Agenda item

Ward CIA* SCZ**	Site Name & Address	Application Type	Licensing Reference No.
West End   * None   **	Simmons 11 Woodstock Street W1C 2AE	Premises Licence Review	22/11955/LIREVP
*Cumulative Impact Area ** Special Consideration Zone: N/A

 

WESTMINSTER CITY COUNCIL LICENSING SUB-COMMITTEE NO.3

(“The Committee”)

 

Thursday 23 February 2023

          

Membership:      Councillor Robert Eagleton (Chair) Councillor Concia Albert and Councillor Melvyn Caplan

 

Officer Support:   Legal Advisers:            Viviene Walker and Heidi                                                                                         Titcombe (Principal Solicitor)       

                            Committee Officer:       Jack Robinson-Young

                            Presenting Officer:       Emanuela Meloyan

 

Application for a Review of Premises Licence in respect of Simmons, 11 Woodstock Street, London, W1C 2AE (“the Premises) 22/11955/LIREVP

                                            FULL DECISION

 

Applicants for the Review

Mr Marco Toschetti and Mr Federico Bixio represented by Mr Richard Brown of Citizens Advice Westminster.  Both Applicants attended the hearing, but Mr Bixio attended virtually.

Premises Licence Holder (“PLH”)

Simmons Covent Garden Limited represented by Mr Gary Grant of Counsel.  He was accompanied by Mr James Daglish and Mr Niall McCann (Keystone Law), Mr Nick Campbell, Chief Executive and founder of the Applicant Company and Mr Richard Vivian of Big Sky Acoustics.

Other Parties Present at the hearing

Mr Ian Watson of the Environmental Health Service, who was accompanied by Mr Martin Tuohy and Mr Dave Nevitt of the Council.

Current Licensable Activities and Hours on the Premises Licence are as follows:

LateNight Refreshment

Mondayto Sunday:                                  23:00to 00:30

Non-standardTimings:                            New Year'sEve until01:30

 

Saleby Retailof Alcohol (both on and off the Premises)

Mondayto Saturday:                               10:00to 00:00

Sunday:                                                   12:00to 23:30

Sundaysbefore BankHolidays:               12:00to 00:00

Non-standardTimings:                             NewYear's Eveuntil 01:30

Opening Hours
Monday to Saturday:                               10:00 to 00:30

Sunday:                                                   12:00 to 00:30

         

Summary of Application

 

1.     This is an application for a Review of the Premises Licence of the premises known as Simmons, situate at 11 Woodstock Street, London, W1C 2AE (“the Premises”) under the Licensing Act 2003 (“The Act”).   The Review was requested by two local residents on the grounds that the Premises are undermining the Prevention of Public Nuisance licensing objective as music and vibrations was escaping into their homes from the Premises.  Noise was also being created by customers outside the Premises.

2.     Mr Richard Brown confirmed the Applicants were asking the Committee:-
(i) to remove the deregulation exemption provided under Section 177A of the Act so that,
(2) any existing conditions on the Licence in relation to the playing of music shall have legal effect and,
(3) to add five additional conditions on the Licence and to amend conditions 12 (noise/vibration)[1] and 28[2] (noise limiter) of the existing Licence to address the concerns raised in the review.

3.     S.177A of the Act provides that the playing of recorded music between the hours of 08:00 and 23:00 is not regarded as a “licensable activity” where patrons are limited to 500 persons.  Consequently, this Premises were able to play recorded music without having specific permission to play recorded music on their Licence.  If they wanted to play recorded music outside these hours, they would need permission to do so.

4.     The Premises operate as a cocktail bar and are situated within the West End Ward but are not located in the West End Cumulative Impact Zone. There is a resident count of 21 within the vicinity.  The Premises have the benefit of a Premises Licence under reference number 22/11866/LIPVM. 

Representations Received

5.     The Review application was supported by Mr Ian Watson of the Environmental Health Service and two local residents on the grounds of the prevention of public nuisance.

Preliminary Matters

6.     At the start of the hearing the Chair introduced the Members of the Committee, identified the parties attending the hearing who wished to speak and outlined the procedure for the hearing.  No declarations of interest were made and all parties in attendance were given ample time to present their submissions.

7.     The Chair noted that the committee report and the large Additional Information Pack which had been submitted on behalf of the PLH.

8.     The Chair confirmed that the Committee had considered all the written evidence.



Adjournment Request – preliminary issue

9.     Before the review hearing started Mr Grant, on behalf of the PLH requested an adjournment of the review so that it could be dealt with at the same time as the pending variation application which has been made by the PLH in February 2023.  The variation application is seeking to add permission to play recorded music to the Licence as a licensable activity.

