Agenda item

The Hippodrome Casino, 10-14 Cranbourn Street, London, WC2H 7JH

15/04522/LIGV

Summary:

To consider and determine the application made by Hippodrome Casino Ltd for variation of the Casino Premises Licence under Section 187 of the Gambling Act 2005.

Options:

1)    grant the application

2)    refuse the application.

Amendments to application advised at hearing:

Late submissions had been received from the Police withdrawing their representation, and from Berwin Leighton Paisner LLP relating to proposed conditions and representations from the Metropolitan Police. Additional photographs were also provided by the Applicant relating to the Hippodrome Casino and the Empire Casino.

Decision (including reasons if different from those set out in report):

Two applications had been submitted by Hippodrome Casino Ltd relating to the Hippodrome Casino, 10-14 Cranbourn Street WC2H 7JH, which was currently licensed as a Converted Casino under the Gambling Act 2005.

The application process was complicated. The application for a new Betting (Other) Premises Licence (15/03306/LIGN) was received on 28 April 2015. The applicant was the Hippodrome Casino Ltd and the proposed trading name for the new betting shop was the Hippodrome Casino. The description indicated that the betting shop was to be located on the ground floor of a casino operating over multiple levels. The plan appeared at page 239 of the report.

There were a number of representations against the application. The licensing authority had made a representation but there were also representations from other operators, including Betfred, Coral Racing Ltd, William Hill and Joe Jennings. The principal objection to this application was that it breached section 152(1)(b) of the Gambling Act 2005 which does not allow a second licence to be issued if a premises licence already has effect in relation to the premises.

Mr Rankin, on behalf of the applicant, acknowledged that the original application was defective as it stood and explained that was why the second application had been made (15/04522/LIGV) to vary the converted casino licence under section 187 of the Gambling Act 2005. That application was received on 4 June 2015, the purpose being to remove the front entrance lobby and the adjacent area (proposed to be used as a betting shop) from the ambit of the licence. The plan showing this proposed variation to the licensed premises appeared at page 198 of the report.

The only representation against the second application was from the licensing authority itself which asserted that the application, if granted, would breach the conditions specified in Part 1 of Schedule 1 to the Gambling Act 2005 (Mandatory and Default Conditions) (England and Wales) Regulations 2007. In particular, it is asserted that the grant of the application would breach the mandatory condition that required the principal entrance to the Casino premises to be from a street.

Mr Rankin requested that the two applications should be considered together. The members of the Sub-Committee had no objection to that course of action and there were no objections from the other persons present.

If the application to vary the converted casino licence under section 187 of the Act were to be granted, that would effectively remove any concerns about compliance with section 152(1)(b) of the 2005 Act. However, questions would still remain as to whether the new betting premises and the amended casino premises comply with the relevant mandatory conditions. For the casino, the relevant mandatory condition provides that the principal entrance to the premises shall be from a street. For the betting premises, the relevant mandatory condition provides that access to the premises shall be from a street or from other premises with a betting premises licence.

Steve Rowe introduced the report and identified the issues arising. He explained why two applications had been made as described above, pointing out the fact that the initial application breached section 152(1)(b) of the Gambling Act 2005. He then identified the issues regarding the mandatory conditions that applied to (a) Casino Premises Licences under Part 1 of Schedule 1 to the 2007 Regulations and (b) Betting Premises Licences under Part 1 of Schedule 5 to the 2007 Regulations.  

Mr Rowe concluded that the key issue to be determined was whether or not the lobby area can be constituted as a street for the purposes of the Regulations.

James Rankin presented the applications of behalf of the Applicant.  Hippodrome Casino Ltd accepted that a betting shop could not be located within premises that already had a Converted Casino License, but considered that the measures set out in the proposal were fully compliant with the legal and mandatory requirements of establishing a betting shop at the premises. The betting shop would be separated from the casino by creating an unlicensed area between them in place of the lobby that was currently licensed as part of the casino premises. There would consequently be no direct access between the casino and the new betting shop. 

Mr Rankin discussed the definition of premises in licensing terms, and suggested the Licensing Authority had misinterpreted the meaning of premises set out in the Gambling Commission’s Guidance, which provided that there was no reason in principle why a single building could not be subject to more than one premises licence, provided they could reasonably be regarded as being different premises. The Guidance stated that the location of the premises and suitability of the division were important considerations, and Mr Rankin highlighted the need to determine whether the proposed premises were genuinely separated from the Casino to merit their own license.

