Agenda item

Soho Mixer, Unit 5 Jubilee House, Ramillies Street, W1

17/03847/LIPN

1.

Late Night Refreshment (Indoors)

Amendments to application advised at hearing:

Mr Warne, representing the Applicant, advised during the hearing that the aspect of the application relating to Late Night Refreshment was being withdrawn.

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

The Sub-Committee was not required to consider this aspect of the application as it had been withdrawn by the Applicant.

2.

Sale by retail of alcohol (On and Off)

Amendments to application advised at hearing:

Mr Warne advised in writing prior to the hearing that the proposed hours for the sale by retail of alcohol had been reduced to:

Sunday:                                                 12:00 to 22:00

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

The Sub-Committee heard from Mr Warne, representing the Applicant.  He referred to additional papers submitted by the Applicant which had been circulated to all parties.  These included two additional proposed conditions which had been submitted by the Applicant following discussions with the Police.  These were that there would be one SIA doorman on duty between 19:00 and the closing time on Friday and Saturday and CCTV would cover the area immediately outside the premises.  Two conditions proposed by Environmental Health had been agreed by the Applicant.  These were that the licence holder would remove litter and waste from the area immediately outside the premises and it would be cleaned and washed and also that the number of persons permitted on the premises at any one time (excluding staff) would not exceed 70.  This was a reduction from the previous proposed condition which put forward a maximum of 110 people inside the premises.

Mr Warne confirmed that his client had not agreed the model restaurant condition, MC66, which had been proposed by Environmental Health.  He stated that planning permission would not allow for a flue in the building so it was not possible to have a full kitchen at the premises.  Mr Warne wished to emphasise that the lease required the Applicant to trade all day.  The Applicant intended to run Soho Mixer as a café in the morning and provide food from two commercial kitchens.  Small plate foods and olives were part of the offer during lunchtime and evening.  Mr Warne added that the landlord did not want the premises to be operated as a bar.

Mr Warne referred to the proposed reduction in the hours of operation (see amendments to application advised at hearing above – sections 2 and 3).  He informed those present that they had been reduced because he believed that the key times in respect of the cumulative impact policy are at and beyond Core Hours.  He quoted a line from paragraph 2.4.2 of the Council’s Statement of Licensing Policy that ‘The problems in the Cumulative Impact Areas are generally later at night than the core hours’.  The Applicant’s intention was that customers would leave the premises before the stress of the cumulative impact areas really came into being.

Mr Warne made the point that he appreciated that the application was contrary to the Council’s policy in the West End Cumulative Impact Area.  He had noted however that whilst he had to provide genuinely exceptional circumstances as to why the application should be granted, the Licensing Authority would not apply its policies inflexibly and would be required to consider the individual circumstances of each application; even where an application is made for a proposal that is apparently contrary to policy.

The reasons given by Mr Warne as to why the application constituted an exception to policy included the approach that would be taken by the Applicant in Ramillies Street.  Mr Warne stated that there was an issue with crime and disorder in the street which he believed had been recognised by all parties to the hearing including by the Police, in New West End Company’s representation and also that of Leighton Harbor Ltd and Ponte Gada. The Applicant had submitted data of the breakdown of crime on Ramillies Street and photographs of litter in the locality.  Mr Warne referred to the stench of urine in the street and described it as intimidating, a hotspot for rough sleepers and used by street drinkers.  Mr Warne explained that Soho Mixer would trade from early morning until the late evening and that the activity would put individuals or groups off from being involved in any criminal or anti-social behaviour.  The Applicant would be prepared to clean any area in the locality where there was a pervading smell.  The outside area was public highway and the Applicant was considering applying for a ‘tables and chairs’ licence so had a vested interest in keeping the area clean.  There would be CCTV outside.

