Agenda item

Ward CIA* SCZ**	Site Name & Address	Application Type	Licensing Reference No.
St James’s   * West End   ** None	The Piano Works West End Sub-basement Basement Pat and Ground Floor Part Clareville House 47 Whitcomb Street WC2H 7DH	New Premises Licence	23/00731/LIPN
*Cumulative Impact Area ** Special Consideration Zone

 

Membership:           Councillor Aziz Toki (Chair) Councillor Judith Southern and Councillor Melvyn Caplan.

 

Officer Support:       Legal Adviser:                    Horatio Chance

                                Policy Officer:                     Kerry Simpkin

                                Committee Officer:             Sarah Craddock

                                 Presenting Officer:             Kevin Jackaman

 

Other Parties:          Mr Gary Grant (Counsel for the Applicant), Mr Michael Watson (Agent for the Applicant), Mr Tristan Moffat (The Piano Works), Ms Abi Casson Thompson (The Piano Works), Ms Ayesha Bolton (Environmental Health Service), Ms Karyn Abbott (Licensing Authority) and PC Tom Stewart (Metropolitan Police Service).

 

Application for a New Premises Licence in respect of The Piano Works - West End Sub-Basement, Basement Part And Ground Floor Part Clareville House 47 Whitcomb Street London WC2H 7DH 23/00731/LIPN

 

Full Decision

 

Premises

 

The Piano Works

West End Sub-Basement,

Basement Part And Ground Floor

Part Clareville House

47 Whitcomb Street

London

WC2H 7DH

 

Applicant

 

TDC Ents Limited

 

Ward

 

St James’s

 

Cumulative Impact Area

 

West End Cumulative Impact Zone (“West End CIZ”)

 

 

 

 

Activities and Hours Applied for

 

Supply of Alcohol (On and Off) the Premises

 

Monday to Tuesday           10:00 to 01:00

Wednesday                        10:00 to 02:00

Thursday to Saturday         10:00 to 03:00

Sunday                               12:00 to 22:30

 

Non-Standard Timings: On the morning of the beginning of the British Summer time the finish hour will be 04:00 hours

 

For the Sub Basement only: From the end of the permitted hours on New Year’s Eve to the start of the permitted hours on the following day

 

Performance of Dance, Exhibition of Film, Performance of Live Music,Anything of a Similar description

Monday to Tuesday           10:00 to 01:00

Wednesday                        10:00 to 02:00

Thursday to Saturday         10:00 to 03:00

Sunday                               12:00 to 22:30

 

Non-Standard Timings: On the morning of the beginning of the British Summer time the finish hour will be 04:00 hours

 

For the Sub Basement only: From the end of the permitted hours on New Year’s Eve to the start of the permitted hours on the following day

 

Late Night Refreshment (indoors)

 

Monday to Tuesday 23:00 to 01:00

Wednesday 23:00 to 02:00

Thursday to Saturday 23:00 to 03:00

 

Non-Standard Timings: On the morning of the beginning of the British Summer time the finish hour will be 04:00 hours

 

For the Sub Basement only: From the end of the permitted hours on New Year’s Eve to the start of the permitted hours on the following day

 

Opening Hours to Public

 

Monday to Tuesday 09:00 to 01:30

Wednesday 09:00 to 02:30

Thursday to Saturday 09:00 to 03:30

Sunday 12:00 to 00:00

 

Non-Standard Timings: On the morning of the beginning of the British Summer time the finish hour will be 04:00 hours

 

For the Sub Basement only: From the end of the permitted hours on New Year’s Eve to the start of the permitted hours on the following day.

 

Summary of Application

 

The Sub-Committee has determined an application for a New Premises Licence under the Licensing Act 2003 (“The Act”).  The Premises operates as a live music venue with a restaurant and bar. The Premises has had the benefit of a Premises Licence since 2014. The current premises licence (22/11676/LIPDPS) can be viewed at Appendix 3 of the report along with the history at Appendix 4.  This application replicates the same hours, licensable activities and conditions as 22/11676/LIPDPS save that the existing capacity of 400 persons is increased to 700 in the sub-basement. On the grant of this new licence in the terms applied for the existing licence will be surrendered.

