Agenda item

The London Edition, 10 Berners Street, W1

Review application - 15/03928/LIREVP

An application submitted by Mr Zafar Khalid for a review of the premises was received on 22^nd May 2015 on the grounds of Prevention of Public Nuisance.

  The premises currently benefits from a premises licence that permits:

Performance of Dance

Monday to Sunday: 09:00 to 01:00 (Subject to conditions 41, 45, 47 & 51)

Non-standard Timings: 24 hours for residents and their bona fide guests

Exhibition of a Film

Monday to Sunday: 09:00 to 01:00 (Subject to conditions 41, 45, 47 & 51)

Non-standard Timings: 24 hours for residents and their bona fide guests

Performance of Live Music

Monday to Sunday: 09:00 to 01:00 (Subject to conditions 41, 45, 47 & 51)

Non-standard Timings: 24 hours for residents and their bona fide guests

Playing of Recorded Music

Monday to Sunday: 09:00 to 01:00 (Subject to conditions 41, 45, 47 & 51)

Non-standard Timings: 24 hours for residents and their bona fide guests

Anything of a similar description to Live Music, Recorded Music or Performance of Dance

Monday to Sunday: 09:00 to 01:00 (Subject to conditions 41, 45, 47 & 51)

Non-standard Timings: 24 hours for residents and their bona fide guests

Performance of a Play

Monday to Sunday: 09:00 to 01:00 (Subject to conditions 41, 45, 47 & 51)

Non-standard Timings: 24 hours for residents and their bona fide guests

Late Night Refreshment

Monday to Sunday: 23:00 to 01:00 (Subject to conditions 41, 45, 47 & 51)

Non-standard Timings: 23:00 to 05:00 for residents and their bona fide guests

Sale by Retail of Alcohol

Monday to Sunday: 06:00 to 01:00 (Subject to conditions 41, 45 to 47 & 51)

Non-standard Timings: 24 hours for residents and their bona fide guests

The opening hours of the premises:

Monday to Sunday: 00:00 to 00:00  

The Authority must, having regard to the application and the representations, take such steps (if any), as it considers appropriate for the promotion of the licensing objectives.  The steps are:

(a)  to modify the conditions of the licence;  

(b)  to exclude a licensable activity from the scope of the licence;

(c)  to remove the designated premises supervisor;

(d)  to suspend the licence for a period not exceeding three months;

(e)  to revoke the licence;

and for this purpose the conditions of the licence are modified if any of them is altered or omitted or any new condition added.

Decision:

The Sub-Committee initially heard from Mr Brown representing the Applicant and the local residents listed above.  He provided some background to the review application.  Mr Khalid had lived in his flat in York Street, opposite The London Edition hotel since 2011.  Mr Brown stated that Mr Khalid had suffered from noise nuisance from the Premises in his flat since July 2014.  The hotel had been granted its premises licence in 2012.  Mr Brown made the point that Mr Khalid had not made a representation when the original application had been submitted because he believed he had received assurances in terms of how the premises would operate, including the basement.  Mr Khalid had been informed that the basement would be used either for events such as conferences or occasional weddings or as a lounge bar.  Mr Brown stated that what had ultimately transpired was that between Wednesdays and Saturdays the basement function room had been used as a nightclub.  The experience of Mr Khalid and other residents was that there was an increase in noise nuisance and anti-social behaviour in the area after the hotel opened in September 2013.  Mr Khalid had decided to express his concerns about the situation in December 2014 after a guest of the hotel had urinated outside his flat.  After that he had complained to the Council and to management of the hotel.  A number of meetings and regular correspondence had followed between Mr Khalid and hotel management.  Mr Brown stated that a number of measures had been proposed by the hotel which in the opinion of those supporting the review had either not been effective or not been carried out as proposed. 

Mr Brown wished to make the point that the basis for the review was that there was a lot of noise being experienced by local residents not only from the public guests of the hotel’s use of the basement function room, which has a capacity of 220 people but also from their use of the other public areas of the hotel on the ground floor, including the two bars and restaurant.  It was the cumulative effect of the public who had used the hotel’s facilities being outside and dispersing from the hotel at a late hour which had caused public nuisance for local residents. 