Mr Warne said that another reason as to why the application constituted an exception to policy was the location of the premises.  He understood that local residents were to the north of Oxford Street.  There were no other licensed premises in close proximity to Soho Mixer.  He made the point that shoppers or other potential customers looking for a restaurant had to head to Soho.  If the application for Soho Mixer was granted, Mr Warne was of the view that customers would not cause the problems that the cumulative impact area was there to protect against.  Residents when dispersing were likely to head up Oxford Street or towards Oxford Circus underground station.  He also believed that the nature of the street was not one where there was cumulative impact due to density of premises.  Mr Warne stated that the Applicant expected the clientele to be office workers in the morning, shoppers in the afternoon and office workers and shoppers in the early evening.

Mr Warne referred to the experience of Mr Dalton in operating premises in and outside London.  Mr Dalton was looking to cater for the market which did not want a full restaurant meal.  He added that it could not be the policy to abandon an area which has crime and disorder.

The Sub-Committee heard from PC Lewis.  He advised that the Police maintained their representation on policy grounds as Soho Mixer is in the West End Cumulative Impact Area and the Applicant had not agreed the model restaurant condition.  However, he had visited the street and found it to be like a dismal service road in nature.  He took the view that a well-run appropriately licensed premises with good security presence, including CCTV and potential witnesses could assist to prevent crime and disorder in the street and make it less intimidating.  Potentially people would leave the West End Cumulative Impact Area to travel home.

The Sub-Committee was addressed by Mr Nevitt on behalf of Environmental Health.  He had also maintained his representation on the grounds that the application was contrary to the Council’s policy in the West End Cumulative Impact Area.  He was keen to understand how the Applicant wanted to operate the premises.  The Applicant did not want the premises to be a restaurant.  It was also not the intention to run the establishment as a bar or a fast food premises.  Mr Nevitt added that had the Applicant been willing to accept MC66 Environmental Health would probably have been content with the application.

Mr Nevitt wished to respond to the points included in the Applicant’s submission as to why the application should be considered an exception to policy.  Mr Warne had raised the matter of there being limited potential use of the site.  Mr Nevitt drew the Sub-Committee’s attention to the planning permission being for dual alternative use as a retail café or an A4 bar.  Whilst permission would not be given for a high level extract ventilation system, Mr Nevitt advised that it was perfectly possible to comply with the Council’s model restaurant condition without providing primary cooking on the premises.  Mr Nevitt also did not take the view that the application was exceptional just because it might put some people off misbehaving in the area.  He believed it could also be questioned whether it was a good thing in an area which was vulnerable to crime and disorder to have a bar there or a premises where alcohol was not ancillary to food.  A restaurant would take the edge off the concern.  Mr Nevitt stated that bona fide restaurants with small bars in the cumulative impact areas were contrary to the Council’s policy.  There was no requirement in this instance for customers to consume food with alcohol.

The Sub-Committee heard from Mr Sycamore on behalf of the Licensing Authority.  He agreed with Mr Nevitt’s point that the Applicant needed to explain how the premises would operate.  He referred to paragraph 2.4.21 of the Council’s Statement of Licensing Policy that applications needed to be ‘appropriately conditioned so that the consumption of alcohol is not, and cannot become, a significant part of the operation of the premises’.  The application was effectively for a new bar in the West End Cumulative Impact Area.  He did not believe that the Applicant had provided genuinely exceptional circumstances as to why the application should be granted.

The Sub-Committee also heard from Mr McCann, representing Leighton Harbor Ltd, freehold owners of the office block at 187-195 Oxford Street which is immediately opposite Soho Mixer.  Mr McCann informed the Sub-Committee that the office block contained 500-600 workers and overlooked the Applicant’s premises.  There were concerns that they would be disturbed by the Applicant’s premises during trading hours due to noise, fumes from smokers, general threatening behaviour and congestion.  After the Applicant’s premises operated, there were concerns regarding the potential for litter, patrons lingering in the nearby area, public urination and vomit.

Mr McCann observed that the Applicant’s case was that the premises would be doing the area a favour if the application was granted.  Leighton Harbor did not believe that this was correct as they considered that they had already taken significant steps to improve Ramillies Street.  They had contributed £300k to the Council for pedestrianisation of the street, had planted a tree and had paid for daily cleaning.  Mr McCann disputed that the locality looked as untidy as the Applicant’s photographs had indicated. He had found it to be quite tidy, not blighted by rubbish and not tainted with the smell of urine.

