Agenda item

The Clifton, 96 Clifton Hill, London, NW8 0JT (“The Premises”)

17/11411/LIREVP

An application was submitted by the Clifton Hill Residents Group for a review of the premises on 11 October 2017 on the grounds of Prevention of Crime and Disorder and Prevention of Public Nuisance. Their concerns related to noise emanating from the outside areas, in particular the Beer Garden and patrons congregating on the low wall and noise escaping from the conservatory to the rear of the Premises. The Environmental Health Service initially supported the review application in regards to the Prevention of Crime and Disorder and Prevention of Public Nuisance licensing objectives.

Decision:

The Sub-Committee carefully considered all of the material received from the parties involved.  The Sub-Committee also heard submissions and evidence at the hearing prior to Members retiring to reach a decision.

Mr Woods, representing the applicants, highlighted how twelve local residents had submitted statements detailing nuisance emanating from the Premises which they experienced on a regular basis when in their own homes. In response they had prepared log books as requested by Westminster City Council (WCC) and the Sub-Committee was asked to accept the evidence provided by the witnesses.

Mr Woods drew the Sub-Committee’s attention to the map submitted Mr Nadal which detailed the nearby residences to the Premises. Apart from the property opposite all the residences located in the immediate vicinity of the Premises where those supporting the review and this was relevant in terms of the alleged nuisance. It was acknowledged that the nuisance experienced from the outside areas was intermittent, did not occur every night and was not related to the Premises internal areas. The nuisance when it occurred however did disturb residents and intruded into their lives. By way of example, he said that a nuisance being caused at 20.00 hours might have stopped by 20.15 hours. The disturbance experienced was not that associated with a nightclub for example but one which could affect some nearby residents but not others located further down the street.

Mr Woods confirmed that the Clifton Hills Residents Group was not an official, elected residents’ association but simply the name given to the group of residents who had brought the review. The Group did not want the pub to close or the hours permitted for the internal use of the Premises to change. However, there was concern that the licence holders had been informed of issues arising by residents which they had failed to address. Attempts had been made to meet with the owners but no response had been received. The residents wanted the Premises to abide by the conditions on the licence and address issues identified as they arose. The huge amount of evidence provided by residents to show how conditions were being breached and the various issues continuously arising were very detailed and should therefore carry weight. If the Sub-Committee was prepared to accept the basis of the residents’ submissions, then appropriate action should be taken.

The Sub-Committee was asked by Mr Woods to consider the location of the pub and its location in a very residential area. Environmental Health (EH) had visited the Premises on 9 June 2018 following reports of excessive noise. The EH officer who attended reported that the noise was not excessive but did expect it to disturb residents who lived approximately twenty metres from it. The pub had been located on the street for a long time and problems had been experienced with the previous operators. A review was not brought at that time but it was now considered appropriate due to issues concerning the outside area and the lack of management of customers in this area. It was admitted that some of the reported breaches of conditions were not the most serious but it was the repetitive nature of these breaches which caused disturbance and subsequently concern. It was recognised that the Premises now had a member of staff located in the beer garden area on Friday evenings and this had resulted in a recent improvement.

Mr Woods addressed several representations made in support of the Premises. There had been suggestions that the review was linked to increasing local house prices but this was refuted. References were also made to the industrial unit behind the Premises but this was also not linked to the review. Concern was also expressed about some of the evidence supplied and the overly defensive nature by the Premises and its supporters to a lot of the evidence presented. Residents had unsuccessfully reached out to the St John’s Wood Society and local Councillors to attempt to highlight the issues arising and felt aggrieved that they had decided to support the Premises without having a conversation with them.

Mr Woods explained how other pubs located nearby in close proximity to residents were prohibited from using their outside areas after 19:00 hours. Every time residents raised issues over this area with the licence owners they were treated cordially. However, any promises made to address the issues were never fulfilled. The Clifton Hill Residents Group was therefore requesting that consideration be given to prohibiting the use of the outside area after 20:30 hours following which any tables and chairs would be rendered unusable. They also requested that all customers using the outside area should be seated and the maximum number of smokers limited to five customers. It was proposed that customers should also remain within the designated area highlighted on the Premises plan as this would prevent drinking on the nearby side streets. It was essential that there was management of the outside area at all times and a condition could be added to the licence ensuring security staff were located there every Thursday, Friday and Saturday at specified times. Another additional condition was also requested which related to the conservatory area. One resident in particular was affected by the noise generated from this area and had suggested that numerous calls had been made to EH regarding this disturbance.

