Agenda item - Ballie Ballerson, Basement and Ground Floor, 201

Ballie Ballerson, Basement and Ground Floor, 201 - 203 Wardour Street, London, W1F 8ZH

Meeting of Licensing Sub-Committee (2), Thursday 30th January, 2020 10.00 am (Item 2.)

App

Ward /

Cumulative Impact Area

Site Name and Address

App

Type

Licensing Ref No.

West End Ward/ West End Cumulative Impact Area

Ballie Ballerson Basement and Ground Floor 201 - 203 Wardour Street London W1F 8ZH

Premises

Licence

Variation

19/12476/LIPV

Minutes:

LICENSING SUB-COMMITTEE No. 2

Thursday 30 January 2020

Membership: Councillor Tim Mitchell (Chairman), Councillor Louise Hyams and Councillor Aziz Toki

Legal Adviser: Barry Panto

Policy Adviser: Kerry Simpkin

Committee Officer: Tristan Fieldsend

Presenting Officer: Michelle Steward

Relevant Representations: Environmental Health, Licensing Authority, The Soho Society, Goodman Derrick LLP (supporting the application) and two local residents (objecting)

Present: Mr Craig Baylis (Solicitor, representing the Applicant), Mr George Armstrong (Managing Director on behalf of the Applicant), Mr Ian Watson (Environmental Health), Ms Karyn Abbot (Licensing Authority), Mr James Dalglish (Nighlight Leisure Ltd – supporting the application), Richard Brown (Solicitor, Citizens Advice Bureau Licensing Advice Project, representing The Soho Society and Ms Ann McCaffrey) and Ms Ann McCaffrey (local resident – objecting to the application)

Ballie Ballerson, Basement and Ground Floor, 201-203 Wardour Street, London, W1F 8ZH (“The Premises”)

19/12476/LIPV

Layout Alteration

The changes sought to the layout of the premises are as follows:

Reconfiguration of the basement internal layout
Relocation of Bar Counter
New fixed seating
Creation of ball pit for entertainment purposes
Creation of main entrance to basement premises from Berwick Street on the basis that the pavement is wider than Wardour Street entrance and therefore capable of causing less congestion.

Amendments to application advised at hearing:

Mr Baylis advised the Sub-Committee that the changes sought to the layout of the Premises had been amended in order to withdraw the creation of the main entrance to the basement from Berwick Street. This had been withdrawn as the Applicant considered that the plans already specified Berwick Street as a main entrance.

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

The Sub-Committee considered an application by Arturo Clis Holdings Ltd for a variation of a premises licence in respect of Ballie Ballerson, Basement and Ground Floor, 201-203 Wardour Street, London, W1F 8ZH.

The Licensing Officer introduced the application.

Mr Craig Baylis, representing the applicant, informed the Sub-Committee that the element of the application requesting the creation of a main entrance to the Premises, located in the basement, from Berwick Street had now been withdrawn. It was explained that a single premises licence covered both the ground floor and basement areas, however there were two separate operations on each floor. Ballie Ballerson operated from the basement area and it was this operation which was seeking the internal layout alterations requested. The Sub-Committee was advised that there was currently nothing on the licence which stated that Berwick Street could not be used as an entrance. The plans attached to the licence highlighted that the main entrance to the basement was from Berwick Street. No condition was attached to the licence restricting its use and therefore approval was not required in order to use it subject to the appropriate management of it. Therefore, it was explained that the only changes sought to the licence were the internal layout alterations requested. In terms of the issues raised regarding the application, Mr Baylis was of the opinion that the nature of them related to a potential review application and were not relevant to the proposed layout changes requested.

In response to a question from the Council’s Legal Adviser, Mr Baylis confirmed that even though the application related to layout changes in the basement area, which had a different operator from the ground floor area, he was representing the client (Arturo Clis Holdings Ltd) who held the licence which covered both floors. Mr Baylis also confirmed that the plans attached to the licence stated that both entrances situated on Berwick Street and Wardour Street were highlighted as being main entrances as well as emergency escapes.

For the record, it was noted that the plan on the current licence that Mr Baylis was referring to, was the plan on page 54 of the Licensing Sub-Committee report. This was the plan of the ground floor and did show that there was a main entrance to the basement from both Wardour Street and Berwick Street. The current plan for the basement appeared at page 55 of the report and the proposed amendment to that plan (which was the subject of this application) appeared at page 42 of the report.

The Sub-Committee was informed by Mr Baylis that the current operators had taken over the basement area on 27 September 2019 and had spent a significant amount of money on upgrading the Premises. They currently operated a similar establishment in Hackney with 75% of the clientele consisting of females. The venue had two ball pits located within it, a small dance floor with a bar and a seating area. Mr Armstrong, on behalf of the applicant, explained it was a concept bar with a ticketing system used to ensure it never exceeded its capacity or that large queues never formed outside. Mr Baylis explained that the Premises already benefited from a late licence (to 06.00) but this was not utilised. Currently, the Premises closed at 02:00 on weekends and 12:00 on weekdays. Due to the nature of the operation, which involved ball pits, the permitted capacity of the venue was never reached with the ball pits supervised at all times. It was noted that the dwell time for customers was approximately two hours.