 

The Applicant has provided the following submissions:

 

• Applicant’s written submissions
• Presentation
• Appendices
• Support Letter from Kate Nicholls OBE of UK Hospitality 
• Support Letter from Sue Uings
• Safe Occupancy Assessment

 

Copies of the documents can be found at Appendix 2 of the report.

 

The Premises are located within the St James’s Ward and West End Cumulative Impact Zone. There is a policy presumption to refuse applications of this type within the West End CIZ and so the Applicant must prove an exception to policy.

 

There is a resident count of 56.

 

Representations Received

 

• Metropolitan Police Service (PC Tom Stewart) (MPS)
• Environment Health Service (Ayesha Bolton) (EHS)
• The Licensing Authority (Angela Seaward)

 

Summary of Objectives

 

• The Regulated Entertainment and the hours requested will have the likely effect of causing an increase in Public Nuisance within the area and may impact on Public Safety.
• The Late Night Refreshment and the hours requested will have the likely effect of causing an increase in Public Nuisance within the area.
• The Supply of Alcohol and the hours requested will have the likely effect of causing an increase in Public Nuisance within the area and may impact on Public Safety.

• In respect of the proposed increase in capacity from 400 to 700, the Police submit that if granted, this application would likely undermine the licensing objective ‘the prevention of crime and disorder’, as well as adversely effecting cumulative impact within the West End Cumulative Impact Zone.
• The Licensing Policy advises that in terms of capacities ‘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. The applicant is required to demonstrate how this increased capacity will be managed and what policy they hold in place for dispersals.
• The applicant is required to provide an exceptional circumstance as to why the application should be granted in contrary to the Westminster Licensing Policy, however, it is noted that the applicant has provided no submissions to this effect.
• Although the applicant has offered upon grant of this application to surrender 22/11676/LIPDPS, as conditioned within the operating schedule, the premises in which this application relates to is still located in the cumulative impact zone and any increase in capacity is likely to add to the cumulative stress in that area and therefore will need to demonstrate an exceptional circumstance as to why increase in capacity of another 300 customers should be granted.
• It will be for Licensing Sub-Committee Members to determine this application, given its location within the West End Cumulative Impact area and the proposed increase of capacity.

 

Policy Considerations

 

Policies CIP1, HRS1 and MD1 apply under the City Council’s Statement of Licensing Policy (“SLP”).

 

CIP1

A. 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.

C. 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.

D. For the purposes of this policy the premises types referred to in Clause A are defined within the relevant premises use policies within this statement.

 

 

 

 

 

HRS1

 

A. Applications within the core hours set out below in this policy will generally be granted for the relevant premises uses, subject to not being contrary to other policies in the Statement of Licensing Policy.

B. Applications for hours outside the core hours set out in Clause C will be considered on their merits, subject to other relevant policies, and with particular regard to the following:

1. The demonstration of compliance in the requirements of policies CD1, PS1, PN1 and CH1 associated with the likelihood of the effect of the grant of a licence for later or earlier hours on crime and disorder, public safety, public nuisance and the protection of children from harm.

2. If the application is located within a Special Consideration Zone they have demonstrated that they have taken account of the issues identified in that area and provided adequate mitigation.

3. Whether there is residential accommodation in the proximity of the premises that would likely be adversely affected by premises being open or carrying out operations at the hours proposed.

4. The proposed hours of the licensable activities and when customers will be permitted to remain on the premises.

5. The proposed hours when any music, including incidental music, will be played.

6. The hours when customers will be allowed to take food or drink outside the premises or be within open areas which form part of the premises.

7. The existing hours of licensable activities and the past operation of the premises (if any) and hours of licensable premises in the vicinity.

8. Whether customers and staff have adequate access to public transport when arriving at and leaving the premises, especially at night.

9. The capacity of the premises.

10. The type of use, recognising that some venues are more likely to impact the licensing objectives than others; for example, pubs and bars are higher risk than theatres, cinemas and other cultural and sporting venues due to the nature of the operation.

11. The Licensing Authority will take into account the active measures proposed for a ‘winding down’ period including arrangements for people to be collected from the premises to travel home safely.

12. Conditions on hours may be attached that require that the supply of alcohol for consumption on the premises ceases a suitable period of time before customers are required to leave the premises.

13. The council, acting as the Licensing Authority, may reduce hours if, after review, it is necessary to impose conditions specifying shorter hours in order to promote the licensing objectives.

