Agenda item

Ward CIA* SCZ**	Site Name & Address	Application Type	Licensing Reference No.
West End   * West End   ** None	The Soho Social Basement and Ground Floor 9 Berwick Street W1F 0PJ	New Premises Licence	23/03810/LIPN
*Cumulative Impact Area ** Special Consideration Zone

 

WESTMINSTER CITY COUNCIL LICENSING SUB-COMMITTEE NO. 1

 

Thursday 5 October 2023

 

Membership:      Councillor Aziz Toki (Chair) Councillor Judith Southern and Councillor Jacqui Wilkinson

 

Officer Support   Legal Adviser:              Horatio Chance

                           Policy Officer:               Daisy Gadd

                           Committee Officer:       Jack Robinson-Young

                            Presenting Officer:       Roxsana Haq

 

 

Application for a New Premises Licence in respect of The Soho Social Basement and Ground Floor 9 Berwick Street London W1F 0PJ 23/038/10/LIPN

 

 

Other parties present: Manuel Roche (Applicants Agent), Jessica Donovan (Environmental Health), Anil Drayan (Environmental Health), Tim Lord (Soho Society), Richard Brown (Soho Society), John Wallace, Commercial Director (Soho Housing Association) (“SHA”) 4 Local residents.

 

                                                     Full Decision

 

Premises

 

The Soho Social

Basement and Ground Floor

9 Berwick Street

London

W1F 0PJ

 

Applicant

 

The Soho Social & Co Ltd

 

Cumulative Impact Area

 

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

 

Ward

 

West End

 

Special Consideration Zone

 

N/A

 

Activities and Hours

 

Late Night Refreshment (Indoors)

 

Monday to Saturday

Sunday N/A

 

Sale by Retail of Alcohol (On and Off the Premises)

 

Monday to Saturday 10:00 to 23:30

Sunday 10:00 to 22:30

 

Opening Hours of the Premises

 

Monday to Sunday: 08:00 to 00:00

 

Seasonal variations: None

 

Summary of Application

 

The Sub-Committee has determined an application for a New Premises Licence under the Licensing Act 2003 (“The Act”) in respect of The Soho Social

Basement and Ground Floor 9 Berwick Street London W1F 0PJ (“The Premises”). The Premises intends to operate as a café and tapas bar. There is no premises licence history.

 

The Applicant has proposed a number of conditions in their operating schedule and has also agreed a number of conditions with the MPS. These can be found in Appendix 4 of the agenda report.

 

On original submission of the application, the Applicant applied for the following:-

 

• Late Night Refreshment Monday to Sunday 23:00 to 23:30
• The Sale by Retail of Alcohol Monday to Sunday 10:00 to 23:30
• Opening Hours Monday to Sunday 08:00 to 00:00

 

The Applicant has since reduced the hours for Sundays for all licensable activities which are reflected in section 1-B of the report.

 

The Premises are located within the West End Ward and the West End CIZ. There is no policy presumption to refuse applications for a restaurant premises inside with West End CIZ provided that they do not add to negative cumulative impact. 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.

 

Representations were received from the Environmental Health Service, Metropolitan Police Service (withdrawn) Local Ward Councillor, The Soho Society and 15 local residents all citing concerns regarding public nuisance and crime and disorder.

 

There is a resident count of 264.

 

Representations received

 

•        Metropolitan Police Service (PC Adam Deweltz) WITHDRAWN

•        Environmental Health Service (Anil Drayan)

•        The Licensing Authority (Jessica Donovan)

•        14 Local residents

•        1 Local Councillor (Patrick Lilley)

•        1 Local Association (The Soho Society)

 

Summary of issues raised by objectors

 

• The Supply of Alcohol ‘On’ and ‘Off’ the premises and for the hours requested may impact on Public Safety and lead to an increase in Public Nuisance in the West End CIZ.
• The Provision of Late-Night Refreshment Indoors’ and ‘Outdoors’ may lead to an increase in Public Nuisance in the West End CIZ.

