Agenda item
The Cherry Tree Yard Cafe, Basement and Ground Floor, 50 Shepherd Market, W1J 7QT
Minutes:
WESTMINSTER CITY COUNCIL LICENSING SUB-COMMITTEE NO. 1
(“The Committee”)
Wednesday 17 January 2024
Membership: Councillor Aziz Toki (Chair), Councillor Iman Less and Councillor Jim Glen
Officer Support: Legal Adviser: Michael Feeney
Policy Officer: Daisy Gadd
Committee Officer: Steve Clarke
Presenting Officer: Roxsana Haq
Other Parties: Jack Spiegler (Thomas & Thomas), Nathan Lowry (1WSBH Ltd), Anil Drayan (Environmental Health)
Application for a New Premises Licences in respect of The Cherry Tree Yard Café, Basement and Ground Floor, 50 Shepherd Market, W1J 7QT 23/06673/LIPN
FULL DECISION
Premises
The Cherry Tree Yard Café
Basement and Ground Floor
50 Shepherd Market
London
W1J 7QT
Applicant
1WSHB Ltd
Cumulative Impact Area
None
Special Consideration Zone
None
Ward
West End
Summary of Application
The Sub-Committee has determined an application for a New Premises Licence under the Licensing Act 2003. According to the applicant the Premises will operate as a continental style café/restaurant with bar. There will be a back of house area at the basement level, front of house area at ground floor area and external seating.
This is a new application, and no licence history exists.
Representations Received
· Environmental Health Service
· Metropolitan Police Service (withdrawn 13 December 2023)
· Four Interested Parties
Summary of Issues Raised by Objectors
Environmental Health Service
· The application may have an adverse impact on the Public Nuisance and Public Safety licensing objectives.
· Further information is also required on how nuisance from cooking shall be prevented and also status of the external seating i.e., is it on private forecourt or public highway.
Metropolitan Police Service (withdrawn 13 December 2023)
· There is insufficient detail contained within the operating schedule to promote the licensing objectives.
· Following the agreement of conditions and amendment of hours for the sale of alcohol to commence at 10:00 the Metropolitan Police Service withdrew their objection on 13 December 2023.
Four Interested Parties
· Object to the proposed opening hours and ask that these are reviewed and limited to 11pm. Shepherd Market residents are experiencing an enormous amount of noise from existing customers in establishments supposedly closing at 11pm, this will make it much worse and should be no exception to the others who also close at 11pm.
· There is already significant noise disruption from staff and customers that take in excess of 45mins-1hour or longer to clear customers after last orders, especially those sat outside, and then begin cleaning and clearing the premises. It is impossible to sleep until midnight because of this noise (with current restrictions at 11pm for almost all establishments), and with this planning to be 11:30pm/12:00am - it is going to get a lot worse.
Submissions
1. The Presenting Officer introduced the Application, highlighting that the premises did not fall within any Cumulative Impact Area or Special Consideration Zone. A representation had been received from the Environmental Health Service who were represented at the hearing by Anil Drayan. It was noted that another representation had originally been received by the Metropolitan Police Service, however this representation was later withdrawn following the agreement of conditions and amendment of hours for the sale of alcohol to commence at 10:00. It was also noted that representations had also been received from four other Interested Parties.
2. Jack Spiegler (Thomas & Thomas) was present acting as Agent on behalf of the Applicant. Nathan Lowry was also present on behalf of the Applicant. The Agent addressed the Sub-Committee noting that the Applicant was an experienced operator with multiple premises across London and three within Westminster. The Premises in question had recently been licenced as a betting shop and the Applicant was looking to change this to operate an all-day Mediterranean-style café which in the evening would serve alcohol alongside food.
3. It was highlighted that the Applicant also operated the nearby Clemence Bar, and that the only substantive difference proposed in the licence for the premises in question, as opposed to Clemence Bar, was the proposed condition 9 in which:
· “Substantial food and non-intoxicating beverages, including drinking water, shall be available in all parts of the premises where alcohol is sold or supplied for consumption on the premises.”
4. The Applicant also stated that they were happy to agree to Model Condition 87, which states:
· “No fumes, steam or odours shall be emitted from the licensed premises so as to cause a nuisance to any persons living or carrying on business in the area where the premises are situated.”