Mr Watson, representing Environmental Health, provided a brief overview of the Premises and detailed how the layout changes had originally been submitted as a minor variation. This has been rejected as a full variation was required to address public safety issues. Mr Watson had visited the Premises to advise on the layout alterations, the applicant had consulted on the changes and these had subsequently been approved as they satisfactorily dealt with the public safety issues raised. Mr Watson confirmed that the plans attached to the licence accurately reflected the current layout of the Premises. Mr Watson advised that a new sound system had been installed in the basement and a noise limiter had been set on 16^th January 2020.

The Sub-Committee also noted the detailed evidence provided by Mr Watson at Appendix 4 to the report. This provided a history of complaints relating to the premises, though it was noted that most of them related to a period before the current applicants were in occupation. Mr Watson also indicated in his written submissions that the Berwick Street entrance had not been used since the licence was granted in 2005 and a reference was made to the decision note relating to the application for Stringfellows, dated 3^rd February 2006 (at page 69 of the report). The decision note stated that the applicants had agreed not to use the Berwick Street entrance.

Ms Abbot, representing the Licensing Authority, confirmed that their representation was maintained as the Premises was located within the West End Cumulative Impact Area (CIA) and issues had been raised by local residents over its operation. It was therefore a matter for the Sub-Committee to decide if it was satisfied that the application would not add to cumulative impact in a CIA.

Mr Dalglish, representing Nightlight Leisure Ltd, which operated the establishment called Simmons located on the ground floor then addressed the Sub-Committee. Mr Dalglish explained that Nightlight Leisure Ltd supported the application. It was acknowledged that the operation of a single licence covering two operations over two floors was unconventional, but it had operated in this manner for a significant period of time. The current operation in the basement had proven successful, providing a diverse offer in the area. Issues had been raised locally, however these could be addressed with appropriate management protocols.

In response to questions from the Sub-Committee Mr Armstrong explained that the operations on both floors used the same security company to ensure there was a consistent approach across the whole venue. In terms of the local residents, the Sub-Committee was advised that none had been in contact to raise any issues but he was happy for a direct telephone number to the venue to be circulated to them.

Mr Brown, explained that Ms McCaffrey who he was representing, had lived adjacent to the Premises for seven years. This was an important issue as one of her sons had been diagnosed with Aspergers and experienced difficulties with excessive noise. Mr Brown then highlighted how, despite Mr Baylis explaining that the relocation of the entrance had been withdrawn from the application, the Sub-Committee could still consider this aspect in accordance with the judgment in the Taylor vs Manchester City Council case (a decision of the High Court from 2012).

Mr Brown then highlighted what he considered to be the key issues arising from the application. The first issue centred on the licence plans, as Mr Brown considered these to be incorrect. If the Sub-Committee agreed that they were incorrect then the application would have to be considered on its merits. The plans before the Sub-Committee identified Berwick Street as a main entrance. However, when a minor variation for the Premises was submitted in 2018 the plans submitted did not identify Berwick Street as being a main entrance. It was unknown how the plans came to be changed to show that Berwick Street was a main entrance, but on the initial plans submitted previously they did not and therefore the current plans could be considered to be incorrect. The Sub-Committee was also informed that a planning application to use Berwick Street as a main entrance had been withdrawn and in 2005 Stringfellows, who used to operate the Premises, had agreed not to use Berwick Street as an entrance as a condition on receiving a premises licence. Therefore it could be expected that permission to use this entrance was required if permission had been applied for previously. The Sub-Committee was also informed that a shadow licence granted in 2019 covered both the ground floor and basement on the same terms as the current licence. The plans submitted for the shadow licence showed the entrance at Berwick Street, however they just detailed Berwick Street as an emergency escape. The representations received from local residents clearly identified issues with the use of Berwick Street as an entrance. The noise issues were relevant to the application as the layout variation potentially could affect the acoustic integrity of the building.

Ms McCaffrey, a local resident, explained that she had suffered noise disturbance originating from the Premises through the disposal of glass bottles and staff members talking. She had complained to Simmons, who operated on the ground floor, but she had been advised that it originated from the basement operation. Under previous operations she had been able to contact the licence holders but this had proven difficult since Ballie Ballerson had been operating. She advised that her three sons lived adjacent to the Premises one of which had Aspergers which made him sensitive to noise and crowds. This was a particular problem as she advised that queues often did form outside the venue with customers congregating in the local vicinity and not being dispersed appropriately by members of staff.