Environmental Health also makes the following further comments:

Westminster’s Statement of Licensing Policy – see on the Council’s website – requires licensed premises to demonstrate compliance with policy CH1, Protection of Children from Harm, Free advice on complying with this can be found at: (see page 36 of policy)

• An extensive list of conditions and undertakings have been offered but these appear to be insufficient to be consistent with the Statement of Licensing Policy eg the ‘restaurant’ condition for the CIZ has not been offered. In addition, the hours for licensable activities requested on Sundays go beyond ‘core’ hours.
• The provision of sanitary accommodation must be at least in line with BS6465 for the proposed capacity particularly as the premises are located in the CIZ. Also, separate provision for food handling staff is advised.
• An assessment will need to be made as to how the plant and machinery employed for the cooking of food will not result in odour or noise nuisance
• It is unclear if the premises have already been refurbished for the proposed use. Clarification is therefore sought as to the previous use of the premises to determine if this proposed use will result in nuisance from the internal transfer of noise to other users within the building block. Standards to be achieved are outlined in Appendix 11 of the Statement of Licensing Policy
• The applicant is therefore requested to contact the undersigned to discuss the above and arrange a site visit after which Environmental Health may propose additional conditions for the proposed use.

• The Licensing Authority require the applicant to provide submissions as to how the operation of the premises will not add to cumulative impact in the West End cumulative impact zone, in accordance with policy CIP1.

• I am writing to object to the above application in the strongest terms and in support of residents very nearby including feet away and the amenity group with hundreds of local members The Soho Society.

As a council we need to pay due attention to the licensing objectives which are designed to actually protect people. Adding more and more licenses to sell more and more alcohol is a recipe for more crime and disorder, more public nuisance. This application really needs a simple refusal.

• There are 500 other licenses around Soho cheek by jowl to large residential housing literally feet away: Kemp House on Berwick Street along with privately rents flats above shops all along Berwick Street and adjacent Peter Street. The cumulative impact needs acknowledging: one more alcoholic bar plus their right to apply for a large number of temporary entertainment licenses.
• Cars pull up at night on Berwick Street attracted by licensed venues and impromptu parties happen as revellers pre-load before going to a bar or club. Revellers also congregate already after the bars close meaning their impact is well above and beyond core hours. Nearby is Frith and Greek Street and adjoining Bateman Street we cannot turn a blind eye to the total excess of licenses causing the streets to be chock block with pavements blocked, crowds and cars and potentially emergency vehicles in gridlock. I have seen police vehicles stationary for many minutes due to the crowd accumulated in road and pavements nearby.
• The din and disorder faced is escalating with crime up by over 30% and insufficient police. We try to ensure people don’t urinate on Berwick and nearby streets but it's nigh on impossible. This is a public nuisance directly caused by licensed premise like this application. On those grounds alone as local councillor and as lead member for Soho, please decline this licence as councillors we have a duty to protect people from the life changing consequences of crime and nuisance.
• I live a few yards away from the premises at the corner of Berwick and Broadwick Streets. I have lived there for more than 30 years. This is a highly residential area of Westminster with a large number of residents along the street and opposite at Kemp House. Noise nuisance is already bad with 2 pubs, and multiple cafes making illegal use of the pavement and carriageway. I am routinely unable to sleep until after midnight and this is impacting my health and I'm sure many other residents. Crime in Soho is also very significant and appears to be highly correlated with the number of alcohol licences according to the council's own data. I

would respectfully ask that the application be refused on grounds of noise and crime.

• I would like to object to the licensing application for 9, Berwick Street. This is described as a Cafe/Tapas bar. What reason would a Cafe owner want a license for? This description is deliberately misleading. Quite obviously, the owner is only interested in increasing his profits by selling alcohol.
• While the reasons for my objection to the awarding of an alcohol license to this location are obvious: Noise; overcrowded pavements; street noise till late at night; urine and vomit; crime etc. all these to the detriment of the residents of Soho. But I also believe that the distortion of rents once a premise has a license, means there are fewer available premises to rent to other forms of business. Rents are being artificially skewed to the detriment of the small business. Surely there are already far too many bars in Soho? The area has lost much of its charm of yesteryear. The, once many small specialist shops are no longer in Soho. They can no longer afford the rents.
• I cannot believe the top echelon of tourists, that we are told will occupy beds in the new Broadwick Hotel, for example, wish to come out onto today's streets of Soho: to the chaos and alcoholic rowdiness of an evening that is now the norm. I would like to object to the awarding of a licence to Application ref. number 23/03810/LIPN to the premises at 9 Berwick Street in the strongest terms.
• The environmental health of Berwick Street has deteriorated enormously over the past year or more with the opening of new restaurants, bars and shops which has resulted in constant noise and disturbance from music and the congregation of often drunk and/or disruptive customers

and passers-by. The disturbances are frequent, all day and every day of the week, and create a very stressful environment in which to reside.