14. Specific days for non-standard hours should be identified and justified as part of the application to allow responsible authorities and interested parties to evaluate the impact that these licensable activities may have, and to plan accordingly. The consideration of applications for later hours for Bank Holiday Mondays will take into account that later hours are generally granted for preceding Sundays and that the next day is a working day. Non-specific days are expected to be covered by Temporary Event Notices or variation applications.

C. For the purpose of Clauses A and B above, the Core Hours for applications for each premises use type as defined within this policy are:

10a. Shops (all licensable activities that are provided as ancillary to the primary use of the premises as a shop except the off sale of alcohol)

Monday to Thursday: 9am to 11.30pm.

Friday and Saturday: 9am to Midnight. Sunday: 9am to 10.30pm. Sundays immediately prior to a bank holiday: 9am to Midnight.

10b. Shops (off-sales of alcohol where it forms either the ancillary or primary use of the premises)

Monday to Saturday: 8am to 11pm. Sunday: 9am to 10.30pm.
D. Core hours are when customers are permitted to be on the premises and therefore the maximum opening hours permitted will be to the same start and terminal hours for each of the days where licensable activity is permitted.

 

MD1

 

A. Applications outside the West End Cumulative 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 being within the council’s Core Hours Policy HRS1.

3. The operation of any delivery services for alcohol and/or latenight refreshment meeting the council’s Ancillary Delivery of Alcohol and/or Late-Night Refreshment Policy DEL1.

4. The applicant has taken account of the Special Consideration Zone Policy SCZ1 if the premises are located within a designated zone.

5. The application and operation of the venue meet the definition of a music and dance premises or similar entertainment in Clause D.

B. 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 latenight 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 music and dance premises in Clause D.

D. For the purposes of this policy a music and dance premises is defined as a premises whereby the primary purpose of the venue is to:

1. Provide regulated entertainment in the form of music, either in the form of live performances or recorded, to customers.

2. Provide regulated entertainment in the form of music, either as live performances or recorded, and provide facilities for the provision of dance.

3. The sale by retail of alcohol may be provided as either a considerable element of the operation of the premises or ancillary to the provision of regulated entertainment.

a. Examples of venues that would fall within this policy are night clubs or bars that provide music and dancing.

b. De-regulated entertainment (as set out in the glossary will not be subject to this policy).

 

SUBMISSIONS AND REASONS

 

1.        Mr Kevin Jackaman outlined the application to the Sub-Committee. He advised that representations had been received from the EHS, MPS and the Licensing Authority.  He confirmed there had been no representations made by Interested Parties.  He outlined that the Premises is located within the St James’s Ward and the West End Cumulative Impact Zone. 

 

2.        Mr Gary Grant (Counsel on behalf of the Applicant) outlined the application before the Sub-Committee.  He explained that the Piano Works was an important live music led venue for the UK where songs were played in response to audience requests.  He advised that it was the largest employer of live musicians in London and probably the UK with over 19 musicians currently employed offering a very significant live musical experience for Londoners and visitors alike.  He emphasised that the Premises was food led and offered extensive menus throughout its operating hours.

 

3.        Mr Grant stated that this application had been made to increase the maximum capacity of The Piano Works (West End) from 400 to 700 customers (before 01:00) by way of a new Premises Licence application and that if granted the existing Premises Licence would be surrendered. He said that the operating hours and licensable activities remained unchanged and the conditions on the current licence were replicated but with nine additional significant and robust conditions now proposed to be added to the Operating Schedule. 

 

4.        He further added that the Piano Works was such a unique and worthy venue to the London’s West End and the UK’s live music culture and its customer base demonstrably so unproblematic, that an exception to policy was justified on the very special circumstances of this venue.

 

5.        Mr Grant advised that not one resident or residential group had objected to this application because it was a very popular and important venue in the West End.  He added that the three Responsible Authorities had made representations on policy grounds only.  He outlined that the Premises had welcomed over 1,000,000 customers since opening in January 2018 and there had not been a single significant violent incident or complaint as the venue did not attract customers who were likely to cause issues in the cumulative impact area. 

 

6.        He added that their customer base was made up of 75% women and the average age of their patrons were 30 years old.  He stated that this late-night venue in the West End did not attract vertical drinkers age between 18 to 25 years old who created all sorts of problems in the cumulative impact area.