Mr Khalid’s grounds for the review were set out in the application and included public guests of the premises arriving and leaving late at night in a noisy manner, making noise whilst smoking, heading to their cars or waiting for taxis outside.  Mr Brown explained that one of the problems with the dispersal of the public guests of the hotel was the length of time that it took.  An often substantial percentage of the capacity of the basement dispersing into a residential area late at night was causing a public nuisance.  He added that the residents in support of the review were not stating that The London Edition hotel was causing 100% of the public nuisance in the area but that a significant proportion was being caused by the hotel patrons late at night.   

Mr Brown referred to the representations sent to the Licensing Authority in support of the representation, with the majority, he stated, being from local residents in York House.  Mr Khalid had also submitted e-mails he had received in support of the application.  Mr Brown believed the total of the representations received by the Licensing Authority and those received by Mr Khalid added up to 22 different individual representations.  He commented that it was noticeable that the representations demonstrated that other local residents were experiencing the same issues as Mr Khalid, referring to matters having got worse since the hotel had opened and hearing noise when patrons were smoking or dispersing.  Mr Brown stated that Mr Khalid had found that since the basement had ceased being used as a nightclub at the end of June 2015, the nuisance after 02:00 hours had reduced because patrons were not dispersing at that time.  He was however still experiencing the same level of noise from approximately 23:30 to 01:30 when patrons were outside the hotel.

Mr Brown drew Members’ attention to the noise log Mr Khalid had submitted as part of the application, Environmental Health’s ‘record of observations’ and the Licensee’s ‘nightlife summary’.  He gave three examples where he believed Mr Khalid’s evidence of noise nuisance was corroborated in evidence elsewhere.  The first example was:-

 - Thursday 29 January 2015 when Mr Khalid had reported noise from patrons dispersing.  The date had coincided with a visit by Mr Bolton of Environmental Health who had noted that he had ‘witnessed very poor management of the outside area.  16-20 people were outside smoking and talking loudly; not all of them inside the smoking cordon;  in addition there were people dotted along the street, in the road and on the other side of the road, generally talking and laughing loudly.  The Officer spoke to the head of security, Michael, who didn’t think the noise was loud or a problem’.  Mr Brown stated that this was important because the Licensee’s nightlife summary would be based on the view of the security officers and not on the professional opinion of an Environmental Health officer.  The Licensee’s summary had referred to ensuring that patrons left the area as quietly as possible that night as being ‘a challenge’.

-  The second example Mr Brown referred to was on Thursday 26 February 2015.  Mr Khalid had written that it had taken 50 minutes for public guests of the hotel to disperse and eventually the hotel manager, Mr Prosser had been required to assist after Mr Khalid had contacted him.  The Council’s Noise Officer had visited, saw many patrons leaving the basement and heard the loud conversations.  The Licensee’s nightlife summary referred to staff clearing Berners Street of patrons after 02:00 hours which Mr Brown stated demonstrated that noise was coming from patrons leaving the hotel;

-  Mr Brown’s third example was on Friday 2 May when issues arising from people dispersing had been witnessed by an Environmental Health officer and Mr Richards, City Inspector.  Mr Brown stated that the Environmental Health recorded in their observations that the pavement outside ‘was busy and slightly obstructed in some areas.  There were at least 20 customers directly outside and occasional loud conversational noise as well as noise from waiting taxis was heard’.  A driver had ‘sounded his horn which attracted the attention of one of the SIA supervisors.’  ‘Overall there was a general lack of management of the outside area.  The SIA supervisors were not effectively dispersing customers who were leaving’.  Mr Brown added that the Licensee’s nightlife summary for that date had revealed that the supervisors had been shocked at the complaint received which Mr Brown believed showed a disconnect between their perception of the situation and Council employees’ professional opinions.     