• I notice that this application does not include a licence for live or recorded music ("e" & "f" under the section "Provision of regulated entertainment"), but I am not certain that this means that music cannot be played on the premises at all.
• This particular application is asking for the premises to operate with the licences every day of the week until 11.30 pm, with closure at midnight. The fact of these late hours, combined with the inevitable noise and disturbance resulting from outdoor eating and drinking, and the

possibility of yet more music playing, means that I strongly object to the granting of this licence application.

• I respectfully ask the Licensing Group not to grant this application as the short area from Berwick Street across two blocks to my own street (Ingestre Place) is possibly the most densely populated area of residential Soho. This section of Berwick Street, along with Hopkins Street, Ingestre Place, Peter Street and Broadwick Street may be in the heart of the West End cumulative impact area, but it is also unusually quiet and peaceful, despite the amount of cafes and bars already established on Berwick Street. Approximately two thousand people live in these few streets and we all prize the general peace and quiet of the immediate neighbourhood!

Granting applications like this, which wants to open from 8.00am until midnight, seven days per week, and appears more like a bar than a cafe, will erode the residential amenity of this part of Soho and degrade the area.

• Soho is already saturated with alcohol-led premises and any more will simply jeopardise the residential aspect of the neighbourhood as more and more people visit here to eat, get drunk and be loud.

If the application were to adhere to core hours (as outlined in Westminster Policy) and drop the application for an alcohol licence, I would mind a lot less. But then, as I have pointed out, we simply do not need yet another cafe in the immediate neighbourhood as it will contribute to cumulative effect (and noise pollution) in this most densely-populated residential part of Soho.

• These premises are within Soho, an area which, as the Committee will be aware, is at the heart of the West End’s entertainment district, with its 487 licensed premises, a large proportion of which are late night 121 (25%) licences with a terminal hour between 1am - 6am and a capacity of 22,827.
• As a new café in the cumulative impact zone the applicant has to demonstrate they will not to add to cumulative impact. It appears to us that the proposal of MC66 is taken as almost a de facto demonstration that there will be no addition to cumulative impact. We do not believe that this is consistent with the cumulative impact policy, which acknowledges that RNT1 uses are a lower risk than some other types, but not that they are of no risk, especially when considering the year on year increase in these types of premises. Thirty-eight new licensed premises have opened in Soho between 2020 to 2022, with 21 of these being new restaurants and cafés.
• It is highly likely that a number of customers from this premises (many of whom may well be intoxicated) will want to continue their night out in Soho, meaning that more people will be retained for longer in the area, a concern raised within Cumulative Impact Policy,
• We note the proposed conditions, about which we have various concerns. We see that these include that there will be no vertical drinking, and “the supply of alcohol on the premises shall only be to persons seated and eating substantial food.” However, in the section under “crime and disorder,” it says that “Substantial food and non-intoxicating beverages, including drinking

water, shall be available in the premises where alcohol is sold or supplied for consumption on the premises,” which would appear to us to be inconsistent one with the other. There is also no mention of off-sales, when the takeaway service will cease, proposed numbers of people standing outside to smoke, music, etc, all points we would expect to see covered in any proposed conditions.

We are also concerned that there is no mention of the type of food on offer, beyond “substantial food,” with no description of same, beyond “tapas.”

• There is concern that this is going to be a bar, particularly when it says “substantial food shall be available.” We would also point out that, as the Committee is no doubt aware, Berwick Street has a large number of residential properties in the immediate vicinity, between Peter Street and Broadwick Street, including four flats above the proposed restaurant, including one family with a new baby (whose father was born and raised in Soho, who fears they will have to move due the noise and disturbance generated by a restaurant beneath their flat). Soho without its community and families is reduced to nothing but one big food, alcohol and entertainment area (see below). The Soho we know and love will be lost forever.
• In summary this is an application for a new Café and Tapas Bar in the West End Cumulative Impact Zone, and we believe that any increase in the number of licensed premises and numbers of people in the area will fail to promote the licensing objectives and will increase cumulative impact. We respectfully request the Licensing Sub Committee to refuse this application.

 

Policy Position

 

Policies CIP1, HRS1 and RNT1 apply under the City Council’s Statement of Licensing Policy apply (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 RNT1

 

Policy RNT1 applies 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 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 Zones 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.

B. Applications inside 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 latenight refreshment meeting the council’s Ancillary Delivery of Alcohol and/or Late-Night Refreshment Policy DEL1.

