Agenda item
Unit 2, 5 Marble Arch, W1H 7EJ
Minutes:
WCC LICENSING SUB-COMMITTEE NO. 1
(“The Committee”)
Thursday 14 September 2023
Membership: Councillor Aziz Toki (Chair), Councillor Md Shamsed Chowdhury and Councillor Jim Glen.
Officer Support: Legal Adviser: Michael Feeney
Committee Officer: Sarah Craddock
Presenting Officer: Emanuela Meloyan
Other Parties: Ms Holly McColgan (Solicitor, Thomas and Thomas), Ms Puja Dowlani (Senior Commercial Asset Manager), Gus Austin (Marylebone Association) and Mike Dunn (Residents’ Society of Mayfair and St James’s).
Application for a New Provisional Statement in respect of Unit 2, 5 Marble Arch London W1H 7EJ 23/04163/LIPN
FULL DECISION
Premises
Unit 2
5 Marble Arch
London
W1H 7EJ
Applicant
Seymour St Nominees & Berkeley St Nominees Ltd
Ward
West End
Cumulative Impact Area
None
Special Consideration Zone
Edgware Road
Proposed Licensable Activities and Hours
Late Night Refreshment Outdoors
Monday to Sunday: 23:00 to 00:30
All licensable activities shall be extended from the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.
Sale by Retail of Alcohol On and Off Sales
Monday to Sunday: 10:00 to 00:30
All licensable activities shall be extended from the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.
Hours Premises Are Open to the Public
Monday to Sunday: 10:00 to 00:30
Opening hours shall be extended from the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.
Summary of the Application
This Sub-Committee has determined an application for a New Provisional Statement under the Licensing Act 2003 (“The Act”). The Premises intends to operate as a restaurant with ancillary bar on the ground and first floor retail unit within the Marble Arch development site. This is a new application and therefore no Premises Licence history exists. Information in support of the Application can be found at Appendix 2 of the Agenda Report. Correspondence from the Residents’ Groups, correspondence with the Metropolitan Police Service, a copy of the Premises’ planning permission and a summary of proposals can be found in the Additional Information Pack.
There is no policy presumption to refuse the application. There is a resident count of 93.
Representations Received
· Metropolitan Police Service- Withdrawn
· Marylebone Association
· Residents’ Society of Mayfair and St James’s
Issues raised by Objectors
· Proposes to operate outside of the Council’s Core Hours Policy and there is insufficient detail contained within the operating schedule to promote the licensing objectives. This representation from the MPS was withdrawn following agreed conditions.
· Objection on grounds of nuisance, should be restricted to core hours. Supporting objection from Marylebone Association.
· Insufficient detail as to how it would not compromise the Licensing Objectives and is outside Core Hours.
· Located at the bottom of the busy Edgware Road and is within the SCZ.
· There are no details of the operator of the restaurant.
Policy Considerations
The following policies within the City of Westminster Statement of Licensing Policy (“SLP”) apply: SCZ1, HRS1 and RNT1.
Policy SCZ1 states:
A. In addition to meeting the other policies within this statement, applications within a designated Special Consideration Zone should demonstrate that they have taken account of the issues particular to the Zone in question as identified within the 2020 Cumulative Impact Assessment and should set out any proposed mitigation measures in relation to those issues within their operating schedule.
Policy HRS1 states:
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:
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
Restaurants
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
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 RNT1 states:
A. Applications outside the West End Cumulative Impact Zone will generally be granted subject to:
1.The application meeting the requirements of policies CD1, PS1, PN1 and CH1.
2.The hours for licensable activities are within the council’s Core Hours Policy HRS1.
3.The 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.
4.The applicant has taken account of policy SCZ1 if the premises are located within a designated zone.
5.The application and operation of the venue meeting the definition of a restaurant as per clause C.
C. For the purposes of this policy a restaurant is defined as:
1.A premises in which customers are shown to their table or the customer will select a table themselves to which food is either served to them or they have collected themselves.
2.Which provide food in the form of substantial table meals that are prepared on the premises and are served and consumed at a table.
3. Which do not provide any takeaway service of food and/or drink for immediate consumption, except if provided via an ancillary delivery service to customers at their residential or workplace address.
4.Where alcohol shall not be sold, supplied, or consumed on the premises otherwise than to persons who are bona fide taking substantial table meals and provided always that the consumption of alcohol by such persons in ancillary to taking such meals.
