Agenda item
15 Old Burlington Street, W1X 1RL
Minutes:
LICENSING SUB-COMMITTEE NO. 1
(“The Committee”)
Thursday 22 November 2023
Membership: Councillor Iman Less (Chair) and Councillor Karen Scarborough
Officer Support Legal Advisor: Horatio Chance
Policy Officer: Kerry Simpkin
Committee Officer: Sarah Craddock
Presenting Officer: Kevin Jackaman
Others present: Mr Marcus Lavell (Counsel, Keystone Law), Mr Aaron Miller and Mr John Comon (Applicant Company), PC Dave Morgan (Metropolitan Police Service), Mrs Ayesha Bolton (Environmental Health Service), Mr Richard Brown (Solicitor, Westminster Licensing Project) representing local residents.
Application for a New Premises Licence in respect of 15 Old Burlington Street London W1X 1RL 23/04863/LIPN
FULL DECISION
Case Summary
The Sub-Committee has determined an application for a New Premises Licence under the Licensing Act 2003 (“The Act”) in respect of 15 Old Burlington Street London W1X 1RL (“The Premises”). The Premises intends to operate as a lounge and restaurant. The Premises has had the benefit of a premises licence since 2015. The current premises licence (22/08753/LIPDPS) can be viewed at Appendix 4 of the agenda report.
A full licence history and Temporary Event Notice history for the premises appears at Appendix 5.
The Applicant has submitted the following documents:
• A copy of a mediation email for an interested party which can be seen at Appendix 3.
The Premises are located within the West End Ward and the West End Buffer. There is no policy presumption to refuse applications for a restaurant premises outside of the West End CIZ provided that they do not undermine the licensing objectives.
The Applicant is required to demonstrate the requirements contained in paragraphs D47 and D48 on page 55 of the SLP (Robberies, theft, ASB on around public transport and incidents relating to ambulance call outs at night to the locations of licensed premises for intoxication injury related to intoxication and/or assault).
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 and two local residents all citing concerns regarding public nuisance and crime and disorder.
There is a resident count of 2.
Premises
15 Old Burlington Street
London
W1X 1RL
Applicant
Tokyo Industries (Mayfair) Limited
Ward
West End
Special Consideration Zone
West End Buffer
Activities and Hours
Live Music, Recorded (Indoors)
Monday to Sunday 10:00 to 03:00
Seasonal Variations: All licensable activities shall be extended from the end of
permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day. On the day British Summer Time commences: one additional hour following the terminal hour
Late Night Refreshment (Indoors)
Monday to Sunday 23:00 to 02:30
Seasonal Variations: All licensable activities shall be extended from the end of
permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day. On the day British Summer Time commences: one additional hour following the terminal hour.
Sale by Retail of Alcohol (On and Off the Premises)
Monday to Sunday 10:00 to 02:30
Seasonal Variations: Off sales of alcohol are to cease at 23:00 daily. All licensable activities shall be extended from the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day. On the day British Summer Time commences: one additional hour following the terminal hour.
Opening Hours Premises are Open to the Public
Monday to Sunday 10:00 to 03:00
Seasonal Variations: All licensable activities shall be extended from the end of
permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day. On the day British Summer Time commences: one additional hour following the terminal hour.
Representations Received
- Metropolitan Police Service (MPS) (PC Dave Morgan).
- Environmental Health Service (EHS) (Sally Fabbricatore).
- Two Local residents.
Summary of objections
• The provision of the Supply of Alcohol may cause an increase in Public Nuisance in the area, it may also impact on Public Safety.
• The provision of regulated entertainment may cause an increase in Public Nuisance in the area, it may also impact on Public Safety.
• The provision of Late Night Refreshment may cause an increase in Public Nuisance in the area, it may also impact on Public Safety.
• The non-standard timings may cause an increase in Public Nuisance in the area. The applicant did seek pre-application advice, 23/02688/PREAPM. Further information and proposed conditions have been provided, which are being considered. Further conditions are proposed below in order to protect the Licensing Objectives:
• The granting of the new Premises Licence as presented would have the likely effect of causing an increase in Public Nuisance in the area and may impact on Public Safety.
