Agenda item
Shadow Licence, Basement, 84-86 Wardour Street, W1F 0TG
Minutes:
WESTMINSTER CITY COUNCIL LICENSING SUB-COMMITTEE NO. 1
9 NOVEMBER 2023
Membership:Councillor Aziz Toki (Chair) Councillor MD Shamsed Chowdhury and Councillor Jim Glen
Officer Support Legal Adviser: Michael Feeney
Policy Officer: Kerry Simpkin
Committee Officer: Jack Robinson-Young
Presenting Officer: Roxsana Haq
Application for a Shadow Premises Licence in respect of Basement 84-86 Wardour Street London W1F 0TQ 23/04676/LIPSL
Other parties present: Stephen Elliot and Alun Thomas of Thomas & Thomas LLP on behalf of the Applicant, two local residents and Mr Brown (Westminster Citizens Advice) on behalf of one of the local residents
Full Decision
Premises
Basement, 84-86 Wardour Street
Applicant
Legal and General Assurance (Pensions Management) Ltd
Cumulative Impact Area
West End
Ward
West End
Special Consideration Zone
N/A
Summary of Application
The Sub-Committee has determined a shadow licence application under the same terms, plans and conditions as the granted licence 21/02214/LIPT.
There is a resident count of 171.
Representations received
• Licensing Authority (WITHDRAWN)
• Environmental Health (WITHDRAWN)
• 1 Local resident
Summary of issues raised by objectors
Issues were raised concerning the late hour (04:00) of the shadow licence and the noise that may have been generated by the premises itself and the ingress and egress of people at such a late hour.
Policy Position
Policies CIP1, HRS1 and MD1 apply under the City Council’s Statement of Licensing Policy apply (SLP).
SUBMISSIONS
With the agreement of all parties, the Sub-Committee considered the application alongside the application for a shadow licence in respect of 84-86 Wardour Street, London, W1F 0TQ. Ms Roxsana Haq outlined both applications at the beginning of the hearing. Each application has been determined on its own merits.
Mr Alun Thomas addressed the Sub-Committee explaining there was a licence for a venue called Vapiano and there was a low-profile licence, which is the basement only. Mr Thomas said these were both present at the same venue, but that one could not be used so long as the other was in effect. Mr Thomas said there was litigation ongoing, hence why the licences could not be transferred. Mr Thomas said that eventually there would only be one licence in effect. Mr Thomas said although these would technically be two new licences, they are not for new uses. As they are not new uses, Mr Thomas said this meant they did not add to cumulative impact on the area. Mr Thomas said it was recognised in the licensing policy of Westminster City Council that shadow licences would be granted.
Mr Thomas added that a line of communication between the Applicant and the local residents had now been opened, which could be used in future.
The Sub-Committee asked if Mr Thomas would be agreeable to MC97 regarding resurrection and Mr Thomas did not agree to this because it would not assist the Applicant if the tenant allowed a licence to lapse.
Mr Richard Brown on behalf of a local resident addressed the Sub-Committee and said that when the Vapiano licence was applied for it was confirmed that the low-profile licence would be surrendered. There was then a minor variation in 2014 for the low profile licence which stated that it (the low profile licence) would not have effect while the Vapiano licence was in force. The difficulty with that condition is that it refers to the reference number for the Vapiano licence and did not have standard wording referring to subsequent licences. This meant that when the Vapiano licence lapsed, the condition became otiose. To be a true shadow licence, the low-profile licence should include a condition that it has no effect whilst the other licence has effect.
Mr Brown indicated that of the two licences residents would prefer the restaurant licence to be used and not the basement, nightclub licence. Mr Brown submitted that applications for shadow licences had to be assessed on their merits the same as any other application. Mr Brown said that as the Premises has not been used as a nightclub for some time, if this was to be a nightclub again then it would have to be viewed as a new premises licence application. Mr Brown said that Vapiano operated to a reasonable hour and was run properly, this meant the impact on residents was very low.
A local resident addressed the Sub-Committee virtually who was a long-term resident of the area. The Sub-Committee were informed that this area did have residents living in close proximity. The Sub-Committee were informed that there were currently no large noisy queues of people, and this could easily become the case should the low-profile licence be used. The local resident addressing the Sub-Committee also raised concerns about smoking and vomiting of patrons outside, and the smoke entering bedrooms.
