Agenda item
The Court, 9 Kingly Street, London, W1B 5PH
Minutes:
WCC LICENSING SUB-COMMITTEE NO. 4
(“The Committee”)
Thursday 11 May 2023
Membership: Councillor Angela Piddock (Chair) Councillor Md Shamsed Chowdhury and Councillor Jim Glen
Other Parties: Horatio Chance (Legal Advisor)
Committee Clerk (Jack Robinson-Young)
Policy Advisor (Aaron Hardy)
The Environmental Health Service (Maxwell Koduah)
The Licensing Authority (Karyn Abbott)
Metropolitan Police Service (PC Tom Stewart)
The Soho Society (Marina Tempia) (Wendy Hardcastle)
Application for a Variation of Premises Licence in respect of The Court 9 Kingly Street London W1B 5PH 23/01201/LIPV
Full Decision
Case Summary
This is an application for a Variation of a Premises Licence under the Licensing Act 2003 (“The Act”). The Premises operates as a Private Members Bar and Club.
The Applicant seeks the following:
Part A:
· To remove conditions 10 - 12 (Rules of Management), 20 & 21 (membership), and 13 -17 and 22 (various), and replace them with a suite of modern and appropriate model conditions.
· To increase the capacity to 220 (From 150).
· To increase the permitted hours on Saturdays to 01:00 and add licensable activities on Sundays until 23:00; and
· To update the layout of the premises in accordance with the enclosed plans, including changes to fixed seating, increase in WC provision and addition of secondary means of escape.
Part B:
· Should the application as above be granted in accordance with this Operating Schedule and Part A, the hours of licensable activities on a Monday to Friday would be reduced to 01:00.
The Premises has had the benefit of a premises licence since at least 2005. The current premises licence (22/09921/LIPT) can be viewed at Appendix 3 of the Agenda Report along with the premises licence history. The Applicant has provided further submissions featured in the additional agenda pack.
The Premises are located both within the West End Ward and West End CIZ. There is a policy presumption to refuse the application unless the PLH can demonstrate an exception to policy. The matter was assessed on its individual merits having regard to the evidence before the Licensing Sub-Committee and the promotion of the licensing objectives.
There is a resident count of 7.
Representations were received from the Metropolitan Police Service, Environmental Health Service, The Licensing Authority and the Soho Society.
Premises
The Court
9 Kingly Street
London
W1B 5PH
Premises Licence Holder
Shaftesbury AV Limited (“PLH”)
Cumulative Impact Area
West End Cumulative Impact Zone (“West End CIZ”)
Activities and Hours
As per the Premises Licence save for the variations applied for.
Representations Received
· Metropolitan Police Service (PC Tom Stewart)
· Environmental Health Service (Dave Nevitt)
· The Licensing Authority (Jessica Donovan)
· The Soho Society 55 Dean Street
Summary of Representations
· The Police submit that, if granted, the following variations to the premises licence 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:
a. The removal of condition 22 “After 23:00 hours, the supply of alcohol at the premises shall only be to a person seated at a table”.
b. The increase in capacity from 150 to 220. The Police accept that the impact of the increase in licensable activities on a Saturday to 01:00 and the addition of licensable activities on Sundays until 23:00 will likely be mitigated by the offered reduction in licensable activities on a Monday to Friday
· Representation is made in relation to the application, as the proposals are likely to increase the risk of Public Nuisance and may impact upon Public Safety.
· The Licensing Authority has concerns in relation to this application and how the premises would promote the four Licensing Objectives:
• Public Nuisance
• Prevention of Crime & Disorder
• Public Safety
• Protection of children from harm
· This application as presented will fail to promote the licensing objectives and increase cumulative impact in the West End Cumulative Impact Zone. However, we will withdraw this objection if the applicant agrees to reduce the hours in line with the core hours policy for Pubs and Bars PB1 and reduce the capacity to the existing figure of 150.
Policy Considerations
Policies HRS1 and MD1 apply under the City Council’s Statement of Licensing Policy (“SLP”).
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 late-night
refreshment meeting the Council’s Ancillary Delivery of Alcohol and/or Late-Night Refreshment Policy DEL1.
