Agenda item

Ward CIA* SCZ**	Site Name & Address	Application Type	Licensing Reference No.
West End   * West End   ** None	Chotto-Matte 11-13 Frith Street W1D 4RB	Premises Licence Variation	22/07519/LIPV
*Cumulative Impact Area ** Special Consideration Zone

 

WESTMINSTER CITY COUNCIL LICENSING SUB-COMMITTEE NO. 3

(“The Committee”)

 

Thursday 20 October 2022 – Item 1

 

Membership:           Councillor Concia Albert (Chairman) and Councillor Caroline Sargent.

 

Officer Support:       Legal Adviser:                    Viviene Walker

                                Policy Officer:                     Kerry Simpkin

                                Committee Officer:             Sarah Craddock

                                 Presenting Officer:             Roxanna Haq

 

Other Parties:          Mr Kurt Zdesar (Applicant), Mr Alun Thomas (Thomas and Thomas Partners, Solicitor representing the Applicant)

Mr Anil Drayan (Environmental Health Service),

Ms Karyn Abbott (Licensing Authority),

Mr Richard Brown (Solicitor, Westminster’s Citizens Advice representing Mr Mark Wallinger and Mr Mark Wallinger (local resident).

 

Application for a Variation of Premises Licence in respect of Chotto-Matte

11-13 Frith Street, London W1D 4RB - 22/07519/LIPV

 

Full Decision

 

Premises

 

Chotto-Matte

11-13 Frith Street

London W1D 4RB 

 

Applicant

 

NZR Limited

 

Ward

 

West End

 

Cumulative Impact Area

 

West End

 

Special Consideration Zone

 

N/A

 

Additional Activities and Hours applied for

 

Recorded Music

 

Mondays to Saturdays 10.00 to 01.30

Sundays 12.00 to 00.30

 

From the start time on New Year’s Eve until the finish time on New Year’s Day.

 

Summary of Application

 

This is an application for a Variation of a Premises Licence under the Licensing Act 2003 (“The Act”). The Premises operates as a Peruvian and Japanese restaurant, grill and sushi bar. The Premises are located in the West End and in the West End Cumulative Impact Zone. 

 

There is a resident court of 104.

 

The application seeks the following:

 

1.     To vary the layout of the Premises and include a basement area. There are no changes to the existing permitted hours or the capacity of the Premises.

2.     Amend conditions 13 and 23 on the existing Premises Licence.

3.     Include recorded music on Monday to Saturday 10.00 to 01.30 and Sunday 12.00 to 00.30.

 

Representations received

 

Environmental Health Service (EHS) (Anil Drayan)

Licensing Authority (LA) (Karyn Abbott)

One Resident (Mark Wallinger)

 

Summary of issues raised by the objectors

 

EHS stated:

 

As presented, the application would have the likely effect of causing an increase in Public Nuisance and may affect Public Safety within the area.

 

The Licensing Authority stated:

 

They have concerns on how the application will promote the licensing objectives:

Prevention of Public Nuisance

Public Safety

Prevention of Crime and Disorder

Protection of Children from Harm.

 

The Resident stated:

 

Noise from extractor, kitchen, steel gate/door, deliveries and refuse collection causes a nuisance.

 

Policy Position

 

HRS1

 

Applications for hours outside the core hours will be considered on their merits, subject to other relevant policies, and with particular regard to 1-14 page 62 of the Statement of Licensing Policy:

 

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.

3. The applicant has demonstrated that they will not add to cumulative impact within the Cumulative Impact Zone.

4. The application and operation of the venue meeting the definition of a restaurant as per Clause C.

 

C. For the purposes of this policy a restaurant is defined as:

 

1. A premises in which customers are shown to their table or the customer will select a table themselves to which food is either served to them or they have collected themselves.

2. Which provide food in the form of substantial table meals that are prepared on the premises and are served and consumed at a table.

3. Which do not provide any takeaway service of food and/or drink for immediate consumption, except if provided via an ancillary delivery service to customers at their residential or workplace address.

4. Where alcohol shall not be sold, supplied, or consumed on the premises otherwise than to persons who are bona fide taking substantial table meals and provided always that the consumption of alcohol by such persons is ancillary to taking such meals.