Mr Rankin acknowledged the reasons for the Guidance relating to access to premises, and for direct access from the street, which sought to avoid the drift from casino gaming to betting. Mr Rankin suggested however that there was no definition of direct access, and commented that definition of ‘street’ contained in the interpretation section of the Regulations defined ‘street’ as including ‘any bridge, road, lane, footway, subway, square, court, alley or passage, including passages though enclosed premises such as shopping malls, whether a thoroughfare or not’.  Mr Rankin submitted that under this wide interpretation, removing the lobby area from the Casino License would enable it to be defined as a street in compliance with the Regulations and Guidance, and would accordingly be compliant by providing access to the betting shop via a street.

Mr Rankin commented on how other Licensing Authorities had dealt with similar issues of separation, where proposals for arrangements similar to those of the Hippodrome had been granted. He also submitted that the current layout use of the Empire Casino at Leicester Square, which had received approval from the Licensing Authority, was a close comparison to what the Hippodrome was seeking to achieve.

Mr Rankin submitted that the Hippodrome application was a genuine exception to policy, from which no harm would arise; and that the proposal would not represent an exception to the Guidance as it was wholly compliant. The Applicants also considered that the use of the lobby area lobby area would have the associated benefit of the existing Casino Security. The Sub-Committee noted that the Applicants had not been able to build a new entrance directly onto Cranbourn Street, as the premises were a Grade 2 Listed Building.

Mr Rankin commented on the conditions proposed by the Licensing Authority, which the Applicants were happy to comply with. The Sub-Committee similarly noted that the Police had withdrawn their representation, after the Applicant had agreed to a further condition for the installation of a comprehensive CCTV system.

The Sub-Committee also heard from Simon Thomas, Chairman of Hippodrome Casino Ltd, who spoke in support of the applications.  Mr Thomas also highlighted the value of trained door supervision, and commented that the Hippodrome had a 100% rating of ensuring that people aged under 18 did not gain access to the premises. The Sub-Committee noted that no concerns had been raised by the Gambling Commission over the proposal or its location.

Nick Nelson responded to the Applicant’s representations on behalf of the Licensing Authority, and submitted that the proposals sought to circumvent legislation to enable a betting shop to operate from the same premises as a Casino.  Although it was the Applicant’s contention that they have created a street, the Licensing Authority was not satisfied that the mandatory requirements for separation and access had been met. Mr Nelson considered that the foyer did not constitute a street, and that the design of the entrance of the premises would make members of the public think they were entering a Casino.  The proposed division of the premises was an arbitrary line on a plan, and the Licensing Authority was concerned that the application would expose people to both Casino gaming and betting. 

It was the Licensing Authority’s view that the current application did not meet the requirements of Policy DAP1of the Licensing Statement of Principles, which specifically addressed applications and licensed premises that had more than one gambling premises licence and the division between those premises. The Licensing Authority considered that the betting shop and the casino were not separate premises and were artificially created within one building (the Hippodrome Casino). The separation between the two premises was similarly not considered appropriate as one could readily be accessed from the other, and the only distinction between the two premises was the lines drawn on the plans. The betting shop would also be situated within the Hippodrome Casino, which when viewing the premises main entrance from Cranbourn Street, would not be separately branded or distinguishable from the Casino itself. In addition, access between the premises would not be restricted, and as such would be a breach of the mandatory condition relating to direct access.

Mr Nelson also submitted that in addition to issues arising from the premises being a Listed Building, it was likely that objections would be made if access to the betting shop was from Cranbourn Street, due to its location and issues relating to vulnerability and homelessness.  Kerry Simpkin also spoke on behalf of the Licensing Authority and agreed that an application made for a Betting Licence with the entrance from Cranbourn Street would raise different issues. .

In addition, Mr Nelson considered the question of demonstrable harm to be irrelevant, as the Licensing Authority had to follow mandatory conditions, and commented that premises licenses granted by other Licensing Authorities had no bearing on Westminster. Mr Nelson also considered that the betting shop situated at the Empire Casino was more clearly defined, and was accessed by a more easily definable street which provided separation between the two operations.

The full submissions from the licensing authority were set out in some detail in the reports before the Licensing Sub-Committee. The Sub-Committee took account of the written representations originally made on 22^nd May 2015 (before the variation application had been submitted) and the further written representations made on 2^nd September 2015 which also responded to the issues arising as a result of that variation application being made.    