Mr Thomas clarified that the low-profile licence could not have effect while the ground/basement licence has effect. The low-profile, basement licence would have to be surrendered to use both. Mr Thomas said that it was most likely that the Premises would be let as a restaurant style operation but that it was technically possible to let the basement only under the low-profile licence. Mr Thomas said it was their preference for the Premises to be let as a restaurant style operation as this covers the ground floor and the basement area, not just the basement.
A local resident present at the Sub-Committee addressed those present and showed the proximity of their dwelling to the premises. Members were informed the resident had lived there for 30 years and over this time there had been many different venues in this property. Throughout this 30-year period, the local resident said that people have always congregated after being told to leave the local premises in the early hours. Members were informed there were late licences in the area, but the noise continued after this due to the congregation of people outside. Members were asked to do as much as possible to condition these shadow licences to mitigate the impact on local residents.
The Sub-Committee asked what dispersal plans were in place should the low-profile licence be used, and Mr Thomas said that there would be a plan in place with the new tenant.
In summing up, Mr Richard Brown said that it was obvious a potential late-night venue would be of detriment to local residents such as the low-profile licence would permit. Mr Brown requested these hours be reduced to mitigate the impact on those living in such close proximity. Local residents had fewer issues with the restaurant licence but it was still a late licence for which the hours could be reduced.
Mr Thomas summed up on behalf of his client by saying that if the application were refused that would not stop the current tenant from using the current basement licence or transferring it to someone else. The most likely scenario was that the premises would be let as a restaurant over ground and basement floors. Mr Thomas said that there have been no issues thus far with the licences. Mr Thomas said curtailing the hours or refusing these applications would still mean the premises licences could be used. Mr Thomas said the Applicant’s preference was to continue with the restaurant licence across both floors despite the entitlement of being able to use either licence.
REASONS AND CONCLUSION
The Committee has determined an application for a grant of a New Premises Licence under the Licensing Act 2003. 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 considered that the shadow licence applied for would not undermine the licensing objectives, would not add to cumulative impact and constitutes an exception for the purposes of Policy CIP1 because the shadow licence replicates exactly what is on the current existing licence, with the addition of a condition agreed with the Licensing Authority that the shadow licence will not take effect when the current licence is in operation.
In reaching this conclusion the Sub-Committee placed great weight on the fact that all responsible authorities (including the Licensing Authority) were satisfied with the application and had no outstanding concerns. The Sub-Committee noted Mr Brown’s submissions on the condition attached to the current low-profile licence but was satisfied that the two licences at the Premises could not both be used at the same time. The condition on licence 21/14512/LIPN that ‘No licensable activities shall take place at the premises until the premises licence 21/02214/LIPT (or such other number subsequently issued for the premises) has been surrendered and is incapable of resurrection’ meant that it would not be possible to operate both licences at the same time.
The Sub-Committee did recognise the validity of the concerns raised by two local residents. However, because the shadow licence replicates exactly what is on the current licence, the Sub-Committee considered that there would not be any impact on the licensing objectives. If it transpired later that the operation of the licence at the Premises did cause any problems then there would be the potential mechanism of a review under section 51 of the Act.
Finally, the Sub-Committee noted that in respect of this particular application the residents had expressed more concerns at the prospect of a nightclub operating at the Premises. The Sub-Committee noted that the Applicant’s preference would be to utilise the restaurant licence instead and also again placed weight on the fact that if the operation of a nightclub on the same terms, plans and conditions as the current premises licence did undermine the licensing objectives then a review could be brought.