Mr Khalid, the Applicant, addressed the Sub-Committee.  He made a number of points including that the trust of residents had been impaired because of the use of the basement ‘function room’ as a nightclub.  This was contrary to what residents had been advised initially, that the room would be used for weddings or a lounge bar primarily for hotel residents.  (During the hearing the Licence Holder confirmed that no weddings had actually taken place).   Mr Khalid stated that he had been told in meetings by hotel representatives that it was a nightclub and a manager at the hotel had told him that he should expect disturbance where he lived.  Mr Khalid informed the Sub-Committee he had initially frequented the hotel and that it had been a difficult decision for him to bring the review but ultimately the discussions he was having with the hotel management were not leading to the issues he was experiencing being resolved.  He expected the Licensee’s representatives to make the case at the hearing that it would change the use of the function room and conclude licensable activities at 01:00.  However, even when the function room was closed, he was still being disturbed by patrons leaving the public areas.  He believed that there was potentially up to 700 people being able to use the public areas of the hotel.  If patrons were leaving the function room with a capacity of up to 220 at 01:30, residents were and would still be adversely affected.  He had been told by hotel management that they were unable to legislate for smokers, people dispersing or waiting for taxis.  Mr Khalid added that he accepted that it was very difficult for the management to control patrons dispersing from the hotel, once they had left the immediate vicinity of the hotel, or patrons smoking in the street or waiting for taxis.  This was why he was requesting a reduction in hours for the public areas in the hotel.  This was, in his view, one of the only effective ways to reduce public nuisance, particularly in the early hours of the morning.  Mr Khalid also described cars parked on double yellow lines outside his flat, taxi drivers talking loudly whilst they waited for patrons to leave the hotel, which the hotel promised to take action to prevent.  He resided in a ground floor flat and could easily observe what was taking place outside when disturbed by noise nuisance.  He was of the view that the hotel management was inadequate generally; that they had employed inadequate security over time and there was a lack of signage advising patrons to keep the noise down. 

Mr Khalid showed footage to the Sub-Committee captured on his mobile phone.  This included footage from the 23 August 2015 at approximately 01:35 hours which he stated was an accurate reflection of patrons shouting outside the hotel and was taken across the road from the hotel on the opposite corner which was further away from the hotel than his flat.  He also showed footage of two or three people in front of the hotel appearing to be noisy and not dispersing.

Mr Brown concluded with the point that a reduction in the London Edition’s operating hours to the Council’s core hours was sought by the Applicant for the public areas.  This took into account the time it took for patrons to disperse from the hotel.  He also asked the Committee to attach a number of conditions to the licence, in the main to help   to control customers in the outside area and to manage customers smoking and dispersing from the premises.

The Sub-Committee then heard from local residents in support of the review application.  Mr Watson stated that he had lived in his residence above Mr Khalid’s flat since 1999 and there had been no issues with any of the hotels at 10 Berners Street until the London Edition had opened up the basement function room to the public with patrons dispersing at a late hour.  Mr Erden explained that he lived around the corner in Berners Mews and it had become clear, since the activities in the function room in the basement had ceased, that it had been the hotel which had been the cause of the issues he had experienced such as the parking of cars in the Mews on single yellow lines and the playing of music from these vehicles.  He added that he was not experiencing such problems any longer in the Mews.  Ms Klipstaite referred to ineffective security arrangements at the hotel which resulted in patrons failing to disperse promptly, which caused public nuisance to local residents.

Ms St Rose advised the Sub-Committee that Environmental Health maintained their representation due to the lack of management of the area outside the hotel and the noise caused by patrons dispersing from the hotel, particularly in the early hours of the morning.  Environmental Health’s record of observations was set out in the report.    

The Sub-Committee then heard from Mr Skeens, representing the Licensee.  Mr Skeens referred initially to the Applicant’s ‘overview’ document which had been forwarded to the Sub-Committee and particularly the point that the hotel had always accepted that the area is busy and noisy as it is located in the West End Stress Area.  He also confirmed that the Licensee had never claimed that the hotel and its patrons do not cause any noise or nuisance to local residents.  Mr Skeens asked Mr Khalid why he had refused admittance to his flat to the Licensee’s acoustician.  Mr Khalid replied that it had been insinuated that the noise was his problem and he did not regard this as a basis on which to proceed.  Mr Khalid did not accept the point set out in the representative of the Licensee’s ‘overview’ document that there was a very poor quality of fenestration in his apartment.  Mr Skeens stated that he was aware Mr Khalid had looked into obtaining double glazing and his client had offered to pay for this to keep out unwanted noise.