• With reference to the above, I am writing to inform you that the Metropolitan Police Service as a Responsible Authority are objecting to this application on the basis that if granted, it would undermine the Licensing Objectives, namely The Prevention of Crime and Disorder and Protecting Children from Harm.
• The hours sought are beyond those of Westminster Council’s Core Hours policy and the venue is situated within the West End Buffer Special Consideration Zone.
• The application also describes the venue as a ‘Lounge and Restaurant’ but it is noted that no restaurant conditions have been offered.
• The Police have concerns that the venue could potentially become a vertical drink led venue which in turn could increase the levels of Crime and Disorder and anti-social behaviour in the area.
• To move forward, I would encourage that the applicant considers reducing the hours sought and/or submits further conditions to ensure that the venue will not impact negatively on the emergency services or the local area.
• The Metropolitan Police Service provided further submissions on 09 November 2023 which can be found at Appendix 2.
• This is an application for a restaurant and lounge where the proportion of lounge to restaurant is quite high. The licence seeks a terminal hour of 3am, well beyond core hours. There is no restaurant condition at all and there is no condition relating to service being by waiter/ress service to customers being seated. There is no explanation as to how they intend to overcome WCC policy on hours and public nuisance. On a minor note, there is no condition barring the taking of drinks and glass containers outside by smokers. There is a very real risk of public nuisance arising from this application and RSMSJ wishes to object to it being granted.
• I’m resident at Lower Ground Floor, 22-23 Old Burlington Street W1S 2JJ. And I just became aware that the applicant: tokyo industries( Mayfair) limited (15 Old Burlington Street) is trying to extend their working hours until 3 am Monday to Friday and until 2.30 am on weekends. My concern about it is the constant noise caused by their clients, who aren’t allowed to park in the street to begin with but they do it anyway and often do car racing at really late night when are exiting the place. I’ve been living in the property for almost 2 years and since the restaurant ( MIRO) has opened its doors there has been a lot of changes in the street. Their clients don’t seem to respect the residents of the street. With constant noise!
Policy Considerations
Policies SCZ1, HRS1 and RNT1 apply under the City Council’s Statement of Licensing Policy (“SLP”).
Policy SCZ1
A. In addition to meeting the other policies within this statement, applications within a designated Special Consideration Zone should demonstrate that they have taken account of the issues particular to the Zone, in question as identified within the 2020 Cumulative Impact Assessment, and should set out any proposed mitigation
measures in relation to those issues within their operating schedule.
B. For the purpose of Clause A, the designated
Special Consideration Zones are:
• West End Buffer
• Queensway/Bayswater
• Edgware Road
• East Covent Garden
• Mayfair
• Victoria
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 late night refreshment meeting the council’s Ancillary Delivery of Alcohol and/or Late-Night Refreshment Policy DEL1.
4. The applicant has taken account of 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 late night 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. The Presenting Officer Kevin Jackaman introduced the application to the Sub-Committee.
2. Mr Marcus Lavell Counsel appearing on behalf of the Applicant addressed the Sub-Committee. He advised that although this application was for a New Premises Licence it was in effect an extension to the existing Premises Licence as the Applicant had already been trading in the Premises for over a year.
3. He stated that the key changes were the later hours until 03:00 hours and the removal of the Council’s model restaurant condition MC66. He explained that MC66 did not apply to the entire Premises but to the hatched black area on the licensing plans which was the only area that was governed by the requirement that all alcohol must be ancillary to the provision of a substantial table meal.
4. He emphasised that the Premises was a food focused Premises and employed a two-star Michelin executive chef, although customers were free to either dine or just simply enter the Premises and consume alcohol until 01:00 hours.