3. The application and operation of the venue continuing to meet the definition of a 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. The Presenting Officer Ms Roxsana Haq addressed the Sub-Committee. She advised that this was an application for a Variation of a Premises Licence in respect of The Court, 9 Kingly Street, London W1B 5PH. The application has been brought by the PLH; Shaftesbury AV Limited (represented today by Mr Alun Thomas). The PLH seeks to remove conditions, increase permitted hours on Saturdays to 01.00 and add licensing activities on Sundays. Further seeks to update layout to reflect the plans submitted. Full details can be found at pages 28-31 of the report bundle. Representations were received from the MPS (PC Tom Stewart), EHS (Mr Maxwell Koduah), The Licensing Authority (Ms Karyn Abbott) and Marina Tempia and Wendy Hardcastle from the Soho Society. The Premises are located within both the West End Ward and West End CIZ.
2. Mr Alun Thomas Solicitor, appearing on behalf of the PLH addressed the Sub-Committee. He advised thatShaftesbury owns the whole estate. The Premises was previously a bar and closed about 6 months ago. The rationale for the variation application is to increase the hours on a Saturday, reduce hours during the week substantially and to increase the capacity.
3. Mr Thomas advised that planning permission was granted for a change of use a few weeks ago. He explained that there was an error in the Planning Permission which referred to the wrong hours which was a typo.
4. Mr Thomas said that there would be a reduction of sales of alcohol both on and off. He said that there would be less cumulative impact and crime and disorder in this area. He went onto explain that the reason for this is that where you have one ownership of an area this results in effective management of the area.
5. Mr Thomas said that Shaftesbury can choose their tenants. He advised that there are ongoing current negotiations with ‘Little Door’ who own four premises at the moment. The Premises is a Membership club without having a membership.
6. Mr Thomas said that Shaftesbury provide 24-hour security with a proven track record and therefore takes safeguarding of the area seriously. He said that the increase in capacity was noted as an issue and the removal of one condition.
7. Mr Thomas said granting the application would result in reducing both hours for the sale of alcohol Monday to Friday and opening hours. He said the net effect is that there would be a significant overall reduction of alcohol sales beyond core hours. This would amount to a reduction of 680 hours a week meaning a substantially less capacity for late night drinking in the West End CIZ.
8. Mr Thomas advised that pre-application advice had been sought and there had been a fruitful dialogue with the EHS in this respect. He said that before Mr Nevitt left the Council’s employ by way of retirement, his opinion was that the increase in hours and reduction was reasonable.
9. Mr Thomas said that if the application were granted this would update the licence by way of more model conditions, more toilets and a reduction in cumulative impact. He said that the peak times for crime in the area were between Midnight to 04:00.
10. Mr Thomas referred to page 12 of the report and that most incidents tended to happen between 02:00 to 03:00 and these are the hours we are giving up. He said in terms of the policy implications an exception is required. He said that the PLH is seeking to reduce the hours, which means a reduction in the capacity.
11. He said that the underlying reason for having the policy means more people on the street becoming possible victims of crime. He said that an exception is not required in policy terms because bars and clubs are treated the same as private members club. Mr Thomas then went onto explain that between 01:00 to 03:00 this was the highest levels of violence in the CIA because this is the window we are closing. Regarding the proposed conditions these are better than the conditions currently imposed on the licence.
12. In answer to questions from the Sub-Committee Mr Thomas confirmed the following:-
· In terms of dispersing 40 people at potentially 01:00 it was argued that there would be 150 less people in the CIA between 01:00 - 03:00 when all the crime happens.
· Spring keys are used for different doors.
· Planning allows the operation until 01:30 hours.
13. Mr Thomas in his summing up to the Sub-Committee confirmed the following:-
· Pre-application advice was sought and this deemed the application to be fair.
· There’s a reason there’s no clubs on Kingly Street. The PLH did not want this.
· The crime statistics speak for themselves.
· There will be a reduction of some 680 hours.
· Crime peaks between 01:00 to 03:00 and the Premises are giving these said hours.
· There is less Police on the streets at 03:00 so closing at 01:00 is better than 03:00.
· The current Planning Permission does not have any restrictions. Should the application be granted then the planning permission will be implemented.
· The PLH agrees for a condition to say that the dispersal policy is available at the Premises.
· The PLH agrees for SIA if its risk assessed. We don’t want to set a minimum.
· The PLH agrees to seating and is happy to set a minimum number of seats available.
· The capacity could probably be set at 200.
· There could be some leeway in bringing Sunday back to 22.30
· Model Condition (MC41) is agreed.
14. Ms Abbott appearing on behalf of the Licensing Sub-Committee addressed the Sub-Committee. She advised that the application was in two parts.Part A is to remove and update a number of conditions, update plans, increase capacity and increase terminal hour on a Saturday to 01:00.
