Agenda item

Smith’s Bar and Grill, 25 Sheldon Square, London, W2 6EY

18/00606/LIREVP

An application was submitted by Ms Tanya Dias for a review of the premises licence on 15 January 2018 on the grounds of Prevention of Public Nuisance. The concerns raised related to numerous instances of antisocial nuisance, which had caused disturbance to local residents and had subsequently resulted in breaches of licence conditions. Four representations were received in support of the review from local residents and the ward councillor, eleven representations were received against and in support of the premises.

Decision:

The Sub-Committee carefully considered all of the material received from the parties involved, including the additional documents which had been submitted by various parties prior to the hearing.  The Sub-Committee also heard submissions and evidence at the hearing prior to Members retiring to reach a decision.

Mr Brown from the Westminster Citizens Advice Bureau, representing the applicant, explained that the issues surrounding the application polarised opinions. However he would focus on whether the Premises was promoting the licensing objectives. For some of the residents the issues had been ongoing since 2009 and had therefore been gestating for a significant period of time. What finally brought about the application for a review was the applicant’s correspondence with the Premises’ Designated Premises Supervisor (DPS) in January 2018, following her being disturbed in December. In December 2017, the applicant had alerted the DPS to customers smoking outside of the designated area (underneath her window) and also requested details on whether it was planned to hold a New Year’s Eve party. The applicant was keen to understand if this was to occur as previous New Year’s Eve events had caused disturbance to the applicant. The applicant requested to know what mitigating measures where to be put in place to prevent disturbance from happening again. No response was received from the DPS. However, a New Year’s Eve party was held and this caused noise and nuisance to the applicant and also affected another nearby resident. This lack of response from the DPS, who was supposed to be the main point of contact if there were issues, represented a significant failing and therefore Ms Dias had submitted the review application. The Sub-Committee noted that the application for review had been supported by four neighbouring residents, who had also been disturbed by customers and noise escaping from the premises into their homes, which were located directly above the premises.

Mr Brown explained that there were three grounds for the review. Firstly, the music nuisance escaping from the Premises and disturbing residents living above. Mr Mason, living above the premises was disturbed on New Year’s Eve until 4/5.am.  Secondly, the nuisance created by smokers located underneath the applicant’s property, which was outside the designated smoking area as provided for in the licence. Thirdly, breaches of the conditions had occurred relating to the two concerns above. The applicant had submitted a number of photos (pages 211 to 214 of the committee papers), which provided a snapshot of what was experienced on a regular basis from smoking beneath the applicant’s window. Mr Brown highlighted conditions, which could improve the situation and advised that the inclusion of a noise condition was not uncommon. The Sub-Committee’s attention was drawn to the noise report submitted by the Licence Holder. The noise tests carried out had been undertaken on the sound system located in the basement area but did not test the DJ plug-in system used at events such as those held on New Year’s Eve. This was a serious deficiency and reflected the failure of the Premises Licence Holder and the DPS to fully understand the issues being experienced by the applicant and other supporting local residents.

Mr Brown next highlighted the proximity of residents to the Premises, as which residents were being disturbed by noise and nuisance would differ depending upon where their flat was located above the Premises, which spanned a large area on the ground floor of the block. The record of noise complaints submitted to Environmental Health (EH) was detailed and this provided a snapshot of what was regularly experienced during the operation of Temporary Event Notices (TEN). TENs were considered a significant problem as they caused late night disturbance to some residents. Several residents had confirmed that they experienced no problems with the Premises, probably due to where their flats were located.  However, this did not negate the problems experienced by others, who were being disturbed by nuisance. There was already a significant degree of unhappiness from some residents, especially those located close to the Premises, and there was a significant amount of evidence to corroborate these problems.