10.Mr Grant explained that the Premises can currently play recorded music under the exemption provided by Section 177A of the Licensing Act 2003 (the “Act”).  As the Applicants and the Environmental Health Service are requesting the exemption be removed, and if the Committee were minded to agree to this request, this would mean that the Premises could not play recorded music on the Premises, apart from background music.   As the Premises play music as part of its business model it would not be viable.  The Premises would have to close, and this would lead to the loss of 15 jobs.Mr Grant explained that the PLH will ensure that residents will not be disturbed by noise escaping into their homes if the review hearing is delayed for a short while so that it can be heard with the variation application.  He submitted that the adjournment request was not designed to delay the time for residents to find some relief from noise being experienced, but rather to enable the Council to enforce the conditions requested by the Applicants and the Environmental Health Service.

11.Mr Grant explained that should an adjournment not be allowed, then the PLH would be forced to lodge an appeal in order to maintain the viability of the business and to avoid job losses.

12.The request for the adjournment was opposed by the Applicants and the Environmental Health Service on the basis that the residents have been suffering from public nuisance as a result of music and vibrations escaping through the structure of the Premises into their homes.  Residents have been impacted by this noise virtually on a daily basis since November 2022.  At times the noise has been so bad that it not only constituted a public nuisance but also amounted to a statutory nuisance, resulting in the service of a Noise Abatement Notice.  This review was requested on 15 December 2022, the nuisance created was serious and it was important that the review should be determined as quickly as possible so that the Committee could take steps to prevent noise escaping into residents’ homes, if they accept the concerns raised. 

13.Mr Ian Watson from Environmental Health Service stated that the review should be heard today, as any delay could negatively affect the wellbeing of residents.  He informed the Committee that there were four complaints made since the noise limiter had been installed in January 2023.  Mr Watson stated that historically, the Premises were a pub which played incidental background music.  The problem is the new owners are not playing low level music as the Premises are now a disco bar.  He also confirmed that residents had never raised noise complaints about the previous venue, but this was obviously a different venue operating in a different way.

Decision on adjournment request

14.The Committee carefully considered the representations made on behalf of the PLH and the Applicants and other Parties supporting the review.  The Committee recognised that they had the power to adjourn the review to another date under Regulation 11[3] if they considered it was in the “public interest” to do so.  However, the review was requested on 15 December 2022 and the PLH had plenty of notice in the application that the Applicants were seeking the removal of the deregulation provision in Section 177A of the Act and yet the variation application was not made until almost two months later in February 2023.  Moreover, the Applicants allege that they have been suffering nuisance caused by music escaping into their homes since November 2022, when the Premises opened.  A noise limiter was set by the PLH in January 2023 but there have been four complaints since that time.  The Committee therefore concluded that it would not be in the public interest to delay the review hearing as it is important that the serious issues raised in this review are considered and, if the Committee concludes that steps should be taken to address the issues, such steps need to be taken as quickly as possible to bring the nuisance to an end.  Furthermore, any Decision the Committee makes does not come into effect until 21 days after the Decision has had been served, and if appealed, until the outcome of any appeal, so there is likely to be a short period before the variation application is either granted or, if there are representations, determined by the Committee. 

15.The Committee also noted that the review application had been requested on 15 December 2022, and the variation application had not been requested until February 2023 and the latter application would need to follow the usual consultation process.  If any representations are made to that application, it may not be determined for some time.

16.       In the circumstances, the Committee agreed with the submissions made by the Applicants and the Environmental Health Service and refused the application for an adjournment.

The Review Application

17.       The review hearing proceeded and Ms Meloyan, Senior Licensing Officer, outlined the basis for the review.

Submissions by the Applicants

18.       Mr Brown advised that this review has been requested by two residents who live above and adjacent to the Premises primarily because they are being disturbed by music and vibration escaping from the Premises into their homes during the day and night.  The music escape mainly affects three residential flats in the same block.   There has also been some nuisance caused by the dispersal of customers from the Premises and this reflects the conditions being requested.

19.       Mr Brown confirmed that the Applicants are seeking: -

(1) to remove the exemption in Section 177A of the Act, which effectively allows music to be played between the hours of 08:00 and 23:00 each day.  He confirmed that the exemption can only be removed on a review application; and
(2) that any conditions on the existing licence relating to the playing of music become enforceable; and
(3) that five additional conditions are added to the Licence and conditions 12 and 28 of the existing Licence are amended to minimise the noise created by the playing of music and the dispersal of customers to promote the prevention of public nuisance licensing objective.

20.        Mr Brown explained that the Applicants for the review have lived in the building above the licensed Premises for ten and twelve years respectively.  They had not had any issues with the previous Operator, who operated the premises as a bistro pub with background music.  The noise and nuisance problems started when the current PLH took over the Premises which is operated as a disco bar with music.  Mr Brown advised that the list of complaints in the application[4] demonstrates that the Applicants have had to suffer from loud music escaping into their homes from the first day of operation, on 9 November 2022 when there was a soft opening of the Premises.  On this occasion, Mr Bixio went down and spoke to the management, but his complaint was not addressed proactively as the Operator indicated they were entitled to play music.

21.       Music also escaped into the residential flats on 10 November 2022 (the official opening of the Premises) which resulted in the Applicants complaining on no less than three occasions on the same day.  The nuisance caused was witnessed by Council Officers, who considered the music played on two occasions was so loud that they regarded the noise caused a “statutory nuisance”, which is a much higher threshold than the one required under the Act.