Mr Aron, a local resident supporting the review, addressed the Sub-Committee. It was explained that he lived in close proximity to the Premises and he wanted to peacefully co-exist with it. Disturbance was experienced from the outside area on a regular basis and he was of the opinion that the issues he had raised had not been heard or acted upon by the licence holder. Local residents wanted to enjoy their homes but with the noise experienced it was proving impossible leading Mr Aron to live in the back of his house, particularly on Friday evenings.

Ms Abou, a local resident supporting the review, explained that the process had been initiated not because they wanted the Premises licence revoked but simply to make the street more peaceful. Attempts had been made to meet with the licence holders and negotiate a compromise however this had not occurred. It was acknowledged that allegations had been made by both sides which had divided the street but the Clifton Hill Resident’s Group was only wanting an understanding and response to their concerns. Mrs Aron submitted that the Group had contacted the St John’s Wood Society and local Councillors to invite them to their home to understand the noise issues but none as yet had replied.

Mr Drayan, representing EH, stated that the application had originally been supported in regards to the Prevention of Crime and Disorder and Prevention of Public Nuisance licensing objectives. Their representation had been maintained due to the volume of evidence provided by residents and to allow EH to provide independent advice to all parties. EH recognised that both residents and the pub had historical reasons to be in the location. The Premises had to be mindful of the area it was situated within and could not operate with impunity. However, residents also had to expect some noise as it was not feasible for a pub to operate without any. With regards to noise generated from internal areas EH would expect the licence holders to undertake mitigation measures to prevent this. However, it was not possible to prevent noise generated from a beer garden from escaping even when this only constituted levels associated with normal conversation. Mr Drayan confirmed that no forms of nuisance had been reported by the Council’s City Inspectors and as such he could no longer support the application.

Mr McCann, representing the licence holders, acknowledged that the operation of the beer garden was the most contentious part of the application but drew the Sub-Committee’s attention to the sixty-seven representations received supporting the Premises and its management. Mr Nadal’s map which detailed the proximity of residents to the Premises was discussed and it was suggested that many residents living nearby had not reported any disturbance. EH had visited the Premises on numerous occasions, overtly and covertly, and had not reported any disturbance or breaches of conditions. They had even visited during a Lord’s Test Match and had commented on the professional operation in place. Mr McCann was of the opinion that EH’s records should be regarded as the most comprehensive evidence available to the Sub-Committee.

With regards to some of the suggestions made in the representations Mr McCann did not think it was appropriate to place a capacity limit on the beer garden or require all customers to be seated. The pub was not one where customers spilled on to the street and if customers wanted to stand they should be allowed to. It had also been suggested that the outside area be supervised seven days a week but this was financially prohibitive to the licence holders. It was acknowledged that early on a couple of breaches to the conditions had occurred regarding deliveries. Subsequently strict adherence to the conditions was now enforced with delivery companies and this could no longer be considered an area of concern. It was highlighted that a commercial kitchen operating behind the Premises also received deliveries and this may have led to some confusion with residents. If breaches of the conditions were occurring, though, Westminster City Council would prosecute the Premises and the Sub-Committee was reminded no signs of any prosecution had ever taken place. It was also suggested a door supervisor be employed but this was a pub that did not even operate to core hours. One had been employed in the summer but this had ceased due to a lack of work for them. Concern had been expressed over customers smoking outside of the licenced area. The Sub-Committee was assured that the Premises did not encourage this but after 22:00 hours the side road was the designated smoking area. With regards to the proposal that a fence be installed on the low side walls it was explained heavy duty plants had been installed there which prevented customers from sitting on it. Finally, in terms of the conservatory it had been in place many years. The Premises had no regulated entertainment provision and any further noise mitigation measures would cost approximately £40,000 which was financially prohibitive.

