Agenda item

Flesh & Buns, 29 - 33 Berners Street, London, W1T 3LR

App

No

Ward /

Cumulative Impact Area

Site Name and Address

App

Type

Licensing Ref No.

1.

West End Ward /Not in Cumulative Impact Area

Flesh & Buns,

29 - 33 Berners Street London W1T 3LR

Premises

Licence

Variation

 

 

19/14111/LIPV

 

Minutes:

LICENSING SUB-COMMITTEE No. 6

Thursday 16th January 2020

 

Membership:           Councillor Karen Scarborough (Chairman), Councillor Peter Freeman and Councillor Maggie Carman

 

Legal Adviser:         Barry Panto

Committee Officer:  Artemis Kassi

Policy Officer:          Aaron Hardy

Presenting Officer:  Kevin Jackaman

 

Relevant Representations:    Environmental Health, 3 local residents from Berners Mansions and the Head Lessee of Berners Mansions.

 

Present: Jack Spiegler (Solicitor, representing the Applicant), Steven Hill and Emilie Reynall (Bone Daddies Ltd), Anil Drayan (Environmental Health) , Robert Sutherland (Solicitor, representing Berners MM Ltd, the Head Lessee for Berners Mansions) and Michael Poole and David Offenbach, local residents living in Berners Mansions.

 

Flesh & Buns, 29-33 Berners Street, London, W1T 3LR

(“the Premises”)

19/14111/LIPV

 

1.

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

 

The proposed variation is to include off sales of alcohol so as to extend the existing sale of alcohol for consumption on the premises to the external seating area on the basis that the consumption of alcohol in that external area will also be ancillary to a substantial table meal.

 

The applicant has also proposd that an additional condition be added to the licence as follows:

 

The supply of alcohol for consumption off the premises shall only be to persons seated in the designated external seating area.

 

 

 

 

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 Bone Daddies Ltd (“the Applicant”) for a variation of the premises licence in respect of Flesh & Buns, 29-33 Berners Street, London, W1T 3LR.

 

The Presenting Officer introduced the application to vary the licence. Kevin Jackaman advised the Sub-Committee that the Applicant was seeking to authorise the sale of alcohol for consumption off the premises and that it was proposed to add a licence condition to allow the supply of alcohol for off-premises consumption in a designated seating area external to the restaurant. Mr Jackaman also advised that representations had been received from the Environmental Health Services and four resident objections (including a representation from David Offenbach, a local resident living in Berners Mansions, whose representation was not included in the agenda papers but was circulated to all those present). The Sub-Committee noted that the premises were located in the West End Ward, which was not in a Cumulative Impact Area.

 

Mr Jack Spiegler, Solicitor, representing the Applicant, advised that this was an application for a variation in premises licence to allow off-sales to a maximum of six persons seated outside the restaurant consistent with Planning and Highways consent. The Sub-Committee heard that those consents authorised service to the six persons seated in the designated outside area until 21:00, with closure of that area at 21:30. 

 

Mr Spiegler advised that the Applicant had offered the condition ‘‘The supply of alcohol for consumption off the premises shall only be to persons seated in the designated external seating area.” Mr Spiegler also advised the Sub-Committee that the Applicant was in agreement with the additional conditions i and ii proposed by the Environmental Health Consultation Team in a memo dated 10th January 2020 and had a suggested amendment for condition iii to tie in with condition 31 of the Licence. Mr Spiegler also stated that there had been meetings between the Applicant and residents. He referred to a single recorded complaint relating to a lunchtime offer promotion which had been more popular than anticipated.

 

Mr Spiegler, in summary, advised the Sub-Committee that the Applicant had nine restaurants, five of which were located in Westminster. Mr Spiegler stated that Mr Steve Hill intended for the restaurants to be operated without complaint. The Sub-Committee heard that the Highways licence would expire in May, the Planning consent in September.

 

Anil Drayan, representing the Environmental Health Service, apologised to the Sub-Committee for the late submission of his memorandum and indicated that Environmental Health had visited the premises.  Mr Drayan advised that the wording in the suggested additional conditions reflected the necessity to be mindful of local residents. He further advised that in the absence of an amendment to the existing wording for condition 9, there existed the potential for the use of the external area to become a drink-led operation. Mr Drayan outlined wording to apply to the external designated seating area, so that condition 9 of the Licence would now read, “The premises, including the designated external seating area, shall only operate as a restaurant”, and condition 9(vi) “…where alcohol shall not be sold or supplied, otherwise than for consumption by persons who are seated in the premises or in the designated external seating area and bona fide taking substantial table meals there and provided always that the consumption of alcohol by such persons is ancillary to taking such meals”.

