Agenda item

Ward CIA* SCZ**	Site Name & Address	Application Type	Licensing Reference No.
St James’s   * West End   ** None	Greggs 1-4 Leicester Square WC2H 7NA	New Premises Licence	22/05332/LIPN
*Cumulative Impact Area ** Special Consideration Zone

 

WCC LICENSING SUB-COMMITTEE NO. 2

(“The Committee”)

 

Friday 29^th July 2022

 

Membership:           Councillor Aziz Toki (Chair), Councillor Angela Piddock and Councillor Jim Glen

 

Officer Support:         Legal Advisor:           Horatio Chance

                                  Policy Officer:            Aaron Hardy

                                  Committee Officer:    Georgina Wills

                                  Presenting Officer:    Emanuela Meloyan

 

Present:                   Ms Sarah Clover, (Counsel), Kings Chambers, Birmingham.

                                Applicant - Greggs PLC

                                Mr Ian Bagnall (Head of Retail Greggs PLC)

                                Ms Julie Smith (Retail Operations Manager Greggs PLC)

                           PC Thomas Stewart (Metropolitan Police Service)

                           Mr Anil Drayan (Environmental Health Service)

                           Ms Karyn Abbot (The Licensing Authority)

 

Application for a New Premises Licence in respect of Greggs1-4

Leicester Square London WC2H 7NA- 22/05332/LIPN

 

FULL DECISION

 

Premises

 

Greggs

1-4 Leicester Square

London

WC2H 7NA

 

Applicant

 

Greggs Plc

 

Ward

 

St James’s

 

Cumulative Impact

 

West End Cumulative Impact Zone

 

Special Consideration Zone

 

N/A

 

Activities and Hours applied for

 

Late Night Refreshment (Outdoors)

Monday to Sunday 23:00 to 05:00

 

Opening Hours for the Premises

Monday to Sunday 00:00 to 00:00

 

Summary of Application

 

The Sub-Committee has determined an application for a New Premises Licence under the Licensing Act 2003 (“The Act”). The Premises intends to operate as a

bakery and confectionary shop offering hot and cold non-alcoholic beverages.

The Premises are located within the St James’s and West End Cumulative Impact Zone (“West End CIZ”). There is a resident count of 19.

 

Representations Received

 

• Metropolitan Police Service (PC Adam Deweltz)
• Environmental Health Service (Anil Drayan)
• The Licensing Authority (Karyn Abbot)
• Councillors Tim Mitchell, Louise Hyams and Mark Shearer, St James Ward Councillors
• One resident

 

Summary of Representations

 

• The Metropolitan Police had made representation in relation to the application as the proposal may undermine the licencing objectives of Prevention of Crime and Disorder. The hours sought are also beyond that of Westminster’s core hours policy.
•  
• The Environmental Health Service had made a representation as the premises are located in the West End Cumulative Impact Zone (CIZ). The Application could undermine the Licensing objectives of the Prevention of Public Nuisance, Public Safety and Protection of Children from Harm. The applicant has offered some conditions, but these appear not to fully address CIZ issues as defined in the City Council’s Statement of Licensing Policy.

 

• The Licensing Authority had maintained representations on the Licensing objections of the Prevention of Public Nuisance, Prevention of Crime and Disorder, Public Safety and Protection of Children from Harm.

 

• St James Ward Councillors had maintained representations as the Premises was situated within the West End Cumulative Impact Zone and failed to sufficiently demonstrate what mitigating factors which would not add to the cumulative impact.

 

• A resident had raised concerns over the selection and quality of food that was on offer.

 

The following Polices apply under the City Council’s Statement of Licensing Policy (“SLP”)

 

CIP1

 

• Under Policy 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 the Core Hours under Policy HRS1.  Applications for other licensable activities in the Cumulative Impact Zones will be subject to other policies and must demonstrate that they will not add to cumulative impact.

 

HRS1

 

• 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.

 

FFP1

 

• Under PolicyFFP1 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, and/or,

2.        Applications that seek to vary the existing licence so as to reduce

the overall capacity of the premises.

C.       The applications referred to in Clause B1 and B2 will generally be granted subject to:

1.        The application meeting the requirements of policies CD1, PS1,

PN1 and CH1.

2.        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.

3.        The application and operation of the venue continuing to

meet the definition of a Fast Food Premises in Clause D.