 

7.        Mr Grant outlined the support that the Premises had received from the Arts Council of England from their Culture Recovery Fund because of its local and regional significance in contributing to employment within creative communities and driving innovation in their art. 

 

8.        Mr Grant then advised how the application before the Sub Committee was essentially for the survival of the Premises because the Premise had been closed for 19 months during the COVID pandemic and their debts now exceeding £1 million (with monthly loan payments of £45,000). He explained that the Premises currently operated at half capacity by virtue of the condition on the existing Premises Licence and that the Applicant now wished to replicate the capacity of 800 granted by way of planning permission.

 

9.        Mr Grant briefly stated that the Premises had previously been a problematic vertical drinking nightclub which was why the capacity had initially been capped at 400 persons.  He advised that it had been the Applicant’s hope and intention at the time, which was expressed to the Responsible Authorities, that once they proved themselves and that the exceptional nature of this Premises did not add to cumulative impact in the West End CIZ area they would come back to the Sub Committee and request an increase in capacity to the full 800 patrons. 

 

10.      Mr Grant referred to the appeal case of Forster and advised that the Licensing Sub Committee was entitled to have regard to decisions made by their Planning Committee and therefore the Applicant wished the Sub Committee to have regard to the 800 capacity granted under planning.

 

11.      Mr Grant stated that the problem of the current capacity was twofold.  Firstly, it meant that there were hundreds of customers queuing outside of the Premises late at night particularly on Friday and Saturdays because the Premises had to operate an one in one out policy (and this was despite of 85% of their customers pre booking tables and most of those eat in) so if this application was granted it would take hundreds of people off the street and allow them in within the safety of the Premises.  Secondly, there were numerous theatre producers, cinema groups, businesses and charities that wished to hire out a large venue for special events and currently the Applicant had to turn this business away.

 

12.      Mr Grant advised that the Council’s SLP recognised that different types of Premises could have different impacts on the cumulative impact area.  He gave the following example that 1000 junior doctors and nurses marching through London protesting against their wage cuts would have less impact than 100 football hooligans running a mob; so: it was not simply about numbers.  He considered that the Sub Committee could take into consideration the customer base of a Premises and that this particular Premises had demonstrated over the past five years that their customers were not troublemakers.  He added that it would be better for the area to allow people into the venue rather than make them stand outside or force them to visit drink led establishments and/or nightclubs.  He advised that the Council’s SLP promoted such venues within their policies and the Piano Works played a full part in promoting diversity and mental health in London.

 

13.      Mr Grant referred to Appendix 5 of the report which outlined the nine additional measures (conditions 71 to 80) proposed to mitigate any additional potential impact of having more people permitted in the Premises. He emphasised that there would not be 700 persons at the Premises after 01:00 when the Police were perhaps most stretched and that the increased capacity of 700 customers before 01:00 would only apply when the venue operated as a live music venue.  He added that this condition future proofed the Premises Licence and prevented it being transferred and operated as a nightclub. 

 

14.      He outlined that there would now be a last entry condition on the Premises Licence, that there would be a minimum of two street marshals on duty on a Friday and Saturday night, the Premises would double the ratio of SIA security staff and that there would be a minimum of 350 seats laid out at tables whilst licensable activities were taking place to prevent vertical drinking. 

 

15.      Mr Grant emphasised that proposed condition 76 regarding queueing would take hundreds of people off the streets.  He set out that the Applicant was content to agree that no more than 60 persons were permitted to remain in the queue outside the Premises after 23:00 instead of midnight.  He confirmed that the Applicant was willing to reduce the current closing hour of midnight to 23:00 on Sundays. 

 

16.      Mr Grant summarised by setting out that the PLH had proven exceptional circumstances by offering to attach the nine additional robust conditions to their Premises Licence and that the granting of this application was necessary for the survival of this unique Premises in the West End area.

 

17.      In response to questions from the Sub Committee, Mr Grant advised that the nine additional conditions to be attached to the Premises Licence were the exceptional circumstances being offered by the Applicant. He stated that the patrons attending this Premises did not cause trouble after leaving the venue as they were amongst the demographic that usually went straight home to relive babysitters. 