Mr Skeens was asked by the Sub-Committee what steps the hotel was taking to address the issues raised by the review.  Mr Skeens drew Members’ attention to the ‘overview’ document and these included setting up Fitzrovia Watch with other premises such as Project London and China White.  He stated that these premises all accepted that they contributed to the overall noise in the locality and it was a question of what they could do to minimise it.

Mr Skeens showed CCTV footage.  He stated that in the case of the evening of 29 January / morning of 30 January 2015 it was admitted by his client that there were problems (it was not accepted that any issues had arisen on the evening 22 January / morning of 23 January 2015).  Mr Skeens contended that the footage of the evening of 29 January / morning of 30 January showed a queue of five people outside Berners Street entrance and two taxis waiting in the road and people were leaving and walking away from the hotel.  However, they did not congregate.  He believed it conveyed normal nightlife, especially in the West End Stress Area.  In respect of the evening of 26 February / morning of 27 February 2015, Mr Skeens stated that the CCTV footage did not show a car parked in the street with hotel guests sitting on the bonnet as set out in Mr Khalid’s evidence.  In respect of the evening of 12 March / morning of 13 March 2015, Mr Skeens remarked that the CCTV footage showed people leaving the hotel and dispersing rather than Mr Khalid’s comments that there was lots of noise from people outside the hotel and a car parked outside with occupants making noise.  He added that a lamborghini making a three point turn had nothing to do with the hotel.  Mr Skeens made the point that when real time footage was shown it demonstrated the actual situation and made it apparent that Mr Khalid’s premises was particularly susceptible to picking up noise.

Mr Vivian gave evidence on behalf of the Licensee.  He stated that there was no doubt that people parked outside Mr Khalid’s flat and that this was a busy area.  However, in his view, he questioned whether this amounted to a public nuisance and whether the London Edition hotel was undermining the licensing objective to prevent public nuisance.  Mr Vivian clarified that the noise testing assessment he had carried out from Eastcastle Street directly opposite the Applicant’s flat in York House had taken place during the evening of the last music night held in the basement function room in the hotel at 22:50 hours on 27^th June to 03:24 hours on 28^th June).  In his opinion on the night of 27-28 June 2015, there was no noise breakout despite a capacity crowd in the function room.  Mr Vivian had found from the testing point in Eastcastle Street that in his view, the use of the function room had not adversely impacted on the licensing objectives as there was no increase in noise levels in the area due to patrons arriving, using the smoking area or dispersing.  The peaks in the noise had resulted from the emergency services or refuse vehicles.  This was a location with noise above World Health Organisation guidelines and on that evening any noise from people entering and leaving the hotel, or standing talking in the smoking area was masked by the steady road traffic noise, plant noise and other activity in the area.  He added that it would have been beneficial to have carried out a noise assessment from Mr Khalid’s flat.  He contended that a mobile phone as used by the Applicant had technical limitations in recording noise and should not be fully relied upon as evidence.  It could not be referenced against other activity such as passing cars. 

Mr Perkins gave evidence on behalf of the Licence Holder.  He stated that the Licensee had looked at ways to improve the management of the premises both internally and externally following concerns being expressed by Mr Khalid.  This included controlling the crowd in the smoking area, changing the route of dispersal, having extra CCTV and approaching people to be quiet.  Mr Perkins believed that the hotel management was doing everything possible to improve the situation for people in the area, including working with other licensed premises in Fitzrovia Watch.  Management had initially closed the basement function room for music nights on Wednesday and Thursday evenings, particularly as they were school nights, at the beginning of May 2015.  There were ongoing complaints from Mr Khalid so the decision was made to cease having music nights completely at the end of June 2015.  Mr Perkins did not accept that the basement function room had been used as a nightclub when music nights had taken place.  Entry had only been given to those on a guest list.  He commented that the legal opinion he had received was that the room had been operated in accordance with the conditions on the premises licence.  In response to a question from the Sub-Committee on externally promoted events, Mr Perkins advised that there was a separate basement website.  Mr Skeens added that there were private bookings for the function room.  It was advertised to members of the public but there was a complete guest list which was closed once the doors had opened for the event.  It would not be allowed to impact on the hotel residents. 