D.       For the purposes of this policy a Fast Food Premises is defined as:

1.        A premises that provides late night refreshment, either by way of

fast food over a counter, via a self-seating basis or take away for

immediate consumption.

2.        Food and drink are:

a.        Available on the premises for self-selection.

b.        Prepared on the premises.

c.        Cooked or produced off the premises but brought to that

premises in advance of its sale to customers.

3.        The food and drink are provided in pre-sealed or open disposable

packaging which is intended for immediate consumption.

4.        A fast-food premises can provide a delivery service as part of its

operation, however that service must be ancillary to the main

function of the premises as defined within sub-clauses D,1 to D,3 above.

 

SUBMISSIONS AND REASONS

 

Preliminary matters:

 

1.     The Chair introduced the Members of the Sub-Committee and outlined the procedure to the Parties in attendance. Prior to the hearing starting Mr Horatio Chance, the Legal Advisor to the Sub-Committee highlighted a technical point regarding the application and sought clarification from the Applicant as to what had been applied for in terms of late night refreshment as it would appear that “on sales” had only been applied for.

 

2.     The Sub-Committee noted that the Applicant sought to provide a takeaway service and were informed by the Legal Advisor that Scheduled 2 of the Act defined late night refreshment, namely; “It involves the supply of “hot food or hot drink” between the hours of 23:00 and 05:00 to the public for consumption on or off the premises. It includes the supply of hot food or hot drink between those hours on premises to which the public has access. Under Schedule 2, food or drink is to be considered to be “hot” if, before it is supplied, it has been heated on the premises or elsewhere for the purpose of enabling it to be consumed at a temperature above the ambient air temperature and at the time of supply it is above that temperature; or after it is supplied, may be heated on the premises for the purpose of enabling it to be consumed at a temperature above the ambient air temperature” as provided for by paragraph 3.12 on page 16 of the Home Office Guidance.

 

3.     The Legal Advisor stated that the application should have included the provision for “outdoors” as well so that hot food or hot drink can be consumed outside the Premises in accordance with the definition contained under Schedule 2 of the Act, and that the Sub-Committee could only determine the application as submitted by the Applicant.

 

4.     In view of the comments made by the Legal Advisor, Ms Sarah Clover, Counsel for the Applicant Greggs PLC addressed the Sub-Committee by shedding light on the matter and what the true intentions of the Applicant were when it came to the completed application and how this was to be reflected when considering the provision for late night refreshment on and off the Premises. She referred to Judge’sMr Justice Hickinbottom, ruling on Matthew Taylor v Manchester City Council and Another 2012 and advised that the Sub-Committee was viewed as acting as a proxy for the public. Ms Clovercommented that it needed to be examined on whether all points which would have been raised by the Public regarding the Application had been covered. Ms Clover advised that the Applicant was a widely recognised retailer and that its ‘nature of business’ was well known. She commented that a further consultation regarding ‘off sales’ would not raise any new concerns which had not previously been addressed.

 

5.     The Sub-Committee adjourned at 10:13 to consider the submissions advanced by Ms Clover and resumed at 10:23. The Sub-Committee held discussions and noted that there was Case Law which permitted applications to be amended at the Licensing Sub-Committee despite consultations with all relevant parties had been concluded.

 

6.     The Sub-Committee noted there had been a procedural defect regarding the application which was a technical point and agreed that no Parties had been misled and that an amendment to the Application could be made at this stage by taking a common sense and pragmatic approach when considering the facts and evidence in the round.

 

7.     The Sub-Committee exercising reasonable discretion and in accordance with legal advice given considered that it would be inappropriate to delay the hearing of the application and to do so would not be in the public interest. The hearing therefore proceeded with all the parties present.

 

Submissions by the Parties attending the hearing

8.     The Presenting Officer, Ms Emanuela Meloyan introduced the application and advised that the application was for a new Premises Licence which sought to trade as a bakery and confectionary shop offering hot and cold non-alcoholic beverages. She confirmed that representations against the application had been received by the Metropolitan Police Service, Environmental Health Service, The Licensing Authority,St James Ward Councillors, and a resident. The Premises are located within the St James’s Ward and West End CIZ.