Ms Dias, the applicant, explained that she had purchased her property in 2008 when the Premises operated as a quiet Japanese restaurant. After one year Smith’s applied to take over the licence to which she had objected to as she was worried about potential disturbance. Smith’s had subsequently provided reassurance that her concerns would be monitored with open lines of communication between her and the management. Ms Dias explained that after these reassurances she had reluctantly withdrawn her representation. Since Smith’s had been in operation however she had experienced anti-social behaviour and nuisance emanating from the Premises, into her flat for the previous nine years. Nuisance was also caused by smokers congregating directly underneath the window of her flat near the communal door area, which was a particular nuisance as she suffered from an allergy to cigarette smoke. When she asked the smokers to move on they were often rude and dismissive of her complaints. Photos evidencing the location of smokers had been sent to Smith’s but no response had been received in return. Ms Dias also advised that glasses from the Premises were also left in the communal residential door area.

Ms Dias next highlighted issues relating to the New Year’s Eve Parties. The music played at the venue often caused vibrations in the floor of her property and Ms Dias advised that this caused her physical illness. Several meetings had been held with Smith’s management to address the issues of smokers, music escape and TENs but she still suffered from these problems and felt Smith’s did not listen adequately to the concerns raised. Only minor concessions had ever been made which did not resolve the nuisance experienced and as such, it was felt holding further meetings would not achieve anything. There were serious management failings and the business model was not appropriate for the area. It was felt all further avenues had been exhausted and that was why a review application had been made.

In the lead-up to New Year’s Eve 2017 Ms Dias explained that she had sent numerous emails to Smith’s (in particular the DPS) asking what controls would be in place at the Premises to ensure there was no disturbance created. No response was received in return. The DPS simply would not engage with her to address any issues.  The issues surrounding the Premises was clearly a divisive issue, even amongst the residents. Ms Dias was of the opinion that the Premises licence should be revoked as it was a continued source of disturbance and nuisance and its operation was unsuitable to residents living above it, as it does not promote the prevention of public nuisance licensing objective. Other options were available to the Sub-Committee if it was minded not to revoke the licence. These could include removing the current DPS, preventing the holding of any TENS and limiting its hours on New Year’s Eve. It was also suggested that the provision of recorded music could be removed from the licence as well as requiring any doors located to the front of the Premises to be closed. The Premises should only operate as a restaurant with the sale of alcohol being ancillary to customers taking a table meal.

In response to questions from the Sub-Committee Ms Dias advised that smokers from Smith’s congregated underneath her flat. A large screen showing sporting events had also been located below her bedroom window, which attracted large crowds and subsequently created significant issues for her. Smokers also used the communal front door entrance and often obstructed this area. Smith’s did have a designated smoking area, which was located on the opposite side of the building, away from her flat, but customers often did not use it despite the presence of an SIA member of staff. Ms Dias advised that Smith’s had informed her that these smokers were not Smith’s customers. The nuisance encountered changed according to the time of year but was particularly prevalent around Friday and Saturday evenings and the Christmas and New Year period.

The Sub- Committee noted that there were four entrances/exits to the premises. Entrance A which was at the side of the building towards Canalside.  Entrance B, at the front of the Premises (Canalside) which led into the terrace which was the designated smoking area.  However, entrance B was locked at 23:00 hours so any smokers could not access the smoking area directly through door B, they had to leave the building by Door A.  They would then be presented with a wide choice as to where to smoke.  Some could turn left into the smoking area but others could wander.  Entrances A and B where further away from the applicant’s property.  Door C was on the other side of the building (Sheldon Square), directly beneath the applicant’s home.  It used to be main entrance to the premises until 2016, when it was changed.  Entrance D was also near to the Applicant’s home, on the Sheldon Square side.  The Premises confirmed that a door supervisor would be on duty at Door D until 22:00 hours when the door would be closed.

Mr Maconnal-Mason, a witness for the applicant, advised that he had initially complained to the Premises about noise disturbance in 2010, which highlighted the long running nature of the issues. The noise disturbance experienced had caused Mr Maconnal-Mason distress and even though it occurred on New Year ’s Eve, he suffered a considerable amount of disturbance and this was  unacceptable and does not promote the licensing objectives. The management of Smith’s had shown a disregard to local residents and any assurances they had provided had not been actioned. It was accepted that some disturbance would be experienced when living in a central location up to a certain time in the evening. However, the noise created disturbed  his sleep and this was unacceptable, particularly in the early hours of the morning. The Sub-Committee was advised that Smith’s had provided assurances that they would address any issues but this had not occurred.