5. The Agent stated that a number of the representations received had issue with the proposed hours, however, it was noted that the hours applied for were the same as the adjacent Clemence Bar, and the Applicant had a complaint free track record of operating within those hours. Contrary to the representations made by Interested Parties, it was not the case that premises nearby were only licensed until 11pm. It was highlighted that the Applicant was already a part of the local community and understood the importance of engagement with residents. The Application was outside the CIZ/SCZ and within core hours. The Sub-Committee was therefore requested to grant the modest, policy-compliant Application.
6. When asked about opening a potentially competing business so close to one their already existing businesses, the Applicant confirmed that the establishments would have a differing offer as the Applicant did not want to cannibalise their own trade by opening a competing business next door.
7. Members sought clarification on when the premises would go from being a café to a restaurant. They were informed that the café would open at 09:00 most days and by evening it would become more of a restaurant. It was also clarified that the basement was not to be a licensable area.
8. When asked about the lack of any restaurant specific conditions, the Agent confirmed that the Applicant would like the option to serve a drink without the requirement of a substantial meal, and it was stated that this aspect had not been raised as a concern by any objectors. The Applicant also stated that the Applicant’s other premises nearby had not generated complaints from residents.
9. The Sub-Committee reiterated concerns made by the objectors with regard to the potential for late night noise and sought the Applicant’s agreement to rendering any external seating unusable by 23:00, to which the Applicant agreed as this would alleviate the residents’ concerns. The Environmental Health Services also confirmed that they were agreeable to a 23:00 cut off for the use of any outdoor seating.
10. Anil Drayan, of the Environmental Health Service (EHS), was present and addressed the Sub-Committee. It was stated that the EHS were happy with the application as a whole and were present primarily to answer any of the Sub-Committee’s questions in relation to the four objections received from Interested Parties. Members queried the EHS’ opinion on the provision of just one toilet for a premises of this size, and it was stated that ideally there would be two toilets for a premises of this capacity, however as the premises was outside of any Special Consideration Zones or Cumulative Impact Areas, it was deemed acceptable. The Applicant also confirmed that the premises was not drink-led and therefore did not expect significant toilet requirements; however, it was stated that patrons could be directed next door to Clements Bar if this were to become an issue.
11. On the matter of potentially including a restaurant condition, the Applicant’s Agent stated that the imposing of a restaurant specific condition could make the operation unviable if absolutely every customer had to have a meal with their drink. The Applicant reiterated that the premises would not be turning into an outright bar at any point, it would not be a purely drink-led establishment and the Applicant was operating neighbouring premises without such a condition without causing any problems. The Sub-Committee discussed the possibility of adding Model Condition 86 in that the licensable activities may be ancillary to the primary function of the premises.
12. It was clarified and agreed with the Applicant that there should be no self-service of sprits and that, should the Sub-Committee be minded to grant the application, this would be imposed by way of condition.
Reasons and Conclusion
13. The Sub-Committee has determined an application for 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.
14. The Sub-Committee considered that the Application should be granted because it was within core hours, the Premises was not located in the CIZ or any SCZ, the Applicant had proposed conditions to address the licensing objectives and the Applicant had a proven track record of operating Premises in Westminster. The Sub-Committee also noted that the Metropolitan Police had withdrawn its representation and that EHS were satisfied with the Application.
15. However, in light of the residents’ concerns (particularly late-night noise after 23.00 hours), the Sub-Committee considered it appropriate and proportionate to impose further conditions. In particular, the Sub-Committee concluded that the outside tables and chairs should be rendered unusable by 23.00 so as to decrease late night noise caused by people eating and drinking outside. The Sub-Committee noted that the Applicant did not object to this condition. The Sub-Committee also considered that it was appropriate and proportionate to impose model condition 86 in respect of fumes and odours, which the Applicant had also agreed to.
16. The Sub-Committee also considered that a further condition should be added to ensure that the Premises would not be able to operate as a late-night bar, which would be most likely to contribute to public nuisance and late-night noise identified by residents. The Sub-Committee did not consider that waiter/waitress service and the availability of substantial food on their own would be sufficient. The Sub-Committee therefore decided to impose a further condition that was a variation of model condition 87 so that the provision of licensable activities after 20.00 hours would be ancillary to the operation of the Premises as a café/restaurant.
17.The Sub-Committee acknowledged the proven track record of the Applicant, but in light of local residents’ concerns the Sub-Committee considered it necessary to ensure that the Premises would not be able to operate as a bar under the premises licence. The Sub-Committee realised that the Applicant operated other Premises in the area that did not have such a condition, but the Sub-Committee had to assess this particular application on its own merits having heard the evidence. The Sub-Committee did not consider it proportionate to impose a condition requiring customers to order a substantial table meal, and the condition imposed would allow the Applicant to run the Premises as proposed while also protecting the amenity of local residents.