Mr McCann said that it was the intention of his client to install a waterfall going the full length of the 187-195 Oxford Street building.  His client took the view that there was already sufficient lighting and there was external CCTV in place at the building.  Mr McCann made the point that what was proposed by the Applicant at Soho Mixer was a bar and that an outside area would ultimately be used.  Leighton Harbor did not believe that this would improve the area.  He commented that MC66 had not been agreed or alcohol being ancillary to food in any way.  The use of the outside area had also not been limited to early evening.  There had not been any limits on the numbers outside or smokers. 

Mr McCann also wished to respond to the Applicant’s point that there was limited potential use of the site.  He believed this was misleading.  He explained that the premises could be used as an office block or a café or a storage unit with appropriate permissions.  It was not the case that the premises could only operate as a bar.  Mr McCann requested on behalf of his client that the Sub-Committee refuse the application outright rather than granting the application with MC66 attached as a condition on the licence.  This he believed was because MC66 would require the premises to have a completely different style of operation from the one proposed.  It was the perception of Leighton Harbor that the documentation submitted by the Applicant indicated that the premises would be run as a bar.

Mr McCann commented that to grant the application would be to fly in the face of policy.  There was nothing exceptional about having an A4 planning permission or the site being in an alley way.  Mr McCann also referred to the Applicant’s submission of additional documents including case law.  He believed this to be unnecessary on the grounds that the Council’s policy had been tested on numerous occasions and was robust.  He added that the application added to cumulative impact in the West End Cumulative Impact Area.  There were other licensed premises in Market Place across Oxford Street.     

The Sub-Committee asked a number of questions.  Mr Warne and Mr McCann were asked whether they had liaised prior to the hearing.  Mr Warne and Mr McCann replied that Mr Warne had sought to discuss the application with Mr McCann, including potential conditions.  However, Mr McCann had brought discussions to a close once it had been known that no restaurant condition had been agreed.  It was clear to Leighton Harbor at that point that they would be continuing to strongly object to the application.

Mr Warne confirmed that the proposed closing time would be twenty minutes after the amended terminal hours for on and off sales and also that late night refreshment was no longer sought by the Applicant.

Mr Warne was asked to clarify if Soho Mixer was a bar or café, drink led or food led.  Mr Warne replied that Soho Mixer was a hybrid of styles of premises.  During the morning trade it would be more of a café with coffee, breakfast and fresh produce brought from the two other premises.  There would be tapas style menus available all day.  Lunches would include quiche.  In Mr Dalton’s two kitchens where food was delivered from, one kitchen concentrated on cakes and sweet products and the other on savouries.  Mr Dalton added that there was no fast food provided.  Mr Warne provided the information that due to the high overheads in the West End and the premises being comparatively small in size, there needed to be the option to cater for customers who wished to be able to have a drink without eating.  In response to the point that there could be 70 people in the premises not being required to eat at all, Mr Warne stated in theory that was the case but this was not how Mr Dalton operated in his premises elsewhere and Soho Mixer was defined by all day trading.  Mr Dalton made the point that if customers wanted to go to a bar, they would go elsewhere.   

It was explored by Mr Panto with Mr Warne and Mr Dalton whether they were willing to discuss conditions that were less strict than the Council’s full restaurant condition which would be acceptable to them including having a small designated bar area within a restaurant.  Currently the application was drink led.  Mr Warne advised that Mr Dalton did not believe that any restaurant model would work for the premises.  Mr Dalton added that purely sit down restaurant meals were not workable given the planning restrictions.  Food would not be heated up in microwaves.