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 permission for:
Performance of Dance (Basement)
Monday: 09:00 to 01:00
Tuesday to Wednesday: 09:00 to 02:00
Thursday: 09:00 to 03:00
Friday to Saturday: 09:00 to 04:00
Sunday: N/A
Seasonal variation: From the start time on New Year’s Eve to the terminal hour for New Year’s Day
Live Music (Basement)
Monday: 09:00 to 01:00
Tuesday to Wednesday: 09:00 to 02:00
Thursday: 09:00 to 03:00
Friday to Saturday: 09:00 to 04:00
Sunday: N/A
Seasonal variation: From the start time on New Year’s Eve to the terminal hour for New Year’s Day
Recorded Music
Sunday to Saturday: 00:00 to 00:00
Seasonal variation: From the start time on New Year’s Eve to the terminal hour for New Year’s Day
Anything of a Similar Description to Performance of Dance, Live Music or Recorded Music (Basement)
Monday: 09:00 to 01:00
Tuesday to Wednesday: 09:00 to 02:00
Thursday: 09:00 to 03:00
Friday to Saturday: 09:00 to 04:00
Sunday: N/A
Seasonal variation: From the start time on New Year’s Eve to the terminal hour for New Year’s Day
Late Night Refreshment (Basement)
Monday: 23:00 to 01:30
Tuesday to Wednesday: 23:00 to 02:30
Thursday: 23:00 to 03:30
Friday to Saturday: 23:00 to 04:00
Sunday: N/A
The terminal hour for late night refreshment on New Year’s Eve is extended to 05:00 on New Year’s Day
Late Night Refreshment (Ground Floor)
Monday to Saturday: 23:00 to 23:30
Sunday: N/A
The terminal hour for late night refreshment on New Year’s Eve is extended to 05:00 on New Year’s Day
Sale by Retail of Alcohol (Basement, On and Off Sales)
Monday: 10:00 to 01:00
Tuesday to Wednesday: 10:00 to 02:00
Thursday to Saturday: 10:00 to 03:00
Sunday: 12:00 to 22:30
Seasonal variation: From the start time on New Year’s Eve to the terminal hour for New Year’s Day
Sale by Retail of Alcohol (Ground Floor, On and Off Sales)
Monday to Saturday: 10:00 to 23:00
Sunday: 12:00 to 22:30
Seasonal variation: From the start time on New Year’s Eve to the terminal hour for New Year’s Day
Hours Premises are Open to the Public
Monday: 09:00 to 01:30
Tuesday to Wednesday: 09:00 to 02:30
Thursday: 09:00 to 03:30
Friday to Saturday: 09:00 to 04:00
Sunday: 12:00 to 23:00
Seasonal variation: From the start time on New Year’s Eve to the terminal hour for New Year’s Day
2. To add relevant Mandatory Conditions to apply.
3. To add conditions proposed to form part of the operating schedule:
10. This licence is subject to all the former Rules of Management for Places of Public Entertainment licensed by Westminster City Council, in force from 4 September 1998 and incorporating amendments agreed by the Council on 25 October 1999, 30 June 2000, 16 January 2001 and 1 October 2001.
11. On New Year’s Eve the premises can remain open for the purpose of providing regulated entertainment from the time when the provision of regulated entertainment must otherwise cease on New Year’s Eve to the time when regulated entertainment can commence on New Year’s Day (or until midnight on New Year’s Eve where no regulated entertainment takes place on New Year’s Day).
12. Notwithstanding the provisions of Rule of Management No. 6 the premises may remain open for the purposes of this licence from 23:00 on Monday to 01:00 on the day following, and from 23:00 on each of the days Tuesday to Wednesday to 02:00 on the day following, from 23:00 on Thursday to 03:00 on the day following and from 23:00 on Friday and Saturday to 04:00 on the day following.
13. An attendant shall be stationed within the basement cloakroom during the whole time the basement is open to the public.
14. This use of the premises under this licence shall remain purely ancillary to the main/lawful use (class A3).
15. All refuse must be paid, properly presented and must not be left on the street for more than 2.5 hours.
16. No unauthorised advertisement of any kind (including placard, poster, sticker, flyer, picture, letter, sign or other mark) shall be inscribed or affixed upon the surface of the highway or upon any building, structure, works, street furniture, tree or any other property and shall not be distributed in the street to the public that advertises or promotes the establishment, its premises or any of its events, facilities, goods or services.
17. The Licensee shall ensure that queuing by patrons outside the premises is conducted in a quiet and orderly manner and is monitored by at least 2 registered door supervisors at all times.
18. The Licensee shall ensure that the exit of patrons from the premises after the terminal hour is monitored by at least 4 registered door supervisors so that minimal noise and disturbance is caused to residents.
19. The Licensee shall use his best endeavours to ensure that customers do not congregate or cause a nuisance on the public highway outside the premises or in the vicinity of the premises.
