Agenda item

Ward CIA* SCZ**	Site Name & Address	Application Type	Licensing Reference No.
West End   * West End   ** None	M&S Simply Food 83-85 Shaftesbury Avenue W1D 5DA	New Premises Licence	24/00330/LIPN
*Cumulative Impact Area ** Special Consideration Zone

 

WESTMINSTER CITY COUNCIL LICENSING SUB-COMMITTEE NO. 3

(“The Committee”)

 

Thursday 21 March 2024

 

 

Membership:           Councillor Robert Eagleton (Chair),

Councillor Concia Albert and

Councillor Ed Pitt Ford

 

Officer Support:       Legal Adviser:         Steve Burnett 

Policy Officer:          Aaron Hardy 

Committee Officer:  Jonathan Deacon 

Presenting Officer:   Kevin Jackaman 

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Others present:       Mr Luke Elford (John Gaunt & Partners, representing the Applicant),

Mr Jody Styles (Applicant Company),

 

Mr Maxwell Koduah (Environmental Health - EHS),

PC Dave Morgan (Metropolitan Police - MPS) and

Mr James Hayes (Licensing Authority - LA).

 

FULL DECISION

 

Application for a New Premises Licence in respect of M&S Simply Food

83 - 85 Shaftesbury Avenue, London W1D 5DX - 24/00330/LIPN.

 

Premises

 

M&S Simply Food

83 - 85 Shaftesbury Avenue

London

W1D 5DX

 

Applicant

 

London Retail Partners Limited

 

Ward

 

West End

 

Cumulative Impact

 

West End

 

 

 

Special Consideration Zone

 

None

 

There is a resident count of 100.

 

Application

 

This is an application for a new premises licence under the Licensing Act 2003 (“The Act”). The premises intends to trade as a Marks and Spencer’s (M&S) Simply Food retail store.

 

To Permit:

 

           The sale of alcohol (off sales)

          

Mondays to Saturdays - 08:00 to 23:00

Sundays 09:30 to 22:30

 

Opening Times:

 

Sundays to Thursdays 06:00 to 24:00

Fridays and Saturdays 00:00 to 24:00

 

 

Representations Received

 

·       Karyn Abbott – Licensing Authority (LA)

 

·       Maxwell Koduah – Environmental Health Services (EHS)

 

·       PC Dave Morgan – Metropolitan Police Service (MPS)

 

Issues raised by Objectors.

 

The LA state that the premises will be a M&S Simple Food would the applicant agree to:

 

MC86. The licensable activities authorised by this licence and provided at the premises shall be ancillary to the main function of the premises as a grocery shop.

 

The LA would also like to know if the premises will be doing any deliveries and how this will monitor and control off sales, and how the premises will not add to cumulative impact in the in accordance with policy CIP1.

 

The EHS state the hours requested to supply alcohol would have the likely effect of causing an increase in Public Nuisance and public safety. Additional conditions are being proposed to meet the licencing objectives of Public Nuisance and Public Safety.

 

The MPS state the addition of conditions would prevent crime and disorder and protect children in the CIZ.

 

Policy Considerations

 

Policy CIP1

 

A. It is the Licensing Authority’s policy to refuse applications within the West End Cumulative Impact Zone for: pubs and bars, fast food premises, and music and dancing and similar entertainment, other than applications to:

 

1. Vary the hours within Core Hours under Policy HRS1, and/or

2. Vary the licence to reduce the overall capacity of the premises.

 

C. Applications for other premises types within the West End Cumulative Impact Zones will be subject to other policies within this statement and must demonstrate that they will not add to cumulative impact.

 

Policy HRS 1

 

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.

 

11a. Shops (all licensable activities that are provided as ancillary to the primary use of the premises as a shop except the off sale of alcohol)

 

Monday to Thursday: 9am to 11.30pm.

Friday and Saturday: 9am to Midnight.

Sunday: 9am to 10.30pm.

Sundays immediately prior to a bank holiday: 9am to Midnight.

 

Policy SHP1

 

B. Applications for a shop inside the West End Cumulative Impact Zone will be considered on their own merits and 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 meeting the council’s Ancillary Alcohol and/or Late-night Refreshment Delivery Service Policy DEL1.