22.        Mr Bixio attended the hearing virtually and apologised for not being able to attend in person.  Mr Bixio wrote to the PLH and the Council on 15 November 2022 asking for the issues raised to be addressed.  The PLH advised that an acoustic consultant was being engaged to assess where the music was escaping from. However, music continued to escape into the Applicants’ homes and the music was so loud that between 9 and 22 November 2022, the Applicants had to complain on eight occasions in less than a month.  The loud music could clearly be heard in the Applicants’ homes, and this impacted on their ability to sleep and to generally enjoy their own homes. 

23.        On 22 November 2022 the Applicants and Council Officers met the PLH’s sound technician in Flat 1 of the building in an attempt to assess the right level of music which could be played without causing a nuisance.  However, no actual level was set on that occasion as the Parties could not agree on the level, as the PLH’s consultant considered the level suggested by the Applicants and the Environmental Health Service was too low to enable the business to be viable. 

24.       Between 24 November 2022 and 12 December 2022, the Applicants had to complain a further ten times.  In fact, the music was considered to be so loud that on 28 November 2022 a Noise Abatement Notice was served by the Council.  However, as the PLH failed to address the noise issues being sustained the Applicants felt they had no alternative, and they issued the review application on 15 December 2022.  Mr Brown referred the Committee to the chronology of complaints on pages 56 to 58 of the committee papers.

25.       A meeting was subsequently held in Mr Bixio’s flat on 12 January 2023 with the PLH’s acoustic consultant and Council Officers to set the noise limiter so that music could be played without disturbing the residents. At the time Mr Bixio felt the noise limiter should have been set in the evening when ambient noise levels were quieter, as opposed to during the day when there was other noise being created in the street, especially the noise created by the nearby construction works taking place.   Despite Mr Bixio’s concerns the testing did take place during the day and the noise limiter was set.  However, music has continued to escape into the Applicants’ homes on four occasions since that time.  Since the Premises opened, Mr Bixio stated that there had been numerous disturbances of music escape.

26.       Mr Bixio advised that he was also the building manager and was representing others as well as himself. He stated that previous noise complaints had been made about the construction works being done before venue opened. Mr Bixio also explained that he was away over the Christmas period, and this is why there were no complaints from him during this period. He returned for the New Year, and the music was being played so loud that he was able to identify the track being played.

27.       Mr Bixio said he had been cooperative with the PLH and the Council in allowing tests to be carried out in his flat and he was not sure what else he could have done.  He had spoken to the manager about the noise being experienced but he found the response from management to be less than what is expected of a good operator.

28.       Mr Toschetti, the second Applicant, stated that prior to the Simmons opening they had not experienced any disturbance despite having other venues open in the area. He stated that the previous bistro pub had not caused any noise issues. However, the music being played under the new management was at a level that was not able to be drowned out and was not something that could possibly go unnoticed when trying to sleep.

29.       The Committee noted that Mr Toschetti described the music as being "audible" in his home.  Mr Toschetti explained that sometimes this simply meant the bass could be heard and on other occasions the actual lyrics could be heard but he could not generally hear customers speaking in the Premises. The Committee asked what the relationship was like with those who ran the Premises and Mr Toschetti stated the management had been dismissive about their complaints.  Mr Toschetti explained that the bedrooms in the building had been placed at the back to avoid noise from Oxford Street, and yet noise was being heard because of the Premises below. Mr Toschetti confirmed that on occasions he had asked customers to be quiet in the street.

30.       Mr Brown confirmed that the evidence showed there has been serious issues of noise escaping into the Applicants’ homes which has prevented them from sleeping and generally from enjoying their own homes.  This music escape amounted to a public nuisance which undermined the prevention of public nuisance licensing objective.  Indeed, the noise has been so bad that Council Officers had independently witnessed the nuisance being caused and concluded that the noise was so loud on four occasions on 10^th, 12^th, 17^th and 26th November 2022, that it not only constituted a public nuisance under the Act but also a Statutory Nuisance under the Environmental Protection Act 1990 which led to a Noise Abatement Notice being served on 28 November 2022.

31.       Mr Brown asked the Committee to remove the exemption afforded in Section 177A of the Act, so that the music being played is regarded as a licensable activity and the PLH will be obliged to comply with all relevant conditions on the existing licence to prevent public nuisance being caused as a result of the playing of music.  Further, Mr Brown asked for some conditions to be amended and for a number of additional conditions to the attached to the licence in order to mitigate the noise coming from within the Premises, including: -

- to amend the existing noise limiter condition[5] so it is consistent with MC11.  The Applicants also wanted to make a small amendment to MC11 so that the noise limiter should be set in conjunction with affected residents;[6]
- to remove condition 12 of the existing licence and replace it with MC12 to prevent the noise associated with plant causing a nuisance;[7]
- to add a condition that loudspeakers should not be located near the doors (MC13);[8]
- to add a condition that all external windows and doors shall be closed when regulated entertainment takes place (amended MC 14).[9] 

32.        Mr Grant confirmed during the hearing that the PLH does not agree to the exemption being removed but they agreed to all the other conditions proposed by the Applicants apart from the amendment to MC11.  Mr Grant also confirmed that the PLH would comply with all these conditions even if the exemption were not removed as they do not want residents to suffer from any nuisance.  The PLH was prepared to provide an Undertaking to this effect, even though it was understood that “undertakings” are not technically enforceable.  However, Mr Grant emphasied that it was in the PLH’s interests to ensure nuisance was not caused.