5. Mr Lavell confirmed that the Applicant wished to extend the trading hours to 03:00 hours which was an extension of 1.5 hours and to free up the need to have a particular section of the Premises dedicated solely to alcohol being sold ancillary with food. He emphasised instead that alcohol would be sold throughout the Premises as it was being done already which would give customers the additional freedom to have people sitting in amongst diners so that that those who wanted to drink without dining could do so anywhere and those who wanted to dine could do so and enjoy the regulated entertainment.
6. Mr Lavell highlighted that the Premises was dedicated to offering a substantial supply of high-quality food products and meals as well as providing a place for people to drink whilst also being entertained.
7. Mr Lavell referred to the Additional Information Pack that contained the Applicant’s comprehensive dispersal policy and the additional conditions that had been proposed following discussions with the Responsible Authorities. He explained that the Applicant had made a commitment to staff training, that there was a requirement that the supply of alcohol shall be by waiter/waitress service to seated persons except for corporate events (usually held mid-week) and that substantial food and non-intoxicating beverages would be available in all parts of the Premises as the Council’s Model Condition 41 would be attached to the Premises Licence.
8. He advised that the Applicant needed flexibility during these difficult times and that the additional trading hours and flexibility to allow people to stand for the purposes of prebooked events was important for the continuation of the business.
9. Mr Lavell confirmed that the Premises was located within the West End Buffer Zone and not in the West End Cumulative Impact Zone. He outlined that there were only two residents or residential units located near to the Premises and that it was effectively in the middle of a commercial area. He explained how SIAs played an important role in dispersing patrons at the end of the night by pointing them in the direction of local transport which included the three tube stations within short walking distance or a pre-booked Uber or taxi.
10. He highlighted that there had been eight temporary event notices (TENs) operated during the year and a couple last year allowing the Premises to operate up until 03:00 hours and to perfect, refine and trial the extended operating hours before the Sub Committee today. He confirmed that no complaints had been received from residents or by the Environmental Health Service.
11. Mr Aaron Miller appearing on behalf of the Applicant Company addressed the Sub-Committee. He gave a history of the Premises and confirmed that it was a highly experiential restaurant with excellent chefs and that the purpose of the application was to allow the business to push towards offering high end corporate hospitality into the later hours to local businesses. He echoed Mr Lavell’s arguments that the grant of the application would give more flexibility in terms of their offer to customers.
12. In response to questions from the Sub Committee, Mr Lavell advised that there was no intention to change the operational capacity of 180 patrons. He stated that the events held with the TENs had been a mixture of private parties, corporate events and effectively to just remain open later into the night. He confirmed that the Applicant was happy to explore a last entry condition to prevent the Premises becoming a late-night destination venue, however, he emphasised that the application was geared around allowing the Applicant to have as much flexibility as possible to make the most of all business opportunities.
13. Mr Lavell confirmed that the smoking area was by the door entrance on the public highway and would be supervised by the SIAs. He advised the number of SIAs on duty depended on whether it was during mid-week/the weekend and/or the event(s). He emphasised that the Premises employed effective front of House Management staff which also helped with the dispersal of patrons. He confirmed that the operating schedule did contain a condition outlining that alcohol would be served by waitress/waiters except for persons attending prebooked events.
14. Mr Lavell advised that the Premises was already a late-night venue that did not have a history of noise nuisance or crime and disorder and therefore wanted more flexibility to be allowed to open 1.5 hours later due to the Premises unique location in the West End Buffer Zone. He advised that the Applicant was prepared to provide a commitment to a greater presence of SIAs on the street which contributed to making the area safer for the community. He further advised that the Applicant was content to close at 02:00 hours unless a corporate event was being held at the Premises and that 70% of patrons purchased dinner and 30% just purchased drinks.
15. Mrs Ayesha Bolton appearing on behalf of the EHS addressed the Sub-Committee. She advised that the EHS had maintained their representation because they still had concerns regarding the application. She confirmed that the Applicant had sought pre-application advice and during the pre-application advice the Applicant had offered to mirror the conditions on the existing Premises Licence, i.e., that Model Condition (MC66) would remain on the Premises Licence and that the majority of the Premises would still be operated as a restaurant.