Mr Baylis confirmed that the applicant would contact Ms McCaffrey and ensure she was provided with a contact number so she could raise with them any issues directly affecting her property. With regard to noise disturbance created through the disposal of glass bottles this could not have originated from Ballie Ballerson as they did not dispose of any glass containers externally. The application before the Sub-Committee concerned the basement area only with the plans attached to the licence clearly displaying Berwick Street as a main entrance. No conditions were attached to the licence either prohibiting this entrance from being used or requiring an alternative entrance to be used. Therefore, this aspect of the application had been withdrawn as it was superfluous to the application. No representations had been received from the Police and the issues raised by local residents had to be considered irrelevant as the application dealt with internal layout changes only. The Premises was located in a very busy area and levels of background noise could be expected to be higher than in other areas.

Mr Armstrong advised that because of the ticketing system used at the venue it meant it did not have large volumes of people arriving at the same time and therefore queues only formed on very rare occurrences. He wanted to ensure that the Premises was a good neighbour to local residents and efforts would be made to ensure this situation improved. The Sub-Committee was also informed that a glass crusher was used on site at the Premises and therefore any noise disturbance from glass bottles could not have originated from the venue.

In response to questions from the Sub-Committee, Mr Baylis confirmed that the Premises currently used Berwick Street as an entrance which was actually of benefit to customers and residents as this pavement was wider than the entrance on Wardour Street. With some internal changes, the Wardour Street entrance could still be used. However, it was situated next to the entrance to Simmons and would therefore locate two busy entrances next to one another.

Mr Brown accepted that the Berwick Street entrance was currently in use but queried if it could lawfully be used based on the uncertainty of the plans. The applicant had asserted that only the current plans could be relied upon, however the difficulty was that residents should not be expected to suffer if the plans submitted were incorrect.

The Sub-Committee carefully considered the application and noted the concerns raised with regards to the plans and whether the applicant was permitted to use Berwick Street as a main entrance. It was not the responsibility of the Sub-Committee to determine which plans had been attached to the licence historically and therefore they had to base their decision on the current plans attached to the licence. These clearly showed that Berwick Street could be used as a main entrance by the applicant, which it was already doing and had apparently been doing for some time. The agreement not to use the Berwick Street entrance in 2005 did not appear to be legally binding as it was not incorporated into the licence and was merely an agreement with Stringfellows. The plan attached to the licence for the shadow licence was only applicable to that licence and not the licence held by the applicants.

In all the circumstances, therefore, the applicant’s decision to withdraw this aspect of the application was considered to be an appropriate and understandable approach in the circumstances, resulting in only the internal layout changes to be decided upon. These internal changes were considered satisfactory by Environmental Health in terms of public safety and as such the Sub-Committee agreed to grant the application accordingly. Even if the Licensing Sub-Committee did have the power to prevent the use of the Berwick Street entrance, it did not think it was appropriate to do so in response to this variation application.

The Sub-Committee also recognised, however, that clear concerns, highlighted in the representations, had emerged with regards to the operation of the Premises. It was considered that local residents were experiencing disturbance through customers congregating outside the Premises in Berwick Street creating noise issues and possibly through the disposal of waste, in particular glass bottles. It was unknown whether the concerns about the disposal of glass bottles arose from either the ground floor or basement operations or whether the source may have been elsewhere due to a lack of clear evidence. In any event, however, there was evidence that a degree of public nuisance was being caused to residents which did arise as a result of either the operation of Simmons on the ground floor or Ballie Ballerson in the basement. Since both venues were covered by the same licence, both operators had to carefully consider how they operated in order to minimise their impact on residents. These concerns had been raised and if they were not addressed residents did have the option of bringing review proceedings if they considered it to be appropriate. The Sub-Committee welcomed the applicant’s assurances that a direct telephone number for the Premises would be made available to local residents.

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.

(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.

(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.

(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 premise 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(i) 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(ii) 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;

(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(iii). 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(iv). (1) Sub-paragraph 8(iv)(2) below applies where the permitted price given by Paragraph 8(ii)(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.

(2) 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. All persons guarding premises against unauthorised access or occupation or against outbreaks of disorder or against damage (door supervisors) must be licensed by the Security Industry Authority.

10. Admission of children to the premises must be restricted in accordance with the film classification recommended by the British Board of Film Classification or recommended by this licensing authority as appropriate

Conditions Consistent with the Operating Schedule

11. The following number of registered door supervisors and managers shall be on duty to ensure that all relevant conditions on the licence are being complied with:

- from 9pm, a minimum of 1 SIA and 2 managers;

- from 10pm, a minimum of 3 SIA and 3 managers

In addition, there must be a sufficient number of such supervisors or managers to ensure a ratio of 1 supervisor or manager for every 40 customers on the premises. The ratio must apply by reference to the number of customers in the basement and on the ground floor.