33.       Mr Brown also asked for three additional conditions to attached to the licence to address dispersal issues, namely:

- MC26 to control queuing customers[10];
-  MC71 to control smokers and drinkers outside the Premises[11];
- Amended MC99 requiring a dispersal policy[12].
Again, Mr Grant confirmed these conditions were agreed by the PLH and they would undertake to comply with these conditions even if the exemption were not removed.

34.       Mr Brown confirmed that it was essential to remove the exemption under Section 177A of the Act so that all the relevant conditions attached to the licence in relation to the playing of music could be enforced.  He explained that this could only be done on a review.  Mr Brown also explained that the additional conditions requested were needed in order to promote the licensing objectives.  In relation to the noise limiter Mr Brown confirmed that the informal discussions in November 2022, did not help to alleviate any noise escape from the Premises. The setting of the limiter helped in January, but because it was tested during the day, the Applicants have concerns as to whether this will prevent noise escape during the evening.

Submissions of the Environmental Health Service

35.       Mr Ian Watson of Environmental Health Service addressed the Committee and introduced Mr Martin Tuohy and Mr Dave Nevitt, who were both Environmental Health Officers who visited the premises to consider the issues being raised.  Mr Tuohy explained that he had numerous meetings and discussions with the PLH and the management of the Premises, particularly regarding the Noise Abatement Notice which had been served.  Mr Nevitt was involved in setting the noise limiter. Mr Watson explained that it was not appropriate in November 2022 to set a formal limit to the limiter because there was no condition on the licence, and it could not be enforced until such time as the exemption was removed.   Mr Watson stated that it was difficult to explain as to how the music had been escaping into the residential homes after the limiter was set in January 2023.

36.       Mr Tuohy explained that his job was to investigate whether an Abatement Notice was necessary.   In November 2022, there were four occasions when the noise was so bad that it was regarded as a statutory nuisance, and this led to the Noise Abatement Notice being served on 28 November 2022.   Mr Tuohy stated that on one visit to the venue the Duty Manager informed him that music was being played at 70% of the limiter volume, and when he went back inside the building, he could not hear any noise. Mr Tuohy stated that he then went back downstairs and turned the volume up and down sporadically before re-entering the building and asked the resident if they had heard anything to which they replied, “no”.  The resident had not heard this noise despite the limiter being turned up to 100% at one stage.
 

37.       Mr Nevitt explained that they met Mr Bixio to set the timer on 12 January 2023 on the first floor of the building.  The living room was towards the front of the building, but the rear bedroom is the nearest room to Simmons so it would be more sensitive to noise. Mr Nevitt recognised that the noise from Simmons travels through the internal structure of the building.  On the day in question Mr Nevitt also identified a number of other external noise sources such as from the construction works near Oxford Circus, to the occasional rumble of tube trains, and noise from air conditioning units on nearby buildings.  Mr Nevitt advised occasionally the sound of furniture being moved around from the restaurant below could be heard.    During the gaps between these noise sources, Mr Nevitt confirmed the flat was very quiet.  Mr Nevitt and Mr Bixio were able to agree a level setting for the limiter and he also asked the Premises to “trim” back some of the tracks to reduce the individual bass sound from certain tracks. Mr Nevitt was satisfied that it was appropriate to set the limiter during the morning, rather than in the evening because the noise complained of emanated from the internal parts of the building as opposed to the external areas. 

38.       Mr Nevitt explained that Mr Bixio wanted the noise to be “inaudible”, but this was not the benchmark from a licensing point of view.  The question was whether any “unreasonable” noise could be heard.  Once the limiter was set at the agreed level Mr Nevitt concluded that no unreasonable noise could be heard from Simmons in this flat.  Mr Nevitt described how he had put his ear to the wall, and he could not hear any music.  Mr Nevitt accepted that they had not yet been able to assess the noise from flat 1 and the level may need altering if it were to transpire that the noise level is too high.  Mr Watson advised that since 12 January 2023 Environmental Health have not witnessed any “statutory” nuisance simply because we have not had access to the flats.  It should be recognised that in licensing terms noise does not need to be a statutory nuisance to undermine the public nuisance licensing objective.

39.       The Committee asked whether there had been any noise complaints since the noise limiter was installed in January 2023.  Mr Watson stated that there were four complaints, but Officers were unable to visit at the time to investigate.  Mr Brown advised that a new resident was living in one of the flats and they were unfamiliar with the process for logging complaints.

