA stated that he would prefer dispersal from Old Brewers Yard to come through out on to Langley Street. Mr Baylis said that this was down to the Planning process, but dispersal has been a long conversation internally for them to minimise the impact on residents. Mr Baylis also reiterated this was a restaurant with people coming and going, not a destination where a large amount of people would be entering or exiting at one single time. Mr Kaner stated that he believed dispersal needed to be addressed by this Sub-Committee and to not wait until Planning, he also asked that the terrace area be closed by 21:00 and not 22:00 as requested. Mr Richard Brown for the Soho Society also asked that the terrace area be closed at 21:00 hours.

 

Mr Kerry Simpkin, the Policy Advisor asked the Project Director if alcohol over 5.5% abv will be available however at this stage they were unable to confirm. The Project Director explained that some Guinness is a seasonal speciality such as a Halloween or Christmas Blend. As these are yet to be determined they could potentially be over 5.5% abv but could also be under or even be alcohol-free as alcohol-free Guinness will also be sold from the premises.

 

Conclusion

 

The Sub-Committee has a duty to consider the application on its individual merits and took into account all the committee papers, submissions made by the Applicant and all other parties, and the oral evidence given by those parties in attendance during the hearing in its determination of the matter.

 

The Sub-Committee were mindful that during the hearing the application for regulated entertainment in the outside area had been withdrawn.

 

The Sub-Committee noted that the Applicant had put forward the surrender of the 01:00 nightclub operation Premises Licence for the basement at 5 Langley Street as the justification for the Sub-Committee to permit an exception to policy to grant this application. In surrendering this Licence, the Applicant believes that this would provide sufficient mitigation to demonstrate that this application would not add to cumulative impact in the area.

 

The Sub-Committee had regard to the fact that the Applicant had agreed to the surrender of the Premises Licence for the basement at 5 Langley Street night club which reduced the number of patrons leaving the premises by 500 people. However, having regard to the mitigation from the applicant relating to cumulative impact and the Council’s policy the Sub-Committee was not satisfied that the surrender of the existing premises licence and the Applicant’s proposals would be sufficient not to add to cumulative impact for the hours applied for. The Sub-Committee accepted the argument that 500 people in the basement of the building, in a nightclub type operation is a very different type of operation than that proposed.

 

The use of the outside space in Brewer’s Yard for 200 people drinking alcohol, including vertical drinkers caused the Sub-Committee serious concerns and it was felt that the operation of the outside area would cause a nuisance to residents in the area and therefore negatively impact the licensing objectives.

 

The Sub-committee noted the Council’s policy and Cumulative Impact Assessment identifies that cumulative impact occurs and increases significantly after 21:00 hours and there was value in the surrender of the licence, but as stated this alone does not overcome the Sub-Committees concern that the hours after 21:00 hours for licensable activities in Brewer’s Yard would add to cumulative impact. Therefore, it was the Sub-Committees decision to grant the sale of alcohol in Brewer’s Yard but to limit the terminal time to 21:00 hours.

The Sub-Committee noted that the Applicant had engaged with the Environmental Health Service and that the Metropolitan Police Service were satisfied that the courtyard is enclosed, and people cannot leave that area easily as it is controlled therefore patrons will not be drinking on the streets.

The Sub-Committee noted the interested parties’ concerns in relation to dispersal and carefully considered their proposed conditions.

 

The Sub-Committee is aware that conditions must be appropriate for the promotion of the licensing objectives and that they must be tailored to the style of trade. The nature and wording of conditions in any case including this matter, rely on issues such as, but not limited to, the evidence, the quality and experience of the operators, the nature of the location, the style of operation, previous enforcement history and the nature and cumulative effect of other conditions on the Premises Licence.

 

Conditions vary from case to case and indeed, each case is determined on its own merits.

 

The condition proposed by the CGCA, was considered by the Sub-Committee but it did not consider the condition appropriate and proportionate for the following reasons:

(a)  The Applicant had proposed a detailed Operational Management Plan and Delivery and Serving Plan and whilst the interested parties had expressed concern about dispersal into the locale, the Sub-Committee considered the inherent benefits of the location alongside the applicant’s positive steps to manage patrons leaving would ensure that the licensing objectives were promoted;

(b)  By reducing the hours to core hours this would assist with dispersal, and with 500 people no longer leaving the premises in the early hours of the morning and the style of operation, this will assist with gradual dispersal;

(c)   The Applicant will appoint SIA Door Supervisors to control the flow of patrons.

The Sub-Committee noted that the enforcement of the condition proposed by the CGCA is dependent on:

(1)  The continued existence of the Operational Plan and there is no agreed condition compelling the operator to retain such a plan;

(2)  Definition of ‘relevant staff’ and when the training should take place;

(3)  The closure of any entrance will raise issues in relation to emergency escapes;

(4)  Enforcement Officer recognising or measuring the best endeavours of staff.

In light of the above, and the requirements under paragraph 1.16 of the Revised Home Office Guidance issued under section 182 of the Act, the Sub-Committee found that the condition was not precise enough and therefore unenforceable.

 

The Sub-Committee approved the proposed licensable activities and hours for the basement area as this area will only be used for private pre-booked functions or as an event space for circa 100 people. With the surrender of the Langley Premises licence and as this facility will be in the basement, the Sub-Committee was satisfied that an exception to policy had been met and would be appropriate in this case and with the proposed conditions the operation resulting reduction in the capacity and hours for the basement use the operation would not adversely impact the licensing objectives.