4. The applicant has demonstrated that they will not add to cumulative impact within the Cumulative Impact Zone.

5. The application and operation of the venue meeting the definition

 

SUBMISSIONS AND REASONS

 

1.        Ms Roxsana Haq the Presenting Officer introduced the application to the Sub-Committee. She advised that this was an application for a new premises licence in respect of the Soho Social Basement and Ground Floor, 9 Berwick Street London WS1F 0PJ. The Premises intends to operate as a restaurant with the sale by retail of alcohol with Westminster’s core hours.

 

2.        Mr Manuel Roche, Agent, appearing on behalf of the Applicant, began by outlining the application. Mr Roche said that alcohol was not going to be the main source of income for the business and that this was primarily a restaurant serving tapas food which included pasta and salads with background music only. The Premises was not yet open for business and would open should the Sub-Committee be minded granting the application.

 

3.        Mr Roche advised that the application had been amended in light of the concerns raised by the objectors. Late Night Refreshment was no longer sought because the application was now within Westminster’s core hours policy. Also, the provision for “Off Sales” which was a previous concern was no longer required so the sale of alcohol would be subject to “On Sales” only.

 

4.        Mr Roche felt that the amended hours were appropriate for the Premises. He confirmed that the Premises had the benefit of visits both from the MPS and EHS who recommended conditions which they accepted. Turning to the objections from local residents, Mr Roche said he had attempted to reach out to them but had no response.

 

5.        Mr Roche confirmed the capacity inside the Premises would be 32 patrons with a private forecourt area to the front of the Premises.

 

6.        Ms Jessica Donovan appearing on behalf of the Licensing Authority addressed the Sub-Committee. She advised that the Premises falls inside the West End CIZ so therefore the Premises must demonstrate that it will not add to cumulative impact. Ms Donovan said that the proposed conditions are welcomed and agreed.

 

7.        Mr Anil Drayan appearing on behalf of the EHS addressed the Sub-Committee. He confirmed that a site inspection of the Premises had been undertaken. Model Restaurant Condition (MC38) had been agreed so that the Premises could only operate as a restaurant.

 

8.        Mr Drayan referred to the works conditions, and said that the Applicant required an acoustic report to determine whether there would be any noise transfer in the building particularly to the residential flats above the Premises so as not to cause a nuisance and made specific reference to Appendix 11 on pages 151-156 of the SLP (Guidance on Noise).

 

9.        Mr Drayan confirmed that following the agreement of conditions he was now content with the application but that if the Sub-Committee were minded granting, they should also consider Model Condition 98 (MC98) dealing with the control of delivery drivers as this was a point covered in the representations on the point of nuisance. He advised that the sanitary facilities must match their capacity of 32 and that this was to be located in the basement area.

 

10.      Mr Drayan said that the Premises had a private forecourt area which could fit one standard table with a maximum of 4 people seated. Mr Drayan said that representation had been maintained by the EHS so the Sub-Committee could ask questions of him.

 

11.      Mr Richard Brown appearing on behalf of the resident objectors addressed the Sub-Committee and pointed to the close proximity of the Premises to the residential accommodation directly above the Premises which comprised of four flats.

 

12.      Mr Brown said he did not feel as though the Applicant has supplied sufficient evidence in its operating schedule/further written submissions demonstrating how the Premises would be an exception to be granted in the West End CIZ and not add to cumulative impact given that it was a controversial application. For example, no dispersal plan had been provided so the Applicant had failed to identify how patrons would be managed when leaving the Premises at the terminal hour so as not to cause a nuisance to residents.

 

13.      Mr Brown also identified to the Sub-Committee the following key aspects:-

 

·       The application would lead to cumulative impact highlighting public nuisance as a major concern for those residents in close proximity to the Premises.

·       18 objections had been made against the application.

·       The location of the Premises was key and relevant to the decision making of the Sub-Committee citing the wider ramifications for the West End CIZ.

 

14.      Mr Tim Lord appearing on behalf of the Soho Society addressed the Sub-Committee and said that should this licence be granted, there was a risk Soho would be losing a family with long term links to it. Mr Lord said that Soho was quickly losing community links and becoming a place solely for food and drink outlets and the once community feel of the area was slowly being eroded by a proliferation of licensed premises and so there was a fight to maintain a sustainable soho.