Submissions of the PLH

40.       Mr Gary Grant acknowledged that the PLH does not want to be causing a nuisance to its residents and this is why the PLH has agreed to attach conditions to the licence to address the concerns raised.  Three of the agreed conditions relate to controlling the outside area, namely, MC26 (ensuring orderly queuing); MC71 (controlling smokers and drinkers outside the Premises) and amended MC99 (devising a dispersal policy to ensure patrons leave quietly).  The PLH also agreed to add MC13 (so that loudspeakers are not located at the entrance or exits) and an amended version of MC14 to keep windows and external doors closed when music is being played).    The PLH also importantly agreed that a noise limiter condition should be amended in line with MC11.  The PLH was unable to agree that the noise limiter should be set at a level in conjunction with affected residents as that was too open ended, but they would agree the level with the Environmental Health Service, who would take into account the views of residents when setting the level.  The PLH also agreed to replace condition 12 of the existing licence with MC12 (noise of plant) as this was more appropriate.

41.       Mr Grant submitted that imposing the above conditions should address the concerns raised in the review about noise escaping into the Applicants’ homes and any noise in the external area.   Mr Grant does not consider it is necessary or appropriate for the Committee to remove the exemption provided in Section 177A of the Act.  However, the Council’s Legal Adviser pointed out that as the playing of recorded music would not be regarded as a licensable activity before 23:00 hours, the conditions being offered relating the playing of music, particularly the noise limiter condition (MC11) and conditions MC13 and MC14 would not be enforceable by the Licensing Authority as a matter of law.   Mr Grant recognised this issue and confirmed that the PLH would provide an Undertaking to comply with all the conditions imposed on the licence, including MC11, MC13 and MC14 immediately, despite the legal issue because the PLH is keen to ensure that the residents are not suffering from any noise escape into their homes.   The legal Adviser to the Committee pointed out that Undertakings are similarly not enforceable, but Mr Grant confirmed the PLH would comply with all the conditions on the licence.

42.       Mr Grant stated it was not necessary to remove the S177A exemption because the complaints about noise has reduced since the noise limiter was set on 12 January 2023 and in his submission, this demonstrates that public nuisance is not taking place.  He also referred the Committee to the Council Officer’s observations that he was not able to hear any noise in one of the flats, despite the volume being turned up to 100% on the noise limiter.  He confirmed that there had been no changes to the levels set since 12 January 2023.  Mr Richard Vivan, the PLH’s Acoustics Expert, also confirmed that he had not changed the limiter. Mr Grant indicated that if the Applicants have been disturbed by noise since the limiter level was set in January, then it is likely that that noise was coming from another premises.

43.       Mr Grant stated that it was probable there were issues initially of noise escape into the Applicants’ homes and he apologised for this.  He said the Manager at the time could have done more to address these issues but pointed to the timeline presented to the Committee.  Mr Grant explained that Mr Nick Campbell, the Premises Licence Holder has seven bars within Westminster and of those, five are located under residential premises.   A few of the bars have had noise issues but none have been subject to a licence review. Mr Grant acknowledged that when the premises were opened some machinery in the ceiling needed to be removed, and upon Mr Vivian’s recommendation, Mr Campbell had the ceiling insulated which benefitted the residents above. He advised that in January 2023, Westminster Councils Environmental Health Officers set a limiter at an appropriate level alongside a noise log that was taken by staff at Simmons which can be made available to the Committee. Referring to Mr Bixio’s complaint that he could identify the particular track being played on one occasion at 11:45 p.m., however, on that night the music had been turned down at 11:00 p.m. to their minimum level.  Mr Grant submitted that the noise Mr Bixio heard was emanating from somewhere else. He said residents had asked for inaudibility, but this was not only subjective but was an unrealistic proposition.

44.       The Committee referred Mr Grant to the email dated 25 November 2022 on page 99 of the Additional Information Pack from Mr Campbell, the CEO and founder of Simmons bars to Council’s Officers who were trying to resolve the noise, which was being created, some of which had been witnessed as being a statutory nuisance.  Instead of trying to resolve the issues raised Mr Campbell was making certain unfavourable allegations about the complainant.  Mr Grant accepted that the wording of the email was not conducive to a positive relationship with the residents concerned. Mr Grant said he had spoken to Mr Campbell, who regretted his choice of words. Mr Campbell then addressed the Committee, who unequivocally confirmed that even if the proposed conditions were not legally enforceable, he would still ensure they were complied with. He said that there was no benefit in playing music that makes noise to the point that it disturbs residents.

45.       The Principal Solicitor raised a further point that if the Committee were minded not to remove the deregulation exemption at this stage and the Committee were to rely on the Undertaking provided by the PLH that they would comply with the noise limiter and other conditions mentioned and it were to materialise that music continues to escape into the residents homes, the residents could not bring another  review for another year as recommended in the Guidance.[13] Mr Grant replied that this was “guidance only” and the residents could theoretically issue another review within a year. Moreover, Mr Grant confirmed that the PLH would not object to the residents issuing a further review within a year if they were suffering nuisance and he was happy for this to be stated in this Decision.