16. Mrs Bolton advised that the EHS were concerned that the Premises would become a late-night drink-led establishment. She confirmed that the EHS had already suggested a last entry condition to be attached to the Premises Licence and advised that it was the Sub-Committee to determine whether this application should be granted.
17. PC Dave Morgan appearing on behalf of the MPS addressed the Sub-Committee. PC Morgan advised that the MPS had maintained their representation on similar grounds to the EHS and that the granting of this application would likely cause an increase in the crime and disorder in the area, thereby undermining the crime and disorder licensing objective.
18. He advised that the MPS were concerned regarding the increase in hours as they went beyond the Council’s Core Hours Policy for restaurants and because of the change of use of the Premises operation model. He explained that it was essentially a restaurant turning into a late-night bar where patrons could attend to drink alcohol without consuming a meal which had the likely effect of increasing crime and disorder and anti-social behaviour in the area.
19. PC Morgan stated that although crime was not as high as in the West End Cumulative Impact Zone it was still above the borough average and so the MPS considered that any sort of Premises licence like this had the potential to increase the crime figures in the area. He explained that the longer a Premises remained open serving alcohol the more intoxicated people become and therefore there was more chance of them becoming victims of crime which caused potential problems for all the emergency services.
20. PC Morgan outlined that late night drinking venues where patrons did not need to consume a meal were the highest generating crime venues. He advised that the MPS welcomed condition 27 which stimulated patrons needed to be seated save for pre-booked corporate events, however, these corporate events could be any type of event as it was essentially a free room to rent – for instance a DJ could be hired and if a pre-booked event was booked for every weekend this could essentially mean that there could be vertical drinking until 03:00 hours every weekend.
21. PC Morgan advised that there were lots of dark empty streets in Mayfair and there was the potential for customers to become targets in these quieter streets. He emphasised that the MPS did not believe that granting this application would promote the licencing objectives.
22. Mr Horatio Chance, Legal Advisor to the Sub-Committee, asked Mr Lavell what the rationale was for not submitting a Variation to the existing Premises Licence. Mr Lavell replied stating that considered it best practice to apply for a New Premises Licence when the application needed a full consideration of the Premises plans and a full consideration of the conditions to be attached to the Premises Licence. He confirmed that if this application was granted the Applicant would agree to a surrender condition being included on the Premises Licence.
23. Mr M. D, local resident, advised that the combination of the significant extension of hours and a weakening of the restaurant conditions caused the residents real concern regarding both public nuisance and crime and disorder. He outlined how he had found on google that the Premises described itself as: ‘a self-proclaimed club: A late night party restaurant where dancing is fervently encouraged and where patrons were encouraged to let loose and enjoy a soundtrack of pumping electronic music’. He added there was also mention of bottomless drinks which made it sound more like a late-night drinking venue then a food led Premises.
24. Mr Lavell in answer thereto advised that there was always lots of PR spin to entice people to visit premises and as stated previously the Premises had hosted some corporate events and private parties under the TENs. He outlined that the Premises did offer a bottomless brunch offer during the daytime but not late at night, however, the offer was restricted to a set time and the speed at which the alcohol was provided effectively limits it to a specified number of flutes of champagne over the two-hour experience.
25. Mr Richard Brown appearing on behalf of the residents addressed the Sub-Committee. He advised that the residents would be content if the Premises Licence was granted on the same terms as the previously one which was in fact a very generous licence in terms of operating hours until 01:00 hours. He outlined that initially the Premises Licence had been granted to Core Hours, so the Applicant had already been granted an extension and this was now a further extension of what sometimes was referred to as a ‘creep of hours.’
26. Mr Brown advised that there were three elements to the application; two of which that had already been discussed by the Responsible Authorities but also the addition of Live Music to 03:00 hours which was not currently on the Premises Licence. He advised that the Premises had been closed from June onwards and that the TENs did not demonstrate how the Premises would affect the area if it were permanently open until 03:00 hours.