5.The sale and consumption of alcohol prior to such meals may be in a bar area but must also be ancillary to the taking of such meal.
SUBMISSIONS AND REASONS
Ms Holly McColgan (Solicitor, on behalf of the Applicant) outlined the application along with Ms Puja Dowlani (Senior Commercial Asset Manager). She referred to her submission in the Additional Agenda Pack which had been considered by the Sub-Committee and set out that that the space was situated within the new landmark development Marble Arch Place featuring luxury residential apartments, premium commercial offices plus exemplary public realm and stunning artwork by Lee Simmons. She outlined how the Portman Estate had not as yet secured a tenant for this unit because operators wished to have the security that they would be able to operate the unit as a restaurant before parting with funds and fitting out the Premises. This was why an application for a Provisional Statement was being made.
Ms McColgan referred to the Premises’ plans and advised that the unit comprised of a ground and first floor with allocated external seating (circa 20 covers). She advised that the first floor would comprise of a restaurant with the ground floor hosting an ancillary bar, allowing seated customers to order and consume alcohol without a table meal at this level during Core Hours, restricted to 25% of the permitted capacity, as agreed with the MPS.
Ms McColgan advised that there had been no representations made from the Environmental Health Service and the Licensing Authority and the Metropolitan Police Service have now withdrawn their representation. She added that the Marylebone Association and local resident had made representations to ensure that they could make further representations when the application was made for a New Premises Licence. She outlined that the Premises was located in the Edgware Road Special Consideration Zone however there was no presumption to refuse the application in this area and local issues had been addressed by the Applicant by way of conditions attached to the Provisional Statement. Ms McColgan also referred to the summary of proposals in the Additional Information Pack, which explained how the Applicant was addressing each of the issues specific to the SCZ.
In response to questions from the Sub- Committee, Ms Dowlani outlined that the additional 30 minutes beyond the Council’s Core Hours Policy had been requested as it allowed a potential operator to have an extra sitting within the restaurant. She emphasised that the additional 30 minutes was actually key to attracting a high end operator to the Premises who would want to make the unit one of their flag ship restaurants. She advised that the outside demise was part of the Premises freehold and discussions were being held with TFL on the future use of the space.
Mr Gus Austin, representing the Marylebone Association, advised that he had made a representation as the application for the Provisional Statement was outside of Core Hours for both Light Night Refreshment and Alcohol and so it did not exclude him from making representations for the forthcoming application for the New Premises Licence for this Premises. He added that he would prefer the Provisional Statement to be granted only for Core Hours.
Mr Mike Dunn, local resident representing the Residents’ Society of Mayfair and St James’s, advised that he wished the provisional statement to be granted to the Council’s Core Hours Policy because currently no-one knew the capacity and who would be operating the Premises.
Mr Feeney, Legal Advisor to the Committee, discussed the wording of the agreed proposed conditions (if the application is granted), with all parties.
During the summing up, Ms McColgan advised that the request for the 30 minutes beyond the Council’s Core Hours Policy was to give a degree of confidence to interested parties considering renting the Premises, that the Premises was not located in the CIA and the conditions on the Provisional Statement would promote the Licensing Objectives.
Conclusion
The Sub-Committee has determined an application for a new Provisional Statement under the Act . The Sub-Committee is aware that it has a duty to consider each application on its individual merits and did so when determining this application.
The Sub-Committee had regard not only to the written and oral evidence but also to the Act, the Guidance issued under section 182 of the Act and the City Councils SLP, in particular policies SCZ1, HRS1 and RNT1.
In reaching its decision, the Sub-Committee noted that there was no presumption to refuse the application as the Premises’ primary use was to operate as a restaurant and was situated outside the CIA. The Sub-Committee noted that the Licensing Authority and Environmental Health Service had not made a representation and that the Metropolitan Police Service had withdrawn their representation and were satisfied with the application. The Sub- Committee considered that the Applicant had demonstrated that the measures it proposed would promote the four licensing objectives. The Sub- Committee placed weight in particular on the condition agreed with the MPS, which ensured that the primary use would remain as a restaurant use and the ground floor bar would be restricted to core hours and 25% of the capacity. The Sub Committee considered that the Applicant in its written and oral submissions had sufficiently addressed the particular issues associated with the SCZ. The Sub-Committee also considered that the location of the Premises at the Marble Arch development site was suitable for a restaurant.