46.       In summing up, Mr Grant stated that he hoped the Sub-Committee would accept  the Undertaking from the PLH that they would comply with all of the conditions proposed to be attached to the licence today and any existing conditions on the licence which would address the noise escape issues and the other issues raised by the Parties, without removing the exemption in Section 177A of the Act.

47.       In summary up Mr Watson stated that he would support the Applicants’ request for the S.177A exemption to the removed to make all the conditions on and added to the licence in relation to the playing of music legally enforceable, especially as the sound level for the limiter had to be assessed with the occupier of Flat 1.

48.       Mr Brown emphasied that it was crucial for the S.177A exemption to be removed so that the playing of music becomes a licensable activity.  This will enable the Licensing Authority to legally enforce all conditions on the existing licence and imposed today to prevent the Applicants from suffering public nuisance.  In his view these steps would be appropriate and proportionate in view of the clear public nuisance which the Applicants have and are suffering.  Nuisance which has been witnessed by several independent Council Officers on several occasions since the Premises opened on 9 November 2022.  To have so many complaints regarding one premises in such a short space of time is very unusual.  Mr Brown did not consider it was sufficient to rely on the Undertaking of the PLH.

49.       Mr Brown said that Mr Bixio is certain that the noise complained of came from these licensed premises.  On the night when Mr Bixio could identify the track being played, this occurred at 11:15 p.m. and not at 11:45 p.m as suggested by Mr Grant and Mr Bixio was adamant it was coming from the Premises because had the music been coming from a different premises he would have been affected by the music in the living room, whereas the track was heard in his bedroom, which is directly adjacent to the wall of Simmons.

50.       Mr Toschetti also stated that Noise Officers had witnessed the DJ playing music at an inappropriate level after 11:00 p.m. The new resident at Flat 1, had registered complaints about noise. Mr Bixio advised that the testing done in January 2023, took place during the day when the sound of heavy demolitions was being done across the road and during this test, he had to request that the music was played for longer because the construction works noise was affecting the noise levels. Mr Bixio was advised by the Environmental Health Service to keep a log of any noise complaints rather than having to ring the Council on each occasion as the Council was already aware of the noise issues.

Full Reasons for the Determination of the Committee

51.In reaching its decision the Committee has had regard to the relevant legislation, the Secretary of State’s Guidance (“Guidance”) particularly in relation to reviews and the Council’s Statement of Licensing Policy (“SLP”).

52.The Committee considered the Review application, the representations and submissions made by all the Parties involved, verbally and in writing.

53.The Committee recognised that the proceedings set out in the Act for reviewing premises licences represent a key protection for the community when problems associated with the licensing objectives occur as in this case which primarily relates to the prevention of public nuisance licensing objective. (Paragraph 11.1 of the Guidance).

 

54.The Act provides the Licensing Authority with a range of powers on determining a Review that it may exercise where it considers them appropriate and proportionate for the promotion of the licensing objectives. (Paragraph 11.16 of the Guidance).

55.“In deciding which of these powers to invoke, the Licensing Authority should so far as possible, seek to establish the cause or causes of the concerns which the representations identify. The remedial action taken should generally be directed at these causes and should always be no more than an appropriate and proportionate response”.  (Paragraph 11.20 of the Guidance).  Each case has to be determined on its own merits, on the balance of probabilities.

56.The Committee notes paragraph 9.43 of the Guidance which states “The authority’s determination should be evidence-based, justified as being appropriate for the promotion of the licensing objectives and proportionate to what it is intended to achieve.’’

57.In summary, the Committee concluded that the Applicants were right to make the application for a review in December 2022, because there was clear evidence that they were being disturbed by noise and nuisance, particularly, the sound of music and vibrations escaping from the Premises into their homes from the day the PLH had a soft opening of the Premises on 9 November 2022.  The Premises opened formally on 10 November 2022 and the Committee accepted the evidence produced by the Applicants that between 9 November and the hearing of the review on 12 January 2023, the Applicants were being disturbed by the music noise escaping from the Premises on no less than twenty-two occasions.  The Chronology of complaints demonstrated that the noise and nuisance was occurring during the day, in the evening and late at night. The Committee accepted that this amounted to serious nuisance which is contrary to the prevention of public nuisance licensing objective. 

58.The Committee recognised that the review was supported by the Environmental Health Service, who regarded the number of complaints received in this relatively short space of time very unusual.

59.Many of the complaints made by the Applicants were witnessed by Council Officers and who considered the noise escaping into the residential flats above the Premises was so bad that they concluded the noise was not only a “public nuisance” under the Act but they concluded that it amounted to a statutory nuisance on four occasions on 10^th, 17^th, 22^nd and 26^th November 2022, which led the Council to serve a Noise Abatement Notice on 28 November 2022, within a month of the Premises opening.  On 10 November 2022, the Applicants had to contact the Council on three occasions in one night which was unacceptable.[14] Mr Watson confirmed in his evidence that at 18:13 that the music was so loud that it reverberated through the party wall of all three flats above the Premises. Complaints were made at 21:08 and at 23:00 hours and this was unacceptable. 