 

18.      He confirmed that there had been no incidents in the Premises in the past five years and that this was wholly exceptional for Premises situated near Leicester Square operating with their current capacity and operating hours.   Mr Grant stated that the Applicant was offering two street marshals to help look after people left within the immediate vicinity and doubling the number of SIA security staff to greatly assist dispersal of patrons.  Mr Grant again emphasised his example of the junior doctors (outlined above) and that it was not all about numbers but about the type of people visiting a Premises. 

 

19.      He advised that the Premises caused no issues even through it was open late at night and the Sub Committee should take this into consideration when considering the merits of this application.

 

20.      Mr Tristan Moffat, representing The Piano Works, advised that 85% of their guests pre-booked and a reservation needed to be made around 3-4 weeks before visiting the Premises.  He outlined that the Premises was actually trying to reduce the cumulative impact in the West End area by allowing people to come into the Premises straight away on arrival. 

 

21.      Mr Moffatt then described the daily operation of the Premises from morning brunch to the evening and advised that there was usually no queue outside of the Premises after 23:00.  The Sub Committee advised that they expected every operator to be good at managing their Premises and that being a good operator was not an exceptional circumstance.

 

22.      Ms Karyn Abbott appearing on behalf of the Licensing Authority advised that the Premises was a live music venue and therefore should be considered under the Council’s Music and Dancing Policy (MDP1) which states that the Applicant needs to provide an exceptional circumstance as to why the application should be granted contrary to the SLP.  She advised that the Licensing Authority welcomed the nine additional conditions offered by the Applicant and the detailed dispersal policy however the Premises in which this application relates was still located in the West End CIZ and any increase was likely to add to the cumulative stress in the West End area. 

 

23.      Ms Abbott advised it was, therefore, for the Sub-Committee to be satisfied that the increase in capacity of 300 people would not add to the cumulative impact within the West End CIZ.

 

24.      Ms Ayesha Bolton appearing on behalf of the EHS advised that the service’s representation had been maintained on policy grounds.  She echoed the submission of the Licensing Authority and added that with regards to Public Safety the Premises could accommodate 700 patrons.  She confirmed that the Premises had never received any noise complaints.

 

25.      PC Tom Stewart appearing on behalf of the MPS advised that the Premises did not cause the Police any concerns and that the Police had a good working relationship with the operator.  He confirmed that the Police welcomed the nine additional conditions particularly regarding the street marshals and extra SIA security guards. 

 

26.      He referred to the Police’s crime figures contained in the report and emphasised that most crime and disorder occurred between 23:00 and 04:00. He added that it was unlikely that the patrons attending this venue would commit crime and disorder or anti-social behaviour, however, he wanted to stress that they could become victims of crimes at the times they were to leave the Premises. He advised, therefore, that it was for the Sub-Committee to decide whether the Applicant had proven exceptional circumstances as to why the application should be granted contrary to the requirements of the SLP.

 

27.      Mr Kerry Simpkin, Policy Advisor to the Sub Committee, stated that the increase in capacity in the cumulative impact area was a fundamental consideration for the Sub-Committee and that the general volume of people impacted the area in terms of infrastructure, transportation and crime and disorder. 

 

28.      Mr Simpkin drew the Sub-Committee’s attention to paragraphs D14 and D16 of the SLP. These were read out to assist the Sub-Committee’s understanding of the policy implications that underpin the exceptionality argument. 

 

29.      He emphasised that the Sub Committee would need to consider whether the proposals put forward by the Applicant demonstrated exceptional circumstances within the wider West End area. 

 

30.      During his summing up, Mr Grant advised that patrons attending the Premises would not contribute to the crime and disorder in the cumulative impact area.  He emphasised that the Council’s policy was to promote cultural venues, especially live music venues, that offered a diversity beyond the vertical drinking clubs and bars that attracted 18-25 year olds.

31.      He highlighted the nine additional robust conditions that had been offered by the Applicant and emphasised that the Applicant was an experienced operator. He added that surely it was better for patrons to be inside a venue rather than queuing on the pavement/street in the busy West End Stress Area. 