Mr Perkins explained that events had continued to be held in the basement function room since the music nights had ceased.  During July, August and September 2015, there had been launch events, birthday parties and corporate dinners.  These had ranged from a dinner for 20 people to 120 for a private birthday party.  (The Committee noted the capacity was 220 patrons in the function room)  He had not been aware of any complaints in relation to these events.  No weddings had yet been held in the function room.  The hotel had a wedding licence.  Mr Perkins confirmed that management were content for conditions to be attached to the licence that all events would cease at 01:00 hours to minimise the impact on residents.  He also informed Members that staff when joining the hotel had a day of training which included patrons’ smoking procedures.  There was a daily briefing to staff, including in relation to events.

Mr Kramer addressed the Sub-Committee.  He explained that the Licensee’s vision was to be an integral part of the Fitzrovia community.  The core of the business was the hotel bedrooms and the restaurant.  In response to a question from the Sub-Committee about the respective capacity within the hotel, Mr Kramer advised that 140 could be seated in the eating part of the restaurant, 50 in the bar area of the restaurant, 160 in the lounges on the ground floor and 220 in the basement function room.  Mr Skeens added that there was a capacity of 100 in the meeting rooms.  This was in addition to the 173 bedrooms.  Mr Kramer stated that the basement function room had been soundproofed to enable music to be played.  Hotel management had talked to neighbours prior to opening.  Management had listened to Mr Khalid’s concerns when raised.  The function room was a small part of the operation and it was felt that if the music nights caused nuisance it worked against the vision for the entire building.  In spring 2015, when it had been realised that the issues were not going to go away it had been decided to change the operation of the basement.  Due to Wednesday nights and Thursday nights being school nights, an initial decision had been taken to cease music nights then.  When that had not eased the situation with the neighbours, the decision was taken to cease music nights completely.  Mr Kramer commented that he believed the basement was currently being operated in the spirit of what was intended for the neighbourhood for events such as photo shoots or presentations of new music artists.  The Sub-Committee asked what time it was intended these events would end.  Mr Kramer replied that these could take place any time from early morning to late at night but no later than 01:00 hours.  He added that his team was re-examining the use of the basement, including as a restaurant similar to the ground floor.  Any change was likely to be at the beginning of 2016 and any events such as staff Christmas parties or presentations from music companies would continue as scheduled in the diary for the remainder of 2015.  He also took the view that his team had done everything possible to keep a good relationship with neighbours and implement measures to control nuisance.   

Mr Skeens addressed Members of the Sub-Committee on the conditions proposed by the Applicant as set out in the representative of the Licensee’s ‘overview’ document.  These included requests that the number of guests that a hotel resident can entertain not be reduced from five to four and resisting the reduction of hours in the restaurant as it was believed that the focus of the application for the review was the disturbance following the dispersal of patrons.  The Licensee was content for the personal guest list for the proprietor to be reduced from 30 to 10 and for there to be a last admission time for the restaurant, ground floor and mezzanine floor to be limited to midnight.  Mr Skeens added that his client had no problem with employing two SIA door supervisors as sought by the Applicant provided that it related to the use of the function room beyond 23:00 hours.  The Applicant’s proposed condition that the licence holder would provide a direct telephone number for the manager at the premises was agreed.  Mr Skeens confirmed that his client did not seek events after 01:00 hours.

Mr Brown responded to some of the points raised by the Licensee’s evidence to the Sub-Committee.  He made the point that considerable importance had been given to Mr Vivian’s testimony regarding the measurement of noise during one evening at the end of June.  He had described the measurements as the average hubbub of the central London location.  However, a number of residents had made representations and provided detailed records to show that they were being disturbed by noise and nuisance being caused by patrons of the hotel.  Some of this evidence contradicted the records of the management of the Hotel.  The Applicant and other local residents supporting the review also confirmed that they suffered a lot less noise before the current PLH had taken over the hotel.  The closing of the music nights had reduced the problem after 02:00 hours.  A reduction in hours was the only way to promote the prevention of public nuisance licensing objective.  Mr Brown stated, this view was supported by the evidence of Mr Khalid, backed up by the evidence of Environmental Health and corroborated by the hotel nightlife summaries that the nuisance arose from events at the premises.  The issue was not just with the time of the last sale of alcohol but with the length of time it took for patrons to disperse from the premises at a time when residents were trying to sleep.