4. The applicant having taken account of the Special Consideration Zone Policy SCZ1 if the premises are located within a designated zone.

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

 

SUBMISSIONS

 

1. The Presenting Officer, Mr Jackaman, Senior Licensing Officer, introduced the application.

 

2. Mr Elford, representing the Applicant, whilst stating that he would not make a significant issue of the matter, expressed concerns that Mr Koduah on behalf of the EHS had indicated in writing on 15 March, that the EHS withdrew their representation on the basis of 2 of the proposed conditions being accepted by the EHS.

 

3. Mr Elford sought additional confirmation by email as the Applicant had not agreed a condition requiring lockable cabinets. Mr Elford did not received a response. The Applicant had therefore worked on the basis that Environmental Health would not be a party to the hearing. 

 

4. Mr Koduah informed the Committee that there had been a misunderstanding on his part, and he had thought that all his proposed conditions had been agreed with the Applicant.  On that basis he had indicated he was withdrawing his representation.  He had been unwell when Mr Elford had sought clarification on the position. Mr Koduah made the point at the hearing that the condition requiring lockable cabinets was one also being proposed by the Metropolitan Police and not solely by EHS.

 

5. Mr Burnett, the Legal Advisor to the Committee, advised that the Licensing Act 2003 (Hearings) Regulations 2005 gave the opportunity for Members to ask questions of those present at the hearing.  The Committee had not been informed prior to the hearing that the Environmental Health representation had been withdrawn.  Mr Jackaman stated that he had not been informed by Mr Koduah that he had formally withdrawn the EHS representation (Mr Elford did comment that he had forwarded notification to the Licensing Authority of the apparent withdrawal of the EHS representation).  The Committee decided to permit Mr Koduah to make representations solely in relation to the lockable cabinets.

 

6. Mr Elford outlined the application.  He wished to address the Committee on three grounds, the Council’s policy, Police evidence and the measures the Applicant was taking in relation to the premises at Shaftesbury Avenue.  Mr Elford emphasised that the differences between the parties at the hearing was based on the terms and conditions of the licence and not whether the application should be granted or not.  There were no residential objections to the application.

 

7. In respect of the Council’s policy, Mr Elford referred to there being no presumption to refuse the application in the West End Cumulative Impact Zone (CIZ) as the Shops Policy (SHP1) applied and the hours being within the Council’s Core Hours policy.  There will be not delivery service connected with the business and the shop is not in a Special Consideration Zone.

 

8. In relation to Police evidence, Mr Elford asked the Committee to look at this with a critical eye on the basis that he believed there was a lack of direct evidence that the application would undermine the licensing objectives, including in terms of the data and statistics received which he commented were generic and not specific.  This, he said, included figures from the whole of the West End Ward, including all from retail stores.  Mr Elford also explained that he was of the view that it was irrelevant that there were specific conditions on other premises licences relating to locked cabinets as each case is heard on its own merits.

 

9. In terms of the measures taken at the premises, Mr Elford advised the Committee that the alcohol was located at the very rear of the store.  Also, there would be a person standing near the entrance, greeting customers as they came in and there would always be a member of staff near the tills.  In total there would be four to six people overseeing the store at any one time, in addition to CCTV.  Staff would be trained to the standards of M&S (the Applicant was a franchisee).  Mr Elford expressed the view that the types of alcohol that were stocked at the store were not attractive to street drinkers.  They did not include high Alcohol By Volume (ABV) products.

 

10. Mr Elford confirmed that there were two outstanding conditions which had not been agreed by the Applicant.  These were ‘A minimum of 1 SIA licensed door supervisors shall be on duty at the premises at all times whilst it is open for business and they must correctly display their SIA licence(s) when on duty so as to be visible’ and ‘Outside of the hours authorised for the sale of alcohol and whilst the premises are open to the public, the licence holder shall ensure that all alcohol within the premises (including alcohol behind the counter) is secured in a locked store room or behind locked grilles, locked screens or locked cabinet doors so as to prevent access to the alcohol by both customers and staff’.  Mr Elford explained that his client wished to risk assess when security staff were required and not for it to be imposed as a requirement at all times the store was open for business.  He added that this would impact on the viability of the franchisee’s stores as they were seeking to open twenty across three boroughs, including Westminster.