Mr Wroe asked whether the Applicant would be willing to agree to the premises operating as a restaurant or ceasing trading after 20:00.  The Council’s Statement of Licensing Policy sets out that if alcohol ceases not being ancillary to food at 20:00 then permitting the sale of alcohol for consumption on the premises is unlikely to add to cumulative impact in the cumulative impact area. Mr Warne responded that the Applicant had offered the condition that substantial food must be available at all times.  The Applicant did not wish to agree to become a restaurant after 20:00.  If there was a variation on the substantial food condition so that the provision of drinks in general was ancillary to a provision of food the Applicant would be prepared to consider it.

PC Lewis was asked about the crime statistics submitted by the Applicant, including whether he perceived Ramillies Street to be a problem location.  He replied that he had carried out a 12 month check and had found that there had been 34 alleged crimes during that period.  The more serious crimes had taken place in buildings rather than on the street itself.  He believed there was anti-social behaviour taking place at this location such as urination because it was a quiet street.  It was not busy in terms of pedestrians.  

Mr Dalton, in response to the concerns of Leighton Harbor, disputed that office workers would be adversely affected by what took place at Soho Mixer.  He expressed the view that with the offices being about four storeys up and a bank of noisy air conditioning units below them, it would not be possible to hear anything through the reinforced glass windows.  He did not believe Ramillies Street was being cleaned and maintained throughout the day beyond the immediate area at 187-195 Oxford Street.  He emphasised that if the Applicant was to apply for a tables and chairs licence, there would not be 20 to 30 people vertically drinking outside.

The parties at the hearing were given the opportunity to sum up the key points.  Mr McCann said that he did not doubt that Mr Dalton was a good operator.  However, there were hundreds of good operators who would like to operate premises exactly as described by Mr Warne and Mr Dalton in the Council’s designated cumulative impact areas but had been aware of the nature of the Council’s policy.  He expressed the concern that a quasi MC66 if applied would be difficult to enforce.  His client took issue with the claim that the area was not being improved as a result of the funding by Leighton Harbor.  The application he believed would not assist the area.  A condition was usually proposed in respect of the outside area even if a tables and chairs licence was yet to be approved.  There was no restriction in terms of patrons being required to sit down outside.  Mr McCann also made the point that off sales could be consumed on the street.

Mr Sycamore stated that it had become clear, particularly in the evenings, that the Applicant wanted to attract patrons to come in and have a drink.  There was nothing to stop a group of 20 to 30 people coming in and the premises operating as a bar.  Customers could stand outside as well as those who were present inside the premises.  The application was contrary to policy.

Mr Nevitt referred to the policy that the consumption of alcohol needed to be appropriately conditioned so that the consumption of alcohol ‘is not, and cannot become, a significant part of the operation of the premises’.  He made the point that there was nothing being offered by the Applicant to ensure that alcohol would not become a significant part of the operation of the premises.  It was allowed across the whole premises for 70 people.  It would send a mixed message to other operators if granted.

Mr Warne commented in response to the points made by Mr Nevitt and Mr McCann that it would be a sad state of affairs if Applicants did not bring an application before the Sub-Committee if they had something different to offer other than a restaurant.  Due consideration should be given to a number of factors, one of which being the Council’s policy.  He referred to the case of ‘R v Chester Crown Court, ex parte Pascoe and Jones’ where Justice Lord Glidewell had set out that if a number of applications were granted as exceptions to policy because the reasons for the policy would still be met, then that would not be a demolition of the policy.  It was proposed to have mixed uses.  Mr Warne said that the key points were what are the cumulative impact areas there for and how did the Applicant say that the application promoted the licensing objectives.

Mr Warne made the case that the application promoted the licensing objectives and was not in keeping with the characteristics of the cumulative impact areas as set out in the policy on eight grounds.  Firstly, there were no residents around and Ramillies Street is a pedestrianised road.  The office block has sealed windows and workers would not be disturbed.  The area would also be cleaned.  Secondly, anti-social behaviour was occurring already.  Crime statistics had been received from the Metropolitan Police’s website.  PC Lewis had suggested, Mr Warne stated, that licensed premises at this location could assist.  Thirdly, the grant of the application was likely to take customers away from Soho and reduce the blocking of pavements there.  Fourthly, litter would be reduced. Fifthly, the street would be cleaned and there would be CCTV coverage of the area.  Reason six was that traffic congestion would not be an issue.  Reason seven was that the area was currently intimidating.  It should not be abandoned to crime and disorder.  There was support from the landlord and NWEC.