 

9.     Ms Sarah Clover advised that representations had been submitted which detailed how the Premises would operate. She said that the Premises would be the Applicant’s flagship store and had recently opened on 18 July 2022. The Premises was reported to be small and was permitted to trade and provide cold food and beverages 24 hours. She confirmed that it was sought to provide late night refreshments between 23:00 to 05:00 and recognised the concerns held in relation to the supply of these goods, namely anti-social behaviour and individuals congregating in localities. Ms Clover advised that only a small offer of goods supplied by the Applicant was classified as hot food. The food products are not prepared in the Premises and are partially cooked in shops. Ms Clover advised that most food offerings at the Premises could be made available to customers throughout the Premise’s operational hours.

 

10.Ms Clover commented that there were no significant differences between products which were considered as ‘hot’ and ‘nonhot’ and that both goods were purchased by the same customers. She advised that there would be no additional footfall to the Premises. The Sub-Committee noted that the statistics provided indicated that the core demographic which was expected during later hours were shift workers, night workers and emergency service staff. Ms Clover advised that this cohort was not associated with anti-social behaviour or nuisance. There will be no seating in the Premises and customers will leave the shop after their purchase. In any event the Premises could only hold a maximum of ten customers at any one time.

 

11.Ms Clover advised that the Applicant had case studies of other branches which offered late night refreshment and that there were no concerns regarding their operational model which included branches in Newcastle and no concerns had been raised by the Responsible Authorities in these localities. Ms Clover advised that the Applicant had a Premises in Victoria London which operated during the later hours and that Conditions had been agreed with the Metropolitan Police Service. She advised that the same Conditions which were imposed at the Victoria, London Branch had been offered. There were no concerns regarding the Premises operating schedule.

 

12.Ms Clover advised that granting the Application would ensure that there are additional controls placed on the Premises. These included ensuring that there are CCTV, litter picking and SIA door staff on patrol. She commented that these measures would be beneficial to the local security and would contribute to help reduce anti-social behaviour activities in the vicinity.  The Premises would not add to the cumulative impact but would help to reduce the concerns associated in these localities. Ms Clover commented that exceptional circumstances had been demonstrated and highlighted that Policies, did not indicate that all applications outside core hours should  automatically be refused and needed to be subjected to additional scrutiny on whether they are suitable in their location.

 

13.Ms Clover advised that the Applicant was an excellent operator and a renowned brand. She advised that the Premises would ‘dilute’ the footfall and not bring additional persons to the locality. The Sub-Committee was advised that there were other branches in the locality and that the Responsible Authorities had been liaised with. Ms Clover advised that the late-night refreshments was sought in order to ensure that the Premises full range of offer is available to patrons throughout its operation and does not cause confusion about what produce could be purchased at set times.

 

14.In response to questions from the Sub-Committee, Julie Smith, Retail Operations Manager for the Applicant, advised that ‘hot food’ which would be on offer included bacon sandwiches, chicken goujons, potato wedges and hot beverages which included tea, hot chocolate, and coffee. The ‘hot food’ would be stored in a heated cabinet and a range between 6 to 8 different food products would be available.

 

15.Mr Anil Drayan appearing on behalf of Environmental Health addressed the Sub-Committee. He advised that the Premises had been visited and confirmed that the shop was small and could hold up to 10 customers. Mr Drayan said that queues at the shop could end at Leicester Square during the later hours. There have been no issues with the Premises regarding the promotion of the four licensing objectives from within the Premises which is located within the West End Cumulative Impact Zone. He advised that representations had been maintained to ensure that the Sub-Committee can take a view on whether exceptional circumstances had been demonstrated by the Applicant.

 

16.In response to questions from the Sub-Committee, Mr Drayan advised that the Premises was located at the ‘heart’ of the Cumulative Impact Area and was one of the busiest late-night districts and attracted large crowds. Mr Drayan said that the Premises could attract individuals who are not immediately going towards transport hubs. He stated that a new Premises in the locality which had a food offering that was ‘value for money’ would be attractive to individuals. Mr Drayan noted that the Applicant had advised that sales of ‘hot food’ were not high and advised that these purchases would increase during the colder months. He commented that these factors would need to be taken into consideration. In response to questions from Ms Clover, Mr Drayan advised that the Premises was small and queues would likely to build up quickly and noted that this view was speculative.