5. The sale and consumption of alcohol prior to such meals may be in a bar area but must also be ancillary to the taking of such meal.

 

SUBMISSIONS AND REASONS

 

Ms Roxanna Haq outlined the application to the Sub-Committee. She advised that representations had been received from the Environmental Health Service, the Licensing Authority and one local resident. She further advised that the Premises were located within the West End Ward and in the West End Cumulative Impact Area.  She confirmed that additional submissions from the Applicant and the Environmental Health Service had been circulated to the Sub Committee.

 

Mr Alun Thomas, Solicitor, on behalf of the Applicant, outlined the application before the Sub-Committee.  He referred to the plans of the Premises and outlined that the application for variation was in three parts:

 

a)    Change of Layout – Repositioning the sushi counter to first floor.  Reconfiguration of fixed seating throughout and the inclusion of a small “speakeasy” lounge within the basement (works not yet completed).  Mr Thomas confirmed with the exception of the speakeasy, the works had already been completed and inspected by the Environmental Health Service.

 

b)    Amendment to conditions - Amend condition 13 and condition 23 on the current Premises Licence and add Model Condition 82, a works conditions, to the Premises Licence. Mr Thomas advised that the effect of which was to include a speakeasy and operate part of the basement on the same existing terms as the ground floor, i.e., Alcohol by waiter/waitress service to persons seated, save for the hatched areas and limited to 30 persons, and ancillary to food after 23:00.  Mr Thomas emphasised that the capacity would not increase. The Applicant just wished to change where it can be, e.g., if the basement was closed the customers would go on the ground floor and vice versa.  The number of vertical drinkers would remain the same.

 

c)     Include Regulated Entertainmentof Recorded Music: in accordance with the existing permitted hours.

 

Mr Thomas advised that the Premises operated as a fine dining restaurant and the Applicant was a very experienced operator.  He explained that the application for the variation had followed a formal pre-application advice meeting with Environmental Health Service and the District Surveyor.  Mr Thomas emphasised that there was no change in respect of the permitted hours, which would remain as 10:00 to 01:00 hours Monday to Saturday and 12:00 to 00:00 Sundays nor the capacity which would remain as 300 persons (excluding staff).

 

Mr Thomas outlined that the Applicant wished to incorporate a small “speakeasy” lounge within the basement to hire out for private functions to their regular customers.  The area would not be open to the general public.  He advised that the upper levels of the Premises had been recently refurnished, and the restaurant areas were now very spacious with comfortable chairs/sofas, carpets and curtains which absorbed the sounds and noises created by the restaurant.  He explained that the large ‘nightclub’ speakers on the first floor had been removed and replaced with small speakers that were less intrusive and had much less sound reach.

 

Mr Thomas advised that he had briefly spoken to Mr Brown and Mr Wallinger this morning regarding the noise complaints circulated by the Environmental Health Service on Tuesday. He added that the Applicant had tried to contact Mr Wallinger twice to discuss his representation, however, no response had been received.  He confirmed that the Applicant was very happy to work with Mr Wallinger and all local residents to ensure residential and commercial properties have a good relationship.

 

Mr Thomas referred to the noise complaints.  He emphasised that the complaints had ceased in 2021 and it appeared that they were in relation to music during the COVID alfresco period where people were dinning outside to avoid catching the virus.  He advised that as restaurants had now returned to pre-pandemic operations the complaints had ceased.  Mr Thomas further advised that the air conditioning unit was set to go on and off via a timer, however, the Applicant would inspect it to ensure that it was working correctly.  Mr Thomas explained that the bins were placed outside of the Premises at 9am ready to be collected by Westminster Collection Service.  He confirmed that the location of the restaurant’s kitchen had not been changed.  Mr Thomas emphasised that the air conditioning unit, waste collection and deliveries were not relevant to this variation to the Premises Licence.

 

Mr Thomas concluded by advising the Sub Committee that they did not need to take into consideration any of the Council’s Cumulative Impact Policies as the Premises was a restaurant and the capacity and hours of operation were remaining the same as in the current Premises Licence.