 

11. In relation to alcohol being secured, Mr Elford explained that the chillers did have blinds that could be brought down which would show that the alcohol was not for sale at that time.  They were refrigeration devices, designed to keep cool air in, rather than anti-theft devices.  They were provided by M&S and they did not have a locking mechanism.  Mr Elford also informed the Committee that the Applicant had considered providing a barrier in front of the alcohol, but this was not possible due to fire safety reasons.

 

12. In response to questions from the Committee, Mr Styles advised that in the lease, which was for a minimum of fifteen years, the premises could only change ownership to M&S and it would have to remain a M&S store.  Mr Styles also clarified that M&S had cross trained staff, engaging with customers, rather than a SIA security person on the premises at all times.

 

13. The Committee heard from Mr Koduah.  He confirmed that the only remaining issue of concern for him was the lack of a lockable cabinet being available outside of the hours authorised for the sale of alcohol.  He expressed concerns that the availability of the alcohol, exposed staff to risk and created the risk of public nuisance and public safety.

 

14. The Committee was addressed by PC Morgan on behalf of the Metropolitan Police.  He stated that the Police had no issues with M&S or the Applicant.  The point of difference between the Police and the Applicant was the SIA and secured alcohol conditions.  The Police sought these in order to prevent crime and disorder.  The store is located in a very busy part of the CIZ and had the highest crime rate in the West End. 

 

15. PC Morgan referred to an issue with street drinkers and people who suffered with drug and alcohol addictions.  Often their only source of obtaining alcohol was to steal from shops.  PC Morgan added there was a Public Space Protection Order in this area which acted as a no drinking zone because of the issues there.  He also mentioned a significant rise in shoplifting.

 

16. PC Morgan commented that without the two proposed conditions, the venue could be targeted by criminals and street drinkers.  He appreciated the requirement for at least one SIA licensed door supervisor to be on duty at the premises at all times whilst it was open for business was an onerous condition but believed it was necessary at the location.  The cost was not just to the store but to Police time and resources, potential anti-social behaviour elsewhere and drinking in the street.  It was not really the staff’s role to approach or potentially confront shoplifters.

 

17. PC Morgan commented that alcohol being safely secured would prevent shoplifting in the early hours.  Lockable shutters would also prevent any confrontation after 23:00 hours when the shop was open for an additional hour after the sale of alcohol had ceased.  He made the point that the Police had sought similar conditions for similar sized stores in the CIZ given the crime rate.

 

18. In response to questions from the Committee, PC Morgan remarked that he thought that shoplifters would be attracted to the store in the event there was no security present, or the shutters were not locked.  He advised that the crime information provided referred to the West End rather than Shaftesbury Avenue specifically.  Shoplifting had the third highest rate of any crime.  The highest was theft from the individual on the street such as pickpocketing.  Mr Elford disputed that the store is located where the highest levels of crime took place as set out in the Police data for shoplifting.

 

19. The Committee also heard from Mr Hayes on behalf of the LA. He had asked for further submissions that with the premises being in the heart of the CIZ there were sufficient conditions that the granting of the application would not add to cumulative impact.  Mr Hayes added that had all the conditions been agreed between the parties then the Licensing Authority would have withdrawn their representation.

 

20. Mr Hayes referred to the area being extremely busy and that there would be stress on the business.  He supported the proposed lockable shutters condition to prevent alcohol being stolen and staff being challenged.  He also referred to the Council’s cumulative impact assessment statistics from December 2023 which had found that theft was increasing back to pre-Covid levels.  The assessment also set out that there was a higher rate of crime in the evenings in Soho along Charing Cross Road and roads such as Old Compton Street, Greek Street and Frith Street.  Mr Hayes added that the store was close to the junction of Frith Street, and he therefore was of the view that the conditions were therefore proportionate.

 

21. Mr Hayes clarified in response to a question from the Committee that the crime statistics he had mentioned from the cumulative impact assessment were retail premises generally and not specifically off sales premises.