 

15.      He said that families were key to this feeling of community and if the licence  was granted, it might be seen as a signal to others that Soho is not an area for the community. Mr Lord said there were noises in Soho, but these were intermittent, however, if this licence were to be granted then noise would become almost permanent. He also touched upon the wider public nuisance issues in the area particularly noise generated by pedicabs.

 

16.      Mrs Fenella Earle local resident addressed the Sub-Committee and stated that she has a good relationship with the Applicant, but has grave concerns about the levels of noise that could be generated late at night by customers together with the general hustle and bustle of a busy Premises so close to residential units. She said her flat in the building was only single glazed and a neighbouring shop that plays music was loud enough to penetrate into her living area and adversely affect their lives as a family.

 

17.      Mrs Earle said that she was extremely worried about having a licensed restaurant premises directly beneath her with the sale of alcohol and how customers were to behave and the potential of nuisance arising as a consequence. Mrs Earle said that she and her husband had recently had a baby and raised concerns with her family being able to live a normal life particularly late at night when the Premises would be busy with customers so it was important to get a good night’s sleep including that of her baby. She said that she did not have a problem with licensed premises but the right balance needs to be struck and was of the opinion that the Premises so close to residential premises and therefore in the wrong location given that the previous use was that of a fancy dress shop with no reported problems. She felt on this basis the application should be refused.

 

18.      Mr John Wallace, Commercial Director for SHA addressed the Sub-Committee. He advised that SHA owned the residential flats on a 125 year lease in the building directly above the Premises. These units are tenanted with one tenant being a vulnerable person and was naturally concerned with the quality of life of those tenants would experience and face daily should the application be granted.

 

19.      Mr Wallace confirmed by way of background that SHA had over 300 residents with a complete full estate. He said that the ethos of SHA was to encourage people to stay and live in the area. He admitted that the environment had changed over the years but insisted that a balance has to be struck with residents and local businesses, but for this application because of the Premises location and the close proximity to residential accommodation the application should be refused a view shared by the rest of the other objectors. Mr Wallace reiterated the point made by Mr Lord in terms of the move of Soho more towards of a hospitality focus and less focused on residential families.

 

20.      Mr Andrew Murray, a long-term resident of Kemp House in Soho, addressed the Sub-Committee and said that several of his neighbours have objected and he was also representing them. Mr Murray said that this was the wrong location for a business of this sort. He reiterated the point that this was within the West End CIZ and the area itself was still very residential despite the commercial businesses. Mr Murray said the noise impact was huge, he said that his building was indeed double glazed but during the summer when windows were open, individual conversations can be heard from as high as the sixteenth floor. Mr Murray said that food alone would not be enough to keep the business afloat and it would almost certainly require alcohol sales to make any profit.

 

21.      A local resident addressed the Sub-Committee and said they had lived in the area since 2000. They then went on to say that over the years, the noise has steadily increased. They said that they had seen application after application be granted, increasing the number of restaurants and bars in the area.

 

22.      In answer to questions from the Sub-Committee regarding possible double glazing to the flats, Mr Wallace stated that there was currently a programme underway to increase their supply of double glazing, however, this programme of works is always subject to the usual funding and costs associated with any planned maintenance works programme and any time period associated with the completion of such works.

 

23.      In summing up Ms Donovan for the Licensing Authority had nothing further to add.

24.      In summing up Mr Anil for EHS recommended to the Sub-Committee that Model Condition (MC22) (limiting the number of patrons to temporarily leave and re-enter to smoke or make a phone call) be placed on the licence as well as a condition regarding the dispersal of patrons upon closing.

25.      Mr Horatio Chance the Legal Advisor to the Sub-Committee asked Mr Drayan after having heard the views of local residents particularly those living above the Premises, whether he was still content with the application. In answer thereto Mr Drayan said that he was now neutral on the application but there must be an acoustic report prepared by the Applicant that meets the requirements and standards of the EHS.

26.      Mr Brown said that this information on acoustics (which was a key document) was not before the Sub-Committee today, and only the information in the papers could be considered. Mr Brown said there had been 38 new licences since 2020 in the Soho area. He referred the Sub-Committee to re-read his submission containing a BBC article.

27.      In summing up Mr Wallace said that the needs of residents must be taken into account and as stipulated by Mr Murray in his submissions the granting of this licence is most likely to increase Public Nuisance, which is one of the Licensing Objectives to be undermined.

28.      In summing up Mr Lord quoted Cllr Geoff Barraclough, the Cabinet Lead for Finance, Planning and Economic Development, on how the City needs to work for both businesses and residents.