Mr Maconnal-Mason considered that all future TENs applications should be refused as the management of the Premises was incapable of ensuring it operated responsibly. It attracted large crowds creating serious disturbance and there was no visible signage at the Premises asking customers to leave the Premises quietly. Noise from the bar was escaping into his home. Other neighbours did not live above the bar and therefore could not recognise the issues experienced by others, who did, as they were physically removed from these issues. Unfortunately, due to the problems caused by Smith’s, this created tensions between residents who were being disturbed and those who were not. Mr Maconnal-Mason did not want the Premises licence to be revoked but wanted it to operate as a restaurant and not as a nightclub. It was hoped the Premises could be a valuable resource to the local community but it had to reign in its activities as at the moment it was having a negative effect on the local area. Therefore, Mr Maconnal-Mason requested that the Sub-Committee prevent the granting of any more TENs and prohibit any live music from taking place at the Premises.

Councillor Cox, a witness for the applicant, advised that she was aware of the distress Smith’s had been causing some residents for a considerable period of time. The Premises marketed itself as a bar and grill but was operating in a style more akin to a nightclub. The applicant had originally withdrawn her objections to the Premises as guarantees were given as to how it would operate responsibly. However, these guarantees had not been honoured. The applicant had tried to contact the DPS before New Year’s Eve 2017 but no response was received, this was clear evidence that the guarantee that there would be open lines of communication had been broken. The smoking issues highlighted by Ms Dias were potentially very significant due to her allergies. Finally, Mr Maconnal-Mason’s evidence highlighted that the Premises frequently operated in a style similar to a nightclub and as such, the issues raised needed addressing as they caused nuisance which was contrary to the promotion of the licensing objectives.

Mr Watson, representing EH, provided the Sub-Committee with details of the number and style of TENs applications made by the Premises. The events primarily related to discos and Christmas and New Year’s Eve parties for a maximum of three hundred people until 04:00 hours. When a TEN was applied for EH would work with the Premises to ensure it would not cause any disturbance. Complaints had been received concerning noise emanating from the Premises during the operation of some TENs. These had been investigated by a member of EH’s Noise Team but as this was often after the event, no disturbance had been witnessed.

Mr Watson confirmed that investigations had taken place into complaints received regarding certain areas located below Ms Dias’ property. In 2016, it was recognised that the Premises had located a large TV screen in the bar, directly underneath the applicant’s property, which meant that noise would escape into her home, so the TV was moved to another part of the premises to address this issue. The main entrance used to be via door C, which is situated directly beneath the applicant’s home and it was recognised that customers were causing nuisance so a new door, described as door A was installed so that door C, below the residential properties is now only used for emergency access and egress. Since the review application Mr Watson had inspected the sound system and it was confirmed that the there was a hard nature to the building which meant any noise would readily transfer through its structure, particularly up the columns of the building into the residential properties above. The speakers were fixed to the structure of the building which would exacerbate the problems of sound transference. It was therefore accepted that music was escaping into some of the properties above the Premises, depending on where the music was being played or routed.  The acoustic report had produced recommendations suggesting that speakers should be installed on isolation brackets and additional speakers should be installed which would help to spread the level of sound around the Premises. Music was relayed through a sound limiting device, however, the DJ microphone and monitor speaker was not being routed through the noise limiter, so the sound produced would also transfer readily through the structure of the building and this would be disturbing.

The Sub-Committee was informed by Mr Watson that with regards to smokers using the communal door area to the residential properties above it was impossible to ascertain if these were Smith’s customers or not. In terms of the playing of live music on the ground floor of the Premises, it was considered that this should not be allowed because due to the nature of the building it was likely to cause disturbance. Mr Watson was also of the view that existing speakers should be placed on isolation brackets to limit any noise impact from the playing of music and signage requesting customers to leave quietly be more readily visible. It was also recommended that the DJ sound monitor be restricted to also reduce any potential noise disturbance. With regards to doors A and D it was important these had self-closing mechanisms installed to limit any potential noise disturbance to residents. It was noted that Door B, which led to the designated smoking area, was located underneath residential properties and this was locked at 23:00 hours. Customers then had to use Door A, which had no residential properties above it, to access the smoking area. It was hoped a door supervisor was in place to direct customers to the designated smoking area.