 

Michael Poole addressed the Sub-Committee and advised that he resided in Flat 2, Berners Mansions. The Sub-Committee heard that there were four representations from residents, and a further representation from the community company on behalf of all residents of Berners Mansions. Mr Poole advised the restaurant had opened in September 2018, replacing entirely office premises. He mentioned that in his opinion there had been poor adherence to key conditions of the Licence and further that this was replicated with the introduction of the tables and chairs. He recognised that this was a central London location but observed that Berners Street was quiet in the evenings in contrast to daytime from Monday to Friday. Mr Poole also observed that according to the Planning consent, the correct layout required one table to be positioned in the smoking area (south of the entrance to the premises) but that smoking was not permitted at the tables. Mr Poole stated that supervision was inadequate and that this had led to a formal complaint about the nuisance relating to the offer promotion.

 

The statement from Mr Poole objecting to the application appeared at page 5 of the agenda papers.

 

David Offenbach addressed the Sub-Committee and advised that he resided in Flat 1, Berners Mansions. Mr Offenbach advised the Sub-Committee that the application would lead to loss of residential amenity through the resulting nuisance. He particularly mentioned the size of the operation, customers congregating outside Berners Mansions, the loss of the designated smoking area, nuisance caused by smoking at the tables, noise from glassware at the tables, the track record of management and failures in supervision of the area by restaurant staff.

 

Robert Sutherland, solicitor, representing Berners Mansions Management Ltd, addressed the Sub-Committee. Mr Sutherland commented that licensing is based on trust but that trust between the parties was being broken down. He observed that as recently as 7th December, the positioning of the tables in the external designated area was incorrect, that residents were having to police compliance whereas the licence holders should have been taking responsibility. Mr Sutherland particularly mentioned that the purpose of the conditions was to keep smoking away from residents and referred to the poor signage (in the photograph at page 34 in the agenda papers).

 

Robert Sutherland submitted that the Applicant should have come to the Sub-Committee with clean hands and that if the Applicant had adhered to their operational management plan, there would have been no hearing. Mr Sutherland advised the Sub-Committee that the time for trust from the residents had passed.

 

The statement on behalf of Berners Mansions Management Ltd objecting to the application appeared at page 7 of the agenda papers.

 

Anil Drayan reflected that Environmental Health did not want conditions to operate in such minutiae but wanted people to manage operations so as to promote the licensing objectives. Mr Drayan stated that Environmental Health did acknowledge the residents’ objections and also noted that the existing Licence limited the number of people smoking to eight. He observed that it was only before the Sub-Committee that the Applicant had stated that it would be using the area as a restaurant. Mr Drayan also reiterated that there could not be any smoking at the tables and that glassware had to be left on the tables. He also accepted the residents’ contention that Berners Street was a quiet street, though considered that it was a busy street until around 9:30 pm. The Sub-Committee discussed the changing nature of areas in central London, including in and around Berners Street.

 

Steven Hill stated that from the restaurant’s point of view, the purpose of the tables was to provide a street presence and commented that six covers meant that the table area would not be busy or high frequency. Mr Hill stated that issues of trust, smoking and confidence were important. He advised that there was signage and that this did not match the wording of the Licence condition as a standard sign had been purchased. He also apologised about the nuisance resulting from the queue during the offer promotion and advised the Sub-Committee that he had made himself available to the residents. Mr Hill also observed that a public bin and smoking area was closer to Berners Mansions than the restaurant.

 

The Sub-Committee reflected on the licensing process and observed that it was essential for any residents to log complaints, otherwise the Council had no register of the complaints’ history. Anil Drayan affirmed the importance of reporting, stating that alleged breaches should be reported when they impact on the licensing objectives.

 

The Sub-Committee encouraged the parties to build better relationships and advised that residents could have recourse to a review of the licence if any of the licensing objectives were being undermined. That could include any nuisance that might be caused by the use of the external tables and chairs, especially as the licence was being varied to allow alcohol to be consumed from the external seating area in which those tables and chairs were placed. The Sub-Committee further considered whether in granting the application condition 32 posed potential for conflict with compliance of the Planning permission which permitted a maximum of three tables and six chairs. Condition 32 effectively required the external area south of the premises entrance to be used as the designated smoking area but this was an area identified in the planning permission as an area to be used for tables and chairs and that also meant that no smoking would be permitted from that area.