29.      In summing up Mr Roche said that he appreciated and understood the concerns of residents but insisted that this Premises should not be treated in the same vein as every other bar or pub in Soho. Mr Roche said it was not businesses of this sort that created issues in the area and said that many big cities around the world faced this type of similar challenges with licensed premises when it came to finding the right balance with residents and businesses.

30.      Mr Roche said he was not before the Sub-Committee applying for a late-night music venue and that alcohol was only to be served ancillary to food. Mr Roche said if no licence were granted, alcohol could be brought onto the Premises in any event by a patron, and there is then no strict control. Mr Roche said he was happy for the sale of alcohol hours to be 23:00 and to ensure patrons are off the Premises by 23:30 if that assisted in the Sub-Committee’s decision making of the application.

31.      Mr Brown said in answer to this point about the proposed change in hours, his position remained the same and they still objected to the application despite these new hours being offered.

Reasons and Conclusion

 

32.      The Sub-Committee has determined an application for a grant of a New Premises Licence under the Act. The Sub-Committee realises 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 Revised Home Office Guidance issued under section 182 of the Act and the City Council’s SLP, in particular policies CIP1, HRS1 and RNT1.

 

33.      In this connection regard was had to the Revised Home Office Guidance at Paragraph 9.38 on page 80 which states “In determining the application with a view to promoting the licensing objectives in the overall interests of the local community, the licensing authority must give appropriate weight to”:

 

·       The steps that are appropriate to promote the licensing objectives.

·       The representations (including supporting information) presented by all the parties.

·       This Guidance.

·       Its own statement of licensing policy.

 

34.      The Premises proposes to operate as a Café Tapas restaurant falling within Policy RNT1 under the City Councils SLP where there is no presumption to refuse the application provided that it will not add to negative cumulative impact with the West End CIZ and be contrary to other existing policies.

 

35.      The Sub-Committee having carefully considered the matter and the evidence on its individual merits decided that the Applicant had not provided valid reasons nor demonstrated that the measures it proposes (as secured by conditions) would promote the four licensing objectives by not adding to negative cumulative impact within the West End CIZ. The Application was therefore contrary to policies CIP1, HRS1 and RNT1.

 

36.      This was a difficult application for the Sub-Committee to consider due to the

competing interests of both the operator and local residents and inbuilt complexities associated with the application mainly on policy grounds and the global effects granting such an application would have within the West End CIZ.

 

37.      Whilst the Sub-Committee appreciated that there was no presumption to refuse an application for a restaurant premises in the West End CIZ it does not automatically follow that for every restaurant premises application that comes before a Sub-Committee it will be granted because there are always exceptions to this rule coupled with the discretionary powers exercised by that Sub-Committee. Moreover, each case must be considered on its individual merits and the persuasive factors and arguments advance by all parties that led the Sub-Committee to reach its conclusion on the matter were considered in great detail by the Sub-Committee but the overall Decision taken (which was not taken lightly because the Licensing Authority is not in the habit of refusing applications without just cause under the Act and its SLP) but in this case it was on balance appropriate and proportionate to refuse the application.

 

38.      The key issue for the Sub-Committee to consider was whether granting the

application would add to negative cumulative impact in the West End CIZ and thus fail to promote the licensing objectives and whether the application met the requirements of policies CD1, PS1, PN1 and CH1.

 

39.      Dealing specifically with Policy PN1. Clause A on page 32 provides that the “Licensing Authority will not grant applications that do not promote the prevention of public nuisance licensing objective”. Paragraph B goes onto state that “when considering Clause A, the Licensing Authority will apply the criteria and take into account any relevant considerations as set out below.”

 

·       “The potential for nuisance associated with the style, characteristics and activities of the business to be carried out at the premises and the potential steps which would be taken to reduce the risk of nuisance occurring. This will particularly apply in areas of residential accommodation and where there is residential accommodation in proximity of the premises.”

 

40.      Paragraph 2 deals with the “Considerations” the SLP speaks to and states “Whether Operating Schedules contain adequate measures to prevent noise and vibration, whether airborne or structure borne, generated from within the premises, outside it or from an open site, that may cause disturbance to people in the vicinity. Regard will be had to disturbance of people whether at home, at work, staying in, or visiting the vicinity. However, stricter conditions will be imposed on premises licences in areas that have denser residential accommodation or have residential accommodation close to them. See Appendix 11” (Guidance on Noise).

