Agenda item

It Restaurant, Hereditable House, 28-29 Dover Street, London, W1S 4NA

(“The Premises”)

20/03360/LIPV

1.

Sale by Retail of Alcohol – On and Off Sales

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 It Restaurant Limited

for a variation of a premises licence in respect of It Restaurant, Hereditable House, 28-29 Dover Street, London, W1S 4NA.

The ing Officer introduced the application.

Mr Spiegler, representing the Applicant, provided an overview of the operation to the Sub-Committee and described how it operated as a restaurant and not as a bar or nightclub with a two-star Michelin chef providing the food. The Premises had conditions on its current licence requiring it to operate as a restaurant except for some very small bar areas which had a maximum capacity of sixteen persons each. Non-diners were permitted to use these bar areas, but the Sub-Committee was advised that they were primarily utilised by diners. If the Sub-Committee was minded to grant the application the Applicant was content for conditions 9 and 10 on the current licence to be replaced with the Council’s model restaurant condition (MC66) which was far stricter regarding the supply of alcohol. To address concerns the Applicant was also offering to impose an additional condition on the licence stipulating that after 00:00 Monday to Thursday and 01:00 Friday to Saturday the supply of alcohol would have to be ancillary to persons dining at the restaurant.

Mr Spiegler advised that there were three main factors which distinguished this application from other recent applications by premises in the vicinity which had been refused by Licensing Sub-Committees. Firstly, the Premises was not a nightclub with any music played being of a low-level nature creating an ambience that would not interfere with the diners ability to hold conversations. Secondly, a food offer would be available in all parts of the Premises. Thirdly, no individual residential objections had been received to the application. The Premises had utilised Temporary Event Notices (TENs) on 21 occasions where it had been open until 03:00 hours and the Sub-Committee was advised that each time no complaints had been received. This had been due to the style of operation, the experience of the Designated Premises Supervisor (DPS), the appropriate management controls in place and the types of patrons frequenting the Premises. Mr Spiegler suggested that these were all factors which the Sub-Committee could take into account.

The representations received in relation to the application were then addressed by Mr Spiegler who also highlighted that the Police and Environmental Health had not submitted any objections. The cumulative impact of the number of licensed premises operating in Mayfair had been raised as a concern however once any lockdown restrictions in place were eased following the Covid-19 pandemic any impact could be expected to be materially lower due to expected continued social distancing measures. The impact of the pandemic on the hospitality industry was expected to be grave and this application would hopefully improve the Premises outlook during these unprecedented circumstances. The priority of the application was to promote the licensing objectives and the Premises was not located in a Cumulative Impact Area (CIA) and therefore there was no policy presumption to refuse the application. The representations had also referenced Dr Hadfield’s report on the evening and night-time economy in Mayfair. Mr Spiegler explained that this report acknowledged within it that some premises did not add to cumulative impact. In terms of the issues around precedence which had been raised in regard to previous refusals of applications in the area, the application had to be judged on its merits. The Applicant had demonstrated distinguishing factors from the other applications including the implementation of an operational management plan which promoted the licensing objectives and would help ensure no additional cumulative impact occurred in Mayfair.

In response to questions from the Sub-Committee Mr Spiegler advised that there were 81 residents located in the vicinity of the Premises who had not submitted representations to the application and in addition no complaints had been received in relation to the operation of the TENs. The high-end style of the operation and the type of patron frequenting the Premises would also help ensure that there would be no issues with dispersal at a later hour. In terms of how the Covid-19 pandemic had affected residents ability to submit representations the Sub-Committee was advised that the statutory notices had been displayed correctly and local residents should have been made aware through the usual procedural routes.

Mr Drayan, representing Environmental Health, confirmed that their representation was maintained as the hours being applied for extended beyond 01:00 and therefore the Sub-Committee was being asked to determine whether this was appropriate or not. Since the Premises had been open there had been no reports of any issues arising from its operation. The Premises was located on Dover Street which was a largely commercial street with some residential properties situated on it, however it was acknowledged that no representations had been received from these residents. The Sub-Committee had to decide whether the dispersal management plan in place was sufficient to appropriately manage customers leaving the Premises at the later hour and ensure local residents experienced minimal noise or disturbance so as not to undermine the public nuisance licensing objective.

