Agenda item

Taza Take Away, 35A Queensway, London, W2 4QJ (“The Premises”)

19/01149/LIPV

1.

Late Night Refreshment – Indoors and Outdoors

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 Mr Abie Shahrtash for a variation of a premises licence in respect of Taza Take Away, 35A Queensway, London, W2 4QJ.

Mr Simpkin, the Council’s Licensing Policy Adviser, set out for all parties the following policies which applied to the application:

• CIP1 – It was the Licensing Authority’s policy to refuse applications in Cumulative Impact Areas (CIA) for fast food premises;
• HRS1 – Applications for hours outside of core hours will be considered on their merits, subject to other relevant policies; and
• FFP2 - It was the Licensing Authority’s policy to refuse applications in Cumulative Impact Areas, other than applications to vary hours within core hours.

The Chairman confirmed that all parties had received and read the additional information submitted by the applicant.

Mr Shahrtash, the applicant, requested to call a local resident, Mr Papa Okoh, and his (Mr Shahrtash’s) daughter, Ms Yasmine Shahrtash, as witnesses. The Sub-Committee agreed the request following the agreement of all parties present. Mr Shahrtash’s son, Ivan, was also present and was later allowed to assist his father in giving evidence to the Licensing Sub-Committee, as he is also the manager of the premises.

Mr Shahrtash explained that he had applied to extend the provision of late night refreshment at the Premises by two hours to 02:00 Monday to Sunday. It was not proposed to alter how the Premises operated and it would continue to provide the same services it had done since 1988 when Mr Shahrtash had taken over the business. It predominantly operated as a Premises providing hot and cold food and drinks, with a particular focus on kebabs and fresh fruit juices. Mr Shahrtash stated that he had been granted an extension to his permitted hours for late night refreshment in 2006 to midnight but advised that due to a lack of clarity with regard to what he had been awarded the Premises was currently trading until 02:00. Mr Shahrtash recognised that he was trading to hours beyond those permitted on the licence but he advised that despite this no issues had arisen at the Premises.

Mr Okoh, giving evidence in support of the applicant, stated that he lived directly opposite the Premises and had been a resident in the local area for 18 years. He noted that the Premises had been trading beyond its permitted hours but the applicant was a valuable member of the local community and had provided assistance to him when dealing with the anti-social behaviour occurring in the area. Mr Okoh was of the opinion that the anti-social behaviour did not emanate from Mr Shahrtash’s establishment and instead originated from another nearby premises.

Mr Shahrtash drew the Sub-Committee’s attention to the conditions proposed by Environmental Health (EH) and confirmed that these would all be agreed to aside from the tables and chairs condition. EH was proposing they be removed from the outside area by 23:00. Mr Shahrtash requested that if the Sub-Committee was minded to grant the application the tables and chairs be brought inside at 02:00, when the Premises would close. By allowing them to be used to 02:00 it would encourage customers to use them and therefore deposit their rubbish in the appropriate receptacles available. Instead, if they were removed from 23:00 customers could purchase food, walk elsewhere and potentially litter on the street. The manager of the Premises would monitor the outside area and ensure no anti-social behaviour occurred. The area outside of the Premises was a private forecourt currently containing two tables and six chairs. In response to a question from the Sub-Committee Mr Shahrtash confirmed that he had submitted the application for financial reasons and it was hoped the additional hours applied for would prevent the business from closing. His rent and business rates bills were very high and he needed to operate for longer hours to pay those bills. This was not about increasing his profit.

Mr Ivan Shahrtash, the Manager of the Premises and son of the owner, addressed the Sub-Committee. He explained that the business had been trading in Queensway for 35 years and provided a fast food service. Mr Ivan Shahrtash advised that other premises located nearby traded to much later hours, including 04:00, providing late night refreshment. It was claimed another premises was open until 02:00 and permitted the selling of alcohol and the smoking of shisha outside. It was claimed these premises had a much larger impact on the locality than Mr Shahrtash’s Premises. In terms of the extractor fan, which it had been claimed was a source of nuisance, it extended to the top of the Premises, was cleaned twice a year and had been installed in accordance with EH’s guidance. In addition, no loud music was played at the Premises at any time. Mr Ivan Shahrtash advised that the source of anti-social behaviour in the local area originated from another nearby premises and whenever any such behaviour was observed, the Police were called immediately.

Ms Yasmine Shahrtash, representing the applicant, advised that a minor variation to extend the hours had initially been submitted which contained extensive details on how the applicant intended to control the outside area and ensure it did not create any disturbance in the locality. They were then informed that they had to submit a full variation application by the Council and instead of repeating all the details they just referred to the previous application. It was therefore felt that many of the representations had been submitted as not all the details had been included in the new application, due to a lack of clarity provided by the Council.