 

17.PC Thomas Stewart appearing on behalf of the Metropolitan Police Service advised that representation had been maintained on the grounds of the Prevention of Crime and Disorder. PC Stewart stated that the Premises was located at ‘the heart’ of the Westminster Cumulative Impact Areas. He commented that Paragraph F56 of the City Council’s Statement of Licensing Policy confirmed that fast food premises operating after 23:00 attracted patrons from drink led establishments and these individuals congregated in the area. The Sub-Committee was advised that this had a detrimental effect in the locality and led to an increase in public nuisance. PC Stewart said that Leicester Square, London had several late-night eateries in the locality and was a focal point for late night revellers. The Sub Committee noted that the Metropolitan Police Service had had to implement four Section 35 Dispersal Orders to assist with the dispersal of crowds within the locality. PC Stewart advised that an increase in Premises which offered late night refreshment in the vicinity would only compound the issues already experienced in the locality.

 

18.PC Stewart commented that the Premises did not have any seating and advised that this could not be accepted as a mitigating factor to prevent crime and disorder and public nuisance. He advised that this position would have a reverse affect. PC Stewart highlighted that the Applicant had failed to take into consideration the impact of establishments that offered late night refreshment in the immediate area. He advised that patrons consume their food in the locality and would not leave the area because of what it has to offer. PC Stewart advised that there were several areas around the garden in Leicester Square which was used for seating and that there were difficulties in dispersing crowds. PC Stewart advised that a rise in licensable activities such as late-night refreshment could lead to an increase in criminal activities and anti-social behaviour.

 

19.PC Stewart highlighted that only a small percentage of sales amounted to ‘hot food’ and stressed that individuals would be attracted to this type of produce. He commented that the Premises SIA staff would only have control of customers inside the shop and not after they exit. PC Stewart highlighted that all patrons would leave the Premises after 23:00 and that the Police would be required to deal with any anti-social behaviour that occurred outside the shop. He advised that the Police undertook regular night patrols in Leicester Square to prevent anti-social behaviour and violent crime. PC Stewart advised that the Police resources were limited, and other policing areas could be mal impacted. There is an increase in anti-social behaviour after 23:00. PC Stewart advised that the Application should be refused on the grounds that is in the West End CIZ and had failed to effectively demonstrate how the Premises would not add to further cumulative impact.

 

20. In response to questions from the Sub-Committee, PC Stewart advised that the Premises operating 24 hours without the provision of late refreshment would cause concerns. PC Stewart advised that these offers would be attractive and noted the Applicant was a well-known operator. PC Stewart said that the Premises would add to the cumulative impact, and in turn this would lead to a general increase in anti-social behaviour in the locality.

 

21. Ms Karyn Abbot, appearing on behalf of the Licensing Authority addressed the Sub-Committee. She advised that representation had been maintained as the Premises is situated in the West End CIZ and was beyond core hours. Ms Abbot commented that the Premises was in the ‘heart of’ Leicester Square’ and was surrounded by late night establishments and other premises which were ‘drink led’. She advised that the Applicant needed to demonstrate that the Premises would not contribute to the overall cumulative impact of the area. Ms Abbot advised that the Application would lead to an increase in anti-social behaviour, and this was directly related to dispersals and individuals congregating in the locality. She advised that the application fell under Policies CIP1, HRS1 and FFP1 and that the Applicant was required to demonstrate that the application was an exception to policy.

 

22. The Sub-Committee noted that customers would not be able to purchase hot beverage with other food items during past core hours and commented that this may raise issues. PC Stewart advised that it was expected that well run operators can manage their Premises and this included ensuring customers  are aware what provisions such as food offerings are available. These include having signages about food offerings. In response to questions from the Sub-Committee, PC Stewart confirmed that the hours between 23:00 to 04:00 were the busiest and during these periods patrons would be leaving various establishments in the locality.

 

23. In response to questions from the Legal Advisor, Ms Clover highlighted that food offerings would continue to be provided during later hours and that there would be additional benefits if the Application were agreed. This included providing surveillance, security, and litter control. Ms Clover advised that late night refreshment included both cold and hot food and that the latter amounted to a small percentage of goods on offer. She advised that this offer had been tested at other branches and did not cause any of the concerns which had been raised earlier.

 

24. Ms Clover advised that there were no requirements for the operational hours applied for to be reduced and commented that the same offer would be available throughout the duration of the day and later hours. Ms Clover commented that the later hours would largely attract a certain demographic which would include shift workers and staff from the emergency services.