 

32.      Mr Grant advised that the Applicant would be content to accept a 600 capacity instead of a 700 capacity.

 

Conclusion

 

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

 

34.      In accordance with paragraph D11 on page 47 of the SLP there is an automatic presumption to refuse applications of this nature in the West End CIZ.  It is for the Applicant to prove exceptional reasons as required by paragraph D12 of the SLP. The list for exceptional reasons need not be exhaustive, however, in considering whether a particular case is exceptional the Licensing Authority will consider the reasons underlying the West End CIZ special policy and the relevant premises use policies when considering applications.

 

35.      The Premises are a popular venue and adds to the London’s live and grassroots music culture right in the heart of the West End providing a diverse cultural offering in Westminster attracting an older clientele with the majority being female customers as highlighted by the Applicant in their written submission at paragraph 20 on page 161 of the agenda report.

 

36.      The Sub-Committee had no question to doubt that the Applicant was a good and responsible Applicant as this was apparent from the evidence before it and the Applicant’s proven track record when running the Premises as amplified in some detail by Mr Grant as being an iconic musical venue right in the heart of the west end providing excellent live music to a respected audience.

37.      Moreover, as was stated in the hearing by the Policy Advisor and in accordance with Paragraph D14 of the SLP Licence Holders are in any event expected to comply with their licence conditions and promote the licensing objectives and on this basis cannot be considered and exception to policy.

38.      The Sub-Committee noted the high level of support the Applicant received in respect of the application including from the Arts Council of England, The Mayor of London’s Night Time Czar, UK Hospitality, The Night Time Industries Association, the Music Venue Trust, the Songwriting Academy, Heart of London Business Alliance charities, musicians and local residents and this was to be commended. 

39.      The Premises are popular; however, popularity is not one of the licensing objectives under the Act and so the correct test to be applied is whether granting the application would have the desired effect of promoting the licensing objectives if exceptionality were to be proven by the Applicant. 

40.      The Sub-Committee’s number one focus was on the additional numbers (in this case an increase from 400 to 700 people even with the later suggestion by the Applicant to reduce to 600) entering the West End CIZ if the application were granted and the effect those numbers would have on the CIA overall. This was the true crux of the matter.

41.      The Sub-Committee noted that the Premises has incurred debts since the Covid-19 pandemic and has every sympathy along with other operators within Westminster that are faced in similar positions and are struggling financially and acknowledged that it will take some time for businesses to get back on an even keel to pre-pandemic levels. 

42.      The Sub-Committee noted the comment made by Mr Grant that large queues form outside of the Premises because of the venue’s popularity once the current capacity of 400 is reached and entry to the Premises is on a one-in/one out basis. However, this was in direct conflict with Mr Moffatt submissions when he advised that after 23:00 hours there was hardly any queuing outside of the Premises.

43.      The Sub-Committee noted the evidence from the MPS which stated that crime did peak between 23:00 and 04:00 hours. However, it was unlikely that the patrons attending this Premises would commit crime and disorder or anti-social behaviour, but more that they could become victims of crimes at the times they were to leave the Premises. This was an important factor for the Sub-Committee to consider because the Applicant confirmed that three quarters of its patrons were female, and it was therefore not beyond the realms of possibility that this specific group could become victims of crime from 23:00 hours onwards.

 

44.      In terms of the proposed nine additional measures and conditions which are effectively the exceptional reasons set out by the Applicant in his written submission at paragraphs 44-45 on pages 168-170 of the report to rebut the policy presumption to refuse the application these various comments were noted by the Sub-Committee and are dealt with in each turn as follows:-

45.      The capacity of the Premises shall be no more than 400 persons (excluding staff) after 01:00.

The Sub-Committee contended that even with this restriction in place on capacity the West End CIZ would still be negatively impacted and did not consider this time bar exceptional.

 

46.      The increase in capacity of 700 customers before 01:00 shall only apply when the venue operates as a venue where live music is played.

 

The Sub-Committee contended that even with this personal condition restricting the Premises use to that of a live music venue the numbers in the West End CIZ still exist and therefore this could not be considered exceptional.

 

47.      No entry or re-enty after 01:00 save for persons who have temporarily left the premises eg to smoke.

 

The Sub-Committee did not consider this exceptional because the Premises proposal was to limit the capacity to 700 (even with the added suggestion of 600) in any event. The Sub-Committee always has the power to restrict numbers in any event after consulting the views of the Responsible Authorities and imposing a capacity condition and this in itself is not exceptional.