15. She said that the application does fall outside of the Councils’ core hours policy and therefore the PLH does need to demonstrate exceptional circumstances for the application to be granted.
16. Ms Abbott said that if members are minded granting that part of the application, the PLH will reduce the hours Monday-Friday from 03:00 to 01:00. However, consideration needs to be given to the fact that this will mean an extra 70 people in the CIA at 01:00 and at this time this is already at saturation point in the West End.
17. Ms Abbott said that the Sub-Committee need to determine whether the reduction in hours from 03:00 to 01:00 during the week is an exceptional circumstance to be used and whether the additional 70 people every day will lead to cumulative impact.
18. Ms Abbott in summing up to the Sub-Committee stated that an extra 70 people going out in the CIA every day of the week must be considered particularly with regard to crime issues in the area.
19. Mr Maxwell Koduah appearing on behalf of the EHS addressed the Sub-Committee. Mr Koduah said that he was generally happy with what is being asked for in the variation application. He said that a number of model conditions had been proposed. There was policy in place to mitigate any risks around public safety and nuisance.
20. Mr Koduah said that the district surveyor involved in the application confirmed that the capacity was a safe number. In terms of the works these have yet to be carried out but I will need to undertake a visit in order to sign off the condition. He said that the extra 1.5 hours would result in an extra 70 people in the West End CIZ.
21. Mr Koduah referred to pages 55 - 67 of the report and the policy implications. He said that the commitment to employ SIA staff was welcomed. In terms of Model Condition 99 (MC99) this would be a minimum of two SIA 30 minutes after closing.
22. In answer to questions from the Sub-Committee Mr Koduah confirmed the Premises was not a particular concern to the EHS having checked the history of the Premises.
23. Mr Koduah in summing up to the Sub-Committee said that he had nothing further to add apart from he was happy for Sundays to be reduced to 22.30 hours.
24. PC Stewart appearing on behalf of the MPS addressed the Sub-Committee. PC Stewart advised that representation was made on thegrounds of the Cumulative Impact Area. He said that crime figures are the highest they have ever been in the area and with the proposed increase in capacity this would cause problems in the area.
25. PC Stewart said that the reduction of hours may mitigate some risk but with the planning permission reflecting these hours. He said that a reduction in hours on a Friday may well be acceptable mitigation although the crime figures are high.
26. PC Stewart said that removing the sale to those seated could be a problem. He said that people seated at a table are less likely to be confrontational and removing this condition would be a concern.
27. PC Stewart said that granting the application would result in an increase in capacity within the West End CIZ when it came to the prevention of crime and disorder. He said that Kingly Street was not necessarily in a heat spot and no matter how good the Premises management is, you cannot always control gang members on the street that target customers.
28. PC Stewart said that timings dictate the type of crime and are an important factor the Sub-Committee. He said that the majority of thefts happen during the day. However, alcohol related incidents happen late at night. People leaving at 01:00 are vulnerable to crime in the West End.
29. In answer to questions from the Sub-Committee PC Stewart confirmed the following:-
· In terms of crime on a Friday within the area, Friday has more crime than Thursday. Saturday has the highest crime rates.
· Crime is higher than ever and the rates are higher than pre pandemic. There is a change in the way people are operating and premises are having to deal with large groups.
· The reduction from 03:00 to 01:00 is a good thing but people know what time the premises are operating until and that’s when they will target and people are more likely to become the victims of crime.
· In terms of Kingly Court and the immediate area this is not a hot spot for crime and does not give the Police issues.
30. Marina Tempia from the Soho Society addressed the Sub-Committee. She advised that the Society’srepresentation is based on a number of concerns regarding the proposed new late-night bar and the removal of the condition required customers to be seated.
31. Ms Tempia said that Monday to Tuesday at 01:00 are quiet nights in the area and the police reports indicate this. She said although the PLH have their own security this does not reduce noise and nuisance of the customers dispersing into Soho because the streets cannot be conditioned.
32. Ms Tempia said that 01:00 will facilitate more people looking for their next bar to go to because they will be going past residents. She advised that there are 65 licences with a terminal hour of 01:00 and a capacity of 10,000 people.
33. Ms Tempia said that adding an additional 70 people to that number would be huge and one other late-night premises on Kingly Street is not heavily focused around numbers. She said that you can see gang members, drug dealers just waiting to target people in the area.