 

25. The Sub-Committee were advised that there was no evidence or justification for the reduction of hours and that the Responsible Authorities had not considered the mitigations which had been offered to reduce risks during set hours during the latter parts of the evening and beyond. Ms Clover said that concerns raised were speculative and made justifiable through use of Policy. 

 

26.  In response to questions from the Sub-Committee, Ms Clover advised that sales would not be increased, and that the Application sought to ensure that all produce on offer are available to customers during the Premises operational hours. Ms Clover advised that signage informing customers what produce was available at certain trading hours would result in an increase in individuals loitering at the Premises rather than engaging in transactions and leaving the store.

 

27. The Legal Advisor stated to the Sub-Committee that signage was a useful tool which would help enable customers to help understand the parameters of the Law regarding trade and services provisions.

 

28. The Sub-Committee noted that individuals congregating in localities had an impact on Cumulative Impact Areas and effected various parties and establishments located within these localities. In response to questions from the Sub-Committee, Ms Clover advised that the Application would ensure that customers are served quickly and able to exit the Premises following purchases. She advised that empirical data which had been gathered from branches in Northern Cities in the United Kingdom indicated that customers  were on transit to transport hubs when purchasing late night refreshments. Ms Clover commented that there were other branches on route to transport hubs and that the Premises would not divert individuals from set journeys. The Sub-Committee were reminded that demographics of customers were not associated with anti-social behaviour.

 

29. Ms Clover advised that the Applicants business model was based on ‘food on the go’ and packaging and marketing were based on this concept. Ms Clover advised that individuals would not be encouraged to remain in the locality and that the Applicant had engaged with the Police regarding conditions and actions which would help to alleviate concerns.

 

30. In summing up Mr Drayan advised that representation had been maintained as Policy FFP1 required applications to be refused in the West End CIZ  unless they could demonstrate exceptional circumstances. Mr Drayan advised that cumulative impact included areas both inside the Premises and also the surrounding locality. He advised that the Applicant had failed to demonstrate that there was an exception to Policy.  

 

31. In summing up PC Stewart advised that the most contentious aspect of the Application was the Premises location. PC Stewart said that the Premises location was at the ‘heart of’ the West End and that the vicinity had a high rate of anti-social behaviour, and this was on the increase. He commented that a Section 35 Dispersal Order had been instigated on four occasions during July 2022. PC Stewart advised that the location was unique in character and differed to other sites where the Applicant had branches. The Sub-Committee were reminded that customers would consume produce outside the Premises and this action meant that individuals would be viewed as a ‘public issue’ and not under the control of the Applicant. PC Stewart advised that there were no mitigating factors which would ensure that there would be no cumulative impact and stated that the Application should be refused on these grounds. 

 

32. In summing up Ms Abbott referred the Sub-Committee to Policy FFP1 which required applications to demonstrate exception to Policy and that they need to be satisfied that this had been undertaken.

 

33. In summing up Ms Clover advised that the Application had demonstrated an exception to Policy and that the Applicant had a proven track record in providing late refreshments in various localities. She advised that the difference in produce which was being offered was the temperature of the food. Ms Clover advised that evidence provided by the Responsible Authorities were not empirical and were in contradiction to what had been provided by the Applicant. These included concerns regarding queues and demand for late night refreshment during the winter months. Ms Clover advised that the Applicant were aware of their sales figures and commented that consumption of food would be beneficial to individual who had left drink led establishments. Ms Clover advised that SIA Badge Holders employees, CCTV and managing of litter in the vicinity would be beneficial. She advised that demographics of customers would not differ from other branches and that this core group was not associated with crime and anti-social behaviour.

 

34. Ms Clover advised that a vending machine dispensing hot drinks would encourage individuals to remain in the locality. The Sub-Committee were advised that a Review of the Premises Licence could be held under the Act if the Premises were found to be in breach of Conditions. In response to the Legal Advisor’s comments regarding signage, Ms Clover commented that signage advising customers about late refreshment provisions would not be required. However, a Condition which required signage advising customers not to loiter would however be accepted. 

 

 

Reasons of the Sub-Committee

 

35.The Sub-Committee has determined an application for a New Premises Licence under the Act for Late Night Refreshment (Indoors and Outdoors) Monday to Sunday from 23:00 to 05:00 and 24 hours Opening Monday to Sunday.The Premises is a new flagship store located in the heart of Leicester Square and is within the West End CIZ. The Premises will supply cold and hot drinks, the retail sale of bread, cakes, flour confectionery, sugar confectionery, bakes, rolls, sandwiches, etc to include a click and collect service.

