Agenda item

Ward CIA* SCZ**	Site Name & Address	Application Type	Licensing Reference No.
West End   * West End   ** None	Snowflake Gelato Basement and Ground Floor 102 Wardour Street W1F 0TP	New Premises Licence	23/04180/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 Snowflake Gelato Basement and Ground Floor 102 Wardour Street London W1F 0TP 23/04180/LIPN

 

 

Other parties present: Neil McCann (Keystone Law), Marina Tempia (The Soho Society), Tim Lord (The Soho Society), Richard Brown (Westminster Licensing Project representing The Soho Society), Jessica Donovan (The Licensing Authority), Kudzaishe Mondhlani (Environmental Health Service), PC Reaz Guerra (Metropolitan Police Service) 2 Local residents.

 

                                                     Full Decision

 

Premises

 

Snowflake Gelato

Basement and Ground Floor

102 Wardour Street

London

W1F 0TP

 

Applicant

 

Snowflake Gelato Limited

 

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 and Outdoors)

 

Monday to Sunday 23:00 to 00:30

 

Opening Hours of the Premises

 

Monday to Sunday: 11:00 to 00:30

 

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 Snowflake Gelato Basement and Ground Floor 102 Wardour Street London W1F 0TP (“The Premises”).  The Premises intends to operate as a café selling gelato-based ice cream with the benefit of late-night refreshment until 00:30 daily outside of core hours.

 

The Premises are located within the West End Ward and the West End CIZ. There is a policy presumption under policy FFP1 to refuse applications of this type in the West End CIZ. The onus therefore is on the Applicant to prove an exception to policy. The matter was assessed on its individual merits having regard to the evidence before the Licensing Sub-Committee and the promotion of the licensing objectives.

 

Representations were received from the Environmental Health Service, Metropolitan Police Service, The Soho Society and 2 local residents all citing concerns regarding public nuisance and crime and disorder together with a representation in support.

 

There is a resident count of 179.

 

Representations received

 

•        Metropolitan Police Service (PC Reaz Guerra) (MPS)

•        Environmental Health Service (Kudzaishe Mondhlani) (EHS)

•        The Licensing Authority (Karyn Abbott)

•        3 Local residents

•        1 Local association (The Soho Society)

 

Summary of issues raised by objectors

 

• The provision of late-night refreshment will have the likely effect of causing an increase in Public Nuisance and may impact on Public Safety in the West End CIZ. The granting of this application as presented would have the likely effect of causing an increase in Public Nuisance and may also impact on Public Safety in the West End CIZ. The applicant has provided additional information which is being considered. Additional Environmental Health conditions may be proposed to uphold the licensing objectives.
• There is insufficient detail contained within the operating schedule to promote the licensing objectives. The hours sought exceed Westminster’s Core Hours Policy. It is for these reasons that we object to this application.
• The Licensing Authority note that the premises operation is an award winning luxury gelato selling cold food and proposes to sell hot drinks and deserts after 23:00. Due to the nature of the premises this application falls within Westminster’s FFP1 (b, c, d) Policy.
• The Licensing Authority would like further submissions to the questions below:

1. Will there be deliveries from the premises?

2. What type of vehicles would be used for deliveries?

3. What kind of hot food will be sold?

• The Licensing Authority would propose model conditions 86 as follows:

1. The Licensable activities provided at the Premises shall be ancillary to the main function of the premises as a cold food/ice cream parlour’.

• The Licensing Authority has concerns regarding this premises and encourages the applicant to provide further submissions on how this will be operated and controlled to have no adverse impact on the cumulative impact area.
• The Licensing Authority would like the applicant to provide further submissions to the questions above to be able to assess any further relevant policy considerations.
• The Licensing Authority encourages the applicant to provide further submissions as to how the premises will not add to cumulative impact in the West End cumulative impact area, in accordance with policy CIP1.
• The Licensing Authority looks forward to receiving further submissions from the applicant in due course