Mr Botkai, representing the Premises Licence Holder, explained that discussions had been held with EH, the applicant and various other parties to discuss the issues over the years. The applicant had raised concerns but the Sub-Committee was advised that most of these related to pre-2016 issues. Mr Botkai provided a summary of the licence holders meeting with the applicant and the subsequent correspondence entered into including what steps she would like to see taken. The serious accusations being made against the Premises were commented on and strenuously denied. In response to complaints made, the licence holder had commissioned an acoustic report. The Sub-Committee was advised that access was requested to Mr Dias’s property by a noise expert to fully assess any noise disturbance but this had been rejected.

Mr Botkai confirmed that the recommendations from EH and the acoustic report would be acted upon and this included placing speakers on isolation brackets and ensuring the DJ sound monitors were appropriately restricted. It was highlighted that only one DJ event was held a year and there had been no live music provided on the ground floor even during the operation of a TEN. In terms of the noise complaints to EH by the applicant over the last nine years, aside from one incident, no nuisance had been recorded. The Sub-Committee was advised that, apart from the steps mentioned above, EH were not requesting any particular steps and the Licensing Authority had not submitted a representation. It was acknowledged that the Premises smoking area used to be located beneath the applicant’s property however this area had been relocated to address any concerns at a cost of £150,000. The YouTube channel provided as evidence of noise disturbance belonged to the applicant and Mr Botkai was of the opinion that no music in the videos was clearly audible in them. In addition, a Sheldon Square Residents Association had been mentioned in the evidence circulated however this did not cover the residential properties effected by the licence review.

In terms of the concerns relating to smoking Mr Botkai explained that Smith’s customer had to smoke in the designated smoking area located to the back of the Premises. Any people smoking at the front of the Premises or in the communal entrance were not Smith’s customers. It was acknowledged that it was impossible to say this would never happen but the majority would use the designated area. The front of the Premises was very busy and approximately 100,000 people passed by each day meaning it was impossible to ascertain if people smoking were Smith’s customers.  With regards to outside drinking this was not permitted in this area and it was again impossible to ascertain if these were Smith’s customers. The outside area was also regularly cleaned and the Sub-Committee was informed that there were various other licenced premises in close proximity. The Premises wanted to be a good neighbour and apologies were offered for any disturbance caused previously through the clean up operation carried out at New Year’s Eve and assurances were provided that this would not happen again.

Mr Botkai next addressed concerns over noise disturbance on New Year’s Eve. This was an important occasion for Smith’s where traditionally a food-led party was held, where people could dance and a DJ was provided. The Sub-Committee was informed that in future the DJ’s sound system would be placed through a noise limiter. A short fireworks display was also given which was enjoyed by many people and it was felt this was the correct balance for the area. The noise emanating from the Premises on New Year’s Eve was considered minimal and not unreasonable for the occasion. As the applicant would not provide access to her property for acoustic testing, testing had been carried out in another flat on the same floor and this detailed that the noise produced should not create any disturbance. To provide further reassurance the licence holder would place speakers on isolation brackets and work with EH to resolve any other acoustic issues. He apologised for furniture being moved around on New Year’s Day. This would not happen again. Otherwise, the Sub-Committee was advised that there was no evidence that the Premises was creating any noise disturbance.

Finally, with regards to TENs Mr Botkai detailed that only three had been applied for in 2016, four in 2017 and so far two in 2018 which highlighted their limited use. The basement area could be used for entertainment but the ground floor was a restaurant and bar.

Mr Gijzels, a witness for the licence holder, explained that he had lived in Sheldon Square since 2004 above Door B on the Canalside near the new main entrance doors. The Sub-Committee noted he lived on the opposite side of the building to the applicant. Up until 2015, the Premises had applied for considerably more TENs which had created some noise issues. As such, detailed communications had been entered into with the licence holder and all queries had been responded to promptly. Steps had been taken to resolve issues such as smoking, doors had been closed to lessen any noise impact and an SIA door supervisor had been employed. There were occasional smokers outside the front of the Premises; however only one had been witnessed by Mr Gijzels over the last month and it was impossible to know if this was a Smith’s customer. No drinking or litter had been experienced outside Smith’s and the licence holder routinely cleaned this area. The fireworks display on New Year’s Eve had been witnessed but this finished by 00:30 and had not disturbed his sleep.