 

41.      Paragraph 3 states “Applicants will be expected to have included measures in their Operating Schedules that make adequate provision to limit noise and vibration, eating, drinking and smoking outside their premises and other environment impacts” with reference to some 22 bullet points which include the following:-

 

·       Restrict noise emissions to below levels that could affect people in the vicinity going about their business, at work and when at home both while relaxing and while sleeping.

·       Minimising and controlling noise from customers arriving at the premises, or open-air site outside it and departing from it including noise and other nuisance caused by customers transportation and how dispersal is managed.

·       Identifying whether people standing or sitting outside the premises are likely to cause obstruction or other nuisance.

·       Identifying whether the premises are under or near to residential accommodation.

 

42.      Paragraphs C12 to C21 on pages 33 and 34 sets out the “Reasons for Policy PN1” which the Sub-Committee had regard to.

 

43.      Paragraph C12 includes in its wording:-

 

“Public Nuisance could include low-level nuisance, perhaps affecting a few people living locally, as well as major disturbance affecting the whole community. It may include, in appropriate circumstances, a reduction of the living and working amenity and environment of persons in the vicinity of licensed premises” which is wholly pertinent to this application.

 

44.      Paragraph C13 states:-

 

“Westminster has a substantial residential population and the Council as the Licensing Authority has a duty to protect it from nuisance. In certain areas, the increased concentration of entertainment uses, and the longer hours of operation have adversely affected local residents. Commercial occupiers of premises also have a legitimate expectation of an environment that is attractive helps sustain their businesses. The role of the Council as Licensing Authority is to maintain an appropriate balance between the legitimate aspirations of the entertainment industry and the needs of residents and other users of the City including, businesses, workers, shoppers and visitors. It will need to satisfy itself that adequate measures to prevent public nuisance are in place and will be maintained.”

 

45.      The Sub-Committee when considering the issue of public nuisance had regard to the Revised Guidance issued under s.182 of the Act in particular Paragraphs 2.20 and 2.21 on pages 9 and 10 which reads as follows:-

 

 

Paragraph 2.20

 

“The 2003 Act enables licensing authorities and responsible authorities, through representations, to consider what constitutes public nuisance and what is appropriate to prevent it in terms of conditions attached to specific premises licences and club premises certificates. It is therefore important that in considering the promotion of this licensing objective, licensing authorities and responsible authorities focus on the effect of the licensable activities at the specific premises on persons living and working (including those carrying on business) in the area around the premises which may be disproportionate and unreasonable. The issues will mainly concern noise nuisance, light pollution, noxious smells and litter.”

 

Paragraph 2.21

 

“Public nuisance is given a statutory meaning in many pieces of legislation. It is however not narrowly defined in the 2003 Act and retains its broad common law meaning. It may include in appropriate circumstances the reduction of the living and working amenity and environment of other persons living and working in the area of the licensed premises. Public nuisance may also arise as a result of the adverse effects of artificial light, dust, odour and insects or where its effect is prejudicial to health.”

 

46.      Having heard the evidence from all parties the Sub-Committee concluded that granting this application would add to cumulative impact and would particularly undermine the public nuisance licensing objective. The driving force behind the refusal of the application was the testing of the various policy considerations weighed up against the evidence and whether it met the promotion of the licensing objectives which it is specifically designed to achieve and do under section 4 of the Act.

 

47.      It heard direct oral evidence from residents living above the Premises who would be adversely affected by nuisance. The Sub-Committee considered the evidence from Mrs Earle who lived in one of the four flats above the Premises to be compelling. It was noted that she and her husband had recently had a new baby and had set down roots living in the Soho area and that Mr Earle had been born and raised in Soho and therefore wanted to preserve that continuity. The Sub-Committee noted that the family were left with the dilemma of having to move out of their home if the application were granted because of noise and disturbance generated by a restaurant beneath their flat and so this could not be dismissed as part of the overall evidence.

 

48.      The Sub-Committee decided that the potential for noise nuisance would result in having a negative impact on those residents’ lives daily due to the general activity of a busy licensed premises operating in such a lively and vibrant area such as soho in the West End CIZ. The Premises is located in a primarily residential area with a residential count of 264 surrounded by homes that include families and young children which is of material significance.

 

49.      The Sub-Committee was disappointed to note that the Applicant did not produce evidence of a noise acoustics report under cover of the application as this would have assisted the Sub-Committee when considering the noise impact for those residents living above the Premises.