27. Mr Brown explained that he did not accept Mr Lavell’s submission that the advertisement on google was just a PR spin and even if it were people would visit the Premises with the expectation of what was advertised being available at the Premises. He further outlined that the condition stated event, not corporate event, and therefore every single person coming to the Premises could have pre-booked events and therefore be allowed to vertically drink alcohol instead of being seated at a table.
28. Mr Brown considered that the operation of the Premises could become completely different to how it was currently operated. He echoed the concerns of the MPS regarding patrons being vulnerable to robberies and anti-social behaviour when leaving the Premises in the early hours of the morning.
29. Mr Chance discussed the wording of the agreed proposed additional conditions (if the application were granted), with all parties.
30. During his summing up Mr Brown advised that all parties had raised the same concerns regarding the removal of Model Condition (MC66) from the Premises Licence and changing the operation of the Premises which would have a huge impact on the public nuisance and public safety in the area. He emphasised that the Council’s Model Condition MC66 should remain on the Premises Licence.
31. During his summing up PC Morgan advised that the extra hours and the change of operation style were a serious concern for the Police.
32. During his summing up, Mr Lavell advised that the Premises was operated well and did not cause the Responsible Authorities concern and therefore under the Licensing Act the operator could look to operating later because it did not cause anyone concern. He outlined that the Premises would not suddenly start causing trouble by being open longer and that the very nature of TENs provides evidence that the Premises could operate effectively until 03:00 hours.
33. He further explained that it was a good faith application to allow a good operator to trade later and have more flexibility to make his business successful in the current difficult climate. He emphasised that the Premises was not located in the West End Cumulative Impact Zone and there was no history of crime and disorder and that the SIAs would ensure that patrons dispersed quietly.
Reasons and Conclusion
34. 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 HRS1, RNT1 and SCZ1.
35. 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.
36. The Premises proposes to operate as a lounge and restaurant falling within Policy RNT1 under the City Councils SLP where there is no presumption to refuse the application provided it is not contrary to other existing policies such as policies HRS1, CD1, PS1, PN1, CH1 and SCZ1.
37. 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 negative effect granting such an application would have within the West End area.
38. The Sub-Committee did not doubt the Applicant to not be a good operator and there was no evidence before it that would suggest otherwise. However, what the Sub-Committee had to consider first and foremost in the decision making process was whether the character, style and nature of the Premises would effectively change due to the removal of Restaurant Model Condition (MC66) relating to the black hatched area on the premises plan.
39. The Sub-Committee concluded that with this specific condition being removed entirely from the Premises Licence (even with suggestion of an earlier terminal hour) would still result in a material change of the Premises operation itself.
40. It was the Sub-Committee’s considered view overall that the Premises required model condition (MC66) to be retained based on the evidence presented by the parties who had objected to the application so that it operated properly as a restaurant and was not a drink led premises.
41. The Sub-Committee having carefully considered the matter and the evidence on its individual merits decided that the Applicant had not demonstrated justification to allow for a later terminal hour of 03:00 hours.
42. Whilst the Sub-Committee appreciated that there was no presumption to refuse an application for a restaurant premises outside of 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.
43. 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 some great detail but the overall Decision taken was that in this case, it was on balance appropriate and proportionate to keep the hours at 01:00 as per the existing premises licence rather than extending the terminal hour until 03:00.
43. The key issue for the Sub-Committee to consider was whether granting the
application would have a negative impact in the West End area and thus fail to promote the licensing objectives and whether the application met the requirements of policies CD1, PS1, PN1 and CH1. Extending the terminal hour would be contrary to these polices and fail to promote the licensing objectives.
44. 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.”
45. 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).
46. 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.
47. Paragraphs C12 to C21 on pages 33 and 34 sets out the “Reasons for Policy PN1” which the Sub-Committee had regard to.
48. 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.
49. 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.”
50. The Sub-Committee when considering the issue of public nuisance had regard to the Revised Home Office 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.”
51. Having heard the evidence from all parties the Sub-Committee concluded that granting this application would change the character, style and nature of the Premises resulting in it becoming a drink led premises even though food would be on offer although customers are not required to eat should they chose not to do so. The driving force to not extend the terminal hour beyond 01:00 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.