Mr McCann advised that the licence holders had engaged with residents with significant levels of dialogue taking place. The Premises had compromised in response to concerns raised but placing further restrictions on the beer garden’s hours would have a devastating financial impact on the operation. It was hoped further talks with the residents would take place but attempts to turn the pub into a library were not realistic.

Mr McCann highlighted to the Sub-Committee how the pub had existed at its current location for four centuries. It operated within core hours and since the licence holders had taken over the licence more restrictive conditions had been placed on it. No breaches of the conditions had taken place, aside from the delivery condition discussed earlier, and no evidence of instances of disturbance or breaches of conditions had been reported by the Council. The majority of local residents supported the Premises and therefore the only appropriate action to take was to take no further steps and place no extra conditions on the licence.

Mrs Moussaieff, a local resident supporting the Premises, addressed the Sub-Committee. She confirmed that she had lived on the street for sixteen years. She stated that the applicants were her friends but felt that they were listening for nuisance to prove their case. Noise disturbance had been experienced from the previous operation but no licence review proceedings had been instigated. It was suggested that problems had arisen as the Premises had been closed for three years’ and residents had become used to it being very quiet. The Clifton Hill Residents Group wanted to place restrictions on the beer garden but this could have the effect of causing further issues by forcing customers out onto the street to smoke for example. The management were effective in reducing noise from the outside area and had always been very respectful in their dealings with local residents.

Councillor Hall, representing Mr Schumacher a local resident, addressed the Sub-Committee and confirmed that her and Mr Schumacher had worked closely together to make the Premises an asset of community value. Councillor Hall described the location of the side road in relation to the Premises. This road provided access to the industrial site at the rear which companies based there used for deliveries. Therefore, it was important to ensure that any noise and disturbance experienced from these deliveries was not unfairly attributed to the Premises. The current licence was heavily conditioned and the fact the Premises operated within core hours meant that it helped protect local residents. Pubs were a feature of residential life and adding further restrictions on to the licence would have severe financial repercussions for the Premises.

Mr Moussaieff, a local resident supporting the Premises, next addressed the Sub-Committee. He was a long term resident of the street and had seen the pub operate under many guises during which he had never known it to be so quiet. The clientele was mainly aged over forty and were very respectful. A meeting had been organised between the Clifton Hill Residents Group and the licence holders and it was accepted that issues had arisen between both parties. In conclusion the Premises operation was better than what had been there previously and if it was to survive it would be inappropriate to attach further conditions on to the licence.

Mr Slater, a local resident supporting the Premises, explained that he had lived on the street for over thirty years. Under previous operations the pub had been a source of noise disturbance but this was not the case with the current operators. It was submitted that any noise could only be heard directly outside the Premises and any nuisance or disturbance experienced had reduced significantly since the current operators had taken over the Premises.

Mr Nadal, a local resident supporting the review, explained to the Sub-Committee that the log book of evidence he had submitted was accurate and provided evidence of the disturbance experienced by residents. This included numerous entries in the log book detailing deliveries taking place outside of the permitted hours. With regards to deliveries it was questioned if the industrial units at the rear of the Premises did contain a commercial kitchen. Mr Nadal realised that living in London was a noisy experience and it wasn’t expected for the pub to be a library however even when the windows of the Premises were closed significant, continuous disturbance was still experienced. Over sixty residents had submitted representations supporting the Premises however they did not live in such close proximity to it as those who had brought about the review proceedings. Finally, it had been suggested that imposing conditions on the licence would have a financially detrimental effect on the business but the Sub-Committee should not take into account commercial reasons when making their decision.

Mr Woods drew the Sub-Committee’s attention to the direct evidence submitted by the Clifton Hill Residents Group which showed that they were disturbed by noise emanating from the outside area and it was expected for this area to be supervised by staff. With regards to the representation from EH he had been unaware that they were not in support of the application despite the report stating the opposite. The residents had taken the Council’s advice and logged every incident occurring to compile a significant body of evidence as requested. There was nothing more the residents could do to prove the levels of disturbance the Premises was currently generating and the Sub-Committee was asked to accept the evidence provided.