 

In response to questions from the Sub Committee, Mr Thomas advised that the basement area would be used to hold selective private events for their regular customers or for event organisers who approached them and who were successfully vetted by the Applicant.  He emphasised that the area would not be promoted or externally advertised, and that the maximum capacity would be either 40 persons seated or 30 persons standing.  He advised that customers entered and left the Premises through the front door and were shown to the secret door leading down to the basement.  He confirmed that there was CCTV throughout the Premises and that the old Premises Licence had been surrendered 10 years ago. He outlined in detail the importance of the restaurant’s daily vegetable delivery at 6am.

 

Ms Karyn Abbott, representing the Licensing Authority, advised that the Licensing Authority were no longer concerned about the bar area as the Applicant had no intention of increasing the capacity of the Premises.  She outlined that the Premises were located within the West End Cumulative Impact Area and as such various policy points needed to be considered, namely HSR1, CIP1 and RNT1.  She advised that the Applicant needed to demonstrate that the application for the variation to the Premises Licence would not add to cumulative impact in the busy West End area especially as he was seeking to include Regulated Entertainment of Recorded Music until 1:30am. It was therefore for the Sub-Committee to be satisfied that the Applicant has demonstrated these points and could promote the Licensing Objectives.

 

Mr Anil Drayan, representing the Environmental Health Service (EHS), advised that EHS had maintained their representation on the Public Nuisance and Public Safety Licensing Objectives, however, after having discussions with the Applicant EHS no longer had any issues with the application.  Mr Drayan outlined that he was present to assist the Sub Committee if they had any questions regarding the conditions that had been agreed between the EHS and the Applicant.  He stated that the Applicant must have been aware there had been noise complaints as the City Inspectors would have been in contacted with him to discuss the various breaches.  He confirmed that no noise complaints had been received since July 2021, so it appeared that the complaints had been due to the operation of the alfresco dinning scheme in the West End. He explained that the playing of recorded music was not a licensable activity before 11pm under the Live Music Act, however, after 11pm it needed to be a licensable activity because of the potential nuisance that it might cause to the surrounding area.  He advised that the Premises had installed a sound limiter which could be set in conjunction with the Applicant, Environmental Health Service and the resident(s) as Mr Wallinger had indicated that music vibrated through the fabric of the building into his flat located above the restaurant.  Mr Drayan confirmed that he considered that the proposed conditions were proportionate and appropriate and would promote the licencing objectives.

 

Mr Drayan then discussed the numerous conditions with the Sub Committee, Mr Thomas and Mr Brown between them agreed amendments, deletions and additions to the conditions that would be attached to the Premises Licence if the Committee were minded to grant the application.  Discussions included the timings of the waste collection and deliveries to the Premises, contact details and escape of noise from the Premises.  Mr Thomas requested that the condition regarding deliveries be amended to read 07:00 hours instead of 08:00 hours.  Mr Thomas also confirmed that all doors would be fitted with soft closing mechanisms.

 

Mr Richard Brown, solicitor from the Citizens Advice Bureau and representing Mr Mark Wallinger, local resident, set out his submission to the Committee.  He advised that the residential and commercial need to co-exist in the West End which was the reason why Mr Wallinger had wanted the opportunity to inform the Sub Committee of his concerns regarding the application.  Mr Brown advised that Mr Wallinger had lived above the Premises for four years. He advised that Mr Wallinger accepted the vibrant nature of the area, however, there was a distinction between that and experiencing noise through the structured Premises itself into your bedroom and continuous disturbances around the clock which interrupted his sleep.  

 

Mr Brown referred to condition 23 and requested that the words ‘in total’ be added. He then referred to the recorded music aspect of the application and advised that Mr Wallinger did not want the noise nuisance from the music to be reoccurring because it was clear from the noise complaints that had been made historically that noise nuisance coming from the Premises was ongoing.  He commented that it was unusual for a restaurant that did not historically have recorded music on their Premises Licence to request it as a licensable activity.  He outlined that consideration had been given to allow recorded music in licensed Premises up to 11pm as this was considered reasonable, however, to allow it beyond 11pm was considered risky.  He emphasised to the Sub Committee that if they refused the application the Premises would still be able to play music after 11pm albeit at a much lower volume which would suit Mr Wallinger and promote the licensing objectives.