 

36.The Applicant provided a summary of model conditions they propose to include on the premises licence along with an operations summary and policy submission. These supporting documents were carefully examined and considered by the Sub-Committee in its determination of the matter and can be found at Appendix 2 of the agenda report.

 

37.The Sub-Committee realises that it has a duty to consider each application on its individual merits and did so when determining the application. The City Council’s SLP under policy FFP1 provides that there is an automatic policy presumption to refuse such an application within the West End CIZ subject to exceptional circumstances being proven.

 

38.The Sub-Committee noted that the Applicant was a respected and experienced operator that had numerous branches of Greggs up and down the country with similar offers that promoted the licensing objectives which was never in dispute. The Sub-Committee did not doubt the Applicants ability to run and manage the Premises in a way that would help to promote the licensing objectives. However, the key consideration which the Sub-Committee had to grapple with was whether granting the application would have a negative impact on the West End Cumulative CIZ and this ultimately was the overriding factor and test for the Sub-Committee to decide. It concluded that granting the application would have such negative impact.

 

39.In arriving at this Decision, the Sub-Committee considered the evidence of the Applicant and of the Responsible Authorities who had objected to the application both orally and in writing.

 

40.Whilst the Sub-Committee recognised that the Applicant had advanced some good points when it came to mitigation such as CCTV, SIA door staff and litter patrols it did not consider that the Application had a full appreciation of the Leicester Square area and how it worked very late at night when interpreting the workings of the policy considerations under policies CIP1, FFP1 and HRS1, it was not persuaded that exceptionality had been proven when looking at the true workings of each of those policies in practice and how that translated in the Leicester Square area for late night refreshment at a proposed terminal hour of 05:00.

 

41.The parties who have vast experience and knowledge of the area daily are the Responsible Authorities, namely the Metropolitan Police, Environmental Health and Licensing Authority who objected and made representations to the application and this included Ward Councillors as well who are only too aware of the problems and challenges facing Leicester Square week in and week out particularly from 23:00 hours onwards in terms of public nuisance and crime and disorder.

 

42. All three Responsible Authorities based on their respective knowledge and experiences of the Leicester Square area requested that the application be refused on the basis that the Applicant failed to provide exceptional reasons over and above what a competent operator is expected to do when it comes to the management of a licensed premises to ensure the promotion of the licensing objectives. The City Council’s SLP states that merely being an excellent operator is simply not enough to overcome the policy considerations when it comes to deciding upon exceptional reasons.

 

43.It was noted by the Sub-Committee that the Applicant had produced a written submission on pages 15-17 of the Agenda Report wherein at paragraph 3 it stated “Greggs already have two late night shops open in Newcastle City Centre; both close to clubs and bars. The Area Manager for those sites describes the operations as very much “food on the go”. People come out of pubs and clubs at various times in the night and drop in for a pastry or sausage roll (not hot food). The trade is steady throughout the night but there aren’t huge peaks. The shops have not demonstrated any issues or problems and there have been no interventions by the Responsible Authorities”. Whilst this information was useful to the Sub-Committee in terms of how the Applicant manages its other licensed premises in the North East of England and is to be commended Leicester Square is altogether a different beast in the heart of London and through this lens is in the considered opinion of the Sub-Committee not comparable or to be seen in the same light due to a variety of material factors that make Leicester Square so unique and personal to the West End CIZ and so different to other such towns and cities in the country.

 

44.The Sub-Committee took the view that the demographic of a typical Greggs customer could not just be restricted to night shift workers and emergency service but other people within the Leicester Square such as people enjoying a night out who could be patrons leaving other licensed premises and so there is no specific demographic who is likely to be frequenting the Premises during the hours of operation due to the make-up of licensed premises in the area and eclectic mix of people generally who should reasonably be expected to form part of that class of persons at the very least.

 

45.The Sub-Committee noted a common theme from all three Responsible Authorities when presenting their submissions was that “exceptionality had not been proven by the Applicant. The Police who are the custodians when it comes to matters of crime and disorder outlined the fact that four section 35 orders had been implemented in the area during the period in July and this could not be ignored by the Sub-Committee.