 

22. PC Morgan was asked by the Committee whether the premises he had listed in his representations all had a requirement for lockable cabinets and SIA security on their premises licence.  He replied that all the stores listed had a condition on their premises licences requiring lockable cabinets/blinds/shutters, including M&S in Charing Cross Station (this was confirmed by the Licensing Service).  However, the M&S in Charing Cross Station did not have a condition on its licence requiring SIA security at all times.

 

23. Mr Elford, in response to this point commented that this was possibly because station premises were operated by Select Service Partners.  Mr Styles stated that he had seen the blind brought down at Liverpool Street.  It was possible that it had been retro fitted so that a locking mechanism was added. Mr Styles believed that it might be possible for retro fitting to be introduced.  He added that having spoken with the security team at M&S he was not aware of any stores that had incorporated the retro fitting or had lockable units. The Committee were informed that the effectiveness of the screens could be affected by the adaptation, and this could void any guarantee.

 

24. PC Morgan clarified that in the event the alcohol was stored in lockable cabinets outside of the hours authorised for the sale of alcohol, he was content for the Applicant to risk assess the need for SIA security.

 

25. Mr Elford advised that his client had agreed a condition with the Police that ‘there shall be no self-selection of spirits on the premises, save for spirit mixtures less than 8% ABV’.

 

26. The Committee asked whether the lockable cabinets condition was entirely appropriate given that it was particularly for the period after off sales ceased whilst the shoplifting data peaked in the early evening and reduced significantly when alcohol was not being sold.  Mr Hayes responded that this was potentially because surrounding businesses had their blinds down or were closed. These premises would be open both prior to and after the sale of alcohol.

 

27. In his summing up, Mr Elford mentioned that the Committee had been provided with a list of stores that had the SIA and lockable cabinets/blinds/shutters conditions on their premises licences.  Members had not been provided with the premises licences which did not include these conditions.  He concurred with the point that when the shoplifting data peaked was not the time when the alcohol would potentially be locked away.  He re-iterated that there was a substantial cost in having a condition requiring a SIA security person employed at all times the premises were in operation.  The operators were experienced, running a franchise business for a globally known business and should be trusted to look at their own operation and promoting the licensing objectives.  He added that there were a number of conditions designed to address cumulative impact.  The issues raised by the cumulative impact assessments tended to be on street.  It had not been demonstrated that retail premises added negatively to cumulative impact.

 

DECISION

 

28.The Committee has determined an application for a NEW Premises Licence under the Licensing Act 2003.The Committee is aware that it has a duty to consider each application on its individual merits and did so when determining this application.

 

29.The Committee noted that the data produced by the Authorities in relation to shop thefts, did not distinguish between shoplifting generally and off-licence premises and this Premises is not located where the highest levels of shoplifting took place as set out in the Police data.

 

30.It is clear that there is no objection to the grant of the application, however there are two conditions in contention.

 

31.The Authorities wants SIA door supervisors during all times the Premises is open to the public which would be at a cost of approximately £160,000 per annum to the Applicant. The Committee decided that in the absence of evidence showing high levels of shoplifting alcohol in this area, this condition was not proportionate. The Applicant has however agreed to using door supervisors on a risk assessed basis. The Committee determined that any risk assessment should be written, regularly updated and made available to the Authorities.

 

32.The Authorities also wanted alcohol to be secured. Again, in the absence of evidence showing the shoplifting of alcohol is a problem in the vicinity around the Premises, the Committee, whilst accepting that that ideally it would be better that alcohol was not visible outside permitted hours, the proposed condition was not appropriate or proportionate. This is considering, the cost, the risk of rendering shutters unsuitable, without recourse under a guarantee and that whilst the shoplifting data peaked in the early evening, it reduced significantly when alcohol was not being sold. Namely at the time that the Authorities required lockable shutters.

 

33.The Committee determined that alcohol should not be visible outside permitted hours and that it would be appropriate and proportionate to notify staff and members of the public at the shelves when alcohol is not for sale.