 

Following legal advice, the Sub-Committee decided that condition 32 on the existing licence was maintained and that it was for the Applicant to manage the premises in order not to be in conflict with either the planning permission or the premises licence. Barry Panto, the legal adviser to the Sub-Committee, suggested that one way to resolve or avoid any such conflict might be to remove one table and two chairs from the designated smoking area. The Sub-Committee also considered the conditions advocated by Environmental Health and applied these (as amended) to the licence.

 

The Sub-Committee once again mentioned that residents did have potential  recourse in terms of seeking a review of the Licence if the provision of any of the licensable activities caused a public nuisance. The Sub-Committee also noted that  the tables and chairs licence would need to be renewed in May and the Planning Permission in September. In granting the application, the Sub-Committee referred to Licence condition 32 and the potential for conflict with Planning, noting that placing a table and two chairs in the smoking area would potentially be in breach of condition 32. The Sub-Committee further noted that it was for the Applicant to manage its tables and chairs and ensure that it there was no conflict between the use of the premises licence and the requirements of the planning permission.

 

After taking into consideration all the evidence before it, the Sub-Committee decided to grant the application, subject to various conditions. The Sub-Committee further considered that the conditions on the licence were appropriate and would ensure that the licensing objectives were promoted.  The Sub-Committee therefore granted the application accordingly.

 

 

 

Conditions attached to the Licence

Mandatory Conditions

 

1.        No supply of alcohol may be made at a time when there is no designated premises supervisor in respect of this licence.

 

2.        No supply of alcohol may be made at a time when the designated premises supervisor does not hold a personal licence or the personal licence is suspended.

 

3.        Every supply of alcohol under this licence must be made or authorised by a person who holds a personal licence.

 

4. (1) The responsible person must ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotions in relation to the premises.

 

4. (2) In this paragraph, an irresponsible promotion means any one or more of the following activities, or substantially similar activities, carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises—

 

            (a)     games or other activities which require or encourage, or are designed to        require or encourage, individuals to:

 

            (i)       drink a quantity of alcohol within a time limit (other than to drink alcohol sold    or supplied on the premises before the cessation of the period in which the            responsible person is authorised to sell or supply alcohol), or

            (ii)      drink as much alcohol as possible (whether within a time limit or otherwise);

 

            (b)     provision of unlimited or unspecified quantities of alcohol free or for a fixed or          discounted fee to the public or to a group defined by a particular characteristic in a    manner which carries a significant risk of undermining a licensing objective;

 

            (c)      provision of free or discounted alcohol or any other thing as a prize to            encourage or reward the purchase and consumption of alcohol over a period of 24   hours or less in a manner which carries a significant risk of undermining a licensing       objective;

 

            (d)     selling or supplying alcohol in association with promotional posters or flyers on, or in the vicinity of, the premises which can reasonably be considered to            condone, encourage or glamorise anti-social behaviour or to refer to the effects of       drunkenness in any favourable manner;

 

            (e)     dispensing alcohol directly by one person into the mouth of another (other than where that other person is unable to drink without assistance by reason of a     disability).

 

5.        The responsible person must ensure that free potable water is provided on request to customers where it is reasonably available.

 

6. (1) The premises licence holder or club premises certificate holder must ensure that an age verification policy is adopted in respect of the premises in relation to the sale or supply of alcohol.

 

6. (2) The designated premises supervisor in relation to the premises licence must ensure that the supply of alcohol at the premises is carried on in accordance with the age verification policy.

 

6. (3)  The policy must require individuals who appear to the responsible person to be under 18 years of age (or such older age as may be specified in the policy) to produce on request, before being served alcohol, identification bearing their photograph, date of birth and either:

           (a)     a holographic mark, or

           (b)     an ultraviolet feature.

 

7.        The responsible person must ensure that:

            (a)     where any of the following alcoholic drinks is sold or supplied for consumption on the premises (other than alcoholic drinks sold or supplied having been made up in     advance ready for sale or supply in a securely closed container) it is available to        customers in the following measures-

           (i)        beer or cider: ½ pint;         

            (ii)     gin, rum, vodka or whisky: 25 ml or 35 ml; and

           (iii)      still wine in a glass: 125 ml;

 

            (b)     these measures are displayed in a menu, price list or other printed material         which is available to customers on the premises; and

 

            (c)     where a customer does not in relation to a sale of alcohol specify the quantity         of alcohol to be sold, the customer is made aware that these measures are available.