52. The Sub-Committee heard direct evidence from both the MPS and EHS as to why MC66 should be retained. Those arguments advanced by the Responsible Authorities held water and were highly persuasive. It was noted that the Applicant had obtained pre-application from the Council’s EHS and the professional advice from officers was that MC66 should be retained in order to preserve the character, nature and style of the Premises.
53. Similarly, the MPS had grave concerns regarding the removal of the condition on the grounds of crime and disorder. It was feared that the Premises could become a destination venue and would be attractive to people on a night out where alcohol would longer be required to be served subject to a substantial table meal (in the hatched area on the premises plan) and as a result the Premises would effectively become drink led and with a later terminal hour of 03:00 and advertised as such making it even more attractive for customers who may wish to frequent the Premises.
54. In view of paragraph 53 above the Sub-Committee considered the MPS evidence on pages 63-66 at Appendix 2 of the agenda report to be overwhelming. In summary the MPS expressed concerns regarding the following matters:-
· Alcohol being served without a substantial table meal may increase the risk of intoxication and the vulnerability levels of the customers and potentially will allow them to become the victims/and or perpetrators of crime and disorder and may increase Anti-Social behaviour in the area.
· The Premises sits within the West End Buffer Consideration Zone and as per the SLP the levels of incidents in this area are higher than the borough average.
· The current levels of alcohol related Assaults, Sexual Assaults, Robberies and Public Order within the West End and its surrounding areas are now higher than at pre-covid levels.
· Customers leaving the Premises may be drawn into the CIZ and into areas where there are even higher crime levels which may result in them becoming victims of crime.
· The impact on Police resources when they are already stretched.
55. The Sub-Committee noted that the Applicant had used the TENS regime under the Act for the extend hours applied for and whilst no problems had occurred during these time periods the Sub-Committee considered this to be only a snapshot in time only and not indicative of a premises licence that could be granted in perpetuity. When considering this aspect of the application the role of the Sub-Committee is to consider what the long term affects this could have for the area globally and the promotion of the licensing objectives.
56. The Sub-Committee decided that the potential for noise nuisance and crime would result in having a negative impact on the area. The Sub-Committee was not convinced that even with a dispersal plan in place for a later terminal hour the Premises would be able to deal with the numbers attending the Premises effectively and efficiently on any given night and the potential for nuisance for those residents living in surrounding streets and the concerns the MPS had expressed with crime and disorder. Whilst the Sub-Committee recognised that there was a very low residential count, there are nonetheless still residents living within the vicinity that could be disturbed by nuisance by customers leaving the Premises at a later terminal hour particularly if the Premises became a known destination venue with drinkers.
57. 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 (who are effectively considered Experts in their respective fields and local knowledge of licensed premises operating in the area) and therefore well acquainted with the many issues surrounding nuisance and crime and disorder.
58. The Sub-Committee took the view that the right balance has been struck when considering the needs of those residents who objected to the application as well as the Responsible Authorities who expressed their views and the negative impact granting such an application would have on the area as a whole.
59. The Sub-Committee will of course appreciate that the Applicant will be disappointed with this Decision to not increase the terminal hour for licensable activities 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 and crime and disorder licensing objective would be seriously undermined and so did not consider it appropriate to increase the terminal hour as applied for.
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60. It was apparent to the Sub-Committee that the Applicant had shown themselves to be a responsible operator that would run the Premises well but the overriding concern was that with the complete removal of Model Restaurant (MC66) and a later terminal hour of 03:00 this would result in a complete change in the operation of the Premises and morph into sometime different. Whilst the Premises would still have the ability to serve food the Sub-Committee considered the emphasis would instead be on the selling of alcohol because there would be no compulsion for customers to purchase food when alcohol is sold whereas retaining the condition would naturally preserve the status quo.
