Agenda item
Wok and Fire, 33 Haymarket, London
Minutes:
WCC LICENSING SUB-COMMITTEE NO. 4
(“The Committee”)
Thursday 13 July 2023
Membership: Councillor Angela Piddock (Chair) Councillor Concia Albert and Councillor Louise Hyams
Officer Support: Horatio Chance: Legal Advisor
Policy Officer: Aaron Hardy
Committee Officer: Jack Robinson-Young
Other Parties: Mr David Dadds of Dadds LLP, representing the Applicant WF Piccadilly Limited.
The Licensing Authority (Karyn Abbott calling Estefania Rumble City Inspector as witness).
Environmental Health Service (Sally Fabbricatore).
Metropolitan Police Service (PC Tom Stewart).
Application for a New Premises Licence in respect of Wok and Fire 33 Haymarket London SW1Y 4HA 23/01516/LIPN
Full Decision
Case Summary
The Sub-Committee has determined an application for a New Premises Licence under the Licensing Act 2003 (“The Act”) in respect of the above premises (“The Premises”). The Premises currently operates as a noodle restaurant and takeaway. This is a new premises application and therefore no Premises Licence history exists, save for the various Temporary Event Notices listed at Appendix 3 of the agenda report.
The application provides that from 23:00 there will be no late-night refreshment on the Premises and no delivery of food. Therefore, the late-night refreshment will be for takeaway service to customers only. Further, on Fridays and Saturdays from 21:00 there will be one licensed door supervisor on duty at the Premises.
The Applicant has provided a report prepared by Mr Adrian Studd, Independent Licensing Consultant. This can be seen at Appendix 2.
The Premises was inspected by the Council’s City Inspector on two occasions where Late Night Refreshment was prepared on the Premises after 23:00 hours giving rise to breaches of the Act for undertaking the selling of hot food without the appropriate authorisations in place. The City Inspector’s Witness Statements are contained on pages 24-26 of the report from Ms Estefania Rumble.
The Premises are located within the St James’s Ward and West End Cumulative Impact Zone. The matter was assessed on its individual merits having regard to the evidence before the LSC and the promotion of the licensing objectives.
There is a resident count of 31.
Representations were received from the Environmental Health Service, Metropolitan Police Service all citing concerns regarding public nuisance and crime and disorder.
Premises
Wok and Fire
33Haymarket
London
SW1H 4YA
Applicant
WF Piccadilly Limited
Cumulative Impact Area
West End Cumulative Impact Zone (“West End CIZ”)
Activities and Hours
Late Night Refreshment (Indoors)
Monday to Sunday 23:00 to 01:00
Sunday 23:00 to 00:00
Seasonal variations: None
Opening Hours of the Premises
Monday to Saturday 11:00 to 01:30
Sunday 12:00 to 01:30
Seasonal variations: None
Representations Received
- The Licensing Authority (Karyn Abbott)
- Environmental Health Service (EHS) (Sally Fabbricatore)
- Metropolitan Police Service (MPS) (PC Tom Stewart)
Summary of Representations
- 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
- I wish to make the following representation in relation to the above application, the provision of and proposed hours for Late Night Refreshment may cause an increase in Public Nuisance in the cumulative impact zone and may impact on Public Safety.
- The Police believe that if this application where to be granted, it would likely undermine the Licensing Objective “The prevention of crime and disorder” and lead to an increase in cumulative impact within the West End Cumulative Impact Zone (“CIZ”).
- The provision and proposed hours for Late Night Refreshment may cause an increase in Public Nuisance in the Cumulative impact zone and may impact on public safety.
Policy Considerations
Policies CIP1, HRS1 and FFP1 (A) apply under the City Council’s Statement of Licensing Policy (“SLP”).
Policy CIP1
It is the Licensing Authority’s policy to refuse applications within the West End Cumulative Impact Zone for: pubs and bars, fast food premises, and music and dancing and similar entertainment, other than
applications to:
1. Vary the hours within Core Hours under Policy HRS1, and/or
2. Vary the licence to reduce the overall capacity of the premises.
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.
Policy 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:
6. Pubs and bars, Fast Food and Music and Dance venues
Monday to Thursday: 10am to 11.30pm.
Friday and Saturday: 10am to Midnight.
Sunday: Midday to 10.30pm.
Sundays immediately prior to a bank holiday:
Midday to Midnight.
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.
E. For the purposes of this policy, ‘premises uses’ are defined within the relevant premises use policies within this statement.
Note: The core hours are for all licensable activities but if an application includes late night refreshment, then the starting time for that licensable activity will be 11pm.