 

46.The next issue for the Sub-Committee was to consider how much weight should in fact be attached to the Police’s evidence considering the merits of the application. The Sub-Committee considered the evidence of the Police to be strong and compelling as the Police are extremely au fait with the area and again are aware of the existing challenges from a policing perspective Leicester Square has during the later hours and the sheer number of people entering the West End CIZ from 23:00 hours onwards.

 

47.The Sub-Committee took the view that because the Applicant is so well known and the offers, they will have to customers there is the possibility that patrons leaving other licensed premises within the vicinity are likely to be attracted to the Premises due to the hot food and hot drink offer available resulting in the area becoming further swamped with people and adding to negative cumulative impact and increased footfall for all the reasons given above.

 

48.The Sub-Committee was disappointed that the Applicant was not prepared to reduce the terminal hour by way of compromise as this may have given some comfort to the Responsible Authorities when considering the issue of conditions and the promotion of the licensing objectives and assessing whether in the final analysis a refusal was appropriate and proportionate.

 

Conclusion

 

49.By virtue of being in the West End CIA and by virtue of the matters applied for, the Sub Committee had to consider and apply, among other things, Policy CIP1 and Policy FFB1. Under Policy 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:1. Vary the hours within Core Hours under Policy HRS1, and/or 2. 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 policies within this statement and must demonstrate that they will not add to cumulative impact. Given this application was not to vary hours within the Core Hours nor to reduce capacity, the Applicant would have to demonstrate that the application will not add to cumulative impact to meet Policy CIP1.

 

The Sub Committee noted D12 of the SLP, which states that –

 

“D12. Applicants for premises uses that have a presumption to refuse will be expected to demonstrate an exception as to why their licence application should be permitted. It is not possible to give a full list of examples of when the council may treat an application as an exception. However, in considering whether a particular case is exceptional, the Licensing Authority will consider the reasons underlying the West End Cumulative Impact Zone special policy when considering applications”

 

And D16 which states that –

 

“D16. The Licensing Authority’s policy, in relation to the West End Cumulative Impact Zone, is directed at the global and cumulative effects of licences on the area as a whole. Therefore, a case is most unlikely to be considered exceptional unless it is directed at the underlying reason for having the policy. Exceptions to the West End Cumulative Impact Zone policy to refuse certain types of applications must be for genuinely exceptional reasons.”

 

50. The Sub Committee when considering the application for late night refreshment for the proposed terminal hour of 05:00 considered the “reasons” for the imposition of the Fast Food Policy under policy FFP1. These reasons are particularly detailed on pages 85-87 of the City Council’s SLP and identify the various problems these type of premises attracts after 23:00 hours regarding public nuisance, crime and disorder and dispersal.

 

51. In terms of exceptional circumstances, the Applicant relied on their oral and written submissions. As made clear in the City Council’s SLP, there is no definitive list of what constitutes an “exceptional circumstance”. However, in considering whether a circumstance is in fact exceptional, regard will be had to the reasons underlying the West End CIZ that are directed at the global and cumulative effects of licences in the area as a whole.

 

The Sub Committee noted D14 – D15, which state that –

 

“D14. The Licensing Authority will not consider a case to be exceptional merely on the grounds that the premises have been or will be operated within the terms of the conditions on the licence, or that are or will be generally well managed because of the reputation or good character of the licence holder or operator. This is expected in the conduct of all licensed premises. Moreover, licences are for premises and can be easily transferred to others who intend to operate within the scope of the licence and its conditions. Neither will the licensing authority consider the case to be exceptional merely because the capacity of the premises, or any proposed increase in capacity is small. The high number of premises within the West End Cumulative Impact Zone means that a small increase in capacity in each premises would lead to a significant increase overall within that area. It has been commonly argued that customers will be drawn from other premises and there will be no increase in people within the area. The experience of the council is that this is not the case. The massive increase in capacities in the past and, the continuing number of further applications and the observable night-time occupancy levels of premises serve to discredit the argument. Each incremental increase in capacity contributes in part to increasing the attraction of the area as a “honey pot” destination for night-life and to the cumulative problems created by such a high concentration of activity in the area.