 

50.      The Sub-Committee considered this to be such a vital and important document when determining the matter and in the absence of this information the Sub-Committee could not justify a grant of the application on the grounds that this would fail to promote the public nuisance licensing objective as was made clear to the Sub-Committee by the Legal Advisor a view endorsed also by Mr Brown.

 

51.      It was noted however, that the Applicant during the hearing gave an undertaking to provide a noise report at a later date to the EHS which would have been subject to the proposed works condition in any event, but again without being critical the Sub-Committee considered it encumbent upon the Applicant to have produced this right from the outset and not the other way around applying a common-sense approach when submitting the application.

 

52.      The Sub-Committee considered in detail the Applicant’s proposed conditions but took the view that these would not adequately address the immediate concerns of the parties, the policy considerations referred to above when looking at the West End CIZ and the promotion of the licensing objectives because the Premises are simply in the wrong location.

 

53.      The Sub-Committee realises that it has a duty to strike the right balance when considering the business needs of the Applicant along with those parties that had objected to the application particularly the many long-term residents who have lived in Soho for several decades (who are effectively considered Experts in their local area in terms of their invaluable experiences of licensed premises operating in the area coupled with local knowledge) and therefore well acquainted with the many issues surrounding nuisance.

 

54.      The Sub-Committee took the view that the right balance has been struck when considering the needs of those residents living above the Premises and the global impact granting such an application would have on the area as a whole.

 

55.      The Sub-Committee will of course appreciate that the Applicant will be disappointed with this Decision and does not doubt them to not be a good operator but after careful consideration and a proper analysis of the application together with the proposed offered conditions to mitigate the concerns of all parties objecting the Sub-Committee in its considered opinion concluded for the reasons outlined above that the public nuisance licensing objective would be seriously undermined and so refused the application.

 

56.      The Sub-Committee considered whether its objections would be capable of being addressed by condition but concluded that the Premises being in such close proximity to the residential units above would add to cumulative impact and undermine the licensing objectives for the reasons given above.

 

57.      The Sub-Committee also placed great weight on the testimony given by local residents who live in such close proximity to the Premises namely above the Premises and who are directly affected by public nuisance to a serious degree. The testimony given by Mr Wallace, Mrs Earle and Mr Murray was compelling. There is residential accommodation in close proximity to the Premises, and this is one of the most residential areas of Soho with a resident count of 264 as mentioned in paragraph 46 above. The evidence of local residents demonstrates that their mental health, their work and their personal relationship are being significantly adversely affected by public nuisance caused by current licensed premises.

 

58.      The Sub-Committee acknowledges and agrees that none of the issues complained off in the West End CIZ are the Applicant’s fault, and there is no evidence to suggest that the Applicant would be anything other than a responsible operator. However, the Sub-Committee cannot simply ignore the evidence before it when it comes to determining whether the Premises is in fact a suitable location and therefore considered the nature, style and character of the Premises in the West End CIZ and the negative impact for those residential flats above the Premises and this was the true crux of the matter despite the conditions offered.

 

59.      To grant the application would undoubtedly cause nuisance to local residents cause additional cumulative impact in the West End CIZ and undermine the promotion of the licensing objectives. In this respect the Sub-Committee considered the Home Office Guidance at Paragraph 9.43 on page 81 which states “The authority’s determination should be evidence-based, justified as being appropriate for the promotion of the licensing objectives and proportionate to what it is intended to achieve”.

 

59.      The Sub-Committee wishes the Applicant success in its endeavours but considers that the Premises is the wrong location for a restaurant with a late night licence selling alcohol as it would add to cumulative impact and undermine the licensing objectives in an area that is already under severe stress even with the further reduction in hours offered.

 

60.      The Sub-Committee when considering the application and the interests of all the parties concerned thereunder had due regard to the Council’s Public Sector Equality Duty contained under section 149 of the Equality Act 2010 along with Article 1 of the First Protocol (Protection of Property) and Article 8 (Right to respect for family and private life) under the Human Rights Act 1998.

 

61.      Having carefully considered all the committee papers, additional papers, submissions made by the Applicant and the oral evidence given by all parties during the hearing in its determination of the matter the Sub-Committee therefore decided, after taking into account all the individual circumstances of this application and the promotion of the four licensing objectives to refuse the application.

 

In all the circumstances of the case the application is Refused.

 

This is the Full Decision of the Licensing Sub-Committee which takes effect forthwith.

 

The Licensing Sub-Committee

5 October 2023