20. Notices shall be displayed at all exits to the premises requesting patrons to respect the needs of local residents and to leave the premises and area quietly.
21. The licensee shall issue loudspeaker requests 15 minutes before closing asking patrons to leave quietly.
22. At all material times during the hours when this licence is operative the licensee is to ensure that security/search wands are used by security staff to check customers entering the premises (subject at al times to any reasonable explanation for such wands not being used in a particular case).
23. The number of persons accommodated (excluding staff) at the premises shall not exceed: Basement- 470.
24. Substantial food and suitable beverages other than intoxicating liquor (including drinking water) shall be available during the whole of the permitted hours in all parts of the premises where intoxicating liquor is sold or supplied.
25. In respect of the basement of the premises, intoxicating liquor may only be sold or supplied to:
(a) Persons who have paid a minimum admission fee on Mondays to Wednesdays of £3.00 and on Thursday to Saturday a fee of £5.00 after 23:00 for the purpose of music, dancing and entertainment (not to be credited against consumables).
(b) Persons who have paid a minimum annual admission fee of £100.00. Payable in advance (not to be credited against consumables).
(c) Bona fide guests of the proprietor specially invited prior to admission with individual’s details kept at the reception for inspection.
(d) Persons employed at the premises.
(e) Persons attending a private function at the premises with individual’s details kept at the reception for inspection.
26. No striptease, no nudity and all persons on the premises to be decently attired.
27. No gaming on the premises.
28. There shall be no payment made by or on behalf of the licensees to any person for bringing customers to the premises.
29. For the Ground Floor (Monday to Sunday) and Basement (Sunday only):
Alcohol shall not be sold, supplied, consumed in or taken from the premises except during permitted hours.
In this condition permitted hours means:
(a) On weekdays, other than Christmas, Good Friday or New Year’s Eve, 10:00 to 23:00;
(b) On Sundays, other than Christmas or New Year’s Eve, 12:00 to 22:30;
(c) On Good Friday, 12:00 to 22:30;
(d) On Christmas Day, 12:00 to 15:00 and 19:00 to 22:30;
(e) On New Year’s Eve, except on a Sunday, 10:00 to 23:00;
(f) On New Year’s Eve on a Sunday: 12:00 to 22:30;
(g) On New Year’s Eve from the end of permitted hours on New Year’s Eve to the start of permitted hours on the following day (or, if there are no permitted hours on the following day, midnight on 31st December.)
NOTE- The above restrictions do not prohibit:
(a) during the first twenty minutes after the above hours the consumption of the alcohol on the premises;
(b) during the first twenty minutes after the above hours the taking of alcohol from the premises unless the alcohol is supplied or taken in an open vessel;
(c) during the first thirty minutes after the above hours the consumption of the alcohol on the premises by persons taking table meals there if the alcohol was supplied for consumption as ancillary to the meals;
(d) the sale or supply of alcohol to or the consumption of alcohol by any person residing in the licensed premises;
(e) the ordering of alcohol to be consumed off the premises, or the despatch by the vendor of the alcohol so ordered;
(f) the sale of alcohol to a trader or registered club for the purposes of the trade or club;
(g) the sale or supply of alcohol to any canteen or mess, being a canteen in which the sale or supply of alcohol is carried out under the authority of the Secretary of State or an authorised mess of members of His Majesty’s naval, military or air forces;
(h) the taking of alcohol from the premises by a person residing there;
(i) the supply of alcohol for consumption on the premises to any private friends of a person residing there who are bona fide entertained by him at his own expense, or the consumption of alcohol by persons so supplied;
(j) the supply of alcohol for consumption on the premises to persons employed there for the purposes of the business carried on by the holder of the licence, or the consumption of liquor so supplied, if the liquor is supplied at the expense of their employer or of the person carrying on or in charge of the business on the premises.
In this condition any reference to a person residing in the premises shall be construed as including a person not residing there but carrying on or in charge of the business on the premises.
30. For the Basement (Monday to Saturday only):
Alcohol shall not be sold, supplied, consumed in or taken from the premises except during permitted hours.