Ms Shahrtash explained that the Premises had been trading in Queensway for 35 years and had worked hard to ensure the safety of the local area. When instances of anti-social behaviour occurred, the Police were informed immediately. Ms Shahratsh was of the opinion however that the level of support provided by the Police had not been satisfactory and the Premises had been supplied with little support to combat any instances of anti-social behaviour. In addition, the Premises had a very small capacity with the staff working effectively to ensure they, and the customers, created minimal noise. Any queuing was managed proactively so the public highway remained clear at all times and the outside area was managed appropriately to keep it clean and tidy. No complaints regarding noise or litter had been received by the Premises despite the area being very busy and noisy.

The Council’s Legal Adviser explained to all parties the relevant licensing policy that related to this application. As the Premises was located within a Cumaltive Impact Area and provided fast food it was the Council’s policy to refuse these applications irrespective of any evidence provided as to how well run the premises were. The impact of a fast food premises where customers purchased food and then dispersed into the wider area was recognised as a cause for concern regardless of other premises. This was especially the case as fast food premises tended to attract customers that had been consuming alcohol. The applicant therefore had to set out why it was that their customers would not cause any problems in the locality, not just immediately outside the Premises but also within the wider area. Mr Shahtash and his son and daughter confirmed that they understood the explanation given about the policy implications.

Mr Shahrtash informed the Sub-Committee that the Premises did not exacerbate or encourage its customers to cause anti-social behaviour directly outside the establishment or in the wider area. The Premises did not sell alcohol and was known predominantly for its fruit juices. The staff would not sell food to any customer clearly intoxicated and this was borne out by the fact that the Premises had no history of complaints against it. Whilst the members understood why the applicant was giving this evidence, they were concerned that the applicant did not appreciate that it was the very fact that they were offering late night refreshment that would attract customers to their premises during any extended hours of opening, many of whom would have consumed alcohol. In providing late night refreshment beyond the hours permitted, the applicant was almost certainly adding to cumulative impact in the wider area despite his explanation that the Premises were well run. 

PC Guerra, representing the Metropolitan Police, advised that their representation was maintained as the Premises was located within a CIA and the applicant was applying for hours in excess of core hours. The Premises was currently permitted to offer late night refreshment until 00:00 but Mr Shahrtash was aware that he been trading until 02:00 in breach of his licence. PC Guerra confirmed that the Premises was not a cause for concern in terms of how the business was run and there was no record of any crimes occurring from it. The applicant was very proactive in reporting crime in the local area, which was experiencing issues around anti-social behaviour. If the Sub-Committee was minded to grant the application, several conditions were proposed. These included installing a CCTV system, keeping an incident log and employing an SIA member of staff to manage the outside area and deter any potential anti-social behaviour.

In response to questions from the Sub-Committee Mr Ivan Shahrtash confirmed that approximately 5 to 7 members of staff were present at the Premises whilst it was open. He was of the opinion that this was an adequate level of staffing to deal with any issues that may arise. With regards to employing an SIA Mr Ivan Shahrtash noted PC Guerra’s suggestion that an existing member of staff could be trained in conflict management as an alternative.

Mr Koduah, representing Environmental Health, confirmed that the Premises was very small and no public nuisance or safety complaints had been lodged against it. In terms of the ventilation system, the extraction system did extend to the top of the building and no complaints regarding smells had been submitted to the Council. Since 2006 no Temporary Event Notices had been applied for to allow the Premises to open until 02:00 and the applicant was aware by offering late night refreshment until 02:00 he would be breaching the conditions on his licence. A series of conditions were proposed to be added to the licence if the Sub-Committee was minded to grant the application and these would afford local residents more protection. The Sub-Committee was also requested to consider placing an additional condition on the licence, if it was minded to grant the application, to ensure queues forming outside the Premises were properly managed to prevent any public nuisance from occurring. The Premises was located in a CIA and Mr Koduah advised that no other licensed premises in the immediate vicinity were licensed beyond 01:00. The application was seeking to extend the Premises hours and this had the potential to alter the status quo of the area. In isolation, the application could be considered not to be of concern, however overall it could potentially cause issues as well as setting a precedent in the local area.

Ms Haq, representing the Licensing Authority, confirmed that their representation was maintained as the application was seeking to extend the hours for late night refreshment beyond core hours in a CIA, which was in conflict with the Council’s Statement of Licensing Policy. It was confirmed that a meeting had been held with the applicant in an attempt to help explain the Council’s policies. The Sub-Committee therefore had to determine if the application before it could be considered an exception to policy.