Policy FFP1 (A)
A. Applications outside the West End Cumulative Zones will generally be granted subject to:
1. The application meeting the requirements of policies CD1, PS1,
PN1 and CH1.
2. The hours for licensable activities are within the council’s Core Hours Policy HRS1.
3. The 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 Zones Policy SCZ1 if the premises are located within a designated zone.
5. The application and operation of the venue meet the definition of a fast food premises 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 Fast Food Premises in Clause D.
D. For the purposes of this policy a Fast Food Premises is defined as: 1. A premises that provides late night refreshment, either by way of fast food over a counter, via a self-seating basis or take away for immediate consumption.
2. Food and drink are:
a. Available on the premises for self-selection.
b. Prepared on the premises.
c. Cooked or produced off the premises but brought to that premises in advance of its sale to customers.
3. The food and drink are provided in pre-sealed or open disposable packaging which is intended for immediate consumption.
4. A fast-food premises can provide a delivery service as part of its operation, however that service must be ancillary to the main function of the premises as defined within sub-clauses D,1 to D,3 above.
SUBMISSIONS AND REASONS
The Presenting Officer Ms Roxsana Haqq outlined the application to the Sub-Committee She advised that this was an application for a new premises licence in respect of Wok and Fire, 33 Haymarket, London. The application has been made by WF Piccadilly Limited (represented today by Mr David Dadds of Dadds LLP). The Applicant has amended the application seeking late night refreshment to Westminster’s core hours. Full details can be found at page 2 of the report. Representations have been received by the Licensing Authority (Ms Karyn Abbott with Estefania Rumble, City Inspector), Environmental Health Service (Ms Sally Fabbricatore), The Metropolitan Police Service (PC Tom Stewart). The Premises is situated within the St James Ward and falls within the West End CIZ.
Mr David Dadds Solicitor appearing on behalf of the Applicant addressed the Sub-Committee on the following matters:-
- The application has been amended to Westminster’s core hours.
- We do not believe the application will have a negative impact on the West End CIZ and this view is supported by the observations and conclusions of Adrian Studd’s independent report.
- The Premises are a small independent business.
- This will have a positive impact on the street because if the application was granted SIA door staff would be employed from 21:00 hours.
- There will be a steady slow customer flow rate.
- There have been no issues during TENs to demonstrate that the Applicant can operate and have some remaining. We have not used up all our TENs allocation.
- There have been no resident objections.
- Customers are not going to be hanging around the Premises afterwards, we are not serving burgers, kebabs.
- The Premises will not be drawing people into the area, because they will already be there.
- There will be no queuing as the operation is fast with around 40 customers hourly. We have a similar premises operating in Victoria with no problems.
- During Midnight Friday and Saturday which is peak time people are either going to be in the West End CIZ in any event due to an evening out or simply going home.
- Food has been served at ambient temperature.
- Regarding the June visit to the Premises by the City inspector this was a misunderstanding of the Council’s regulations by staff which has now been rectified.
- The Police’s evidence is noted in terms of the peak times for crime in the West End CIZ after midnight so we feel if we operate within core hours, we would not be undermining the licensing objectives.
Ms Karyn Abbott appearing on behalf of the Licensing Authority addressed the Sub-Committee. Ms Abbott advised that the Licensing Authority welcomed the Applicant’s scaling back of the hours to core hours. However, the Premises is situated within part of the west end and so there are still have concerns with Cumulative impact particularly as the Premises falls within the FFP1 Policy where there is a presumption to refuse the application.
Ms Abbott said that the licensing authority were concerned with the two incidents that occurred where the Premises traded unlawfully past 23:00 hours selling hot food identified by the City Inspector Ms Estafania Rumble.
Ms Rumble the City Inspector addressed the Sub-Committee following her visits to the Premises on the 16 & 23 June respectively. Ms Rumble said that her concern is about late-night refreshment and the major concern of the Premises selling hot foods after hours with no managers present at any times.
Ms Rumble went onto state that she would like to ensure managers are present at all times to oversee the operation and to also be present if enforcement officers attend the Premises where they can speak to and address these issues.
In answer to the comments made from Rumble Mr Dadds advised that the Applicant is going to make sure there is training undertaken for staff.
- Already receiving instruction but we will be testing them ourselves.
- CCTV is accessible so management can come in and check it.
- We will ensure there is a supervisor present at all times.
- We would ask the Sub-Committee to accept our apologies for the second visit.
In answer to questions from the Sub-Committee Mr Dadds confirmed that there will always be a shift supervisor on duty at the Premises who will be held responsible.