Mr McCann explained that he would expect to see evidence of fighting, shouting and smashed glasses/bottles proving the level of disturbance suggested. Instead there was no evidence to show any of this behaviour was happening and there was no evidence to prove the Premises was causing disturbance or breaching its conditions. The Premises was being continuously monitored by residents however their perception was different to the reality of the situation. The Sub-Committee had to weigh up what was reasonable and Mr McCann stressed that the numerous conditions on the licence were currently sufficient. The licence holders would continue to listen and engage with local residents to ensure any concerns they may have were addressed. EH had no records of any nuisance or disturbance being created by the beer garden and this should be given sufficient weight by the Sub-Committee.

The Sub-Committee carefully considered the application and all the submissions and evidence provided before it. It was acknowledged that the applicant was not seeking a revocation of the licence but was requesting further conditions be placed on the licence to restrict the use of the outside area. Having heard all the evidence, the Sub-Committee was clear that some residents were experiencing a degree of disturbance from the Premises. The significant amount of evidence accrued by those residents detailed the numerous issues they had experienced and this could not be disputed. There had also obviously been breaches of conditions on the licence over time especially with regards to deliveries. The Sub-Committee had heard from the licence holders that it would not be appropriate to add further conditions to the licence because they would financially harm the Premises. The Sub-Committee wanted to make it very clear to the Premises that commercial considerations did not provide the right to create any sort of unacceptable disturbance to local residents. Nobody had the right to act with impunity and the licence holder needed to undertake a lot more work to address concerns raised by residents and ensure they were rectified within a suitable timeframe. The Sub-Committee noted the licence holders’ assurances that no further breaches of the conditions would occur in the future. The licence holder was advised that EH would be closely monitoring the Premises to ensure that this was the case.

The Sub-Committee was of the opinion however that it would not be appropriate to add extra conditions on to the licence at this point in time. It was considered that the review application had highlighted the legitimate concerns of the residents bringing the review application and hoped that the review process would enable all the parties to fully engage with each other so as to ensure that the commercial interests of the operator could be achieved without that undermining the licensing objectives. A lot of the evidence provided by the residents highlighted unacceptable issues arising from the Premises though and the licence holder was reminded of the importance of ensuring the Premises operated in an appropriate way. They were expected to operate from now on in the way they had described and they could expect another review application if they failed to do this. Ultimately the important factor was about management and the need to control the Premises, especially the outside area, in a way which did not disturb residents. All parties were encouraged to ensure there was open dialogue between them. The importance of communication was stressed to all parties and the Sub-Committee expected this to be undertaken without any issues.

In conclusion the Sub-Committee was concerned over the numerous instances of disturbance occurring and agreed it was unacceptable in such a residential area. The licence holder had assured the Sub-Committee that any breaches of the conditions would not occur in the future and residents’ concerns would be addressed in a timelier fashion. The weight of evidence provided by residents was noted. The fact that many local residents did not have any issues with the operation of the Clifton was obviously acknowledged as was the fact that Environmental Health had not themselves witnessed anything that gave them much cause for concern. However, that did not mean that the views of the other residents who had brought the review should be given less weight. The fact that Environmental Health had not witnessed any public nuisance might well have reflected the situation as described by Mr Woods when he stated that the nuisance was intermittent in nature and did not occur every day.

It was hoped constructive dialogue between all parties would take place in in order to ensure that an acceptable compromise could be achieved that would be in everyone’s interest. The Sub-Committee therefore did not feel it was proportionate on this occasion to add any further conditions on to the licence but expected the licence holder to fully comply with the current conditions and to manage the external areas of the premises so as to avoid causing a public nuisance to the local residents. It was hoped that such an approach would assist in promoting the licensing objectives and avoid the need for the residents to bring a further review. The Licensing Sub-Committee also wanted to indicate that any further review would not automatically be regarded as a repetitive review if the residents felt that the licence holder was not adhering to the approach being recommended in this decision.