Agenda item

Temper, 5 Mercers Walk, London, W2 (“The Premises”)

17/11396/LIPN

1.

Late Night Refreshment - Indoors

Monday to Thursday: 23:00 to 23:30

Friday to Saturday: 23:00 to 00:00

Seasonal Variations/Non-Standard Timings:

From 23:00 on new Year’s Eve until 05:00 on new Year’s Day.

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 Casper & Cole Limited for a new premises licence in respect of temper, 5 Mercers Walk, London, W2.

The Licensing Officer provided an outline of the application to the Sub-Committee and confirmed that the Metropolitan Police had withdrawn their representation following the agreement of conditions with the applicant.

Mr Bayliss explained that the applicant already had another Temper premises operating from Broadwick Street in Westminster which was also situated within a Cumulative Impact Area (CIA). This Premises had operated very successfully at this location with residents living directly above it reporting no issues. The application before the Sub-Committee was very similar, it was located on a new development and the applicant had invested approximately £1.5 million in upgrading the Premises. It was highlighted by Mr Bayliss how the application was compliant with Westminster City Council’s Statement of Licensing Policy (SLP). The Premises would only sell alcohol for consumption during core hours, the full restaurant model condition would be attached to the licence to provide reassurance it would not become a drink-led Premises and no fast food would be available at any time. Residents had expressed concern over the use of the external area however this would be restricted to twenty covers with the tables and chairs being rendered unusable by 22:00 hours. Staff would inform customers at 21:00 that the external area had to be vacated by 22:00 hours. These restrictions on this area were not currently conditioned but the applicant was happy for a condition specifying this to be placed on the licence.

In response to a question from the Sub-Committee Ms Lee detailed how there would be a capacity of 20 customers outside on the private forecourt and 144 inside split across two floors, 92 upstairs and 52 down stairs. Dispersal of customers would be managed in the same manner as the Broadwick Street premises where staff greeted customers in a reception area and following their meal ensured they left in a quiet manner. Prominent signs would also be displayed reminding customers to not make excessive noise when leaving. A resident representation had requested a condition requiring the management to use their best endeavours to ensure dispersal occurred via Langley Street and the applicant was happy for this condition to be added to the licence. Ms Lee explained how the Premises was not a pub and as such dispersal was much more staggered. The Sub-Committee was assured that the Premises had a vested interest in ensuring local residents were not disturbed by its customers.

The Sub-Committee and Mr Bayliss discussed in detail the fact the planning permission for the Premises had granted hours less than what was proposed in the licensing application. In response, Mr Baylis produced a planning case (Miah v Secretary of State for the Environment and Hillingdon LBC [1986] JPL 756) which he asserted was authority for the proposition that customers could remain on the premises after closing hours so as to allow them time to finish their meals provided the premises did not allow new customers to enter the premises once they were closed. The Council’s Legal Adviser confirmed that the Miah case solely related to planning law and had no bearing on the determination of this application. He confirmed that the Sub-Committee was fully aware that the decision under consideration had to be taken on licensing and not planning grounds.

The Sub-Committee recognised the concerns raised by residents over the use of the external tables and chairs and queried if they could be brought inside from 22:00 hours. Ms Lee explained that they would be rendered unusable by 22:00 but could not be brought inside until the Premises had closed due to a lack of space. In response to further questions Mr Bayliss confirmed that conditions preventing deliveries and collections taking place at the Premises between 23:00 and 08:00 could be added to the licence as well as an additional condition requiring all windows and doors to be closed by 21:00.

Mr Sycamore, representing the Licensing Authority, was satisfied that most of the concerns over the application had been dealt with. The Premises would only sell alcohol within the specified core hours and off sales would be limited to the external tables and chairs area. However, the applicant still had to demonstrate that allowing the additional customers to consume alcohol within a CIA would not add to cumulative impact in the area.

Mr Brown from the Westminster Citizens Advice Bureau, representing The Ching Court Association, The Covent Garden Community Association and one local residential objector, addressed the Sub-Committee. Mr Brown explained that the residents had no objection with the operator but instead were concerned with what impact the Premises would have on residents due to its close proximity to them. The Premises was a new development in a CIA and the dispersal of customers was the key issue. The hours granted under the planning regime were considered important as they were clear on what time they felt it was appropriate for the Premises to close. The high sided nature of the development did cause sounds to echo and this would be exacerbated by customers leaving late at night. The capacity of 144 was noted but it was felt it would actually be higher than this due to customer churn throughout the evening. It was felt rendering the external tables and chairs unusable by 21:00 would be more appropriate as Mercer Street was relatively quiet where ambient noise dropped off significantly after 22:00 hours.

Mr Brown recognised that the hours requested were within core hours however due to the nature of the area the residents were requesting that this be slightly reduced. PN1 of the Council’s SLP recognised that in areas where Premises were in close proximity to residents’ stricter conditions would apply. If the Sub-Committee was minded to grant core hours however then residents would like the additional conditions proposed by them to be attached to the licence to limit the Premises impact on the area.

Ms Havers, a local resident, was of the opinion that granting the application to the hours requested would cause a noise disturbance. It was hoped dispersal of customers would occur via Langley Street and concern was also raised that removing any external tables and chairs late at night was likely to create noise issues.

Ms Rigby, representing the Ching Court Association, addressed the Sub-Committee. She highlighted how the nature of Mercers Walk exacerbated any noise made within it which could often be heard even when their windows were closed. This was a particular problem as many of the local residents had families with young children. Residential properties were located above the Premises however it was suggested that these were not used by residents but instead used by guest workers. Permitting the application would increase cumulative impact in the area and no activities should take place at the Premises after 23:00 hours. The Premises was large and it could not be compared to the Broadwick Street premises as Mercers Walk was considerably quieter. Theatres were located nearby and permitting the hours would attract customers late at night. The external tables and chairs were a concern and it was requested that these be brought inside from 21:00 to ensure there was no noise disturbance late at night. Finally, the Sub-Committee’s attention was drawn to the fact the hours permitted by the planning permission were less than those proposed in the licensing application.

The Sub-Committee asked the applicant if they would accept the conditions proposed by the residents and also how the application would not add to cumulative impact in the area? Mr Bayliss confirmed that the applicant was willing to accept the conditions relating to closing the Mercer Street door after 23:00 except in an emergency and trying to ensure no dispersal took place via Langley Street. However, a condition requiring a last entry time to be imposed was not accepted as the Premises was a restaurant not a pub and such a condition would therefore be inappropriate. In terms of cumulative impact, the Premises would not add to this for three reasons. Firstly, no licensable activities would take place at the Premises until the capacity had been determined by Environmental Health. Secondly, the Premises at Broadwick Street had residents living directly above it and the same dispersal policy there had worked successfully resulting in no issues arising. Thirdly, the application was policy compliant. It would operate to core hours, the Policy regarded restaurants as having less impact then pubs or bars and the model restaurant condition would be added to the licence. These reasons meant that the Premises was not likely to add to the cumulative impact in the area.

Mr Brown noted that the proposed capacity condition did not actually specify the capacity and the Sub-Committee was requested to ensure it was no more than 144 persons. With regards to the proposed last entry condition it was acknowledged that whilst it was unusual for a restaurant it would provide residents with reassurance.

Following a question from the Council’s Policy Adviser Mr Bayliss confirmed that the full restaurant condition was intended to be used in the external tables and chairs area. As such the Policy Adviser advised that condition 10 which concerned off sales of alcohol could be removed from the licence. The applicant was satisfied for it to be removed as it simplified the licence.

After considering all the evidence, the Sub-Committee agreed to grant the application without any prejudice to the planning permission outlined. It was acknowledged that the Premises was located within a CIA, however the fact it was a restaurant which would operate with a full restaurant condition provided reassurance it would not become a drink-led Premises. The Council’s SLP also recognised that restaurants could be considered to have less impact than bars or pubs. The hours requested were within core hours and with a condition restricting the capacity of the Premises the Sub-Committee was of the opinion that it would not add to cumulative impact in the area. It was considered that permitting the use of the external area until 22:00 was appropriate. The bringing in of the tables and chairs was considered a potential source of noise disturbance by the Sub-Committee and a condition would be placed on the licence to try to ensure this would be prevented. However, if residents felt that there use, or the bringing in of them, was causing significant disturbance they could always instigate review proceedings.

The Sub-Committee considered the conditions proposed appropriate and proportionate and with additional conditions imposed would ensure that the licensing objectives were upheld. Dispersal was of concern and therefore conditions were added to the licence ensuring the door on Mercer Street was closed after 23:00 and requiring the applicant to use their best endeavours to ensure customers were dispersed via Langley Street. Restrictions on when deliveries and collections could take place were also imposed to provide further reassurance to residents that any disruption would be minimised. It was also noted that the applicant was satisfied for the provision of off sales to be removed from the licence. Due to the nature of the Premises however the Sub-Committee did not consider it appropriate to introduce a last entry time condition. Having heard all the evidence, the Sub-Committee was satisfied that the Premises would uphold and promote the licensing objectives and as such agreed to grant the application accordingly.

2.

Sale by retail of Alcohol – On and Off Sales

Monday to Thursday: 10:00 to 23:30

Friday to Saturday: 10:00 to 00:00

Sunday: 12:00 to 22:30

Seasonal Variations/Non-Standard Timings:

From the start time for the sale of alcohol on new Year’s Eve until the terminal hour for the sale of alcohol on new Year’s Day.

Amendments to application advised at hearing:

The applicant confirmed that the provision of off sales was withdrawn.

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

The Sub-Committee granted the application (see reasons for decision in Section 1).

3.

Hours Premises Are Open to the Public

Monday to Thursday: 10:00 to 23:30

Friday to Saturday: 10:00 to 00:00

Sunday: 10:00 to 22:30

Seasonal Variations/Non-Standard Timings:

From the opening hours for the premises on new Year’s Eve until the closing hour for the premises on new Year’s Day. It was noted that this was not part of the application but was implicit from the application that had been made for extended hours for the sale of alcohol on new Year’s Eve and New Year’s Day.

Amendments to application advised at hearing:

None.

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

The Sub-Committee granted the application (see reasons for decision in Section 1).