Agenda item

Garrick House, 63-66 St Martin’s Lane, WC2

17/15038/LIPN

1.

Late Night Refreshment (Indoors)

Amendments to application advised at hearing:

None.

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

The Sub-Committee heard from Mr Thomas, representing the Applicant.  He explained that the company holding the previous premises licence had gone into administration on 31 July 2017 as a result of which the licence had lapsed.    His client, the landlord of the premises, had only become aware that the licence had lapsed in December 2017 and had then submitted an application to directly replace the licence. 

It was noted by the Members of the Sub-Committee that the previous licence  was a bar licence to 23.00 (22.30 on Sunday) with a table meal condition thereafter until midnight (23.30 on Sunday) plus 30 minutes drinking up time until closing at 00.30 (midnight on Sunday).

Mr Thomas commented that the Council did have concerns about the use of the exterior of the building in terms of anti-social behaviour since the premises had been closed.  It had been used during that time as a shelter by the homeless.  He made the point that a representation in support of the application had been received from a local resident living upstairs due to concerns about the premises’ current use and requesting that there was a thriving business there.

The Applicant was requesting that the new premises licence was granted on almost exactly the same terms as the lapsed licence.  Mr Thomas quoted paragraphs 2.1.8 and 2.4.8 of the Council’s Statement of Licensing Policy.  2.1.8 sets out that ‘in cases where licences have lapsed through insolvency or death, the Council will generally grant a new licence on similar terms to the lapsed licence as a replacement. However the Council will take into account the previous history of the premises, the length of time the premises have been closed, and any problems at the premises, and will impose conditions that reflect current good practice for the type of business proposed at the premises’.  Mr Thomas stated that he was not aware of any recorded complaints received by the Council.  He also expressed the view that the licence had lapsed recently and that conditions had been offered that reflected current good practice for the type of business proposed at the premises and promoted the licensing objectives.  These included the model condition preventing noise emanating from the premises and the licence holder being required to ensure that measures were in place to prevent litter and waste accumulating outside the premises.  He added that he had agreed the Council’s Model Condition 57 with Mr Hardy that ‘patrons permitted to temporarily leave and then re-enter the premises, e.g. to smoke, shall not be permitted to take drinks or glass containers with them.’

Paragraph 2.4.8 of the Council’s Statement of Licensing Policy sets out that ‘applications for new licences to replace licences which have lapsed because of the failure to submit an interim authority notice in due time in the event of the death or insolvency of a licence holder will be considered by the licensing authority as possible exceptions. Unless there are representations that indicate there have been problems with the previous licence licences may be granted with conditions which replicate the effect of those of the previous licence and with conditions which bring the licence in line with good practice on other licences’.  Mr Thomas said that this paragraph was equally relevant in terms of this application.

Mr Thomas informed the Sub-Committee that he had spoken with Mr Brown who was representing Mr Hardy and Mr Brown had requested a condition that ‘no collections of waste or recycling materials (including bottles) from the premises shall take place between 23.00 and 07.00 on the following day’.  Mr Thomas and his client were amenable to this condition being attached to the premises licence in the event the Sub-Committee was minded to grant the application.  Mr Thomas advised that the only significant difference between Mr Hardy’s position and the Applicant’s was that Mr Hardy was requesting Core Hours for the operation of the premises.  The Applicant was seeking exactly the same hours as the lapsed licence which were beyond Core Hours.  

Mr Thomas stated that his client was content for live music to be withdrawn from the premises licence.  The Applicant did want to retain recorded music and regulated entertainment of a similar description without restriction as this was included on the lapsed licence.

The Sub-Committee heard from Mr Nevitt on behalf of Environmental Health.  He made the point that the application was for a drinks and entertainment led application in the West End Cumulative Impact Area beyond Core Hours which was normally contrary to the Council’s policy.  However, in this instance the Applicant wished to rely on the application for a new licence to replace a licence which has lapsed because of the failure to submit an interim authority notice in due time in the event of the insolvency of a licence holder as a possible exception.  Mr Nevitt had two particular questions in relation to this.  Firstly, was the Applicant’s reliance on paragraph 2.4.8 of the Statement of Licensing Policy appropriate?  It was for the Sub-Committee to assess whether the length of time the premises at 63-66 St Martin’s Lane had been closed was significant.  Secondly, had the Applicant demonstrated that the requirements in paragraph 2.4.8 had been properly met? Mr Nevitt advised that the advantage of the application was that it provided the opportunity to attach up to date conditions to the licence in the event the application was granted.

Mr Nevitt said Environmental Health had maintained their representation because it had been unclear whether the Applicant needed live music.  It was also the case that the application as submitted by the Applicant had included the conditions on the lapsed licence and Environmental Health were keen to investigate whether there was scope for updated conditions to be attached to the licence.  Environmental Health also wished to hear any representations from residents who had objected to the application.  Mr Nevitt also queried whether in policy terms the replacement of the lapsed licence referred to the same hours as well as the same use of the premises.  It was also a matter for discussion as to whether to keep the works condition which had been on the previous licence on the current licence.

Mr Rowe on behalf of the Licensing Authority concurred with Mr Nevitt’s points as to the relevant policy considerations for the Sub-Committee to take into account. 

The Sub-Committee was addressed by Mr Brown, representing Mr Hardy (Mr Hardy is also the Chairman of Burleigh Mansions Residents’ Association who had submitted a representation).  Mr Brown advised that Burleigh Mansions is located on the opposite side of the road to 63-66 St Martin’s Lane (not directly opposite).  He referred to the previous licence at the premises being an old ‘supper hours certificate’.  Alcohol was therefore required after 23:00 to be ancillary to a table meal.

Mr Brown accepted Mr Thomas’ point that in respect of the lapsed licence, the application was capable of being considered an exception to policy.  However, he was of the view that the fact that the premises would be operated as a bar until 23:00 in the West End Cumulative Impact Area should be taken into account.  He raised the matter that it was not known who the landlord intended to let the premises to and what sort of operation would take place there.

Mr Brown explained that Mr Hardy had concerns that customers would be leaving late (he defined this as being after Core Hours) and this could impact on residents’ relative peace and quiet after 23:30 Monday to Thursday, midnight Friday and Saturday and 22:30 on Sunday.

Mr Brown confirmed that he was seeking that the no collections of waste (including bottles) from the premises condition between 23:00 and 07:00 was attached to the licence.  The Applicant was not objecting to this.

Mr Brown expressed the view that it was necessary for the Sub-Committee to find an exception to the Council’s policy in order to grant the application given the bar element in the application.  He queried whether paragraph 2.4.8 of the Statement of Licensing Policy meant that the hours as well as the use of the previous licence had to be replaced exactly in terms of the new premises licence.

The Sub-Committee asked the Applicant a number of questions.  These included whether it was possible to provide any further information about the new tenant or style of operation.  Mr Thomas replied that he was unable to disclose who the new tenant was likely to be as negotiations had not been concluded and the matter was commercially sensitive.  He expected the new tenant to be an experienced operator of ‘high end’ bars.  There was likely to be a substantial level of seating at the premises and a substantial food offer.  He believed it would be a much better operation than what had existed at the premises before.

The Sub-Committee also asked Mr Thomas why the Applicant required off sales.  He replied that it had been a permitted licensable activity on the previous licence which the Applicant was seeking to mirror on the new licence.  However, his client was prepared to withdraw it if it was a concern for the Sub-Committee, particularly in an area where there was anti-social behaviour.  The Applicant would potentially like an outside area in the future.  He clarified that no outside drinking would be permitted as part of the application for the new premises licence.

Mr Thomas was content for the works condition to be transferred on to the new premises licence in the event it was granted given that the premises had been closed for a couple of months.  He was also content for the capacity of the premises to be determined and set by Environmental Health.  The likely capacity was 240.  Mr Nevitt sought clarification on the use of the basement area in relation to determining the likely capacity and whether there were public toilets there.  Mr Thomas responded that he did not believe that the basement would be part of the licensed area.

Mr Thomas wished to respond to Mr Brown’s points at the hearing.  He believed there were two options for the Sub-Committee in terms of making a decision on the proposed hours of operation.  One was to grant the hours on the previous licence with the old ‘supper hours’ certificate.  He did not accept that the application would be subject to Policy PB2 after 23:00 because alcohol would have to be ancillary to a table meal then.  He was also of the view that the Council’s Policy required the licence to be mirrored in terms of the hours as well as the use.  The second option was to grant the bar to Core Hours. 

Mr Panto explored with the Applicant about the length of time between the insolvency of the previous operator and the new application.  His legal advice was that the new application did not necessarily have to be granted on exactly the same terms, including the same hours, as the previous licence.  Potentially the Sub-Committee would be able to take a decision without being bound by the previous licence. 

Mr Thomas responded that no parties to the hearing had mentioned that the premises should operate as a restaurant.  A restaurant operation would not be acceptable to the Applicant.  He believed the length of time the licensed had lapsed was short.  He asserted that it was very rare that a landlord became aware immediately when a tenant’s operation had gone into administration.  He added that in this case the previous licence had lapsed on 27 August 2017 and the new application had been submitted in December 2017.  Mr Thomas made the case that there was a 28 day window and the licence had only lapsed at the end of August when the administrator had been appointed.  The licence had gone into administration on 31 July 2017.

The Sub-Committee, in granting the application, took into consideration the Council’s policy, the additional conditions being proposed and the removal of licensable activities being proposed by the Applicant.  The Sub-Committee was satisfied that the length of time since the licence had lapsed through insolvency in this case was an exception to policy.  Members also considered that conditions had been agreed which made the new application an improvement over the previous licence.  These included the conditions agreed between the Applicant and the Responsible Authorities and the additional conditions agreed at the hearing including that no collections of waste or recycling materials (including bottles) would take place between 23:00 and 07:00 on the following day and patrons not being able to take drinks outside.

The Sub-Committee took the view also that there was a benefit in removing off sales and live music from the licence in order to promote the licensing objectives. 

The Sub-Committee gave careful consideration to Mr Hardy’s request for Core Hours but took the view there was a benefit in permitting the hours applied for with the requirement for alcohol to be ancillary to food at 23:00 as opposed to allowing a bar to operate throughout to Core Hours.  The Sub-Committee required alcohol to be ancillary to a substantial table meal after 23:00.  Recorded music was limited to the same hours as the hours premises are open to the public (it was previously unrestricted). 

The aspect of the application to extend on sales and opening hours on Sundays prior to Bank Holiday was refused.  This had not been permitted on the lapsed licence.

2.

Sale by retail of alcohol (On and Off)

Amendments to application advised at hearing:

Mr Thomas did indicate that the applicant would be prepared to remove the request for off-sales provided that it was acknowledged that they might want to apply for external seating in due course. Subject to that proviso, the Members accepted the offer and off-sales were not granted.

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

On sales were Granted, subject to conditions as set out below (see reasons for decision in Section 1). Off sales were not granted.

3.

Live Music (Indoors)

Amendments to application advised at hearing:

This was withdrawn by the Applicant.

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.

4.

Recorded Music (Indoors)

Amendments to application advised at hearing:

None.

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

The Sub-Committee granted the same hours for recorded music (indoors) as the hours premises are open to the public.

5.

Anything of a similar description (Indoors)

Amendments to application advised at hearing:

None.

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

The Sub-Committee granted the same hours for this aspect of the application as the hours premises are open to the public.

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):

Granted, subject to conditions as set out below.

7.

Seasonal variations / Non-standard timings

Amendments to application advised at hearing:

Mr Thomas did indicate that the Applicant would be prepared to remove the request for off-sales provided that it was acknowledged that they might want to apply for external seating in due course. Subject to that proviso, the Members accepted the offer and off-sales were not granted.

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

The Sub-Committee permitted the aspect of the application relating to New Year’s Eve but did not grant the additional time requested on Sundays prior to Bank Holidays.  The latter had not been included on the lapsed licence.

Off-sales were not granted.