60.Under the Licensing Act a lower threshold of nuisance has to be established in order for the Committee to take steps to address the noise being created, and based on the evidence received, the Committee had no doubt that residents above and adjacent to the Premises were being disturbed by the music being played, in the Premises.  The Committee accepted that on occasions the music was so loud that one or more of the Applicants could clearly identify the tracks being played as the music was travelling through the structure of the building.  This was unacceptable and contrary to the prevention of public nuisance licensing objective.

61.The Committee recognised that the two Applicants had lived in their homes for 10 and 12 years respectively and they had never had a problem with the previous licensed premises which was operated as a bistro pub which played background music.  This Premises however, operate differently as a disco bar which plays music.  The Committee recognised that the PLH did not dispute that music had been escaping into the residential homes in November and December 2022.

62.The Committee noted there was some attempt on 22 November 2022, to set a noise limiter at an appropriate level.  However, there was disagreement as to what should be the appropriate level.  The Applicants and the Environmental Health Service wanted a lower level, whereas the PLH felt the lower level was unacceptable as it would make the business unviable.  Consequently, no level was set, and the Applicants continued to be disturbed by the noise escape from the property.

63.The Committee recognised that the Premises were entitled to play recorded music between the hours of 08:00 and 23:00 hours (subject to the limitation of their opening hours) as the playing of music was not regarded as “regulated entertainment” under Section 177A of the Act (deregulation provision).  However, the Committee concluded that the PLH still had an obligation to ensure that the licensing objectives were being promoted and this meant the operation of their business must not undermine the prevention of public nuisance licensing objective so music should have been played at an appropriate level that did not disturb residents or cause a nuisance.

64.The Applicants had contacted the PLH to ask them to rectify the nuisance, but the Committee decided that the PLH’s initial response to the complaints from the residents was unhelpful and failed to resolve the nuisance being suffered. The Committee would have expected an experienced and responsible operator to have adopted a more proactive approach with local residents in trying to prevent music escaping into residents’ homes, especially having regard to the fact that these problems started almost immediately the Premises had opened.  The Committee felt that early intervention was key to resolving the very real noise and nuisance problems being experienced and as this was not done, this inevitably led to the application for the review.
 

65.The Committee therefore concluded that the management’s handling of the situation could have been dealt with better as this might have dispelled the perception that the Premises were being somewhat dismissive of the residents’ concerns as indicated by an email from Mr Nick Campbell, the CEO of Simmons at page 99 of the Additional Information Pack. If the PLH had acted sooner and fostered a good relationship with local residents this might have prevented matters from escalating and the licence from being reviewed. Clearly, the noise and nuisance created did not promote the prevention of public nuisance licensing objective.

66.The Committee noted that the Officers of the Environmental Health Service and other Officers of the Council had made every effort to work with the PLH and those residents affected to help to resolve the nuisance being caused.

67.The Committee noted that it was not until 12 January 2023, that the PLH agreed to a noise limiter being set at a level which now appears to have resolved the noise escaping into two of the residential properties affected.  The Committee also recognised that further tests are required, particularly, in relation to Flat 1. However, that being said the Committee expects the PLH to work closely with Council Officers and residents in order to prevent noise and nuisance escaping into the residential flats affected.  The Committee concluded that it was appropriate and proportionate for all the proposed conditions which have been agreed by the PLH (as specified in paragraphs 31 to 33 of this Decision) to be attached to the Licence to ensure that the issues raised are addressed and to promote the prevention of public nuisance licensing objective.  The Committee amended the existing noise limiter condition (28), so it is consistent with MC11 as shown in paragraph 24 of the Conditions Schedule. The Committee did not consider it was appropriate to add the words “in conjunction with affected residents” after the words “to the satisfaction of the authorised Environmental Health Officer in (a) as this was too wide and the latter Officer would liaise with affected residents when setting the level.

68.With regard to the removal of the exemption, this was a difficult case. The Committee was very tempted to remove the exemption under Section 177A of the Licensing Act in relation to the playing of music, as there was clear and corroborated evidence that the Premises had been causing a public nuisance contrary to the prevention of public nuisance licensing objective up to 12 January 2023.   However, the Committee recognised that Environmental Health Officer were not sure whether music was still escaping into some of the flats after the noise limiter had been set on 12 January 2023.  There was a question mark as to whether the position had also been resolved in relation to flat 1 as Officers had not been able to assess the noise level from flat 1 and further tests need to be carried out.  The Committee was also concerned that if the Section 177A exemption was not disapplied then any conditions to address the noise issues, including the noise limiter requirement would not be legally enforceable.   However, the PLH provided an Undertaking during the hearing that the Premises would still ensure all that the noise conditions attached to the existing Licence, including all conditions proposed and agreed at this hearing relating to the playing of deregulated music (for example the noise limiter condition) would be complied with even though they are not legally enforceable between 08:00 and 23:00 hours.

69.In light of the Undertaking given by the PLH and the additional conditions attached to the licence (as specified as conditions 24 to 30 of the Conditions Schedule) the Committee concluded it would not be appropriate or proportionate to remove the exemption under section 177A of the Act, at this stage because there was insufficient evidence to show that public nuisance was still occurring from 12 January 2023 and removing the exemption might have an adverse financial impact on the PLH.