 

Mr Mark Wallinger, local resident, addressed the Sub Committee. He stated that he had actually been woken up during the night by hammering coming from the Premises.  He advised that he had wanted to attend the meeting to outline the issues he had been facing since he first moved into the property four years ago.  He advised that the Premises created constant noise 24/7 by way of the extractor fan working from 8am until 01:00 hours, from clearers cleaning and banging furniture in the early hours of the morning, the slamming of doors and the vibration of music coming from the fabric of the building.  He emphasised also the constant noise from the slamming of outside doors during the day and night which reverberated throughout his entire flat.  He highlighted the employees shouting outside at the back of the restaurant, smoking and occasionally playing music long after midnight.  He commented on deliveries taking place at 05:00 hours every morning and repairs being carried out in the middle of the night.  He stated that the management had been very dismissive towards him throughout the years and the Premises showed no respect for their neighbours. 

 

Mr Thomas advised the Sub Committee that the Applicant would have every door fitted with soft closing mechanisms to prevent them from banging and would investigate what could be done regarding the metal door shared with other restaurants in the building.  He also advised Members that the Applicant would speak to the management about the cleaners to ensure that they cleaned quietly and discuss all measures that could be taken to reduce noise escaping from the Premises.

 

Mr Drayan advised the Sub Committee that he would walk around the Premises with both the Applicant and Mr Wallinger to help resolve all the issues raised by Mr Wallinger at today’s hearing.

 

Mr Thomas highlighted that the Applicant had applied for Regulated Entertainment of Recorded Music to tighten up the Premises Licence and in doing so had also accepted additional conditions to be attached to the Premises Licence.  He added that if the application was refused the conditions proposed by the Environmental Health Officer could not be placed on the Premises Licence.  Mr Drayan confirmed that it was more advantageous to have Recorded Music as a licensable activity so that the conditions could be placed on the Premises Licence.  Mr Thomas advised that the music played through the new speakers would not be heard outside of the Premises. 

 

During the summing up, Mr Thomas emphasised that the Applicant was very willing to work with Mr Wallinger to resolve the issues raised at the Sub Committee meeting.  He detailed how important it was that the restaurant received its daily fruit and vegetable delivery at 6am.  He advised that the Applicant was an experienced operator and the Premises were a fine dining restaurant.  He emphasised that licensing Regulated Entertainment after 11pm would promote the licensing objectives.

 

Conclusion

 

The Sub-Committee realises that it has a duty to consider each application on its individual merits and did so when determining this application.

 

The Sub-Committee noted that the Premises were operated as a fine dining restaurant and the Applicant was an experienced operator who had owned the restaurant for over 10 years.  Both the EHS and LA confirmed that they did not have any specific issues with the Premises when it came to public nuisance and crime and disorder and only maintained their objections because the Premises are located within the West End CIZ.  The Sub Committee further noted that there was no change in respect of the permitted hours, nor the capacity and the additional conditions imposed on the Premises would alleviate any residential concerns. 

 

The Sub-Committee imposed on the Premises Licence Model Condition 24 which requires that a telephone number be made available for the Premises so that local residents and businesses in the vicinity can make contact should any problems arise.

 

In reaching its decision, the Sub-Committee concluded that the conditions imposed on the premises licence were appropriate and would promote the licensing objectives.

 

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

 

1.     To grant permission to vary the approved plans appended to the Licence to reflect changes to the ground floor, first floor and the basement of the Premises.

 

2.     To grant permission to amend condition 13 of the Licence to read: waiter/waitress service shall be available at all times on the ground floor and basement for customers seated at tables.

 

3.     To grant permission to amend condition 23 of the Licence to read: The supply of alcohol on the ground floor and basement of the premises shall at all times only be to persons seated and by waiter/waitress service, save for the areas shown hatched black on the plan.  The maximum number of persons in the areas hatched black on the plan shall not exceed 30 persons in total.