12. 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.

13. 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.

14. A noise limiter must be fitted to the musical amplification system set at a level determined by and to the satisfaction of an authorised officer of the Environmental Health Service, so as to ensure that no noise nuisance is caused to local residents or businesses. The operational panel of the noise limiter shall then be secured by key or password to the satisfaction of officers from the Environmental Health Service and access shall only be by persons authorised by the Premises Licence holder. The limiter shall not be altered without prior agreement with the Environmental Health Service. No alteration or modification to any existing sound system(s) should be effected without prior knowledge of an authorised Officer of the Environmental Health Service. No additional sound generating equipment shall be used on the premises without being routed through the sound limiter device.

15. 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.

16. 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.

Conditions attached after a hearing by the licensing authority

17. An attendant shall be on duty in the cloakroom during the whole time that it is in use.

18. The number of persons accommodated at any one time (excluding staff and performers) shall not exceed the following: Ground floor 300; Basement 350; with a maximum capacity of 600 at any one time. The number of person accommodated at any one time (excluding staff and performers) shall not exceed 50 after 04.30.

19. On any evening where the premises or part of the premises are open for public music, dance and entertainment, alcohol may not be sold or supplied to persons admitted after 23:00 other than to:

(a) Persons taking a table meal; or

(b) Persons who have paid a minimum admission fee of at least £5 for music, dancing and entertainment (not to be credited against consumables); or

(c) Persons who have paid a minimum annual membership fee of at least £150 payable in advance for music, dancing and entertainment (not to be credited against consumables) and their bona fide guests. A list of all persons who have paid an annual membership fee and their guests will be held at reception for inspection by relevant authority; or

(d) Persons given free membership and their bona fide guests where there has been an interval of at least 24 hours between application for membership. A list of all persons who have free membership will be held at reception for inspection by the relevant authority; or

(e) Persons who are bona fide guests of the licence holder or management, a list of whom shall be kept at reception for inspection by the relevant authorities; or

(f) Artistes and persons employed by the premises; or

(g) Persons attending a private function; the function organiser's name and address to be kept at reception for inspection by the relevant authorities.

20. Substantial food and non-intoxicating beverages, including drinking water, shall be available throughout the permitted hours in all parts of the premises where intoxicating liquor is sold and supplied for consumption on the premises.

21. No payment shall be made by or on behalf of the licensees to any persons bringing customers into the premises.

22. There shall be no gaming on the premises otherwise than machines authorised by Part III Gaming Act 1968.

23. A registered chauffeur service will operate for patrons. Patrons will be advised of this service when booking tables, when entering the premises and at time of departure. Customers will usually remain upon the premises whilst waiting for their transport and will then be escorted to the vehicle. A traffic controller will be employed at the premises to ensure that any disturbance remains minimal.

24. If there is a queue outside the premises it will be managed responsible to ensure that there is minimal disturbances and no obstruction is caused to the public highway.

25. The premises will offer substantial food at all times it is open to the public. There will be a large area set aside for formal dining on the ground floor. The purpose of patrons attending the venue will be for the style of entertainment and not to partake in irresponsible promotions of alcohol.

26. All deliveries will take place during appropriate times to prevent disturbance. Refuse will be collected by an approved contractor or the council.

27. The licensable activities will only take place within the domain of the premises and patrons will not be permitted to remove alcohol unless as part of an approved bona-fide off-sale. Drinking on the street will not be permitted.

28. Patrons will be encouraged to leave by an appropriate method of transport by door staff.

29. Accompanied children will only be permitted to enter the premises when there is a private function at the premises, for example family celebrations or corporate functions. On these occasions striptease and table-side dancing entertainment will not be permitted.

30. The hours for the sale of alcohol may be extended on New Year's Eve to commence at 10:00 on 31 December and terminate at 04:00 on 02 January.

31. The hours for the provision of regulated entertainment (recorded music; facilities for making music and similar; facilities for dancing) may be extended on New Year's Eve to commence at 10:00 on 31 December and terminate at 06:00 on 02 January when the 2nd January is any day of the week from Tuesday to Sunday inclusive .

32. The hours for the provision of late night refreshment on New Year's Eve may be extended until 05:00.

33. In relation to the morning on which British Summer Time begins, the hours for the sale of alcohol and provision of regulated entertainment (recorded music; facilities for making music and similar; facilities for dancing) shall terminate at 05:00.

34. In relation to the morning on which British Summer Time begins, the hours for the provision of late night refreshment shall terminate at 05:00.

35. 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, which will record the following:

(a) all crimes reported to the venue

(b) all ejections of patrons

(d) any incidents of disorder

(e) all seizures of drugs or offensive weapons

(f) any faults in the CCTV system or searching equipment or scanning

equipment

(g) any refusal of the sale of alcohol

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

Supporting documents: