Agenda item

G-A-Y Late, Ground Floor, 5 Goslett Yard, London, WC2H 0EE

17/08651/LIPV

1.

Exhibition of Films

Amendments to application advised at hearing:

None.

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

The Sub-Committee considered an application by G-A-Y Group Limited for a variation of a premises licence in respect of G-A-Y Late, 5 Goslett Yard, London, WC2H 0EE.

The Licensing Officer provided an outline of the application to the Sub-Committee.

All parties were invited to make representations to the Sub-Committee in relation to the application.  The parties responded to members’ questions and were given an opportunity to ask questions of each other.

Mr Bayliss, representing the applicant, explained that the application before the Sub-Committee had primarily been made for commercial reasons. The premises was facing a rent and rate increase of approximately £100,000 which would have to be paid or the business would close. The applicant, Mr Jeremy Joseph, currently operated three licenced premises including G-A-Y Bar situated in Old Compton Street which acted as a feeder bar to G-A-Y Late. Allowing the premises to operate for an additional hour would generate extra income and help meet its financial commitments.  It was recognised that commercial reasons were not usually considered reasons to make an application an exception to policy. However, the circumstances surrounding the premises were unique due to the nature of the operation and the importance of preserving LGBT venues in London. Since 2006 sixteen LGBT venues had closed within Westminster itself and the importance of ensuring the remaining venues were preserved was stressed so that they could continue to provide a safe environment for the LGBT community. Mr Baylis stressed the importance of the Equality Act when the Sub-Committee was making its decision as it was central to this application. He stated that it required local authorities to have regard to advancing equality of opportunity between persons and take steps to protect persons who share a relevant protected characteristic and persons who do not share it. Mr Bayliss advised that the Act also required local authorities to have a positive bias to people with protected characteristics and this would include preserving LGBT venues.

Mr Bayliss recognised the premises was located within a Cumulative Impact Area (CIA) but highlighted why the venue could be considered an exception to policy. G-A-Y Late was closely associated with Mr Joseph’s other two venues and if one closed the other two would also have to. There was nothing to suggest that the premises was causing any problems and Environmental Health (EH) had received no noise complaints relating to the venue. Therefore, if there were no specific concerns the Sub-Committees overriding concern had to be the huge reduction in LGBT venues and it should therefore look at the application before it with a positive bias. If the request for an additional hour for licensable activities still caused concern, then the applicant would be willing to reduce the hours for licensable activities at G-A-Y Bar located in Old Compton Street by one hour.

PC Bryan Lewis, representing the Metropolitan Police, supported the CIA policy and stressed its importance. The crime figures for the premises were considered acceptable compared to similar types of operations and it was not considered a problem premises. Permitting the additional hour for opening and licensable activities was a cause for concern as Police resources were limited at this time and granting the application would make it more difficult to protect customers of the venue.

Mr Drayan, representing Environmental Health (EH), acknowledged the offer to reduce the hours at G-A-Y Bar in Old Compton in exchange for granting the additional hour at G-A-Y Late. Mr Drayan was unaware of the capacity at G-A-Y Bar but felt this concession made the application more acceptable in policy terms. G-A-Y Bar was located in a residential area whilst G-A-Y Late was located within a less residential area. With regards to noise breakout the premises was adequately soundproofed and the playing of music until 04:00 hours was not a concern. The main areas of concern related to managing the outside area of the premises and ensuring there was adequate dispersal of customers.

The Licensing Authority, represented by Mr Sycamore, maintained its representation as the application was contrary to MD2 of the Council’s Licencing Policy. The premises was already operating outside core hours and extending this even further for seven days would increase levels of disturbance to residents, especially on Sundays where the Policy states they can expect reduced hours. Clarification was requested on why the hours requested for Sundays were so extensive. The application if granted would result in customers being on the street at potentially 04.45 hours seven days a week. How the CIA would be managed at this time was a concern. It was acknowledged that the premises was operated well but this was to be expected of any licenced premises within Westminster and was not a reason to be considered an exception to policy. The proposed reduction in hours at G-A-Y Bar was noted but the application for this reduction had not yet been received. The Sub-Committee had to decide if this reduction was enough to allow the extended hours at G-A-Y Late bearing in mind the CIA policy looked at the global and accumulative effects of a licence and not at just an individual premises.

Mr Brown from the Westminster Citizens Advice Bureau, representing The Soho Society and The Covent Garden Community Association, addressed the Sub-Committee. Both amenity societies acknowledged that G-A-Y Late provided a valuable service to the LGBT community and enhanced the diversity of nightlife within Soho. They recognised that the premises was well run and also noted the significant rent increase it faced. The application was however contrary to the Council’s licensing policy. The applicant had stated that it required the additional hour in order for the operation to be viable yet very little evidence had been provided that this was the case. No business plans or financial figures had been provided to highlight what impact the rent increase would have and whether any alternative business models had been assessed. It was proposed to reduce hours for the premises at Old Compton Street in return for allowing the additional hour at G-A-Y Late. It was queried however how this would work in practice, especially as the policy recognised that problems resulting from licenced premises were more severe after 00:00, and also how this represented an exception to policy. Paragraph 2.4.1 of the policy set out the reasons why there was a CIA policy and the applicant had to address these reasons to be regarded as an exception within the specific policy context.

Mr Brown brought the Sub-Committee’s attention to an application made by the same operator in 2016 when a proposed extension to hours was refused by the Sub-Committee. This application did not appear to be any different from the 2016 application. The amenity societies were not unsympathetic to the applicant’s situation but did not regard the variation as a genuine exception to policy. If the Sub-Committee was minded to grant the application the reasons why it was granted need to be very specific as it would set a precedent and have a wider impact on the local community as more applications for extended hours could be expected.

Mr Lord, representing The Soho Society, had sympathy over the loss of LGBT venues but expressed concern that if the application was granted future applications requesting hours until 05:00 or more could be expected. Granting the additional hour would also have a significant impact on the amenity of local residents. Concern was also expressed that in the future a new operator could take over the licence and change the nature of the premises. The proposed reduction in hours at G-A-Y Bar was noted but as this offer had only been made at the hearing Mr Lord would not have the opportunity to inform the members of the Soho Society and gather their opinions.

Mr Thorne, a local resident, described how the area surrounding the premises was of a residential nature. Mr Thorne only lived thirty metres away from the entrance to the venue and other residents also lived nearby but within the borough of Camden. Mr Thorne expressed concern that granting the application would permit 400 people to be in the area until 04:00 potentially causing public nuisance. In March 2016 the applicant had submitted a similar application which had been refused by the Sub-Committee as it was contrary to the CIA policy. This application was virtually identical except commercial reasons had been cited this time as making it an exception. Levels of noise were a concern and it was stressed that the night tube did not operate midweek resulting in people staying in the area with subsequent associated increases in crime and public nuisance.

Mr Bayliss stressed the main reason the application had to be considered an exception to policy was that local authorities had a duty under the Equalities Act to have a positive bias to LGBT venues. The Police and EH were content with how the premises was operated, no noise complaints had been received including from local residents.

Mr Joseph, the applicant, addressed the Sub-Committee and explained how extra SIA staff had been employed to manage queues outside the venue. Alternative business models had been assessed including increasing the price of drinks and charging an entrance fee but these would not cover the £100,000 increase in rent and rates. It was not expected that customers would stay out longer than 04:00 so therefore it was not expected that any requests for additional hours in the future would be required. If G-A-Y Late had to close doubt was expressed that it would be replaced by another LGBT operation. It would also probably result in the applicant’s other two venues having to close which would result in a total of two hundred employees losing their jobs. G-A-Y Late considered itself an integral part of the Soho community and hoped to remain so for the foreseeable future.

The Council’s Legal Adviser clarified the Council’s Licensing Policy and highlighted how the policy identified these types of premises as being likely to add to cumulative impact in the area. Therefore, for the Sub-Committee to grant the application clarity was requested on why granting an additional hour to this premises would not add to cumulative impact? Mr Bayliss explained that the Sub-Committee had to look at the individual application on its own merits. It had to take into account the evidence provided on how the premises operated and its likely effect on policy. The evidence was clear it was unlikely to add to the issues that gave rise to the adoption of the policy and would be less likely to add to cumulative impact.

The Council’s Policy Adviser explained that if the application was dependent on reducing the hours at G-A-Y Bar it was suggested that this would be dealt with by a condition. The condition would require that the variation would have no effect until the application to reduce the hours at G-A-Y Bar had been granted. Mr Bayliss confirmed that if the application before the Sub-Committee was granted a minor variation for G-A-Y Bar would be submitted immediately.

In summary Mr Bayliss confirmed that the application was being made purely for commercial reasons and this shouldn’t be considered a bar to considering it as an exception to policy.

In response to a question from the Sub-Committee Mr Joseph was unsure if the rent and rate increase would result in the venue closing. Different options on how to operate were being explored and it was possible that even if the Sub-Committee granted the additional hour it may not be used every night depending on how busy the venue was.

The Sub-Committee very carefully considered the application and spent significant time assessing whether granting the additional hour would add to cumulative impact in the area. When making its decision the Sub-Committee had regard to the Equalities Act but was mindful of its primary duty which was to uphold and promote the licensing objectives. The Sub-Committee also had regard to the Council’s Licensing Policy and was of the opinion that commercial reasons did not constitute a suitable reason for making a licenced premises an exception to policy. That was the main thrust of the case presented to the Licensing Sub-Committee.

Mr Baylis has placed considerable weight on the implications of the public sector equality duty under section 149 of the Equality Act 2010. This duty had already been highlighted in the report to the Sub-Committee. It was not considered that the LGBT community was being discriminated against in any way by the licensing process under the Licensing Act 2003. There were concerns about the number of LGBT premises that had closed but that did not mean that the LGBT community was being treated unfavourably. Many operators were in financial difficulty and it was important not to give an unfair commercial advantage to the operator of these premises. The sub-committee had regard to the Equalities Act and concluded that it was neither appropriate or necessary to treat the LGBT community more favourably than other users of licensed premises in determining this application under the Licensing Act. Indeed, the Licensing Sub-Committee noted the main drivers of closure of LGBT premises identified in the Urban Laboratory document presented by the applicant (at page 26 of the report). Most of those drivers could apply to any premises and especially any concerns about increases in rent and rates.

In the final analysis, the key issue for the Licensing Sub-Committee was whether the application could be granted as an exception to the Council’s licensing policy so as to promote rather than undermine the licensing objectives. Those objecting to the application were clearly of the view that granting the applicant an additional hour for licensable activities would add to cumulative impact and would therefore undermine the licensing objectives. At no point did the applicant suggest that the LGBT community would behave differently when leaving the premises at 4 am than any other persons attending licensed venues.     

The Sub-Committee acknowledged the premises was a unique LGBT venue and recognised the significant and positive contribution it played in the local LGBT community and the cultural life of Westminster. The applicant, Mr Joseph, was an experienced and well-respected operator and the premises was not a venue which caused concern as evidenced by the Police and EH. However, all premises were expected to be well run and not to cause problems within the immediate neighbourhood. The key issue was whether this application could be granted on the basis that it would not add to cumulative impact. The risk of closure of the premises did not meet that test even though such closure would add to the ever increasing numbers of LGBT premises that had closed. The only potentially valid reason that was given in that regard was the reduction in hours for licensable activities that was offered at the hearing in respect of the G-A-Y Bar in Old Compton Street.

The Sub-Committee considered that the applicant’s offer to reduce the hours by one hour at the premises’ nearby sister venue, G-A-Y Bar, located on Old Compton Street would ensure that the additional hour granted for these premises would not add to cumulative impact in the area. It was recognised that a reduction in hours from 1 am to midnight might not be equivalent to a one-hour increase from 3.30 am to 4.30 am but the capacity at the G-A-Y Bar was 400 and it was described as a feeder bar for G-A-Y Late. There was a serious concern that the offer to reduce the hours at G-A-Y Bar had only been presented at the hearing as it hadn’t given the objectors the opportunity to fully consider the potential implications. The Licensing Sub-Committee wanted to stress that this decision was a very marginal one but it was entirely based on the reduction in hours for the sister premises. It was not accepted that the use of the premises by the LGBT community contributed in any way to the conclusion that the application would not add to cumulative impact.

The conditions on the licence, including an additional condition suggested by the applicant regarding the managing of the outside area, were considered appropriate and stringent enough to ensure the licensing objectives were upheld and promoted and minimise any impact to local residents.

The Sub-Committee was concerned that granting the application would then allow any future operator to change the nature of the premises. Although it was not a factor in the decision reached, the members did note the concern expressed by the applicant regarding the continued use of the premises by the LGBT community. Therefore, to ensure it remained a LGBT venue contributing to the diverse Soho night life a condition would be attached to the licence to the effect that the provision of licensable activities at the premises was only allowed whilst the premises operated as a LGBT venue. A condition would also be placed on the licence stating that the variation would have no effect until the application to reduce the hours at the G-A-Y Bar had been submitted and granted.

Having heard all the evidence, the Sub-Committee was satisfied that the application, as amended, would uphold and promote the licensing objectives. It was therefore agreed to grant the application accordingly.

2.

Performance of Live Music

Amendments to application advised at hearing:

None.

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

The application was granted, the reason for the decision is detailed in section 1.

3.

Performance of Dance

Amendments to application advised at hearing:

None.

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

The application was granted, the reason for the decision is detailed in section 1.

4.

Late Night Refreshment

Amendments to application advised at hearing:

None.

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

The application was granted, the reason for the decision is detailed in section 1.

5.

Sale by Retail of Alcohol – On and Off Sales

Amendments to application advised at hearing:

None.

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

The application was granted, the reason for the decision is detailed in section 1.

6.

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 granted, the reason for the decision is detailed in section 1.

2.

Conditions Being Varied, Added or Removed

Amendments to application advised at hearing:

None.

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

The application was granted, the reason for the decision is detailed in section 1.