(a) Subject to the following paragraphs, the permitted hours on weekdays shall commence at 10:00 (12:00 on Christmas Day and Good Friday) and extend until 01:00 Monday, 02:00 Tuesday and Wednesday and 03:00 Thursday to Saturday on the morning following, except that-
(i) the permitted hours shall end at 00:00 midnight on any day on which music and dancing is not provided after midnight; and
(ii) on any day that music and dancing end between 00:00 midnight and 01:00, 02:00 or 03:00, the permitted hours shall end when the music and dancing end.
(b) In relation to the morning on which summer time begins, paragraph (a) of this condition shall have effect-
(i) with the substitution of reference to 04:00 for references to 03:00 or one hour following the hour actually specified;
(c) The sale of alcohol must be ancillary to the use of the premises for music and dancing and substantial refreshment.
(d) The permitted hours on New Year’s Eve will extend to the start of permitted hours on the following day, or if there are no permitted hours on 1 January, to 00:00 on New Year’s Eve.
NOTE- The above restrictions do not prohibit:
(a) during the first thirty minutes after the above hours the consumption of the alcohol on the premises;
(b) during the first twenty minutes after the above hours the taking of alcohol from the premises unless the alcohol is supplied or taken in an open vessel;
(c) the sale or supply of alcohol to or the consumption of alcohol by any person residing in the licensed premises;
(d) the ordering of alcohol to be consumed off the premises, or the despatch by the vendor of the alcohol so ordered;
(e) the sale of alcohol to a trader or registered club for the purposes of the trade or club;
(f) the sale or supply of alcohol to any canteen or mess, being a canteen in which the sale or supply of alcohol is carried out under the authority of the Secretary of State or an authorised mess of members of His Majesty’s naval, military or air forces;
(g) the taking of alcohol from the premises by a person residing there;
(h) the supply of alcohol for consumption on the premises to any private friends of a person residing there who are bona fide entertained by him at his own expense, or the consumption of alcohol by persons so supplied;
(i) the supply of alcohol for consumption on the premises to persons employed there for the purposes of the business carried on by the holder of the licence, or the consumption of liquor so supplied, if the liquor is supplied at the expense of their employer or of the person carrying on or in charge of the business on the premises.
In this condition any reference to a person residing in the premises shall be construed as including a person not residing there but carrying on or in charge of the business on the premises.
31. No person under fourteen shall be in the bar of the licensed premises during the permitted hours unless one of the following applies:
(a) He is the child of the holder of the premises licence.
(b) He resides in the premises, but is not employed there.
(c) He is in the bar solely for the purpose of passing to or from some part of the premises, which is not a bar, and to or from which there is no other convenient means of access or egress.
(d) The bar is in railway refreshment rooms or other premises constructed, fitted and intended to be used bona fide for any purpose to which the holding of the licence is ancillary.
In this condition ‘bar’ includes any place exclusively or mainly used for the consumption of intoxicating liquor. But an area is not a bar when it is usual for it to be, and it is, set apart for the service of table meals and alcohol is only supplied or sold to persons as ancillary to their table meals.
32. If any entertainment is provided for children or if entertainment is provided at which the majority of the persons attending are children, then, if the number of children attending the entertainment exceeds 100, it shall be the duty of the holder of this premises licence/club premises certificate:
(a) to station and keep stationed wherever necessary a sufficient number of adult attendants, properly instructed as to their duties, to prevent more children or other persons being admitted to the building, or to any part thereof, than the building or part can properly accommodate;
(b) to control the movement of the children and other persons admitted while entering and leaving the building or any part thereof, and
(c) to take all other reasonable precautions for the safety of the children.
33. The terminal hour for late night refreshment on New Year’s Eve is extended to 05:00 on New Year’s Day.
34. The authorisations permitted by this premises licence will have no effect whilst the premises licence issued by the committee on 12 July 2013 (premises Licence Number 13/03376/LIPN) which covers the ground and first floor of the premises remains in force.
35. The shadow licence will not take effect when the current licence is in operation.
This is the Full Decision of the Licensing Sub-Committee which takes effect forthwith.
The Licensing Sub-Committee
9 November 2023
Supporting documents:
-
Report Basement 84-86 Wardour_Redacted, item 3.
PDF 1 MB - Restricted enclosure View the reasons why document 3./2 is restricted