Ms Murray, a witness for the licence holder, explained that she lived in Sheldon Square on the first floor. She did not live directly above Smiths but she shared the same communal entrance as the applicant and advised that she had never witnessed any smokers using this area even in the evenings. No outside drinking had also been witnessed. However, she acknowledged that she is out a lot in the evenings.  Ms Murray confirmed that she had attended the New Year’s Eve party at Smith’s in 2017 and whilst it was acknowledged that the building was thin, the Premises did not operate as a nightclub. No difficulties had been experienced in communicating with Smith’s management and whilst some issues had arisen when she first moved in they had been quickly addressed.

Mr Raupov, the Manager and DPS of the Premises, advised that he had worked in Sheldon Square since 2006. He had tried to deal with the applicant’s concerns in the past but it was acknowledged that communications had become strained between the two parties. In response to the applicant’s concerns they had been acted upon and this included moving the bar area to the opposite side of the Premises to reduce its potential impact. The signage had also now been changed.

In response to questions from the Sub-Committee Mr Raupov advised that he had not responded to the applicant’s emails in December 2017 as they had been directly addressed to officers of Westminster City Council. If the emails had been directly addressed to him, he would have responded. He communicated with many local residents to resolve any issues, however the relationship with the applicant was not good. To address any concerns over the doors it was explained that once Door B was locked an SIA door supervisor was then placed on this door to direct customers exiting to do so via Door A.

Mr Brown considered that the applicant had produced a substantial amount of evidence to support the disturbance encountered. The photos supplied provided a snapshot of people smoking and drinking outside although the licence holder queried if they were Smith’s customers. The licence holder had not responded to emails from the applicant, several of which had been directly addressed to him, regarding the noise disturbance experienced and this was a cause for concern. If the Sub-Committee was not minded to revoke the licence then there were appropriate conditions, which could be added to the licence including reducing the permitted hours on New Year’s Eve.

Ms Dias confirmed that she was seeking for the licence to be revoked but if not requested that suitable conditions be placed on the licence to address the concerns raised.

Mr Botkai explained that Smith’s was a Premises which employed thirty-five people. The Sub-Committee was requested not to restrict the hours on New Year’s Eve as 02:00 hours was currently permitted which was not considered late for Westminster on a day which was considered different to most others. It was also requested that no further restrictions on regulated entertainment on the ground floor be imposed. The recommendations from the acoustic report would be adhered to and any DJ sound equipment would be placed through a noise limiter. He considered that the issue of hypersensitivity may be an issue in this case. This application was an example of where no further steps were required. If the Premises did transgress then it would come back before the Sub-Committee and the licence holder was aware of the potential consequences. The licence holder also wanted to improve relations with the applicant. Good relationships already existed with other residents and it was hoped that constructive discussions could take place in the future to address the problems discussed.

The Sub-Committee carefully considered the application and all the evidence provided. It was felt that review applications were always unfortunate situations and it was probably true that all the parties felt the same way. Concern was expressed that a set of problems had been ongoing for a significant period of time and it was understood why a review application had not been brought earlier. It was acknowledged that there had been a number of changes at the Premises over the years and the licence holder was of the opinion that he had tried to respond to the issues as they arose. The difficulty in reaching a decision however was that there was clear evidence that some residents were being disturbed, particularly from noise/music escaping into their homes through the structure of the property, which amounted to a nuisance and which was contrary to the prevention of public nuisance licensing objective.  It was understood that other residents may have not been disturbed by such noise, due to the fact that their properties may have been located higher up the building or the other side, away from where the noise was emanating.   It was not considered satisfactory that both parties were unable to talk to each other to address the issues raised and the importance of communicating appropriately in the future was stressed, particularly for the Premises Licence Holder and the DPS. With regards to providing evidence it was appreciated that it was often frustrating for residents to make complaints to EH but it was important to do so, even the day after as this helped to provide evidence which EH could respond to, especially in such circumstances as these. Having heard all the evidence, the Sub-Committee also expressed surprise that EH or the Police had not objected to any TEN applications so that the Sub-Committee could consider the merits of having the events, especially bearing in mind the difficulties experienced between the Premises and some local residents. It was felt a Sub-Committee meeting would have provided an opportunity for dialogue between all parties and this required assessing by EH for any future TEN applications. It was noted that some residents were not affected by the Premises but if just one or two residents only were experiencing disturbance then this was still regarded public nuisance which had to be addressed to promote the licensing objectives.