61. The Sub-Committee acknowledges and agrees that none of the issues complained off in the West End Buffer Consideration Zone 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 should in fact be granted a late licence when selling alcohol and therefore has to considered the character, nature and style of the Premises in the West End Buffer Zone and the likely adverse consequences for the area highlighted by the MPS when it came to crime and disorder which was the true crux of the matter despite the undertakings given by the Applicant in the daily management and running of the Premises and the safeguards they planned to have in place when considering the effects of the West End Buffer Consideration Zone for a later terminal hour.
62. To grant the application beyond Westminster core hours would undoubtedly give rise to problems regarding nuisance and crime and disorder within the West End Buffer Consideration Zone and therefore 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”.
63. 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.
64. The Sub-Committee concluded that the conditions imposed on the Premises Licence which are considered appropriate and proportionate will mitigate the concerns of those parties who had objected to the application and have the desired effect of promoting the licensing objectives. The Premises is to be food led and can only operate as a restaurant in the hatched black area due to Model Condition (MC66) being retained. The Sub-Committee welcomed the Premises Dispersal Policy now in place for the Premises and the provision for two SIA staff after 23:00 when the Premises is open until 01:00 which will promote both the public nuisance and crime and disorder licensing objectives.
65. 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 to Grant the application to 01:00 hours with the offered conditions, after taking into account all the individual circumstances of this application and the promotion of the four licensing objectives:-
1. To grant permission for Recorded Music (Indoors) Monday to Saturday 10:00 to 01:00 Sunday 12:00 to 22:30 Non-standard Timings: These hours to be extended from the end of permitted hours on New Year’s Eve until the start of permitted hours on New Year’s Day.
2. To grant permission for Late Night Refreshment (Indoors) Monday to Saturday 23:00 to 01:00 Non-standard Timings: These hours to be extended from the end of permitted hours on New Year’s Eve until the start of permitted hours on New Year’s Day.
3. To grant permission for the Sale by Retail of Alcohol (On and Off the Premises)Monday to Saturday 10:00 to 01:00 Sunday 12:00 to 22:30
Non-standard Timings: These hours to be extended from the end of permitted hours on New Year’s Eve until the start of permitted hours on New Year’s Day.
4. To grant permission for the Opening Hours of the Premises Monday to Thursday 10:00 to 00:00 Friday to Saturday 10:00 to 00:30 Sunday 12:00 to 23:00
5. That the Licence is subject to any relevant mandatory conditions.
6. 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:
7. (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 authorized officer throughout the entire 31-day period.
8. A staff member from the premises who is conversant with the operation of the CCTV system shall be on the premises at all times when the premises are open. This staff member must be able to provide a Police or authorised council officer copies of recent CCTV images or data with the absolute minimum of delay when requested.
9. 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 refusal of the sale of alcohol
(h) any visit by a relevant authority or emergency service.
10. 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.
11. A noise limiter must be fitted to the musical amplification system set at a level
determined by and to the satisfaction of an authorised officer of the Environmental Health Service so as to ensure that no noise nuisance is caused to local residents or businesses. The operational panel of the noise limiter shall then be secured by key or password to the satisfaction of officers from the Environmental Health Service and access shall only be by persons authorised by the Premises licence holder. The limiter shall not be altered without prior agreement with the Environmental Health Service. No alteration
or modification to any existing sound system(s) should be affected without prior knowledge of an authorised officer of the Environmental Health Service. No additional sound generating equipment shall be used on the premises without being routed through the sound limiter device.
12. Loudspeakers shall not be located in the entrance lobby or outside the front of the premises.
13. A direct telephone number for the duty manager at the premises shall be publicly available at all times the premises is open. This telephone number is to be made available to residents and businesses in the vicinity.
14. Notices shall be prominently displayed at all exits requesting patrons to respect the needs of local residents and businesses and leave the area quietly.
15. Notices shall be prominently displayed at any area used for smoking requesting patrons to respect the needs of local residents and use the area quietly.
16. All waste shall be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.
17. No waste or recyclable materials, including bottles, shall be moved, removed from or placed in outside areas between 23:00 and 07:00 hours on the following day.
18. 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.