 

A responsible person in relation to a licensed premises means the holder of the premises licence in respect of the premises, the designated premises supervisor (if any) or any individual aged 18 or over who is authorised by either the licence holder or designated premises supervisor.  For premises with a club premises certificate, any member or officer of the club present on the premises in a capacity that which enables him to prevent the supply of alcohol.

 

8. (1)  A relevant person shall ensure that no alcohol is sold or supplied for consumption on or off the premises for a price which is less than the permitted price.

 

8. (2)  For the purposes of the condition set out in paragraph 8(i) above -

 

            (a)     "duty" is to be construed in accordance with the Alcoholic Liquor Duties Act     1979;

 

            (b)     "permitted price" is the price found by applying the formula:

 

                                           P = D+(DxV)

 

Where -

          

            (i)      P is the permitted price,

            (ii)      D is the amount of duty chargeable in relation to the alcohol as if the duty               were charged on the date of the sale or supply of the alcohol, and

            (iii)     V is the rate of value added tax chargeable in relation to the alcohol as if the   value added tax were charged on the date of the sale or supply of the alcohol;

 

            (c)      "relevant person" means, in relation to premises in respect of which there is          in force a premises licence -

                    

            (i)       the holder of the premises licence,

            (ii)      the designated premises supervisor (if any) in respect of such a licence, or

            (iii)     the personal licence holder who makes or authorises a supply of    alcohol          under such a licence;

 

            (d)     "relevant person" means, in relation to premises in respect of which there is          in force a club premises certificate, any member or officer of the club present on the         premises in a capacity which enables the member or officer to prevent the supply in          question; and

 

            (e)     "value added tax" means value added tax charged in accordance with the      Value Added Tax Act 1994.

 

8. (3)  Where the permitted price given by Paragraph 8(ii)(b) above would (apart from this paragraph) not be a whole number of pennies, the price given by that sub-paragraph shall be taken to be the price actually given by that sub-paragraph rounded up to the nearest penny.

 

8. (4)  (i)       Sub-paragraph 8. (4)(ii) below applies where the permitted price given by Paragraph 8. (2)(b) above on a day ("the first day") would be different from the permitted price on the next day ("the second day") as a result of a change to the rate of duty or value added tax.

 

            (ii)      The permitted price which would apply on the first day applies to sales or        supplies of alcohol which take place before the expiry of the period of 14 days            beginning on the second day.

 

9.        The premises, including the designated external seating area, shall only operate as a restaurant:

            (i) in which customers are shown to their table;

            (ii) where the supply of alcohol is by waiter or waitress service only;

            (iii) which provide food in the form of substantial table meals that are prepared on the premises and are served and consumed at the table using non disposable    crockery;

            (iv) which do not provide any take away service of food or drink for immediate     consumption (apart from consumption in the designated external seating area);

            (v) which do not provide any take away service of food or drink after 23:00; and

            (vi) where alcohol shall not be sold or supplied, otherwise than for consumption by persons who are seated in the premises or in the designated external seating area and bona fide taking substantial table meals there and provided always that the consumption of alcohol by such persons is ancillary to taking such meals.

 

Notwithstanding this condition, customers are permitted to take from the premises part consumed and resealed bottles of wine supplied ancillary to their meal.

 

10.      Notwithstanding condition 9, alcohol may be supplied and consumed prior to their meal in the bar area hatched on the plan, by up to a maximum at any one time of 25 persons dining at the premises.

 

11.      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.

 

12.      There shall be no sales of hot food or hot drink for consumption off the premises after 23:00.

 

13.      Substantial food and non-intoxicating beverages, including drinking water shall be available in all parts of the premises where alcohol is sold or supplied for consumption on the premises.

 

14.      The premises shall install and maintain a comprehensive CCTV system as per the minimum requirements of the Westminster Police Licensing Team. All entry and exit points will be covered enabling frontal identification of every person entering in any light condition. The CCTV system shall continually record whilst the premises is open for licensable activities and during all times when customers remain on the premises. All recordings shall be stored for a minimum period of 31 days with date and time stamping. Viewing of recordings shall be made available immediately upon the request of Police or authorised officer throughout the entire 31-day period.

 

15.      A staff member from the premises who is conversant with the operation of the CCTV system shall be on the premises at all times when the premises is open. This staff member must be able to provide a Police or authorised council officer copies of recent CCTV images or data with the absolute minimum of delay when requested.