PC Tom Stewart from the MPS addressed the Sub-Committee and confirmed the following matters:-
· The MPS along with the Licensing Authority welcome core hours.
· Hot food attracts customers and those that are intoxicated also.
· I would have presumed they would test what they are seeking under a TEN.
· It is a concern if managers cannot get the small things right as this indicates a concern for the operation as a whole for the business.
· It is important even if it is a shift manager, that they know exactly what they have to do especially when it comes down to accessing CCTV.
· Adding to cumulative impact – core hours is better than later hours. There is still a lot of people that will need to walk past the Premises to get to the nearest tube station.
· An additional door supervisor is welcomed.
· Mr Dadds comments are noted that the Premises has been well managed but it is to be expected that all premises are to be well managed.
· In 6 months’, time when they are not in direct contact with a consultant, it begs the question whether the Applicant will still have ongoing compliance and pass a test purchase?
· There is no exception to policy required but the Sub-Committee have to be satisfied that it will not add to cumulative impact.
· There is not a large number of people leaving the Premises but they are still adding to the number at midnight.
In answer to questions from the Sub-Committee PC Stewart said that if you are attracted to stay and buy something in this Premises, then you are adding to cumulative impact. You may have an argument with someone at another venue, you may become a victim of crime. It is all about how much they may add. The MPS representation is about where the Premises is situated rather than because it is a problem venue.
Ms Fabbricatore appearing on behalf of the EHS addressed the Sub-Committee and confirmed the following matters:-
- EHS have maintained their representation on the grounds that the Premises is within the West End CIZ and the original hours that were sought.
- The reduction to core hours is also welcomed.
- Public safety wasn’t mentioned in my representation however as there is no consumption of late might refreshment on the Premises, public safety is not concerned.
- In terms of public nuisance there will be no deliveries from the Premises which rules out a lot of potential public nuisance problems.
- Condition 20 deals with no deliveries.
- Condition 24 potentially confuses matters but this is regarding any deliveries prior to 23.00.
- The reduction in hours to core hours helps mitigate the concerns of EHS.
- The City Inspector’s visits have been the only complaints history and should therefore be taken into account.
Mr Horatio Chance the Legal Advisor to the Sub-Committee went through the proposed conditions with the Applicant and sought agreement thereto. These are stated as follows:-
- Condition 9 has been amended.
- Condition 18 waste condition to read ‘the area immediately outside the premises shall be maintained to ensure any litter generated by the premises and its customers are regularly cleared’ noting that Mr Dadds would prefer that at the end of the night it is checked and the Sub-Committee dispense with “immediate area” and insert “a 25m area” instead. Subject to the revised wording the condition is agreed.
- Conditions regarding training and refresher training every 12 months are agreed.
- Model Condition (MC24) requiring a telephone number to be made available for the manager of the Premises.
Conclusion
The Sub-Committee realises that it has a duty to consider each case on its individual merits and did so when determining the matter.
The Premises are to operate as a Fast-Food Premises under Policy FFP1.The Sub-Committee noted that the Premises is located within the West End CIZ and so there is an automatic presumption to refuse the application.
The Sub-Committee noted and welcomed that the Applicant had listened to those who had objected to the application and had amended it to core hours.
The Sub-Committee had regard not only to the written and oral evidence but also to the requirements of the Act, The Guidance issued under section 182 of the Act and the City Councils SLP in the main policies HRS1 CIP1 and FFP1.
The Sub-Committee noted that the Premises were selling hot food without a licence in place following two separate visits to the Premises by the Councils City Inspector and therefore takes a very dim view of this because responsible operators running licensed premises are expected to comply with the provisions of the Act to ensure compliance. However, the Sub-Committee accepted that this was a mistake by staff on duty due to a lack of understanding of the relevant statutory provisions when hot food is to be sold after 23:00 hours as well as a lack of proper training.
The Sub-Committee accepted the undertaking given by the Applicant that training is to be provided to all staff to ensure that they are fully conversant with the conditions now imposed on the licence. Refresher training is to be undertaken every 12 months by a relevant provider and a training manual is to be provided to all new and existing staff.
The Sub-Committee concluded that the Applicant had provided valid reasons as to why the application should be granted and not add to cumulative impact in the West End CIZ. There are a number of comprehensive conditions on the licence that will deal with the issue of nuisance and crime and disorder so the right balance had been struck when considering the view of the Responsible Authorities who had objected and the Applicant to run the Premises in a way that will help promote the licensing objectives.