The Sub-Committee carefully read and listened to all the representations prior to reaching a decision.  These included Mr Warne’s reference to the Council’s policy that the Licensing Authority ‘would not apply its policies inflexibly and would be required to consider the individual circumstances of each application; even where an application is made for a proposal that is apparently contrary to policy’.  The Sub-Committee noted that the application was contrary to policy and had explored with Mr Warne and Mr Dalton whether they would be willing to look at operating the premises until 20:00 without alcohol being ancillary to food or even potentially whether they would look at operating a designated bar area within a restaurant.  The Applicant had declined these options.

The Sub-Committee had noted the Applicant’s reasons as to why it was believed the application was an exception to policy.  The Sub-Committee did not consider that any of the reasons given were truly exceptional. Mr Warne had referred to the application being exceptional because it might prevent crime and disorder.  However, the Sub-Committee shared the view of Mr Nevitt that it could also be questioned whether it was a good thing in an area which was vulnerable to crime and disorder to have a bar there or a premises where alcohol was not ancillary to food.  The Sub-Committee noted that the Applicant was offering to provide food.  However, there was no requirement for the alcohol to be ancillary to it.  As Mr Sycamore had stated there was nothing to prevent large groups of people coming into the premises and ordering alcohol which could lead to the licensing objectives being undermined.  There would be up to seventy people there who would add to cumulative impact in the West End Cumulative Impact Area.  The Sub-Committee also had doubts that the anti-social behaviour was only likely to take place during the hours the establishment was open.

The Sub-Committee did not consider that the location of the premises was a genuinely exceptional reason to grant the application.  The Sub-Committee shared the view of Mr McCann that there were other licensed premises not too far away from the premises such as Market Place across Oxford Street.  Soho Mixer would be located in the West End Cumulative Impact Area and the application, even with reduced hours, added to cumulative impact.  The Sub-Committee shared the view of Mr McCann and Mr Nevitt that the planning limitations were not an exceptional reason as to why the application should be granted.  Members noted Mr Nevitt’s advice that whilst permission would not be given for a high level extract ventilation system, it was perfectly possible to comply with the Council’s model restaurant condition, MC66 or even Model Condition 38 (the supply of alcohol at the premises shall only be to a person seated taking a table meal there and for consumption by such a person as ancillary to their meal) without providing primary cooking on the premises.  There were other ways in which the premises could potentially operate without alcohol being sold which was not ancillary to food.

Finally, the members did not accept Mr Warne’s interpretation of the Pascoe and Jones case. In that case it was recognised that consideration had to be given to the reason for having a policy and if those reasons could still be met by departing from the policy then such a departure could be justified as an exception to that policy. In this case the submissions of the applicant did not constitute an exception that resulted in the reasons for the policy being upheld. The applicant concentrated primarily on the impact that the premises would have in the immediate locality rather than the impact that might be caused by operating a potentially drink led premises where up to 70 customers would then disperse into the cumulative impact area. It was not accepted that after 11 pm all the customers would leave the area. The applicant was entitled to insist that it would not be prepared to operate with any kind of café or restaurant condition attached to the licence but in doing so it had not been able to justify why the application could be granted as a genuine exception to policy.    

The application was refused.

3.

Hours premises are open to the public

Amendments to application advised at hearing:

Mr Warne advised in writing prior to the hearing that the proposed opening hours had been reduced to:

Sunday:                                                 10:00 to 22:20

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

The application was refused (see reasons for decision in Section 2).

4.

Seasonal variations / Non-standard timings:

Amendments to application advised at hearing:

Late night refreshment was withdrawn by the Applicant.

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

The application was refused (see reasons for decision in Section 2).