• I would like to make an objection to the above application. My partner and I live directly above the Snowflake ice-cream shop. Over the past 5 years whilst we have been living above the shop we have struggled with the noise coming from the shop. Either with the music they play that echoes through our home or with their customers that are quite loud while they wait outside the shop or they exit the shop. If they stay open later this would only increase.
• Recently we have had personal conversations with the manager who has tried their best and the music level has improved, however we have been in this place before and every time there is a change in their managerial staff or other members of staff we are right back at the beginning. We do not have a direct number for the manager, and sometimes when we try to call the number that is on the website nobody picks up. There was a period last year when the number didn’t work at all, so we would have to go downstairs almost daily to ask them to turn the music down.
• There are several issues with the shop. They don't have good sound proofing anywhere, their speakers are built into their ceilings and often members of staff don't know that there are people living above which means that we can hear their music from their opening time until well beyond midnight.
• Moreover, due to their opening hours, their clients will loiter outside the shop playing music from their cars or being quite loud until 1am / 2am.

The final issue is that their refrigeration and ventilation system that leads right into my bedroom window is very loud and vibrates in my house throughout the day. This issue is much worse in the summer.

• We request Councillors on the panel to consider carefully our concerns about this application for a late night refreshment licence for an ice cream parlour open seven days a week until 12.30am, in a street with a large number of residential properties which includes social housing, and where crime rates are rising.
• As the Committee are aware the onus is on the applicant to demonstrate they will not increase cumulative impact and will promote the licensing objectives.
• We will present evidence on the impact of the huge number of licensed premises is having on the lives of residents and how the high level of crime has made the area very unsafe for people on a night out. Providing on and off sales until 12.30am people will be retained for longer in the area, increasing the number of people on the streets late at night will have a negative impact, it will add to cumulative impact and will fail to promote the licensing objectives.
• The premises is within Soho, an area at the heart of the West End’s entertainment district, with its 487 licensed premises which includes a large proportion being late night 121 (25%) licensed with a terminal hour between 1am - 6am and a capacity of over 22,827.
• Wardour Street is densely populated at night with a number of restaurants and also drink led venues licensed until 3am with a capacity of 2,055, and within the streets which surround it namely Old Compton Street, Frith Street, Dean Street and Greek Street the area has the highest concentration of late night premises in Soho, a total of 118 with terminal hours between 12am - 3.30am and capacity of over 11,200.
• It is unsurprising the crime statistics repeatedly show an increase in crime, the latest figures show levels of certain crimes are now higher than at pre COVID times and the peak times for crime being between 10pm - 2am. The majority of robberies in Soho take place late at night, the junction between Old Compton Street and Wardour Street is a particular hotspot where people are targeted as they leave the numerous venues. There are a number of residential properties on Wardour Street and there are real concerns amongst residents about the ever increasing numbers of licensed premises, they have been subjected to noise disturbance and anti-social behaviour that is beyond acceptable levels. They are disturbed by the late night activity as people walk by either shouting, screaming or arguing, noise from pedicabs, car doors slamming, horns honking, and are subjected to anti-social behaviour with people vomiting and urinating in the street and in their doorways. Residents are also disturbed even if an establishment is not located directly on their street, as patrons usually intoxicated leave premises and either carry on their night out in Soho or as they make their way home making a noise and disturbing residents along the way. Please see the results of the Soho Society Sleep Survey October 2022 in Appendix 1. We will withdraw this objection if the applicant agrees to no off sales after 11pm and late night refreshment until core hours.

 

Policy Position

 

Policies HRS1, CIP1 and FFP1 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 FFP1

 

Policy FFP1 applies 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:

6. Applications to vary the existing licence hours within the council’s Core Hours Policy HRS1, and/or,

7. 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:

8. The application meeting the requirements of policies CD1, PS1, PN1 and CH1.

9. 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.

10. 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:

11. 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.

12. 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.

13. The food and drink are provided in pre-sealed or open disposable packaging which is intended for immediate consumption.

14. 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 subclauses D,1 to D,3 above.