70.However, the Committee wanted to emphasise that should the PLH fail to comply with all the conditions that have been imposed on the Premises Licence, (even those relating to the playing of deregulated recorded or live music) and if the residents continue to suffer public nuisance as a result of noise escaping into their homes, then they would be entitled to issue a further review of the licence, either themselves or through the Environmental Health Service, despite the Secretary of State’s Guidance suggesting that residents cannot issue a review within 12 months of a review.  Indeed, Mr Grant confirmed on behalf of the PLH, that the PLH would not seek to challenge a further review being issued by the local residents within 12 months of this hearing.

71.The Committee concluded that it is vital that the PLH complies with the noise limiter condition and all the conditions added by this Committee (including conditions 24 to 30 of the Conditions Schedule below), as these are appropriate and proportionate to address the issues raised in this review and to promote the prevention of public nuisance licensing objective. 

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

1.        To modify the Conditions on the Premises Licence as follows:-

           (1) to replace condition 12 of the existing licence with the following condition[15]:-

“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”, as specified as in       condition 25.

(2) to amend condition 28 of the existing Licence (noise limiter) as shown in red in condition 24 of the Conditions Schedule below so it complies with MC11.[16]

(3) to add conditions 26, 27, 28, 29 and 30 to the licence as specified in the Conditions Schedule below.

2.That the varied Licence is subject to any relevant mandatory   conditions.

3.That the varied Licence is subject to the existing conditions of the Licence (as specified as conditions 5 to 24 of the Conditions Schedule below) and the additional and amended conditions imposed on the Licence by the Committee (as specified as conditions 25 to 30 of the Conditions Schedule below), which are considered appropriate and proportionate to promote the licensing objectives.

4.That the Licence is subject to the Undertaking given by the Premises Licence Holder that it they will comply with conditions 24, 25, 26, 27, 28, 29 and 30 below throughout the period when the Licence is in operation (as stated in the informative below).

Conditions Schedule

(Note the Mandatory Conditions will apply to the Licence in addition to the following conditions)

           A. Existing conditions on the Licence.

 

5.        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

6.        Waiter/waitress service shall be available throughout the premises

7.        The number of persons permitted in the premises at any one time (including staff) shall not exceed 60 persons, with no more than 35 persons in the basement.

8.        No noise shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.   Now replaced by condition 25 below.

9.        There shall be no sales of alcohol for consumption off the premises after 23.00

10.        All sales of alcohol for consumption off the premises shall be in sealed containers only, and shall not be consumed on the premises

11.        People drinking and/or smoking outside the premises shall be restricted to the private forecourt as defined on the attached plans.

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

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

14.        Notices shall be prominently displayed at any area used for smoking requesting patrons to respect the needs of local residents and use the area quietly

15.        A challenge 25 proof of age scheme shall be operated at the premises where the only acceptable forms of identification are recognised photographic identification cards, such as a driving licence, passport, or proof of age card with the PASS Hologram.

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

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

18.        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.

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

20.        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.

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

22.        The ventilation system to the kitchen area shall be switched off at 23.00 hours.

23.        No licensable activities shall take place in the outside area after 23.00 hours.

24.        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 without being routed through the sound limiter device. (MC11 which amends the noise limiter condition on the existing Licence).

 

B.  Conditions imposed by the Committee at the Review with agreement of the Premises Licence Holder 

 

25.        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.  (Replaces condition 12 on the existing licence). (MC12).

26.        Loudspeakers shall not be located in the entrance and exit of the premises or outside the building. (MC13).

27.        All windows and external doors shall be kept closed at any time when regulated entertainment and the playing of music takes place except for the immediate access and egress of persons. (Amended MC14).

28.        The premise licence holder shall ensure that any queue to enter the premises which forms outside the premises is orderly and supervised by door staff so as to ensure that there is no public nuisance or obstruction to the public highway. (MC26).

29.        The premises licence holder shall ensure that any patrons drinking and/or smoking outside the premises do so in an orderly manner and are properly supervised by staff so as to ensure that there is no public nuisance or obstruction of the public highway. (MC71).

30.        The premises licence holder shall devise and maintain a dispersal policy.  The purpose of this policy shall be to ensure that there is no public nuisance caused by customers leaving the premises.  A copy of the premises’ dispersal policy shall be made readily available at the premises for inspection by a Police Officer and/or an authorised officer of Westminster City Council. (Amended MC99).

 INFORMATIVE:

The Premises Licence Holder gave an undertaking to comply with conditions specified in paragraphs 24, 25, 26, 27, 28, 29 and 30 above, throughout the period when the Licence is in operation.

 

 

This is the Committee’s Full Reasoned Decision in relation to the Review which does not have effect until the end of the period given for appealing against the Full Reasoned Decision, or if the Decision is appealed against, until the appeal is disposed of.

 

The Licensing Sub-Committee

23 February 2023