34. Referring to Paragraph D23 of the SLP Ms Tempia said that cumulative impact effects the wider area and not just the immediate vicinity of the Premises because of the overall global effect. She said that hour’s equal people. Monday to Wednesday are days when it is generally quieter.
35. Ms Tempia in summing up to the Sub-Committee stated that granting the application would retain people for longer in the West End CIZ. It is the global effect and not just in the immediate vicinity which is the real problem here.
36. In answer to questions from Mr Hardy the Policy Advisor to the Sub-Committee Ms Tempia said in terms of a reduction of hours on Friday the Society would prefer a reduction to core hours as this is the policy. Hours sought are a lot better than 03:00.
37. In answer to questions from Mr Hardy to Mr Thomas regarding whether an extension would be more acceptable than capacity Mr Thomas stated that the PLH was proposing togive up hours during the week. We are only asking for an extra hour on Saturday. However, we have offered to reduce Sunday to 22:30.
Conclusion
38. The Sub-Committee realises that it has a duty to consider each application on its individual merits and did so when determining the application.
39. 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.
40. 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 Thomas.
41. However, Paragraph D14 of the SLP requires Licence Holders to comply with their licence conditions and promote the licensing objectives and on this basis cannot be considered and exception to policy.
42. The Sub-Committee welcomed the fact that the PLH had obtained pre-application advice beforehand. However, obtaining such advice is not necessarily an indicator that an application is to be granted once the actual specifics have been explored and considered.
43. The Sub-Committee’s number one focus was on the additional numbers (in this case an increase to 70 people) entering the West End CIZ if the application were granted with the proposed increase in hours and the effect those numbers would have on the CIA overall. This was the true crux of the matter.
44. The Sub-Committee noted the evidence from the MPS which stated that crime did peak between 01:00 and 03:00 hours. The Sub-Committee was concerned that patrons leaving the Premises could become victims of crimes at the times they were to leave the Premises.
45. This was an important factor for the Sub-Committee to consider because it is not beyond the realms of possibility that patrons leaving the Premises could become victims of crime from 01:00 hours onwards particularly on a Saturday night (where the current terminal hour of Midnight is to be extended) when the West End is at its busiest and saturated with people in any event.
46. In terms of the proposed additional measures and conditions which are effectively the exceptional reasons set out by the PLH in his written submission at paragraphs 1-26 on pages 35-43 of the report to rebut the policy presumption to refuse the application these various comments were noted by the Sub-Committee in their entirety.
47. The Sub-Committee considered setting the capacity of the Premises at a possible 200 as proposed by the PLH but contended that even with this restriction in place on capacity the West End CIZ would still be negatively impacted and did not consider this bar on numbers exceptional.
48. The Sub-Committee considered the request by the Premises to operate in accordance with an operational management and dispersal policy plan. However, the Sub-Committee expects all licence holders to put appropriate measures in place to promote the licensing objectives. With the 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.
49. Furthermore, the Sub-Committee expects the PLH 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.
50. The Sub-Committee considered the request to have SIA at the Premises with the total number to be on a risk assessment basis. However, 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 01:00 hours so it would be appropriate and
proportionate for the Premises to have sufficient security measures in place.
51. 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.
52. 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 it will no doubt be 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.
53. Without doubt the PLH 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 46-52 above.
54. 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 based on the additional numbers in the West End CIZ.
55. 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.”
56. 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.”
57. 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 increased number of 70 patrons.
58. The Sub Committee did not doubt the quality of the management of the Premises and its management of the Carnaby Estate. 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”.
59. The PLH’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.
60. The Sub-Committee realises that it has a duty to strike the right balance when considering the needs of the PLH 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 to the permitted hours on Saturdays to 01:00 (from 00:00 for all licensable activities) together with the addition of licensable licensable activities on Sundays until 23.00 (from an existing 22.30 cut-off for alcohol) that an increase of 70 people even with the proposed reduction Monday to Friday to 01:00 (from 03:00, or 03:30 in the case of late night refreshment) during the week would still have a negative impact on the West End CIZ leading to the licensing objectives being undermined which is not what the Act is designed to do.
61. 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
11 May 2023
Supporting documents:
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9 Kingly Street_Variation_Report_Redacted, item 2.
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9 Kingly Street_Variation_Report, item 2.
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1. 9 Kingly Street - Summary of Proposals foina, item 2.
PDF 319 KB
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2. Richard Brown The Court submission (002), item 2.
PDF 227 KB