 

SUBMISSIONS AND REASONS

 

Ms Roxsana Haq the Presenting Officer outlined the application to the Sub-Committee. She advised that this was an application for a New Premises Licence in respect of Snowflake Gelato Basement and Ground Floor 102 Wardour Street London W1F 0TP who are seeking Late Night Refreshment (Indoors andOutdoors) Monday to Sunday 23:00 to 00:30. The Applicant isSnowflake Gelato Limited. Representations have been received from the EHS, MPS, The Soho Society and 2 local residents together with one objection in support all citing concerns regarding public nuisance and crime and disorder.

 

Mr Neil McCann, Solicitor appearing on behalf of the Applicant, addressed the Sub-Committee and outlined the application. He described the Premises as a high level boutique style ice cream parlour and that a licence was being applied for so that hot teas and coffee could be sold after 23:00 to help improve the customer experience. Mr McCann said that hot food and drink is ancillary to the main function.

Mr McCann said that it was not the sort of Premises that would be frequented by inebriated customers and was more for tourists along with a middle eastern customer base. He said that this application was unusual in the sense that normally a licence application comes before the Sub-Committee to extend their hours or to change their usage to include alcohol.

Mr McCann said that the application was before the Sub-Committee in order to allow the Applicant to continue trading as normal. He explained that by granting this licence, it would then be brought under the control of the local authority and force it to fall in line with the licence and its conditions.

Mr McCann said that there was an acoustics expert lined up to attend the Premises but having spoken with the residents he did not feel this was necessary. He said that he understood residents’ issues to be that staff play loud music after hours and there were concerns over the speakers inbuilt into the ceiling, along with the congregation of people at a later hour which create a nuisance.

Mr McCann advised that the ceiling speakers the subject of the nuisance will not now be used and certain issues with members of staff will now be dealt with under the Applicant’s HR policies and procedures that could lead to dismissal of a staff member. Mr McCann said that there were two different options, firstly a premises trading as and how they wish with no restriction or secondly a premises where after 23:00 they can enjoy a hot drink which would then be licensable. Mr McCann said the capacity was 30, and this had been conditioned as a limit.

In reply to questions from the Sub-Committee Mr McCann said the Applicant had looked to address the noise from their ventilation system which they were confident could be remedied easily. Regarding the noise generated by cars he said this was not something he was aware of being an issue.

Ms Kudzaishe Mondhlani appearing on behalf of the EHS addressed the Sub-Committee. She advised that the application does not include alcohol and is purely looking for an extension of their hours. Ms Mondhlani said there have been no complaints made to the Council about the Premises which has been trading since 2012. In terms of the EHS conditions these have been agreed by the Applicant together with 4 additional ones. Ms Mondhlani said that the windows had been conditioned already to be closed if entertainment is to take place in the future.

Ms Jessica Donovan appearing on behalf of the Licensing Authority addressed the Sub-Committee. She said that representation had been maintained as the Premises was located with the West End CIZ. Ms Donovan said the Applicant could operate as normal selling cold food should this licence not be granted and that these hours requested were outside of core. However, the Applicant has to demonstrate an exception to policy and the Sub-Committee must be satisfied whether exceptionality has been proven.

PC Reaz Guerra appearing on behalf of the MPS addressed the Sub-Committee. PC Guerra advised that the area is a crime hotspot and although the Premises is currently a gelato-based venue, this would not be the case should the licence be transferred, and in this scenario other food items could be sold. PC Guerra said that he would invite the Sub-Committee to impose a condition as per Mr McCann’s suggestion that no savoury food could be sold to address this specific issue.

Mr Simon Langley, local resident addressed the Sub-Committee and advised that he lived directly above the Premises. Mr Langley said he was approached by the Applicant to meet which is welcome. However, he has struggled to communicate his concerns over the previous four years about the noise emanating from the Premises, some after closing and some while they have still been open.

Ms Regina Brandolino addressed the Sub-Committee and advised that she lived directly above the Premises with her partner Mr Langley and shared the same concerns. She advised that she had to frequently speak to the staff of the Premises since moving there in December 2018.

Ms Brandolino said that the music and base sound coming from the ceiling speakers is a nuisance and affects the quiet enjoyment of their home. She said that  there are people who leave nightclubs to come to the Premises for food and that they suffer also from the noise of the ventilation and the vibrations.