 

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

 

1.     To grant permission for the Exhibition of Films, Live Music, Recorded Music

Performance of Dance (Indoors and Outdoors) Monday to

Thursday 10:00 to 23:30 hours Friday to Saturday 10:00 to 00:00 hours

Sunday 12:00 to 22:30 hours.

 

Seasonal Variations:     None

 

2.     To grant permission for Late Night Refreshment (Indoors) Monday to

Thursday 23:00 to 23:30 hours Friday to Saturday 23:00 to 00:00 hours.

 

Seasonal Variations:     None

 

3.     To grant permission for Retail Sale of Alcohol (On and Off Sales) Monday to Thursday 10:00 to 23:30 hours Friday to Saturday 10:00 to 00:00 hours.

Sunday 12:00 to 22:30 hours

 

Seasonal Variations:     None

 

4.     To grant permission for Hours Premises are open to the Public Monday to

Thursday 08:00 to 23:30 hours Friday to Saturday 08:00 to 00:00 hours

Sunday 09:00 to 22:30 hours.

 

Seasonal Variations:     None

 

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

 

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

 

 

Conditions imposed by the Committee after a hearing with the agreement of the Applicant

 

 9.       The supply of alcohol throughout the premises shall only be to

(a) Persons seated taking a table meal at the premises where the supply of alcohol is by waiter or waitress service, save for persons who may be served alcohol at the ancillary bars on the ground, first and sixth floors while awaiting a table or after taking a table meal, or

(b) Persons attending a bona fide private pre booked function or a ticketed event to which members of the public are not admitted. A register of persons attending the function/event shall be kept for a minimum period of 31 days at the premises and made available for immediate inspection by the Police or an authorised officer of the Council throughout the entire 31-day period.

 

10.      Prior to any event being taken at the premises a risk assessment for that event shall be undertaken which will address as a minimum entrance and dispersal of patrons, provision and service of alcohol and the monitoring of consumption of alcohol and whether the provision of SIA shall be required. This risk assessment shall be retained at the premises for a minimum of 31 days after the event takes place.

 

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

 

12.      The external terrace area on the 6th floor shall not be used and be vacated by 22.00 hours each day.

 

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

 

14.      There shall be no sales of alcohol for consumption ‘Off’ the premises after 23.00 hours.

 

15.      All sales of alcohol for consumption ‘Off’ the premises shall be in sealed containers only and shall not be consumed on the premises.

 

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

 

17.      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 the Police or authorised officer throughout the preceding 31-day period.

 

18.      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. This staff member must be able to provide the Police or authorised council officer copies of recent CCTV images or data with the absolute minimum of delay when requested.

 

19.      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 concerning 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.

 

20.      All staff involved in the sale or supply of alcohol shall be trained in the responsible sale of alcohol. The Designated Premises Supervisor and the Duty Managers shall in addition have ACT-E and WAVE training (or subsequent equivalent training). The training log will be made available for inspection by the Police and Licensing Authority.

 

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

 

22.      Loudspeakers shall not be located in the entrance and exit of the premises or outside the building including the 6th floor terrace.

 

23.      Patrons permitted to temporarily leave and then re-enter the premises, e.g., to smoke or make a phone call, shall not be permitted to take glass containers with them.

 

24.      No regulated entertainment shall be provided on the 6^th floor terrace.

 

25.      No fumes, steam or odours shall be emitted from the licensed premises so as to cause a nuisance to any persons living or carrying on business in the area where the premises are situated.

 

26.      During the hours of operation of the premises, the licence holder shall ensure sufficient measures are in place to remove and prevent litter or waste arising or accumulating from customers in the area immediately outside the premises, and that this area shall be swept and or washed, and litter and sweepings collected and stored in accordance with the approved refuse storage arrangements by close of business.

 

27.      No deliveries to the premises shall take place between 23.00 and 07.00 hours on the following day.

 

28.      All refuse shall be stored internally prior to collection.

 

29.      The approved arrangements at the premises, including means of escape provisions, emergency warning equipment, the electrical installation and mechanical equipment, shall at all material times be maintained in good condition and full working order.

 

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

 

31.      All emergency exit doors shall be available at all material times without the use of a key, code, card or similar means.

 

32.      All emergency doors shall be maintained effectively self-closing and not held open other than by an approved device.

 

33.      The edges of the treads of steps and stairways shall be maintained so as to be conspicuous.

 

34.      The Premises Licence Holder shall at all times comply with policies relating to dispersal, an operational management plan, servicing plan and public realm strategy as shall be amended from time to time. Such copies of these documents shall be made readily available to the Police and the Licensing Authority upon request.

 

35.      After 21:00 hours all patrons shall leave the premises via Langley Street.

 

36.      No licensable activities shall take place until the premises have been assessed as satisfactory by the Environmental Health Consultation Team at which time this condition shall be removed from the Licence by the Licensing Authority.

 

37.      No licensable activities shall take at the premises until the capacity of the premises has been determined by the Environmental Health Consultation Team and the Licensing Authority has replaced this condition on the licence with a condition detailing the capacity so determined.

 

38.      Before the premises open to the public, the plans as deposited will be checked by the Environmental Health Consultation Team to ensure they are an accurate reflection of the premises constructed. Where the premises layout has changed during the course of construction new plans shall be provided to the Environmental Health Consultation Team and the Licensing Authority.

 

39.      A direct telephone number for the manager at the premises shall be publicly available at all times the premises are open. This telephone number and/or is to be made available to residents and businesses in the vicinity.

 

This is the Full Decision of the Licensing Sub-Committee which takes effect forthwith.

 

The Licensing Sub-Committee

30 June 2022