Agenda item

Studio 88, 47 Whitcomb Street, WC2H 7DH (“The Premises”)

17/08880/LIPN

1.

Films (Indoors)

Amendments to application advised at hearing:

None.

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

The application was originally part heard on 3 October 2017 by the same two Members of the Licensing Sub-Committee, Councillor Freeman and Councillor Scarborough. It was proposed that the Premises would operate as a venue providing live music, dancing and private hire facilities.  The capacity would be 400 people excluding staff with licensable activities being sought until 01:00 Monday and Tuesday, 02:00 on Wednesday, 03:00 Thursday to Saturday and 22:30 on Sunday.  An additional 30 minutes was sought in respect of the closing time. 

The hearing had been adjourned to give the Applicant an opportunity to produce more specific proposals to demonstrate that the Premises would be entertainment and food led.  The Sub-Committee had noted at the previous hearing that the Applicant was proposing a venue with a large capacity until beyond Core Hours in the West End Cumulative Impact Area.  The Applicant had been advised that whilst the Council’s Statement of Licensing Policy did refer to that there should be greater diversity in the types of entertainment and cultural activity on offer and that a live music venue would potentially fit within this category, Policy MD2 in the Council’s Statement of Licensing Policy applied.  It is the Licensing Authority’s policy in respect of MD2 to refuse applications for the Provision of music and dancing or similar entertainment or the provision of facilities for music and dancing or similar entertainment within the Cumulative Impact Areas, other than applications to vary hours within Core Hours.

The Sub-Committee was addressed by Ms Davies at the hearing on 30 October 2017.  She spoke about the style of the operation.  The Premises would open to the public at 17:00 hours with two piano vocalists taking requests from the pre-theatre audience.  They would be joined by two guitarists, a drummer and a horn player who play non-stop live music until closing time. Ms Davies clarified that the Applicant would employ up to 17 musicians every evening and that the additional musicians would join the piano vocalists at 20:00.  These were amendments to the document which had been submitted by the Applicant and had been included in the report.

Ms Davies made the point that the Premises did not directly fit any of the Council’s policies.  These included that Studio 88 was not purely a restaurant or a concert hall.  It had elements of a number of different styles of operation and this was accepted by the Sub-Committee.  She expressed the view that the licensing objectives would be promoted and that the types of entertainment sought by Westminster were all incorporated into the application.  

Ms Davies stated that there had been an opportunity after the adjournment to liaise with the Responsible Authorities.  An additional five conditions had been proposed which had been agreed with the Police.  One of these was that the Premises would not operate as a nightclub and there would be no DJ playing recorded music at the Premises at any time.  Another condition was that from 17:00 until closing time the Premises would only operate as a live music venue.  All licensable activities would be provided as ancillary to the performance of live music. 

Ms Davies said that she had also discussed the application with Mr Sycamore who had made a representation on behalf of the Licensing Authority.  She believed his key concerns were the proposed hours of operation, occupancy, the dispersal policy and the food offer and these were the key areas she would focus on in her submissions to the Sub-Committee.  She referred to there being a licence in place at the Premises which the Applicant was seeking to replace (the ‘primary’ licence for the premises had been revoked whilst the ‘secondary’ licence was held by the landlord of the premises).  Ms Davies drew attention to the proposed hours mirroring those of the landlord’s licence.

Mr Moffatt spoke about the customer demographic.  He said that the Applicant was seeking later hours to be able to cater for people who work during the night time and typically finish at 23:00 to 02:30, including musicians, actors/actresses and also restaurant/bar workers.  This could not be offered to patrons at a similar premises owned by the Applicant in Farringdon where the terminal hour was earlier.  They had been catered for when Temporary Event Notices (‘TENs’) had resulted in the premises opening until later. 

Mr Lorrimer provided the additional comments that in addition to the conditions that Studio 88 would not operate as a nightclub and could not sell it as a nightclub, alcohol would only be sold when the Premises was operating as a live music entertainment venue.   It was stated that 350 people out of the 400 people would be seated at tables.  Mr Lorrimer commented that the business model had been built around transferring the existing premises licence and conditions.  Following a consultation with other parties to the application, the Applicant had decided to apply for a new premises licence.  He added that the greatest threat to the Applicant was the loss of the licence and as at Farringdon the Applicant would work very hard to promote the licensing objectives.  It was an opportunity to create a world class venue.  He also referred to the Council’s loss of income over the last two years as there was no business currently operating there.