 

D15. Any list of circumstances where exceptions may be granted is not definitive. One example might be a proposal to transfer an existing operation from one premises to another, where the size and location of the second premises is likely to cause less detrimental impact and will promote the licensing objectives, and where the existing operation would otherwise continue as before in the first premises. In order for this to be treated as a consideration justifying an exception to policy, the council will need to be satisfied that the necessary legal mechanisms are in place to ensure that the original premises licence will cease to be operable and cannot be transferred once surrendered. In considering whether there is likely to be less detrimental impact, the Licensing Authority will consider the actual operation of the premises which it is proposed should close, and it will take into account any future proposals which would affect the continued operation of those premises.”

 

52. Taking everything into account, it was the Sub Committee’s considered view that the exceptional circumstances advanced by the Applicant did not amount to exceptional circumstances as, in the Sub Committee’s view, they did not go to the reasons underlying the West End CIZ when having regard to the fact that even a small change in the West End CIZ contribute to cumulative problems created by such a high concentration of activity in the area even though the sale of hot food and hot drinks was a small percentage of the Applicants business model the West End CIZ would still be negatively impacted because of the increase in numbers overall to Leicester Square in any event.

 

53. The Sub Committee did not doubt the quality of the management of the Premises. However, as made clear by D14 “The Licensing Authority will not consider a case to be exceptional merely on the grounds that the premises have been or will be operated within the terms of the conditions on the licence, or that are or will be generally well managed because of the reputation or good character of the licence holder or operator. This is expected in the conduct of all licensed premises”.

 

54. The very specific customer profile relevant to this Premises and for all the reasons stated, the Sub Committee did not consider this exceptional as this premises licence could result in more people in the CIA later at night consuming hot food and hot drink. This did not therefore go to the reasons underlying the CIA.

 

55.The Sub-Committee in its determination of the matter could not ignore the evidence given by the Police when it came to the issue of crime and disorder in the area for the later terminal hour when deciding whether to grant the Premise Licence. The Sub-Committee noted that allowing the Premises to sell hot food and hot drinks could add to the cumulative impact of the area. Having carefully considered the Police evidence the Sub-Committee concluded that the application would have the likely effect of an increase in crime and disorder in the area and an increased demand on Police resources which are already stretched. Therefore the Sub-Committee concluded that taking all of these factors into account the crime and disorder licensing objective would be undermined when looking at the global impact of the cumulative impact area especially when one of its key roles during the decision making process is to look at “prevention” when considering the causes of crime in accordance with paragraph 2.1 on page 6 of the Home Office Guidance which states “Licensing Authorities should look to the Police as the main source of advice on crime and disorder…”. 

 

56. For all these reasons, the Sub Committee concluded that the Applicant had not demonstrated exceptional circumstances as required by Policies HRS1 and FFP1 and the promotion of the licensing objectives. Furthermore, the Sub-Committee considered, in agreement with the Responsible Authorities and Interested Parties, that if granted the licence would have a net increase on cumulative impact in the area thereby not complying with Policy CIP1.

 

57.Given the unique nature of the location and where the Premises is situated in the heart of Leicester Square the Sub-Committee decided that given the strong representations from the Responsible Authorities particularly the evidence given by the Police the Applicant failed to demonstrate how by selling hot food or hot drink in the West End CIZ that this would not add to negative cumulative impact and promote the licensing objectives.

 

58.The Applicant’s proposed conditions were considered by the Sub-Committee but it was felt that these would not address the immediate concerns of the parties, the various policy considerations when looking at the West End CIZ and the promotion of the licensing objectives

 

59. The Sub-Committee realises that it has a duty to strike the right balance when considering the needs of the Applicant and those parties that had objected to the application and took the view that the right balance has been struck when considering the global impact granting such an application would have on the overall effect for the area. It therefore concluded that the proposed terminal hour of 05:00 would have a negative impact on the cumulative impact area leading to the licensing objectives being undermined which is not what the 2003 Act is designed to do.

 

60. The Sub-Committee will of course appreciate that the Applicant will be disappointed with this Decision but after very careful consideration of the application and the proposed conditions that were offered to mitigate the concerns of all parties that objected exceptionality was not proven.

 

Accordingly, 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 refused the application.

 

In all the circumstances of the case the approach taken by the Sub-Committee is considered appropriate and proportionate. The application is Refused.

 

This is the Full Decision reached by the Licensing Sub-Committee.

This Decision takes immediate effect. 

 

The Licensing Sub-Committee

29 July 2022