 

4.     To grant permission for Recorded Music Monday to Saturday 10:00 to 01:30 hours Sunday 12:00 to 00:30 hours.

 

Seasonal Variations: From the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.

 

5.     To grant permission for the deletion of condition 17 of the Licence.

 

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

 

7.     That the existing conditions on the Licence shall apply in all respects except in so far as they are varied by this Decision.

 

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

 

Conditions consistent with the Operating Schedule

 

9.        The premises shall install and maintain a comprehensive CCTV system as per the minimum requirements of a metropolitan Police crime prevention officer. All entry and exit points shall 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 customers remain on the premises. All recordings shall be stored for a minimum period of 31 days with date and time stamping. Recordings shall be made available immediately upon the request of Police of authorised officer through the preceding 31-day period.

 

10.      A staff member from the premises who is conversant with the operation of the CCTV system shall be on the premises at all times when the premises are open to the public. This staff member shall be able to show Police recent data or footage with the absolute minimum of delay when requested.

 

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 supply of alcohol at the premises on the first floor shall only be by waiter/waitress to a person seated taking a table meal there and for consumption by such a person as ancillary to their meal.

 

13.      Waiter/waitress service shall be available at all times on the ground floor and basement for customers seated at tables.

 

14.      All outside tables and chairs shall be rendered unusable by 23.00 each day.

 

15.      There shall be no sale or supply of draught beer.

 

16.      Private entertainment consisting of dancing, music or other entertainment of a like kind for consideration and with a view to profit shall be permitted at any time. 

 

17.      No alcohol to be supplied for consumption anywhere on the premises after 23.00 hours except as an ancillary to food.

 

18.      The maximum number of persons accommodated on the premises at any one time (excluding staff) shall not exceed 300 persons.

 

19.      Before the premises open to the public, the plans as deposited for the new basement area as shown on the plans 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 a variation application may be required.

 

20.      Notices shall be prominently displayed at all exits requesting patrons to respect the needs of local residents and leave the area quietly.

 

21.      The supply of alcohol on the ground floor and basement of the premises shall at all times only be to persons seated and by waiter/waitress service, save for the areas shown hatched black on the plan. The maximum number of persons in the areas hatched black on the plan shall not exceed 30 persons in total.

 

22.      Late Night refreshment shall be permitted from 23:00 on New Year’s Eve until 05:00 on New Year’s Day.

 

23.      The hours for sale of alcohol may be extended from the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.

 

Additional Conditions imposed by the Committee after a hearing with

the agreement of the Applicant

 

24.      The variation of this Premises Licence (22/07519/LIPV) will have no effect until the premises have been assessed as satisfactory by the Environmental Health Consultation Team at which time this condition shall be removed from this Licence by the Licensing Authority.

 

25.      A noise limiter must be fitted to the musical amplification system and maintained in accordance with the following criteria:

(a)      the limiter must be set at a level determined by and to the satisfaction of an authorised Environmental Health Officer, so as to ensure that no noise nuisance is caused to local residents or businesses.

(b)      the operational panel of the noise limiter shall then be secured by key or password to the satisfaction of the authorised Environmental Health Officer and access shall only be by persons authorised by the Premises Licence Holder.

(c)      the limiter shall not be altered without prior written agreement from the Environmental Health Consultation Team.

(d)      no alteration or modification to any existing sound system(s) should be affected without prior knowledge of the Environmental Health Consultation Team, and

(e)      no additional sound generating equipment shall be used on the premises with being routed through the sound limiter device.

 

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

 

27.      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.

 

28.      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.

 

29.      No deliveries to the premises shall take place between 21:00 and 07:00 hours on the following day except for deliveries of fruit and vegetable products.

 

30.      All waste shall be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.

 

31.      No waste or recyclable materials, including bottles shall be moved, removed from, or placed in the outside areas between 23:00 and 07:00 hours on the following day unless it is during the Council’s own hours for collection of waste for the street.

 

32.      No collections of waste or recycling materials (including bottles) from the premises shall take place between 23:00 and 07:00 hours on the following day unless it is during the Council’s own hours for collection of waste for the street.

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

 

The Licensing Sub-Committee

20 October 2022