Ms Davies stated that the capacity for the number of customers was the same as that which had applied when the Premises had been known as Press.  She advised that the proposed capacity was the same as the Applicant’s premises at Farringdon but that the trading area of 47 Whitcomb Street was 3000 square feet larger so there would not be limited space.  Mr Moffatt added that there had never been issues with overcrowding at Farringdon.

Mr Moffatt spoke about the 50 patrons who would not be seated at tables.  About 20 of them were due to be around a baby grand piano in the ‘Friends’ Bar’.  The other 30 would be located around the stage interacting with the band of musicians.  He made the point that there would be plenty of space for the patrons who were not seated.

The Applicant tabled a document with staff to customer ratios.  This was based on Mr Moffatt’s previous experience including being an assistant general manager at Tiger Tiger, an assistant general manager at Grace Bar and a manager at Sway Bar.  The document had been produced in order to show that there was a significantly higher staff to customer ratio, including managers, waiter/waitresses, door supervisors and glass collectors than other premises Mr Moffatt had worked at.  It was intended that there would be a security member of staff to every 27 patrons at Studio 88 which compared with 1 to every 31 at Farringdon.  Mr Sycamore for the Licensing Authority did have some concerns that the document was being tabled without any opportunity to check whether the information was correct and whether the staff to customer ratio was still the same as when Mr Moffatt had been working at the venues.  The Sub-Committee, exercised its discretion under the provisions of the Licensing Act 2003 (Hearings) Regulations 2005 (“The Regulations”) and with the consent of all parties by allowing the submission of the document, attaching the weight the Sub-Committee felt was necessary to the document.  Mr Moffatt wished to highlight that the same owners were in place at the premises he had previously managed and the business models still remained the same.  The models involved discounting to bring patrons in which he believed contrasted with the Applicant’s live music venue model providing table service.

Mr Moffatt also raised that whilst Farringdon had an 01:00 terminal hour, there had been a large number of TENs to extend the operation until 04:00 and there had been no issues.  PC Janes confirmed Ms Davies’ point that the Police had sought information on the record of the Farringdon premises and had found no issues with crime and disorder there.

The Applicant had agreed a proposed condition with the Police that the Premises would operate in accordance with a written dispersal policy supplied in advance to Police and the Licensing Authority.  The Applicant then sought to table this document at the hearing.  The Sub-Committee shared the concerns of Mr Sycamore that the document was being tabled, particularly as the late submission must be in accordance with the Regulations.  However, the Sub-Committee after seeking advice from the Legal Advisor appreciated that the document was a significant element of the Applicant’s case and that it would not assist the process if the evidence was not allowed or a further deferment of the hearing took place to a later date.  The Legal Adviser reminded the Applicant the importance of disclosing such information on time to ensure that all parties are on a level playing field. The hearing was therefore adjourned for a brief period of time to enable all parties to read the document.

Following the resumption of the hearing, Mr Moffatt said that at Farringdon when TENs had been operated there had been less than 50% of the capacity still at the Premises after 03:00.  He was of the view that this would be the same at Whitcomb Street and it would not be necessary for all 400 people to disperse at 04:00 hours.    This would mean that staff to customer ratios would then be higher.  There would be 14 door supervisors, 2 managers and 2 staff acting as ushers/hosts.  Mr Moffatt offered to have a manager and two staff direct those dispersing from the venue up Coventry Street and towards the nearest transport links.  There would be senior staff and security directly outside the venue.

Ms Davies stated she had discussed the dispersal policy with PC Janes during the brief adjournment and he did not have any concerns about the policy.  He was also not aware of any particular issues relating to dispersal when the previous Operators, Press, had been operating at this location.

The Sub-Committee was addressed by Mr Sycamore on behalf of the Licensing Authority.  He referred to the presumption to refuse the application under the Council’s policy MD2.  This set a very high threshold in terms of the Applicant having to prove exceptional circumstances as to why the application should be granted in the West End Cumulative Impact Area.  Mr Sycamore made the point that the Applicant’s argument had been that the extension had been sought for commercial reasons and this did not justify an exception to policy.

Mr Sycamore said that the Applicant had mentioned that by 03:00 there could be 50% of the capacity still inside the premises.  However, the Applicant had also mentioned that it was important to operate until later to accommodate other workers.  The Applicant had not offered a staggered dispersal condition where the capacity decreased during the course of the evening/morning.  It would be to the benefit of the Applicant for 400 people to be at the Premises until 04:00 hours to make it more commercially viable. 