 

34.Having carefully considered the Act, the Guidance issued under sec 182 of the Act, Westminster’s Statement of Licensing Policy committee papers, the additional papers and the submissions made by all of the parties orally, The 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:

 

To Permit:

 

            The sale of alcohol (off sales)

            Mondays to Saturdays - 08:00 to 23:00

 Sundays 09:30 to 22:30

 

Opening Times:

 

Sundays to Thursdays 06:00 to 24:00

Fridays and Saturdays 00:00 to 24:00

 

 

 

 

 

2.     Relevant Mandatory Conditions to apply.

 

3.     Appropriate and proportional conditions consistent with the operating schedule:

 

1.

(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 shall 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 shall include the external area immediately outside the premises entrance.

(d) All recordings shall be stored for a minimum period of 31 days with date and time stamping.

(e) Viewing of recordings shall be made available immediately upon the request of Police or authorised officer throughout the entire 31-day period.

 

2. 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.

 

3. A Challenge 21 or Challenge 25 proof of age scheme shall be operated at the premises where the only acceptable forms of identification shall be recognised photographic identification cards, such as a driving licence, passport or proof of age card with the PASS Hologram.

4. A record shall be kept detailing all refused sales of alcohol. The record should include the date and time of the refused sale and the name of the member of staff who refused the sale. The record shall be available for inspection at the premises by the police or an authorised officer of the City Council at all times whilst the premises is open.

 

5. All members of staff working on the tills shall receive training relevant to the sale of alcohol prior to being authorised to sell alcohol. Such training shall be refreshed at least annually. Records of training shall be maintained for a period of at least 12 months and made available for inspection at the premises by the police or authorised officer of the City Council at all times when the premises is open.

 

6. No more than 15% of the sales area shall be used at any one time for the sale, exposure for sale, or display of alcohol.

 

7. All sales of alcohol for consumption off the premises shall be in sealed containers.

 

8. All tills shall automatically prompt staff to ask for age verification identification when presented with an alcohol sale.

 

9. Prominent signage indicating the permitted hours for the sale of alcohol shall be displayed so as to be visible before entering the premises, where alcohol is on public display, and at the point of sale.

10. 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 shall record the following:

 

i) all crimes reported to the venue

ii) all ejections of patrons

iii) any complaints received concerning crime and disorder

iv) any incidents of disorder

v) all seizures of drugs or offensive weapons

vi) any faults in the CCTV system, searching equipment or scanning equipment

vii) any refusal of the sale of alcohol

viii) any visit by a relevant authority or emergency service.

11. No miniature bottles of spirits of 20 cl or below shall be sold from the premises.

 

12. There shall be no self-selection of spirits on the premises, save for spirit mixtures less than 8% ABV.

 

13. On the Day of Pride in London:

 

                                    i.          Alcohol sales in respect of cans of beer or cider shall be limited to no more than 4 cans per person.

                                  ii.          The premises shall not externally advertise local promotions of alcohol.

                                 iii.          No sales of alcohol in glass bottles or glass containers shall be made during this period.

                                iv.          Upon the direction of a Police Officer, using the grounds of the prevention of crime and disorder or public safety, the premises shall immediately cease to sell alcohol until further directed by the Police.

 

14. 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.

 

15. All waste shall be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.

 

16. The licensable activities authorised by this licence and provided at the premises shall be ancillary to the main function of the premises as a grocery shop.

 

Conditions imposed as proportionate and appropriate:

 

17. Outside of the hours authorised for the sale of alcohol and whilst the premises are open to the public, the licence holder shall ensure that all alcohol within the premises (including alcohol behind the counter) is not visible or secured in a locked storeroom, behind locked grilles, locked screens or locked cabinet doors.

 

18. When the sale of alcohol is not permitted, prominent signage indicating the permitted hours for the sale of alcohol or that alcohol is not for sale, shall be displayed so as to be visible at the points where alcohol is appropriated during permitted hours.

 

19. The requirement for SIA registered door supervisors at the premises, shall be subject of a detailed written risk assessment, updated 6 monthly and a copy retained at the Premises. This document shall be made immediately available to the Relevant Authorities on request.

 

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

 

Licensing Sub-Committee

21 March 2024