Ms Brandolino advised that she works from home during the day, and suffers still from the noise escaping from the Premises. Ms Brandolino said that her neighbours are also affected and claimed that there was a shop next door that had ceiling speakers, which following consultation were removed.

Mr Richard Brown representing the Soho Society said that while there were degrees of premises offering food during the later hours, even though this was not a kebab shop, people would still be attracted into the West End CIZ. Mr Brown said this then leads to a presumption that the application will be refused. Mr Brown suggested that the removal of the speakers in the ceiling would be a welcome move to reduce the noise escaping.

Ms Marina Tempia from the Soho Society addressed the Sub-Committee. She said that Wardour Street was a busy street as it was an exit street between Oxford Street and Shaftesbury Avenue. Ms Tempia said there are approximately 2,000 people in that area on an evening. She said that the issues that have been raised by local residents today are the same issues that have always existed. Ms Tempia said that by increasing the offering there will be an increased footfall which will only exacerbate the current issues.

In summing up the EHS, The Licensing Authority, MPS, local residents and the Soho Society had nothing further to add.

In summing up Mr McCann said this was an application for late night refreshment only. It had nothing to do with alcohol or music. He advised that the previous noise nuisance was an issue which has now been resolved, and there have been no complaints under the current manager. Mr McCann confirmed that the Applicant was content to having the speakers rendered unusable to alleviate resident concerns about noise escaping.

Conclusion

The Sub-Committee realises that it has a duty to consider each application 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 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 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, crime and disorder so the right balance had been struck when considering the views of the Responsible Authorities and local residents who had objected and the Applicant to run the Premises in a way that will help promote the licensing objectives.

 

The Sub-Committee noted the concerns of the parties that had objected to the application particularly in relation to nuisance and the breakout of music which was disturbing residents living directly above the Premises.

The Sub-Committee welcomed the Undertaking by the Applicant to work in partnership with local residents going forward. This included the disconnection of the inbuilt ceiling speakers so as not to cause a nuisance and to remind customers to leave the Premises quietly.

The Sub-Committee concluded based on the evidence that the Applicant would promote the licensing objectives with the offered conditions which are considered 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.

 

In terms of the conditions these are all the conditions as stated at pages 62-67 of the report together with the four additional EHS conditions and Informative. The Sub-Committee also imposed two conditions regarding the non-sale of savoury food and the inbuilt ceiling speakers to be permanently rendered unusable as specified below.

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 (Both) Monday to Sunday 23:00 to 00:30 Seasonal variations: None

 

2.        To grant permission for the Opening Hours of the Premises Monday to Sunday 11:00 to 00:30 Seasonal variations: 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.        a) The premises shall install and maintain a comprehensive CCTV system as per the minimum requirements of the Westminster Police Licensing Team. (b) All entry and exit points will be covered enabling frontal identification of every person entering in any light condition. (c) 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. (d) All recordings shall be stored for a minimum period of 31 days with date and time stamping. (e) Viewing of recordings shall be made available immediately upon the request of

Police or authorised officer throughout the entire 31-day period.

 

6.        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.

 

7.        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.

 

8.        Notices shall be prominently displayed at all exits requesting patrons to respect the needs of local residents and businesses and leave the area quietly.

 

9.        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.

 

10.      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.

 

11.      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.

 

12.      Patrons permitted to temporarily leave and then re-enter the premises, e.g. to smoke or make a phone call, shall not be permitted to take glass containers with them.

 

13.      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.

 

14.      There shall be no sales of hot savoury food other than sweet desserts.

 

15.      The Premises Licence Holder shall ensure that the current inbuilt ceiling speakers fitted at the premises shall be fully disconnected and rendered unusable at all times.

 

Informative

 

16.      Local residents living in close proximity to the Premises disturbed by nuisance emanating from the Premises are strongly encouraged to report such instances of nuisance directly to the City Council’s Noise Team to ensure that a proper record of complaints are kept.

 

 

 

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

effect forthwith.

 

Licensing Sub-Committee

5 October 2023