 

16.      A Challenge 21 proof of age scheme shall be operated at the premises where the only acceptable forms of identification are recognised photographic identification cards, such as a driving licence, passport or proof of age card with the PASS Hologram.

 

17.      An incident log shall be kept at the premises and made available on request to an authorised officer of the City Council or the Police. It must be completed within 24 hours of the incident and will record the following:

            (a) all crimes reported to the venue;

            (b) all ejections of patrons;

            (c) any complaints received concerning crime and disorder;

            (d) any incidents of disorder;

            (e) all seizures of drugs or offensive weapons;

            (f) any faults in the CCTV system;

            (g) any refusal of the sale of alcohol; and

            (h) any visit by a relevant authority or emergency service.

 

18.      No noise generated on the premises, or by its associated plant or equipment, shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.

 

19.      All windows and external doors shall be kept closed after 23:00 hours, or at any time when regulated entertainment takes place, except for the immediate access and egress of persons.

 

20.      Notices shall be prominently displayed at all exits requesting patrons to respect the needs of local residents and businesses and leave the area quietly.

 

21.      During the hours of operation of the premises, the licence holder shall ensure sufficient measures are in place to remove and prevent litter or waste arising or accumulating from customers in the area immediately outside the premises and that this area shall be swept and or washed and litter and sweeping collected and stored in accordance with the approved refuse storage arrangements by close of business.

 

22.      No waste or recyclable materials, including bottles, shall be moved, removed from or placed in outside areas between 23:00 hours and 08:00 hours on the following day.

 

23.      Except for deliveries of dairy, bakery products, fruit and vegetables, no deliveries to the premises shall take place between 23:00 and 08:00 on the following day.

 

24.      No collections of waste or recycling materials (including bottles) from the premises shall take place between 23:00 and 08:00 on the following day.

 

25.      All waste shall be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.

 

26.      There shall be no striptease or nudity, and all persons shall be decently attired at all times, except when the premises are operating under the authority of a Sexual Entertainment Venue Licence.

 

27.      Loudspeakers shall not be located in the entrance lobby or outside the premises building.

 

28.      The number of persons permitted within the premises at any one time (excluding staff) shall not exceed 220 persons.

 

29.      Food delivery drivers shall be directed to access the premises at the rear in Berners Mews and not on Berners Street. Food delivery drivers shall be directed not to leave engines running unnecessarily and not to disturb local residents.

 

30.      Patrons permitted to temporarily leave and then re-enter the premises, e.g. to smoke, shall be limited to eight (8) persons at any one time.

 

31.      Notices shall be prominently displayed at any area used for smoking requesting patrons to respect the needs of local residents and use the area quietly. The notices shall direct customers to the designated smoking area.

 

32.      The premises licence holder shall designate a smoking area away from Berners Mansions, situated south of the Premises’ entrance on Berners Street.

 

33.      A direct telephone number for the manager at the premises shall be publicly available at all times the premises are open. This telephone number is to be made available to residents and businesses in the vicinity.

 

34.      There shall be no DJs employed at the premises.

 

35.      No fumes, steam or odours shall be emitted from the licensed premises so as to cause a nuisance to any persons living or carrying on business in the area where the premises are situated.

 

36.      All deliveries and waste collections shall take place at the rear in Berners Mews and not on Berners Street.

 

37.      The licence holder shall ensure that any queue to enter the premises which forms outside the premises is orderly and supervised by staff so as to ensure that there is no public nuisance or obstruction to the public highway. Any queue shall be formed away from Berners Mansions, to the south of the premises entrance on Berners Street.

 

38.      The licence holder shall organise and publicise a meeting with residents of Berners Mansions six (6) weeks after the premises opens to members of the public. Thereafter the licence holder shall organise and publicise quarterly meetings with residents of Berners Mansions. The frequency of these meetings can be amended by agreement between resident representatives and the licence holder.

 

39.      There shall be no external speakers at the premises.

 

40.      The supply of alcohol for consumption off the premises shall only be to persons seated in the designated external seating area.

 

41.      All outside tables and chairs are to be rendered unusable or removed by 21:30 each day.

 

42.      There are to be up to a maximum of three tables and six chairs provided in the outside designated seating area.

 

43.      A notice shall be displayed in the designated external seating area requesting patrons to respect the needs of local residents and to use the area quietly.          

 

44.      At closing time, a member of staff shall ensure that customers do not congregate outside and also leave the area quietly.

 

 

Supporting documents: