Agenda item

Le Bab, 4 Mercer Walk, WC2

17/14879/LIPN (“The Premises”)

1.

Late Night Refreshment (Indoors and Outdoors)

Amendments to application advised at hearing:

None.

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

The Sub-Committee heard from Ms Jung, representing the Applicant.  She stated that Le Bab was not a typical kebab premises.  It elevated kebab cuisine to fine dining.  The menu had been designed by a Michelin trained chef and was accompanied by a drinks menu including fine wine, cocktails and craft beers.

Ms Jung drew the Sub-Committee’s attention to the Applicant having operated a similar premises in Kingly Court since January 2016.  It had been operated in a similar fashion except that at the Mercer Walk premises there would be the addition of a Chef’s Table.  The Chef’s Table would enable up to 10 people to book a 7 course tasting menu.  The Chef would explain each dish as it is being cooked.  The price for the food was around £75 and additional wines from around £45.  Ms Jung added there were no reported issues at the Kingly Court premises.

Ms Jung explained that Le Bab was one of eight retail units in a new development.  It operated on the ground floor and basement areas of the Premises.  There was no outside seating area.  The sole entrance and exit was on to Mercer Walk.  There was a public piazza which linked Mercer Walk with Langley Street.

Ms Jung spoke of a robust management policy having been put in place by the landlord, The Mercers’ Company.  She requested that a letter from the landlord which referred to their security arrangements was permitted to be seen and considered by the Sub-Committee.  It had not been circulated earlier because it had been received after the deadline set out in the Council’s Rules of Procedure and the requirements of the Licensing Act 2003 (Hearings) Regulations 2005 (“The Regulations”).  The Sub-Committee, having received legal advice, asked the objectors whether they were content for the late evidence to be submitted.  The objectors were content for this to take place. On that basis the Sub-Committee exercised its discretion under the regulations and allowed for the presentation of such late.

Ms Jung set out the main points from the letter from The Mercers’ Company.  Their tenants include Jamie’s, Temper and Hawksmoor.  It stated that they welcomed the current operator.  They employ two security guards, who are on duty 24 hours a day.  One of the security guards monitors the CCTV (18 cameras at street level) and the other patrols the estate.  Between 19:00 and 01:00 hours the patrolling security guard would supervise patrons leaving the restaurant.

Ms Jung wished to emphasise that the application was for a restaurant and that the Council’s model restaurant condition, MC66, had been agreed by the Applicant in the event the application was granted.  It would not turn into a drinking establishment in the future.  She commented that the hours applied for in terms of licensable activities in the general restaurant area were in keeping with the Council’s Core Hours policy.  The opening hours sought were half an hour beyond Core Hours.  The Applicant was seeking this in order that up to 10 customers in the Chef’s Table area were given an additional 30 minutes to eat and drink up and then leave the Premises.  It was submitted that those particular customers were paying for a “VIP” experience and the Applicant did not want these customers to be rushed away from that experience.  They would not be supplied with additional food or drink outside Core Hours.  Ms Jung added that up to 10 people could book separately and all be starting their meals at different times.  She expressed the view that the additional 10 people would not add to cumulative impact in the West End Cumulative Impact Area because they were so few in number, Le Bab is a restaurant and there were stringent conditions being proposed.

Ms Jung advised that the Applicant had had very helpful discussions with the objectors, notably Mr Kaner.  The Sub-Committee noted that there had been three outstanding issues between the Applicant and Mr Kaner who was representing a number of residents.  These were the operating hours, restrictions on the closing of windows and doors and a last entry time.  Ms Jung informed the Sub-Committee that the Applicant was now willing to agree to the objector’s request that the windows and doors would close at 21:00 each evening.  This would be consistent with the condition attached to the premises licence for Temper, 5 Mercer Walk in December 2017.  Ms Jung questioned whether a last entry time as requested by the objectors was appropriate for a restaurant.  However, she provided the information that last orders in the kitchen were at 22:30 and said that if the Sub-Committee was minded to add such a condition, 22:30 would be acceptable to the Applicant.   

In terms of the opening hours, Ms Jung expressed the view that the security, the dispersal policy and the conditions were sufficient to justify granting those proposed by the Applicant.  Only background music would be played and doors and windows would be closed by 21:00.  There was no outside seating area and customers going outside to smoke or departing from the Premises would be encouraged to use the Piazza rather than Mercer Street. 

Ms Jung stated that the pre-application advice from Environmental Health was that the capacity would be limited to 60 on each floor which would include the Chef’s Table but not the staff. 

Ms Jung referred to proposed conditions, including that no noise would be permitted to emanate from the Premises.  In order to prevent queuing at the Premises, customers would arrive and give their telephone numbers to staff and about 15 minutes prior to their table being ready they would be telephoned or receive a text message.  It was therefore anticipated that there would be no queuing (allaying fears of nuisance) but if this did take place a proposed condition required the Applicant to ensure that it was orderly and supervised by staff.

Ms Jung explained that all commercial waste had to be kept in a dedicated area in the basement area of the Premises.  This was brought up to the ground floor about half an hour before collection which would take place in the Piazza.  Deliveries would be made between 07:00 and 10:00 each day.

The Sub-Committee heard from Mr Watson on behalf of Environmental Health.  He referred to Le Bab at Kingly Court which has a maximum capacity of 40.  The maximum capacity at Mercer Walk was expected to be 120.  This would be subject to a final inspection.  Mr Watson advised that there was a theatre kitchen and small bar proposed on the ground floor where customers were able to wait.  He made the point that the Council’s policy does allow for alcohol to be consumed by customers who have booked tables.  The Applicant was offering the option of informing customers when their table was ready in order to avoid queuing.

Mr Watson asked for clarification on the location of the Chef’s Table as it was not indicated on the plans.  Ms Jung responded that it would be located in the basement.

Mr Watson commented on residents’ concerns in relation to public nuisance.  He said at the moment windows were not openable but the Applicant was looking at applying for the relevant planning consent.  He supported the suggested closure of doors and windows at 21:00 even though there was no regulated entertainment proposed.  This was because there would be up to 60 people on the ground floor in a busy restaurant who would be able to cause nuisance in a residential area.

In terms of dispersal, Mr Watson stated that he was aware that Mercer Street is very residential in nature.  Langley Street also has residents living there although is more of a commercial street.  Directly opposite Mercer Walk is Finsbury Place which has a new residential development.  Mr Watson welcomed the Applicant’s dispersal policy.  It would be necessary for dispersal to be properly managed so that customers went to Langley Street in order to access Covent Garden underground station.

Mr Watson made the point that he was not aware of any Core Hours restaurant application having a last entry time condition on the premises licence and he was not requesting that this condition be imposed.  There was no outside area and drinks could not be taken outside which Mr Watson believed would minimise the potential for public nuisance.  He referred to the Applicant’s arrangement that commercial waste would be kept in a dedicated area in the basement area of the Premises.  This would be collected by The Mercers’ Company from the Piazza with access from Langley Street. 

Mr Watson was of the view that the conditions addressed many of the issues relating to the potential for public nuisance.  He stated that in terms of the dispersal policy, the 120 capacity compared with Temper which was directly opposite, had been granted Core Hours in December 2017 and had a capacity of 150.

The Sub-Committee heard from Mr Sycamore on behalf of the Licensing Authority.  He welcomed that the Applicant had agreed the Council’s model restaurant condition, MC66.  However, he was of the view that the Applicant still needed to demonstrate how the application would not add to cumulative impact.  Mr Sycamore made the point that the extra half hour sought for the opening hours in order to accommodate customers in the Chef’s Table area would take the application outside of the Council’s Core Hours policy.  He was of the view that operationally the extra 10 people by definition alone in this basement area could create some issues if some people were being permitted to stay whilst others were being asked to leave.  He recommended that the Chef’s Table was granted Core Hours to less the impact.  Mr Sycamore had concerns that whilst the current operator might choose to close the kitchen at 22:30 this might change with another operator if the premises licence was transferred. The Sub-Committee noted this statement but realises that it has, to treat each application on its individual merits based on the facts before it.

Mr Sycamore believed that there were some measures being offered by the Applicant that would potentially go some way to alleviating cumulative impact.  These included the written dispersal policy, the additional security being offered by the landlords and the proposed queuing system that would help promote the licensing objectives.

The Sub-Committee was addressed by local residents, objecting to the application.  Mr Kaner, on behalf of Covent Garden Community Association (‘CGCA’) and representing four residents, commented that the immediate vicinity of the Premises is not a typical Soho/central Covent Garden area.  It was submitted that it was very residential in nature and character and there was very little late night activity in the locality.  Le Bab faced on to Mercer Street (although the entrance was on Mercer Walk) and Mercer Street had one licensed premises which had been closed for the last 2 years.  There were three traditional retail shops facing the street.  Mercer Street was however almost entirely residential.  It was stated that once Cambridge Theatre closed, Mercer Street was particularly peaceful.  Mr Kaner stressed that Kingly Court was a very different environment for a licensed premises than the proposed location of the new Le Bab.

Mr Kaner stated that what was important was what the premises licence would actually permit not how the Applicant would choose to operate it as the premises licence could be transferred at some stage in the future.

Mr Kaner referred to the Council’s Planning Committee having limited restaurant use to 23:00 to protect the environment of people living in neighbouring properties.  This he added had been accepted by the developer.

Mr Kaner confirmed that following discussions with the Applicant the outstanding issue was the hours of operation.  The Applicant had made the case that the general restaurant area should operate to Core Hours.  Mr Kaner requested that the closing time was 23:00.  He believed that the question for the Sub-Committee was whether in allowing the Premises to remain open after 23:00 the application was likely to give rise to public nuisance either from the operation of the Premises or from the cumulative impact in the West End Cumulative Impact Area.  Mr Kaner said that it was his view and the view of those he represented that it would do both.  The potential for nuisance that created the concern was customers on the Premises as the doors open and close or from people either arriving or leaving the restaurant.  This was particularly after 22:30 to 23:00 when the area became quiet and peaceful.

Mr Kaner advised that the design of the Mercer’s Walk development where the entrance and exit of Le Bab would be located was a very hard surface and reflected sound easily.  This meant that noise, even from people standing outside the Premises and talking, could be heard from some distance away.  People arriving or leaving the Premises along Mercer Street and Shelton Street would cause a noise which would disturb people given the low level of background noise in the area.  People talking loudly as they walk along the street had more impact at midnight than at 22:00 hours.  There was less background noise and more residents were likely to be asleep.  There were less concerns about Langley Street which was why the dispersal policy towards Langley Street was appreciated.  However, the Applicant could not guarantee that all patrons would disperse towards Langley Street.

Mr Kaner believed it was a matter for the Sub-Committee whether the conditions offered by the Applicant were adequate to prevent the nuisance caused by people dispersing.  The Applicant was offering best endeavours to direct customers to Langley Street and the landlord employed a security guard to supervise patrons leaving the Premises.  Mr Kaner took the view that this might reduce the amount of nuisance because most customers would leave via Langley Street.  It did not however guarantee it.  Being woken up in the night was disruptive for residents.  If the premises closed after 23:00 it would cause more nuisance in the area.

Mr Kaner addressed the Sub-Committee on the Temper application heard by the Sub-Committee in December 2017 which had been granted for a larger capacity to Core Hours.   He explained that Temper was a very different premises and rested on different facts.  This was particularly due to the fact that the entrance at Temper faces Langley Street whilst the entrance for Le Bab faces Mercer Walk.  Encouraging customers to disperse via Langley Street was therefore much easier at Temper than Le Bab.  Any noise from Temper was likely to travel to Langley Street.  Any noise near the entrance at Le Bab was much more likely to be directed towards Mercer Street.

Mr Kaner made the point that even if the Sub-Committee had already taken the view that Temper did not add to cumulative impact it did not follow that adding another Premises of a similar size in the area would not add to it.  The requirement of the Council’s policy was that the Applicant needed to demonstrate that the application would not add to cumulative impact.

Mr Kaner confirmed that he was seeking a last entry time condition for the Premises if it was decided by the Sub-Committee to grant an application beyond 23:00.  He was less concerned about the additional 30 minutes for up to 10 people in the Chef’s Table area as it was much easier for the Premises to manage the dispersal of this number than a larger number from the general restaurant area.

The Sub-Committee heard from Ms Havers.  She lived in a flat in Mercer Street.  She was very concerned that if a significant amount of people were leaving Le Bab she would be woken up.  It was currently a very quiet area after 23:00 due to that part being residential.  She was hopeful that the application would not be granted beyond 23:00 and that customers would disperse via Langley Street.

Ms Rigby spoke on behalf of The Ching Court Association.  The Association represented more than 20 dwellings, many of whom housed families with children.  She was very concerned at the prospect of introducing a very late night leisure element to the area which would change it significantly.  The granting of the Temper premises licence had caused concern but at least Temper faced on to Langley Street and people could go directly to Covent Garden underground station.  People leaving Le Bab would enter Mercer Walk which was a very short distance from Mercer Street.  Ms Rigby concurred with fellow residents that there was little late night activity after 22:30 hours.  She stated that Mercer Street is narrow with very high buildings and noise echoed a great deal.  Noise also echoed from The Piazza which could be heard in Mercer Street.  Ms Rigby did not believe it was appropriate for The Piazza to be a vibrant area after 23:00 due to the adverse impact on residents.

The Sub-Committee asked the Applicant a number of questions.  Further information was requested on the operation of the Chef’s Table.  Ms Jung explained that the Chef’s Table would involve private dining in the sense that customers there would be located in a separate room from other diners.  The diners in the Chef’s Table would not be seen by other customers in the restaurant.  Mr Brunet clarified that dining at the Chef’s Table was by reservation only in contrast to the rest of the restaurant where it was possible to have either walk-in diners or bookings.  There were two dedicated chefs for this area.  The Applicant would also not be accepting bookings for the maximum number of 10 people.

The Sub-Committee asked Mr Brunet whether he planned to have deliveries of food or drink from the Premises.  He replied that this was being explored.  It would be a miniscule part of the operation, similar to Kingly Court.  Ms Jung referred to the Applicant having agreed a condition that it would use reasonable endeavours to ensure that delivery drivers do not congregate in the vicinity of the Premises, obstruct the highway or cause nuisance outside the Premises.  The use of bicycles for deliveries would be encouraged.

The Sub-Committee asked the Applicant questions on dispersal from the Premises.  Mr Brunet responded that Langley Street was the easiest and shortest route to Covent Garden underground station.  The Applicant could not be expected to manage a person walking along the road using a mobile phone late in the evening.  The Applicant was committed to doing its upmost to encourage customers to leave quietly and respect local residents’ needs.  This would feature in staff training.  Ms Jung added that in addition to a security guard being employed to patrol the area, there would be a member of staff at the door liaising with customers as they left in order to prevent any nuisance being caused to residents. 

The Sub-Committee also heard from Mr Brown on behalf of CGCA.  He referred to paragraph 2.4.26 of the Council’s Statement of Licensing Policy (“SLP”).  This set out that one of the ways of addressing cumulative impact was with planning policies.  The terminal hour for the Premises decided by the Council’s Planning Committee was 23:00 and this Mr Brown believed was a material consideration.  He added that planning permission was not binding on licensing decisions and vice versa but 23:00 had been granted as a terminal hour by the Planning Committee for a reason in mind.

Mr Wroe provided advice on the Council’s model restaurant condition, MC66.  This was that the aspect of the Applicant’s application for off sales was inconsistent with the Applicant agreeing MC66, in particular part (vi) that the premises shall only operate as a restaurant ‘where alcohol shall not be sold or supplied, otherwise than for consumption by persons who are seated in the premises and bona fide taking substantial table meals there, and provided always that the consumption of alcohol by such persons is ancillary to taking such meals’.  Mr Brunet clarified that off sales were being applied for in the rare event that customers wished to purchase fine and rare wines. 

Mr Wroe advised that if MC66 was to be relaxed as was suggested by the Applicant, it would be contrary to the policy on restaurants, what had been agreed with the Responsible Authorities and residents and potentially have influenced whether representations had been submitted or not, which would give rise to the consultation process having to be repeated because of the slight relaxation referred to above.  Ms Jung responded that the Applicant had originally applied for off sales.  She also requested clarification on the paragraph setting out that notwithstanding the stipulations as to how the Premises would only operate as a restaurant, ‘customers are permitted to take from the Premises part consumed and resealed bottles of wine supplied ancillary to their meal’.  Mr Wroe stated that it was a matter for the Sub-Committee but it was clear that the Applicant’s intended off sales were not in keeping with providing ‘part consumed and resealed bottles of wine supplied ancillary to their meal.  

In response to the Sub-Committee’s question about the intended opening hours on New Year’s Eve into New Year’s Day, Mr Brunet and Ms Jung said they would be prepared to restrict the hours of operation then to more standard hours. 

Ms Jung was given the opportunity to provide a closing submission.  She stated that the Applicant had been reasonable and proactive in discussing matters with the objectors and had made concessions.  She made the point that the Sub-Committee had a duty to be fair, consistent and apply the Policy.  This she believed justified granting Core Hours for the general restaurant area.  Ms Jung referred to Temper being granted Core Hours in December 2017, having a similar operation although Temper had an outside area which was not the case with the application at Le Bab. 

Ms Jung made the point that Langley Street was no more than 10 metres away.  Customers would be encouraged to disperse via Langley Street. 

Ms Jung also requested that an additional 30 minutes was permitted beyond Core Hours for the Chef’s Table on the basis that this had not been objected to by local residents.

Ms Jung expressed the view that the planning permission terminal hour was not a matter for the Sub-Committee to take into consideration.  She said that there were conditions on the premises licence which should satisfy the Sub-Committee that the licensing objectives were being promoted and cumulative impact was not being added to.

Mr Kaner wished to bring to the Sub-Committee’s attention that whilst Covent Garden is the nearest underground station from Mercer Walk, there would be customers who would want to walk to Leicester Square or Tottenham Court Road and the quickest route to these stations is via Mercer Street.  He did not believe there should be a reliance on customers all wanting to use Covent Garden station.

Ms Rigby mentioned that it was her clear understanding that when the Temper application had been granted it had been taken into account by the Sub-Committee that the door on to Mercer Walk would be closed at 23:00.  She remarked that it would be inconsistent to allow Le Bab to have its door open on to Mercer Walk after 23:00.

The Sub-Committee in reaching a decision considered that it was appropriate to balance the operation of the business against the potential for public nuisance.  The concerns relating to public nuisance had clearly been expressed by residents in the strongest terms and their representatives which could not be ignored by the Sub-Committee.  The Sub-Committee acknowledged that Le Bab was located in a quiet residential area and was keen to protect residents from public nuisance/noise.

The Sub-Committee in its determination of the matter, having regard to the promotion of the licensing objectives and the Home Office Guidance issued under s.182 of the Licensing Act 2003 decided to restrict the general operation of the restaurant to 23:00 Monday to Thursday, 23:30 on Friday and Saturday and 22:30 on Sunday in terms of the opening hours to the public and for on-sales.  Off sales were not granted as the Sub-Committee did not consider that this was in keeping with the Council’s model restaurant condition, MC66 and the operation of a restaurant in the West End Cumulative Impact Area.  The Sub-Committee did not consider that it was appropriate to attach a last entry condition at the restaurant due to the nature of the Premises.

The Sub-Committee was prepared to grant the limited operation of the Chef’s Table to Core Hours (23:30 Monday to Thursday, midnight on Friday and Saturday and 22:30 on Sunday).  The Sub-Committee wished to acknowledge that the Applicant had made efforts to meet residents’ concerns.  These included closing windows and doors at 21:00.  The Sub-Committee thanked residents for attending the hearing.

The Sub-Committee noted the measures taken by the Applicant and landlord to limit the adverse impact of dispersal and this was factored in to the hours permitted for the general restaurant area and the Chef’s Table.  The Sub-Committee also noted that the Council’s policy for restaurants in the designated cumulative impact areas is that ‘applications will be granted subject to other policies in this Statement and subject to the relevant criteria in Policies CD1, PS1, PN1 and CH1, provided it can be demonstrated that they will not add to cumulative impact in the Cumulative Impact Areas’.  In this instance the locality was particularly residential and quiet later in the evening so that the Sub-Committee considered that there would be public nuisance if customers were able to leave at 23:30 Monday to Thursday and midnight on Friday and Saturday (an exception was made for customers at the Chef’s Table which all parties had accepted could be more easily managed due to the maximum number of ten customers who were unlikely to all leave at the same time).  The Sub-Committee had heard evidence from residents that noise echoed from Mercers Walk to Mercer Street.  The Applicant could direct customers towards Langley Street but there was the potential for customers also to wish to leave via other routes, including as suggested by Mr Kaner, via Mercer Street to Leicester Square or Tottenham Court Road.

The Sub-Committee also considered that the Applicant had placed emphasis on the Sub-Committee’s decision to grant Core Hours for Temper in December 2017 but that the closing of the door on to Mercers Walk at 23:00 as part of the decision (as referred to by Ms Rigby) was relevant. 

In making its decision the Sub-Committee recognises that the Guidance recommends that the Licensing Authority should avoid setting fixed and artificially early closing hours and that licensing hours should not inhibit the development of business and the night-time economy. This has to be balanced against the needs of residents through the promotion of the licensing objectives. However, in this case it was felt appropriate and proportionate that the hours applied for should be restricted to Core hours as expressed above, based on the views of residents in relation to the prevention of public nuisance and the residential nature of the area in close proximity to the Premises.

The Sub-Committee is entitled to and has taken into account local knowledge in reaching its decision. It is also recognised that other legislative procedures may be inadequate to overcome the concerns raised by those who have made representations.

The Sub-Committee in its determination of the matter felt that it was right and proper to scrutinise the application given the weight of opposition by residents on the grounds of public nuisance and the strict requirements contained within the wording of the above policies.

It is therefore the role of the Sub-Committee to ensure that the licensing objectives are promoted and with this consideration in mind and has therefore based its decision on this very factor in accordance with section 4 of the Licensing Act 2003 and all relevant parts of the Home Office Guidance (as amended).

The Sub-Committee were persuaded that the operator would run his business well and were confident that the proposed dispersal policy and added security measures would be fully implemented that would ultimately promote the licensing objectives from a management perspective. The conditions referred to in this Decision will help achieve this.

It was agreed that the plans would be amended by the Applicant and then supplied to the Licensing Service to reflect the inclusion of the Chef’s Table in the basement.

For the reasons given above the Sub-Committee considers that the conditions imposed on the Premises Licence are appropriate and proportionate to promote the licensing objectives.

2.

Sale by retail of alcohol (On and Off)

Amendments to application advised at hearing:

None.

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

The Sub-Committee granted 23:00 Monday to Thursday, 23:30 on Friday and Saturday and 22:30 on Sunday for on-sales in the general restaurant area.

The Sub-Committee was prepared to grant the limited operation of the Chef’s Table to Core Hours (23:30 Monday to Thursday, midnight on Friday and Saturday and 22:30 on Sunday).

Off sales were not granted as the Sub-Committee did not consider that this was in keeping with the Council’s model restaurant condition, MC66 and the operation of a restaurant in the West End Cumulative Impact Area.

3.

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 Sub-Committee decided to restrict the general operation of the restaurant to 23:00 Monday to Thursday, 23:30 on Friday and Saturday and 22:30 on Sunday in terms of the opening hours to the public.

The Sub-Committee was prepared to grant the limited operation of the Chef’s Table to Core Hours (23:30 Monday to Thursday, midnight on Friday and Saturday and 22:30 on Sunday).

4.

Seasonal variations / Non-standard timings

Amendments to application advised at hearing:

None.

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

Granted, subject to conditions as set out below.