19. The approved arrangements at the premises, including means of escape provisions, emergency warning equipment, the electrical installation and mechanical equipment, shall at all material times be maintained in good condition and full working order.
20. The means of escape provided for the premises shall be maintained unobstructed, free of trip hazards, be immediately available and clearly identified in accordance with the plans provided.
21. All emergency exit doors shall be available at all material times without the use of a key, code, card or similar means.
22. All emergency doors shall be maintained effectively self-closing and not held open other than by an approved device.
23. A copy of the premises’ dispersal policy shall be made readily available at the premises for inspection by a police officer and/or an authorised officer of Westminster City Council.
24. The premises licence holder shall ensure that any patrons smoking outside the premises do so on an orderly manner and are supervised by SIA Licensed Staff so as to ensure that there is no public nuisance or obstruction of the public highway.
25. On days when the premises are open for licensable activity beyond 01.00 hours, from 23:00 there shall be at least 2 SIA licensed door supervisor on duty at the entrance of the premises at all times whilst it is open for business. Additional door supervisors shall be risk assessed against the licensable activity proposed.
26. There shall be no admittance or re-admittance to the premises after 01.00 hours except for patrons permitted to temporarily leave the premises (e.g. to smoke, make a phone call).
27. When the premises trade licensable activity beyond 01.00 hours all patrons shall be off the premises 30 minutes after the terminal hour for licensable activity.
28. Off sales of alcohol are to cease at 23:00 daily.
29. There shall be no glassware taken from the premises at any time.
30. A Challenge 25 proof of age scheme shall be operated at the premises where the only acceptable forms of identification are recognised photographic identification cards, such as a driving licence, passport or proof of age card with the PASS Hologram.
31. In the area hatched black on the submitted plans, the premises shall only operate as a restaurant
(i) in which customers are shown to their table,
(ii) where the supply of alcohol is by waiter or waitress service only,
(iii) which provide food in the form of substantial table meals that are prepared on the premises and are served and consumed at the table using non disposable crockery,
(iv) which do not provide any takeaway service of food or drink for immediate
consumption,
v) which do not provide any takeaway service of food or drink after 23.00, and
(vi) where alcohol shall not be sold or supplied, otherwise than for consumption by persons who are seated in the premises and bona fide taking substantial table meals there, and provided always that the consumption of alcohol by such persons is ancillary to taking such meals.
For the purpose of this condition “Substantial Table Meal” means – a meal such as might be expected to be served as the main midday or main evening meal, or as a main course at either such meal and is eaten by a person seated at a table, or at counter or other structure which serves the purposes of a table and is not used for the service of refreshments for consumption by persons not seated at a table or structure servicing the purposes of a table.
32. All front of house staff shall undertake (and receive refresher training every 12 months) training on the Welfare and Vulnerability Engagement (“WAVE”) and Ask for Angela initiatives,
33. The supply of alcohol shall be by waiter/waitress service to seated persons only, save for persons attending pre-booked events.
34. No licensable activities shall take place at the premises until the Environmental Health Consultation Team has determined the capacity of the premises and the Licensing Authority has replaced this condition on the licence with a condition detailing the capacity so determined. In any event the capacity of the premises shall not exceed 180 persons (excluding staff).
35. Before the premises open to the public, the plans as deposited will be checked by the Environmental health Consultation Team to ensure they are an accurate reflection of the premises constructed. Where there are minor changes to the premises layout during the course of construction new plans shall be provided to the Environmental Health Consultation Team and the Licensing Authority.
36. No licensable activities shall take place at the premises until the premises has been assessed as satisfactory by the Environmental Health Consultation Team at which time this condition shall be removed from the Licence by the licensing authority.
37. No licensable activities shall take place at the premises until premises licence 22/08753/LIPDPS (or such other number subsequently issued for the premises) has been surrendered and is incapable of resurrection.
This is the Full Decision of the Licensing Sub-Committee which takes effect forthwith.
The Licensing Sub-Committee
22 November 2023
Supporting documents:
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15 Old Burlington Street report_Redacted, item 2.
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