In reaching its decision, the Sub-Committee concluded that although the Provisional Statement was slightly beyond Core Hours the conditions attached to the Provisional Statement would alleviate the residents’ concerns and were appropriate and would promote the licencing objectives. The Sub-Committee therefore considered that the application was in accordance with policies SCZ1, HRS1 and RNT1.
Having carefully considered the committee papers, the additional papers and the submissions made by all of the parties orally, the Sub-Committee has decided, after taking into account all of the individual circumstances of this particular case and the promotion of the four licensing objectives: -
1. To grant a Provisional Statement for:
Late Night Refreshment Indoors
Monday to Sunday: 23:00-00:30
Non-standard timings: From the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.
Sale by Retail of Alcohol On and Off Sales
Monday to Sunday: 10:00-00:30
Non-standard timings: From the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.
Hours Premises Are Open to the Public
Monday to Sunday: 10:00-00:30
Non-standard timings: From the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.
2. That the Provisional Statement is subject to any relevant mandatory conditions.
3. That the Provisional Statement 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
9. All windows and doors to be kept closed after 23:00 hours except for immediate access and egress of persons.
10. There shall be no take-away of hot food or hot drink after 23:00 hours.
11. All sales of alcohol for consumption off the premises shall be in sealed containers only save when consumed at the outside tables and chairs shown on the licence plan and in accordance with condition 22.
12. No off-sales after 23:00 Monday to Saturday or 22:30 Sunday.
13. All tables and chairs shall be removed from the outside area by 23:00 hours each day.
14. No deliveries to the premises shall be made between the hours of 23:00 hours and 07:00 hours.
15. Loudspeakers shall not be located in the entrance areas or outside the premises building.
16. No noise shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.
17. 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 are 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 preceding 31-day period.
18. A staff member from the premises who is conversant with the operation of the CCTV system shall be on the premises at all times when the premises are open. 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.
19. 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 (g) any refusal of the sale of alcohol (h) any visit by a relevant authority or emergency service.
20. A Challenge 21 or Challenge 25 proof of age scheme shall be operated at the premises where the only acceptable forms of identification are recognised photographic identification cards, such as driving licence, passport or proof of age card with the PASS hologram.
21. Clearly legible notices shall be displayed at all exits from the premises requesting patrons to respect the needs of local residents and to leave the premises and area quietly.
22. a) Subject to (b) below, the premises shall only operate as a restaurant:
i) In which customers are shown to their table
ii) Where the supply of alcohol is by waiter or waitress service only
iii) Which provide food in the form of substantial table meals that are prepared on the premises and are served and consumed at the table using non disposable crockery
iv) Which do not provide any takeaway service of food or drink for immediate consumption
v) Which do not provide any takeaway service of food or drink after 23:00, and
vi) Where alcohol shall not be sold or supplied, otherwise than for consumption by persons who are seated in the premises and bona fide taking substantial table meals there, and provided always that the consumption of alcohol by such persons is ancillary to taking such meals.
Notwithstanding this condition, customers are permitted to take from the premises part consumed and resealed bottles of wine supplied ancillary to their meal.
b) Notwithstanding (a) above, before 23:00 Monday to Thursday, midnight Friday and Saturday and 22:30 Sunday on the ground floor (including the external area), alcohol may be served without a table meal to persons seated and served by waiter/waitress service and restricted to no more than [25% of final permitted capacity determined by Environmental Health] at any one time.
23. On the ground floor, the supply of alcohol on the premises shall only be to persons seated.
24. Patrons permitted to temporarily leave and then re-enter the premises, e.g. to smoke, shall be limited to (X) persons at any one time.
25. Patrons permitted to temporarily leave and then re-enter the premises, e.g. to smoke, shall not be permitted to take drinks or glass containers with them.
26. Food and non-intoxicating beverages, including drinking water, shall be available in all parts of the premises where alcohol is sold or supplied for consumption on the premises.
27. 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.
28. No licensable activities shall take place at the premises until the capacity of the premises has been determined by the Environmental Health Consultation Team and the licensing authority has replaced this condition with a condition detailing the capacity so determined.
29. Before the premises open to the public, the plans as deposited will be checked by the Environmental Health Consultation Team to ensure they are an accurate reflection of the premises constructed. Where there are minor changes to the premises layout during the course of construction new plans shall be provided to the Environmental Health Consultation Team and the Licensing Authority.
This is the Full Decision of the Licensing Sub-Committee which takes effect forthwith.
The Licensing Sub-Committee
Supporting documents:
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Unit 2, 5 Marble Arch final_Redacted, item 3.
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