The Sub-Committee had considered the request to revoke the licence but having heard all the evidence it was felt that in the circumstances it would not be appropriate or proportionate to do so. Instead, it decided to attach a number of additional conditions to the licence, which would help ensure that the licensing objectives were promoted. The licence holder was reminded of the importance of adhering to the conditions on the licence and failure to do so would result in the Premises appearing before another review hearing. EH would ensure that this was the case and they would act upon any future issues reported. The additional conditions to be added to the licence were considered appropriate and proportionate to address the nuisance which was occurring and to promote the prevention of public nuisance licensing objective.

A request had been made to remove the DPS but this was also considered not appropriate in the circumstances. The Sub-Committee stressed to the licence holder however the importance of communicating with local residents to help address future issues. The applicant was advised that if she was aware of any future breaches of the conditions to inform the responsible authorities immediately.

Concerning the conditions to be placed on the licence, they were considered to be appropriate and proportionate to address the issues raised and to promote the licensing objectives. In relation to the designated smoking area, the conditions would be strengthened to ensure the licence holder did everything within its powers to make sure that its customers used this area for smoking, even after 23:00 hours when Door B was closed, (see condition 19). Door C would be kept closed at all times, except in the case of an emergency and this was reflected in new condition 17. The Sub-Committee agreed with EH that the acoustic conditions should be amended to ensure the placing of speakers on isolation brackets and the DJ microphone and speakers would be routed through a noise limiter to help deal with the noise issues described as reflected by the amendments to conditions 23 and 24. It was also decided that the licence holder could be more pro-active after 21:00 hours in terms of staff supervision, managing customers leaving the Premises and ensuring they used the designated smoking area and this was reflected by condition 19 which had been added to the licence. Finally, a condition would be added to the licence to exclude the exemptions under section 177A of the Licensing Act 2003 in relation to both live and recorded music so that the Premises would need to comply with renumbered conditions 20, 22, 23, 24 (formerly conditions 18, 20, 21, and 22 of the licence which appears in the committee papers on page 292) . The following conditions were amended to address the issues raised, namely:-

·         condition 12 the reference to the smoking area on the plan was changed to reflect the current position;

·         condition 14 the reference to the plan was changed to reflect the correct position;

·         condition 16 – Door D shall be closed from 21:00 hours, as opposed to 22:00 hours, except for an emergency;

The Sub-Committee considered the amended and extra conditions imposed on the licence were appropriate and proportionate to address the issues raised and to promote the licensing objectives.

The Sub-Committee highlighted the importance of reinstating dialogue between all the parties and this needed taking forward otherwise issues would arise once again in the future. There were various means of using intermediaries, which included the Licensing Authority or local Councillors, who could help facilitate and ensure appropriate communication took place. It was hoped this process would help bring both parties together to resolve any outstanding issues. In conclusion, it was accepted by the Sub-Committee that there was evidence of disturbance and public nuisance.  At this stage the incidents were not sufficient enough to revoke the licence but the occurrences were sufficient enough to justify the steps which had been taken These were problems that required rectifying and it was hoped this would be the case with the additional conditions added to the licence and improved dialogue between all parties.

The Council’s Policy Adviser confirmed that in respect of the designated smoking area and the doors at the Premises it was necessary for the licence holder to submit to the Licensing Authority an updated plan of the ground floor. This was necessary to adequately identify the doors labelled A, B, C and D in relation to the wording of the conditions and the Sub-Committee directed that a revised plan should be submitted showing the hatched area and doors.