The Sub-Committee considers that the conditions it has imposed on the premises
licence regarding CCTV by way of security, SIA door staff, deliveries and collections
of waste to the Premises within permitted hours so as to prevent nuisance, a litter
sweep to be undertaken within 25 metres of the Premises, the restriction of food for
consumption on the Premises after 23:00 and takeaway delivery after that time to be
appropriate and proportionate and will have the overall effect of promoting the
licensing objectives, in particular the prevention of public nuisance and crime and
disorder licensing objectives.
Having carefully considered the committee papers and the submissions made by all parties, both orally and in writing, the Committee had decided, after taking into account all the individual circumstances of this case and the promotion of the four licensing objectives:
1. To grant permission for Late Night Refreshment (Indoors) to Westminster Core Hours. Seasonal Variations: None
2. To grant permission for the Opening Hours of the Premises to Westminster Core hours Seasonal Variation:None
3. That the Licence is subject to any relevant mandatory conditions.
4. That the Licence is subject to the following conditions imposed by the Committee which are considered appropriate and proportionate to promote the licensing objectives.
Conditions imposed by the Committee after a hearing with agreement of the Applicant.
5. Notices shall be prominently displayed at all exits requesting patrons to respect the needs of local residents and businesses and leave the area quietly.
6. The premises shall install and maintain a comprehensive CCTV system as per the minimum requirements of the Westminster Police Licensing Team. All entry and exit points will be covered enabling frontal identification of every person entering in any light condition. The CCTV system shall continually record whilst the premises is open for licensable activities and during all times when customers remain on the premises and will include the external area immediately outside the premises entrance. All recordings shall be stored for a minimum period of 31 days with date and time stamping. Viewing of recordings shall be made available immediately upon the request of Police or authorised
officer throughout the entire 31-day period.
7. A staff member from the premises who is conversant with the operation of the CCTV system shall be on the premises at all times when the premises is open. This staff member must be able to provide a Police or authorised council officer copies of recent CCTV images or data with the absolute minimum of delay when requested.
8. At least one member of staff on duty whilst the licence is being used shall be trained in the requirements of the Licensing Act in terms of the licensing objectives, offences committed under the Act and conditions of the Premises Licence.
9. Policies and procedures shall be put in place for the collection of street litter generated by the premises and such policies shall be implemented by staff whenever the premises are being used under the terms of this licence.
10. An incident log shall be kept at the premises, and made available on request to an authorised officer of the City Council or the Police. It must be completed within 24 hours of the incident and will record the following:
(a) all crimes reported to the venue
(b) all ejections of patrons
(c) any complaints received concerning crime and disorder
(d) any incidents of disorder
(e) all seizures of drugs or offensive weapons
(f) any faults in the CCTV system, searching equipment or scanning equipment
(g) any visit by a relevant authority or emergency service.
11. From 21:00 whenever the venue is operational on Fridays and Saturdays there will be 1 licensed door supervisor on duty on the premises. They will correctly display their SIA licence which will be visible whilst on duty.
12. There shall be no consumption of late-night refreshment on the premises.
13. 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.
14. 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.
15. No deliveries to the premises shall take place between (23.00) and (08.00) hours on the following day.
16. No deliveries from the premises, either by the licensee or a third party shall take place between (23:00) and (08:00) hours on the following day.
17. All waste shall be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.
18. No waste or recyclable materials, including bottles, shall be moved, removed from or placed in outside areas between (23.00) hours and (08.00) hours on the following day.
19. No fumes, steam or odours shall be emitted from the licensed premises so as to cause a nuisance to any persons living or carrying on business in the area where the premises are situated.
20. Delivery drivers shall be given clear, written instructions to use their vehicles in a responsible manner so as not to cause a nuisance to any residents or generally outside the license premises; not to leave engines running when the vehicles are parked; and not to obstruct the highway.
21. The Premises Licence Holder shall ensure that induction training including refresher training at six-month intervals shall be undertaken with all relevant staff under the Licensing Act 2003. All training shall be recorded and training records shall be made readily available on request to the Responsible Authorities.
22. The Premises Licence Holder shall ensure that at the end of each night the area within 25 metres shall be maintained to ensure that any litter generated by the Premises and or/its customers is regularly cleared.
23. A direct telephone number for the manager at the premises shall be publicly available at all times the premises is open. This telephone number and/or is to be made available to residents and businesses in the vicinity.
If problems are experienced then a Review of the Premises Licence can be made.
This is the Full Decision of the Licensing Sub-Committee which takes effect forthwith.
The Licensing Sub-Committee
13 July 2023
Supporting documents:
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Wok & Fire_LSC Report_Redacted, item 1.
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