Mr Sycamore also expressed concerns that there was no last entry time proposed by the Applicant so that patrons would be drawn from other premises in the vicinity and would remain in the West End Cumulative Impact Area.  After midnight the Council’s policy demonstrated that incidents of crime were far higher.

Mr Sycamore stated that there was no formal definition of a nightclub.  It was clear from the Council’s policy that MD2 was relevant for any premises where the provision of music and dancing or similar entertainment is provided so the Premises fell squarely within Policy MD2.  He did not believe that the Applicant had provided exceptional reasons for the application to be granted by the Sub-Committee.

Environmental Health and the Police had maintained their representations on policy grounds.  Mr Nevitt on behalf of Environmental Health referred at the hearing to the policy implications having been set out by Mr Sycamore.  It was for the Sub-Committee to determine in relation to the Council’s policy.  He advised that Environmental Health had no objections to the Applicant’s additional five proposed conditions as they set out to define and tighten up the operation.  He recommended that any dispersal policy should include the mechanism/ability to review and amend it in light of experience of how it operated and following any requests by the Responsible Authorities.  PC Janes confirmed that the Police’s representation had been maintained with the hours being significantly beyond Core Hours in the West End Cumulative Impact Area.  He advised that the Police was satisfied with the Applicant’s additional conditions in respect of preventing crime and disorder.  He was also content with the dispersal policy.

In response to a question from the Sub-Committee, Mr Moffat offered that in the event the application was granted the Applicant would increase lighting and CCTV in Whitcomb Court and clean an area around the block to Oxendon Street.  

The Applicant had previously suggested that an alternative option could potentially be used to avoid any adverse problems arising from queuing.  The Sub-Committee asked about this.  Mr Moffat replied that he had investigated the idea of patrons in portable tunnels made from marquee material so there was no noise when queuing.  The queue would be separated from the general public.   He had concerns that any barriers used were knocked too easily by patrons.   Mr Moffat clarified that there were six security staff at the front entrance in Farringdon.  

The Sub-Committee noted that a high percentage of customers booked in advance.  The Applicant was asked whether customers also booked food in advance.  Ms Davies replied that there was encouragement given to customers to book food in advance.  Mr Moffat stated that on an average Saturday night in Farringdon it was typical for there to be 250 restaurant bookings.  The average spend was £40 a head and the average spend on food was £25 per person.  He added that it was crucial to the business model to provide food.  There would be fixed seating and food would be provided at all times.

The Sub-Committee gave Ms Davies the opportunity to respond to Mr Sycamore’s representation.  She re-iterated that it was an unusual type of Premises which did not fit into a specific policy.  She also expressed the view that the Applicant’s assertions were based on fact due to the experience of the existing premises at Farringdon.  It was submitted that what had taken place there would be replicated at Whitcomb Street.

The Sub-Committee also gave Ms Davies the opportunity to summarise the exceptional reasons she believed the application should be granted in the West End Cumulative Impact Area.  In reply she stated the following points:-

·         Studio 88 would be a cultural venue and that the Council’s policy welcomed these. 

·         Studio 88 was also very diverse with the target market being professional women.  Ms Davies did not believe that the target market would be prone to conflict. 

·         There would be different styles of operation which the Policy welcomed such as providing a restaurant and entertainment.  Live music would be the main reason for patrons attending the venue. 

·         She believed that the Applicant had demonstrated that the application would not be drink led and it would promote the licensing objectives. 

·         Ms Davies also referred to the Applicant’s proposals for cleaning and providing improved lighting and CCTV outside the premises.

The Sub-Committee carefully considered all the representations received in respect of this application.  The Sub-Committee noted all the points made by the Applicant, including that Studio 88 incorporated different styles of operation.  Whilst the Sub-Committee appreciated that food was available and that the Applicant had made the case that it was reliant on food sales, the application did not comply with the strict definition of restaurants in a cumulative impact area (RNT2).  There was no requirement for patrons to have substantial food when drinking alcohol.  The application also did not fit within Policy PVC2 for theatres, cinemas, other performance venues, and qualifying clubs in the Cumulative Impact Areas Policy.  The PVC policy specifically excludes venues where facilities are included for a person to take part in the entertainment.  The Sub-Committee was satisfied that Policy MD2 did apply and that as referred to by Mr Sycamore on behalf of the Licensing Authority there was a presumption against the grant of the application.

The Sub-Committee did not consider that there were reasons given by the Applicant that were sufficiently exceptional to justify granting the application.  The Applicant was proposing a very late licence which permitted the sale of alcohol until 01:00 Monday to Tuesday, 02:00 on Wednesday and 03:00 Thursday to Saturday with the closing time being half an hour later.  The scale in terms of numbers was also very sizeable.  Whilst the Applicant had made the case that the numbers in the Premises might not be 400 at all times, particularly in the early hours of the morning, there was no proposal by the Applicant to limit the numbers whether this was with a last entry time or a staggered reduction in capacity. By definition alone, and by the sheer numbers attending the Premises at any given day of the week this would lead to cumulative impact. The Sub-Committee was satisfied that the Premises would significantly add to cumulative impact in the West End Cumulative Impact Area.

The Sub-Committee was very conscious that there are references in the Statement of Licensing Policy to the Council giving ‘high priority to the development of greater diversity in the types of entertainment and cultural activity on offer and in the age groups attracted to them’.  The Sub-Committee had been open to the idea of a live music venue coming to Westminster as referred to at the adjourned hearing.  However, the Sub-Committee considered that the sheer lateness and scale of the application meant that there were not the grounds for this application being deemed an exception to policy. 

The sheer lateness and scale of the application had the capacity to undermine the licensing objectives.  Whilst the Sub-Committee noted the Police’s comments and that the Applicant was employing a significant number of security staff, they could not guarantee that people arriving and dispersing during the early hours of the morning would not cause public nuisance in particular.  The Sub-Committee was not satisfied that all aspects of the Applicant’s experience in Farringdon would be replicated in the West End Cumulative Impact Area. The Sub-Committee did not doubt that the Applicant was an experienced operator and managed his premises well in Farringdon but the City of Westminster is a different part of London altogether with many challenges (notably during the night time) and the location of the two premises are not comparable in this respect, particularly when up to 800 customers are likely to consume alcohol inside the Premises and what potential affect that has on the cumulative impact area in terms of an effective dispersal of customers that will help promote the licensing objectives.

It is the role of the Sub-Committee to scrutinise the application having regard to the relevant policies contained within the SLP and Government Guidance taking a fair and balanced approach in the determination of the matter. However, the Sub-Committee must consider what impact the granting of such an application would have ultimately on the promotion of the licensing objectives. Whilst, the Applicant had put forward some conditions in relation to the management style of operation it was the Sub-Committee considered view overall that these proposals did not go far enough to promote the licensing objectives.

In order for the Applicant to demonstrate exceptionality they would have to show that these Premises were different and set themselves aside from others. Admittedly the nature of the venue is a mix of many uses which was not disputed by the Sub-Committee, however, it is for the Sub-Committee to be persuaded that what the Applicant was offering in terms of exceptional reasons was somehow unique in terms of the 5 additional conditions offered. The Sub-Committee did not consider that what the Applicant proposed was over and above any competent licence holder would do when promoting the licensing objectives, in terms of crowd control and a litter sweep (which if caused by customers leaving the Premises was a responsible attitude to take in any event). In all of the circumstances of the case the Sub-Committee felt that on balance it had no alternative but to refuse the application on this occasion, having taken an appropriate and proportionate approach in its full determination of the application. 

2.

Live Music (Indoors)

Amendments to application advised at hearing:

None.

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

The application was refused (see reasons for decision in Section 1).

3.

Recorded Music (Indoors)

Amendments to application advised at hearing:

None.

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

The application was refused (see reasons for decision in Section 1).

4.

Performances of dance (Indoors)

Amendments to application advised at hearing:

None.

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

The application was refused (see reasons for decision in Section 1).

5.

Anything of a similar description to live music, recorded music or performances of dance

Amendments to application advised at hearing:

None.

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

The application was refused (see reasons for decision in Section 1).

6.

Late Night Refreshment (Indoors)

Amendments to application advised at hearing:

None.

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

The application was refused (see reasons for decision in Section 1).

7.

Sale by retail of alcohol (On)

Amendments to application advised at hearing:

None.

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

The application was refused (see reasons for decision in Section 1).

8.

Hours premises are open to the public

Amendments to application advised at hearing:

None.

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

The application was refused (see reasons for decision in Section 1).

9.

Seasonal variations / Non-standard timings

Amendments to application advised at hearing:

None.

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

The application was refused (see reasons for decision in Section 1).