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:
Late Night Refreshment
Monday to Wednesday: N/A
Thursday to Saturday: 23:00 to 23:30
Sunday: N/A
Sale by Retail of Alcohol On and Off Sales
Monday to Wednesday: 10:00 to 22:30
Thursday to Saturday: 10:00 to 23:30
Sunday: 10:00 to 21:30
Opening Hours
Monday to Thursday: 09:00 to 23:30
Friday to Saturday: 09:00 to 00:00
Sunday: 09:00 to 22:30
2. To add relevant Mandatory Conditions to apply.
3. To add the following conditions proposed to form part of the operating schedule:
9. Substantial food and non-intoxicating beverages, including drinking water, shall be available in all parts of the premises where alcohol is sold or supplied for consumption on the premises.
10. The supply of alcohol for consumption on the Premises shall be by waiter or waitress service only.
11. There shall be no self-service of spirits on the premises.
12. Except for alcohol consumed in designated external seating areas, the supply of alcohol for consumption off the premises shall be in sealed containers only and not consumed on the premises.
13. There shall be no sale of alcohol for consumption off the premises after 23:00.
14. The premises shall install and maintain a comprehensive CCTV system as per the minimum requirements of the Westminster Police Licensing Team. All entry and exit points will be covered enabling frontal identification of every person entering in any light condition. The CCTV system shall continually record whilst the premises 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. All recordings shall be stored for a minimum period of 31 days with date and time stamping. Viewing of recordings shall be made available immediately upon the request of Police or authorised officer throughout the entire 31-day period.
15. 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.
16. An incident log shall be kept at the premises, and made available on request to an authorised officer of the City Council or the Police. It must be completed within 24 hours of the incident and will record the following:
(a) all crimes reported to the venue
(b) all ejections of patrons
(c) any complaints received concerning crime and disorder
(d) any incidents of disorder
(e) all seizures of drugs or offensive weapons
(f) any faults in the CCTV system
(g) any refusal of the sale of alcohol
(h) any visit by a relevant authority or emergency service
17. Patrons permitted to temporarily leave and then re-enter the premises, e.g. to smoke, shall not be permitted to take drinks or glass containers with them unless seated in an authorised external area.
18. Notices shall be prominently displayed at all exits requesting patrons to respect the needs of local residents and businesses and leave the area quietly.
19. 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.
20. The premises licence holder shall ensure that any patrons smoking outside the premises do so in an orderly manner and are supervised by staff so as to ensure that there is no public nuisance or obstruction of the public highway.
21. 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.
22. All waste is to be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.
23. No waste or recyclable materials, including bottles, shall be moved, removed from or placed in outside areas between 23.00 hours and 07.00 hours on the following day.
24. No deliveries to the premises shall take place between 23.00 and 07.00 hours on the following day.
25. No collection of waste or recycling materials (including bottles) from the premises shall take place between 23.00 and 07.00 hours on the following day.
26. No noise shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.
27. 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 or passport. Signage of the proof of age scheme shall be displayed in prominent positions on the shop floor where alcohol is on public display, at the point of sale and upon entering the premises.
28. Signage of the proof of age scheme shall be displayed in prominent positions on the shop floor where alcohol is on public display, at the point of sale and upon entering the premises.
29. Staff training will be given to ensure that in the case of any doubt whether a purchaser is over the age of 18 to refuse the sale unless valid ID is produced.
30. All tills shall automatically prompt staff to ask for age verification identification when presented with an alcohol sale.
31. 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.
32. 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.
33. All outside tables and chairs shall be rendered unusable by 23:00 hours each day.
34. After 20:00 hours, the licensable activities authorised by this licence and provided at the premises shall be ancillary to the main function of the premises as a café/restaurant.
35. No fumes, steam or odours shall be emitted from the licensed premises so as to cause a nuisance to any persons living or carrying on business in the area where the premises are situated.
This is the Full Decision of the Licensing Sub-Committee which takes effect forthwith.
The Licensing Sub-Committee
17 January 2024
Supporting documents:
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Cherry Tree Yard_LSC Report_Redacted, item 2.
PDF 829 KB - Restricted enclosure View the reasons why document 2./2 is restricted