 

The Sub-Committee also did not except the argument of “containment” advanced by the Applicant meaning that patrons would stay in the venue and not visit other premises within the West End CIZ.

 

In the Sub-Committee’s considered view this was a weak argument and could not be considered exceptional because patrons are free to leave the Premises at any time and are not tied to any specific premises.

 

48.      There shall be a minimum of 350 seats laid out as tables whilst licensable Activities are taking place.

 

The Applicant confirmed that the Premises is food led and this was evidenced by the various food menu choices on offer and produced as evidence in the agenda report.  The Sub-Committee considered that with those number of seats waiter and waitress service is to be expected in any event so this could not be considered an exceptional reason.

 

The Sub-Committee took the view that any competent operator running a hugely popular venue with such a high patronage frequenting the Premises would employ good practices as this was part and parcel of the daily running and management of the Premises in accordance with proposed Condition 17 which states “when the sale of alcohol shall be ancillary to the provision of music and dancing and substantial food throughout the licensable hours” so again this was not considered exceptional.

 

49.      No more than 60 persons are permitted to remain in the queue outside the premises after midnight.

 

The Sub-Committee did not consider this exceptional because it expects queues to be properly managed by the Applicant in any event and the Applicant in evidence advised that there were hardly any queues outside of the Premises after 23:00.  

 

50.      The Premises shall operate in accordance with a dispersal policy drawn up in consultation with the licensing authority and the police.

 

The Sub-Committee expects all licence holders to put appropriate measures in place to promote the licensing objectives. With the high volume of footfall at the Premises a dispersal policy is to be expected in any event given the large numbers expected in the West End CIZ as this would help mitigate any potential public nuisance issues. This measure is not exceptional.

 

The Sub-Committee expects the Applicant to identify what preventative measures are to be in place in an application of this type and what conditions are to be covered in the operating schedule. These measures are not over and above what an operator is expected to do to ensure compliance with its licence conditions and the promotion of the licensing objectives.

 

51.      The premises shall deploy a minimum of 2 street marshals on a Friday and Saturday from 23:59 hours until 30 minutes after the premises closes to the public to patrol the vicinity around the premises. At all other times street marshals shall be deployed on a risk assessment basis.

 

The Sub-Committee did not consider this proposal exceptional. It expects

licence holders to put such measures in place when it comes to the promotion

of the crime and disorder licensing objective particularly when crime in the

West End CIZ peaks after 23:00 hours so it would be appropriate and

proportionate for the Premises to have sufficient security measures in place.

 

52.      On Fridays and Saturdays, the ratio of SIA security staff to customers shall be increased to 1:50 (unless the police agree in writing to a different number for a particular event.

 

The Sub-Committee did not consider this exceptional as crime in the West End CIZ peaks after 23:00 where customers of premises are likely to be targets of crime which would include this Premises patrons. Additional security at the Premises goes to the core management practices of the Premises to promote the licensing objectives and again these measures are not over and above what a good operator is expected to carry out in any event.

 

53.      The Sub-Committee did not come to the Decision lightly to refuse the application because it realises that the operator runs his Premises well and is a popular venue within the West End CIZ. However, the Sub-Committee has a duty to safeguard the reasons that protect the very foundations of the CIP1 policy and the global impact granting such an application would have within the cumulative impact area.

54.      Without doubt the Applicant is a good operator, but this alone is not sufficient to demonstrate an exception. Similarly, the Sub-Committee considered the mitigation measures advanced by the Applicant when considering the global and cumulative effects of licences on the area as a whole but these proposed measures did not go far enough in addressing these specific issues as more detailed in paragraphs 45-52 above.

55.      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.

 

56.      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.

 

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.”

 

57.      In terms of exceptional circumstances, the Applicant relied on their oral and written submissions. As made clear in the 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.”

 

58.      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 would still be negatively impacted because of the increase in numbers overall even with the slight reduction in any event to 600 patrons. 

 

59.      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”.

 

60.      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.

 

61.      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 an increase of 200-300 people would have a negative impact on the cumulative impact area leading to the licensing objectives being undermined which is not what the Act is designed to do.

 

62.      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 of the Licensing Sub-Committee which takes effect forthwith.

 

The Licensing Sub-Committee

27 April 2023