The Sub-Committee received submissions in objection to the applications from Coral, William Hill and Joe Jennings, who were operators of betting premises.

Ewan MacGregor spoke on behalf of Coral, and questioned the integrity of the separation between the two activities, and submitted that a street or passageway could not be artificially created out of a lobby.  The “harm” of the application was simply contained within the mandatory conditions themselves. He considered that the proposals were not in line with Regulations or the Guidance to Local Authorities, and urged that the applications be refused.  Richard Taylor and Andrew Woods similarly spoke on behalf of William Hill and Joe Jennings respectively, and agreed that the applications were not in compliance with the Gambling Act, Guidance or Council Policy.

Barry Panto (Legal Advisor) asked questions about the overall impression that would be given to customers approaching from outside the premises. He commented that the principal access to the premises would remain intact, and that people who wished to go to the betting shop would still have to go through the main Casino entrance. Apart from a small change to a window display, the overall impression that would be given was that one was entering the Casino. The former lobby area served no independent purpose itself. Bearing in mind the fact that the application for the betting shop had been made by reference to it being located on the ground floor of the Casino itself, the question arose as to whether the primary purpose of the application was to get round the legislative difficulty that prevented a converted Casino being used for the provision of betting facilities. Mr Rankin stated that this would be the same as what the Licensing Committee had granted in connection with the Empire.

Mr Thomas informed the Sub-Committee that half of the customers who used the Casino premises did not gamble, but went for other attractions such as dining or entertainment.

The members of the Licensing Sub-Committee took careful account of the submissions made by the applicant, the licensing authority and the other operators who had made representations in response to the applications. Although the other operators did not make any representation with regard to the variation application, the members considered their legal submissions relating to both applications as it was clear that the variation application was intended to have some impact on the decision reached in relation to the application for the new betting premises.

The Sub-Committee was of the view that the principal entrance to the Hippodrome Casino was currently the main entrance at the junction of Cranbourn Street and Charing Cross Road. If the variation application were to be granted, it must follow that entrance at the junction of Cranbourn Street and Charing Cross Road would no longer be the principal entrance to the Casino premises. Customers who currently make use of the principal entrance will enter via the foyer and walk along a passageway before entering the main gaming area of the premises. The new principal entrance to the premises would then be somewhere along this route and would therefore be from the area currently used as the lobby. The legal question arising, therefore, was whether a de-licensed lobby can constitute a “street” for purposes of the mandatory conditions.

The concept of the “street” was created by the Gambling Commission to recognise the fact that some gambling premises such as betting shops might be situated within large commercial centres (such as shopping malls and motorway service stations). Part 1 of Schedule 5 to the Mandatory Conditions Regulations 2007 also recognises this. It makes it clear that there must be no direct access between betting premises and other premises used for retail purposes whilst acknowledging that there can be access via these other types of large commercial centres. The definition of “street” has therefore been drafted to recognise that a “street” might include the passages within these large commercial centres. The definition gives the shopping mall as an example of such a street. 

The regulations also recognise that a casino may be situated in a large commercial centre such as a shopping mall or even a hotel. However, the overall theme seems to be that a large multiple use premises can potentially be subject to more than one premises licence. The Sub-Committee does not think that a lobby area can be casually removed from a casino as a device to artificially create a new street where one did not exist before. Indeed that purpose seems to be reflected by the fact that the second application to vary the Casino licence was made after the application for the new betting shop licence had been made. The purpose seems to be entirely with a view to creating an artificial separation of the premises so as to allow the application for the betting premises to be granted. The members of the Sub-Committee think that is designed to overcome the fact that a converted casino cannot provide facilities for betting.

In fact, the lobby of the Casino will continue to be used by customers who are accessing the Casino. It cannot serve any other function apart from being the entrance to the proposed betting shop. In that sense, the members do not think that the lobby can provide a genuine means of ensuring that there is no direct access between the Casino and the betting shop. Indeed, customers who wish to visit the betting shop via the lobby will first have to enter the current main entrance to the premises which clearly give the impression that one is entering a Casino. That is very different to entering a shopping mall.

The members of the Licensing Sub-Committee fully understood why the application had been made but did not accept that the lobby of the current Casino could be regarded as a street for the purposes of the regulations. In those circumstances, the Sub-Committee decided that both applications had to be refused.