Mr Brown from the Citizens Advice Bureau Licensing Advice Project, representing the Queensway Residents Association, the South East Bayswater Residents Association and the Bayswater Residents Association, addressed the Sub-Committee. It was recognised that the Premises was a well-run operation however the Sub-Committee had to consider the policy implications of the application and the effect it would have on the CIA. Due to these implications, the Sub-Committee therefore had to find reasons why this application could be considered an exception to policy if it was minded to grant the variation. The applicant had mentioned other premises in the local area which, it was claimed, were operating to later hours but there was no record of this being the case. It was acknowledged that a couple of premises were able to provide late night refreshment until 01:00 but these were historic licences. Mr Brown emphasised that the application was contrary to the Council’s Statement of Licensing Policy and should therefore be refused accordingly.

Mr Jarman, representing the Queens Court North Residents Association, explained that their concerns centered on extending the provision of late night refreshment until 02:00 seven days a week. Currently, customers would leave the Premises by 02:00 but then there would be continued noise disturbance from members of staff cleaning up and closing the establishment. Mr Jarman advised that he lived close to the Premises (he faced the courtyard behind the premises rather than facing onto the street) and he had personally been disturbed from noise generated by the staff. The Sub-Committee was also advised the extractor was not functioning properly and smells generated from the Premises were a source of nuisance. If the Premises traded to its current permitted hours of 00:00 then Mr Jarman was of the opinion that this would not create any issues.

Mr Zamit, representing the South East Bayswater Residents Association (SEBRA), expressed support for the Council’s CIA policy. It was noted that there had been some confusion over the Premises opening hours but Mr Zamit recognised that if the Premises only sold cold food and drinks it could remain open for 24 hours. The applicant had mentioned other premises in the local area that were providing shisha and late night refreshment until the early hours of the morning but Mr Zamit was unaware of this. SEBRA were working to improve the Queensway area and it was therefore important to decide each licensing application in the area on its merits. In this instance however, Mr Zamit advised that there was no compelling reason to grant the application, which was contrary to policy and had the potential to increase cumulative impact in the CIA.

Councillor Margot Bright, representing the Lancaster Gate Ward, addressed the Sub-Committee and highlighted that the application was contrary to policy and likely to increase cumulative impact in the CIA.

Mr Shahrtash, queried the accuracy of the representations which stated there was noise created from staff clearing up and closing the Premises. Queensway was a very busy area and Mr Shahrtash was of the opinion that most of the noise generated originated from other nearby premises. The Sub-Committee was advised that most residents supported the application and often frequented the Premises. There was no history of complaints against the operation, it did not have any alcohol provision and was a very well-run business.

The Sub-Committee carefully considered the application and thanked all parties present for their contributions. Mr Shahrtash was commended for successfully running his business in Queensway for a significant period of time, especially taking into account the difficulties faced in operating a small business. He was passionate about his business and spoke about how it was run very well and the value that it provided to the community. He was given excellent support by his son and daughter, both of whom spoke eloquently in support of the application.

The Sub-Committee acknowledged however that it had to take into account the Council’s licensing policies regarding cumulative impact and fast food establishments. These were specific in stating that any application for an extension in hours for fast food premises must be refused unless it could be shown that there were exceptional circumstances as to why such an application would not add to cumulative impact. After considering all the evidence provided by all parties the Sub-Committee was unable to find any exceptional circumstances to grant the application. It was not relevant that the applicant had been operating beyond the hours permitted by the licence. Whilst Mr Shahrtash believed that he was operating without causing a problem, it was more likely that he was, perhaps unwittingly, adding to cumulative impact. In those circumstances, if he was required to operate in accordance with his licence that would actually reduce cumulative impact.

Mr Shahrtash was thanked for all the support he was providing the local area with regards to reporting and managing instances of anti-social behaviour which occurred locally. Potential breaches of licences in the area had also been brought to the Sub-Committee’s attention and the responsible authorities were requested to work together to ensure premises in the Queensway area were operating appropriately and within the terms of their licences. The Sub-Committee advised that whilst they were assured that the Premises was a well-run operation, the applicant was requested to remind staff members about minimising any potential noise disruption when cleaning and closing the Premises. This would hopefully ensure good relations between the Premises and local residents in the future.

Having regard to the Council’s Statement of Licensing Policy, the application was refused on the basis that it was a fast food establishment located in the Bayswater CIA requesting hours beyond core hours. No circumstances had been provided as to why it could be considered an exception to policy and therefore it was not only contrary to policy but also likely to add to cumulative impact in the local area. However, the applicant was reminded that the refusal of the application did not impact on his ability to serve cold drinks and food from the Premises at any time.

2.

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 Sub-Committee refused the application, see the reasons for the decision in Section 1.