Mr Khalid wished to inform the Sub-Committee that he had made approximately five phone calls to the Council’s Noise Team since the music nights had ceased in the basement function room.

The Sub-Committee gave careful consideration to both the oral representations at the hearing and those submitted in writing.  Members noted that there was an acceptance on the part of the Licensee that as set out in the ‘overview’ document, there were aspects of the hotel’s operation ‘principally the Function Room in the basement of the hotel’, that were ‘causing noise and disturbance’.  The Sub-Committee took into account the extent of the representations that had been made by local residents that their sleep was being affected, largely by patrons dispersing from the public areas of the hotel.  The Sub-Committee accepted Mr Brown’s point that there were instances where Environmental Health had visited the hotel following complaints to the Noise Team and corroborated the Applicant’s evidence that dispersal from the premises had not been well managed and was not promoting the prevention of public nuisance licensing objective. 

Members noted that the managers of the hotel had assessed the situation and taken some measures to address the issues raised by the dispersal of patrons from the public areas or steps such as commissioning a sound proof smoking shelter for use within the curtilage of the premises.  The decision to cease having music nights at the hotel may indeed have had some impact in reducing the impact on certain residents such as Mr Erden who lived around the corner from the premises, having been more affected by parking issues in Berners Mews.  However, these measures did not resolve all the nuisance.  The Sub-Committee noted the consideration being given by the managers of the hotel to a change of use for the basement.  However, the evidence as provided by Mr Brown and Mr Khalid even after the music nights had ceased was that as set out in Mr Watson’s e-mail to Mr Khalid ‘as far as we can judge, there has been no real improvement in the situation with reference to the noise problem since we last wrote to you’.  The Sub-Committee considered that Mr Khalid’s noise log throughout and his complaints to the Council’s Noise Team were not malicious, as they were representative of the general nature of the concerns raised by local residents particularly those living in close proximity to (often opposite) the hotel.  His additional complaints to the Noise Team that there continued to be issues with dispersal after the music nights had ceased were supported by other local residents.  The Sub-Committee concluded that customers of the hotel were causing noise and public nuisance to the Applicant and other local residents contrary to the promotion of the prevention of public nuisance licensing objective.

The Sub-Committee therefore considered that it was appropriate and proportionate to reduce the permitted terminal hours for the use of the public areas where alcohol was not ancillary to food and the dispersal of patrons was most likely to have an adverse impact on local residents.  Members decided that the Licensee’s proposed 01:00 terminal hour was acceptable on Friday and Saturday evenings which were not school days.  However, the Sub-Committee decided that the terminal hours needed to  be reduced to 22:30 hours on Sunday and midnight on Monday to Thursday.  The Sub-Committee did not amend the proposed hours for the restaurant on the ground floor given that it was food led and customers were less likely to cause public nuisance on leaving this area.

The Sub-Committee attached some additional conditions to the licence (as listed in Mr Brown’s latest list of conditions and discussed at the hearing and many of which were agreed by the Licensee) in order to limit public nuisance, particularly relating to the dispersal of customers from the premises.  These included that from 23:00 there would be two SIA registered door supervisors on duty outside the premises until 02:00.  Also, Patrons who temporarily leave and re-enter the basement ‘function room’ e.g. to smoke would not be permitted to take drinks or glass containers with them.  Patrons who were permitted to temporarily leave and then re-enter the basement function room, including to smoke or use their mobile phones, would be restricted to using the smoking area at the basement level (the smoking shelter).  The Sub-Committee attached conditions which had been agreed by the Licensee, including that last admission would be at midnight, the proprietor’s guest list would be limited to ten people and there would be a direct telephone number to a manager of the premises.