Mr Brown, representing a local resident and 17 Berkeley Street Residents Association, addressed the Sub-Committee. He acknowledged that the location of the Premises did not fall within a CIA as designated in the City Council’s Statement of Licensing Policy (“SLP”). However, the objectors were of the view that the location of the Premises and its vicinity shared many of the characteristics of a CIA and that the application must be determined with this in mind. The relevant evidence to support this conclusion was set out in the representations submitted and Dr Hadfield’s report whichconfirmed and supported many of the points which residents had raised with some success on previous applications for hours extensions on nearby Berkeley Street and Dover Street. It was stated that the number of licensed premises in Mayfair was having a negative cumulative effect on the area, particularly late at night, to the detriment of the residents amenity. The extension in hours sought was considered excessive particularly as they already had permission to supply alcohol in excess of the Council’s core hours policy. The Applicant had advised that no complaints had been submitted regarding the operation of the Premises, but it had only been open since November 2019 and therefore this could not be considered a long enough period to draw any firm conclusions on its impact on the local area. Mr Brown advised the Sub-Committee that as this was one of the first applications submitted after the Covid-19 pandemic lockdown had been implemented and this could potentially have impacted on residents ability to know about the variation applied for.

In terms of the TENs previously granted for the Premises Mr Brown commentated that there was very little information supplied about how they operated. He requested further clarity on whether they were open to the same hours requested in the application and with the same capacity. Another key concern raised in the representations regarded the significant increase in the local area of licensed premises and how residents were experiencing negative cumulative impact. Mr Brown drew the Sub-Committee’s attention to previous decisions for recent applications made in the Mayfair area. He then went onto state that it was recognised that any decision made by the Sub-Committee would have to be made based on the application’s own individual merits. However, in his view it could take into account consistency of decision making and therefore previous decisions for applications in this area were in his opinion capable of being material evidence. The previous decisions contained within Mr Brown’s submission also detailed applications with a closing hour of 02:30 hours and the reasons why they were refused. Mr Brown recognised that the Premises was not located within a CIA however paragraph 2.5.14 of the SLP stated that for sales of alcohol after 01:00 the Council had to take into account the increased likelihood of crime and disorder and greater disturbance from activities late at night. The suggestion that the Covid-19 pandemic would result in the application having a negative impact on the area was not considered accurate. Mr Brown sympathised with businesses during this challenging period, however extending the hours on the licence was not considered the answer to the challenges faced ahead.

In response to questions from the Sub-Committee Mr Brown acknowledged the additional conditions offered by the Applicant however he advised that they did not address the many concerns raised by residents. It was considered that the application would result in the Premises becoming a more drink-led operation with the later hours requested creating further disturbance to residents as customers dispersed.

Mr Brandt-Pollman, representing Ms Jaleh Zand, addressed the Sub-Committee. He considered that the extension in hours sought was a serious concern for residents and would add to the recent change in tone of the area. It was stated that customers leaving licensed premises later in the evening was leading to an increase in anti-social behaviour which included the use of super cars creating disturbance. Residents were experiencing increased levels of noise later in the evening and it was expected that the application would only exacerbate these existing issues.

In summary Mr Drayan advised that the dispersal policy submitted by the applicant was a key factor and the Sub-Committee had to decide whether it addressed the issues mentioned, especially later in the evening and whether the offered conditions would mitigate the concerns of residents

In summary Mr Brown recognised that the application was different from other applications made recently in the same area. However, Mr Brown considered that this application was situated closer to residential properties and even with the Premises best endeavours the application was likely to perpetuate the problems already experienced. It was emphasised again that in accordance with paragraph 2.5.14 of the City Council’s SLP applications supplying alcohol after 01:00 had to take into account the increased likelihood of crime and disorder and greater disturbance later at night. The current situation was challenging for businesses however the increase in hours was not considered appropriate and it was noted that there was no time limit to the application or even a condition to personalise the licence. The focus should be on evaluating what was ‘reasonably acceptable’ in a particular location as set out in the Hope and Glory case. This application would not benefit the local area and should therefore be refused.

In summary Mr Brandt-Pollman requested that the application be refused. Residents in the area already experienced disturbance later in the evening and this application would only exacerbate these issues.

In summary Mr Spiegler explained that the Premises was not a bar, nightclub or hybrid operation but a restaurant with a 2-star Michelin chef. The Council’s Policy mentioned in the representations related to bars and premises located within a CIA, neither of which applied to the Premises before the Sub-Committee. The customer demographic frequenting the restaurant were not likely to cause any disturbance with a substantial food offer available throughout all parts of the Premises. In addition, no individual residential representations had been submitted in objection to the application. Mr Brown had mentioned consistency of decision making and the Sub-Committee was invited to do this as Mr Spiegler advised that a similar style premises nearby had recently been granted a terminal hour of 02:00. The dispersal policy developed by the applicant was comprehensive and this was borne out through no complaints having been submitted through the operation of 21 TENs. EH had advised of the commercial nature of Dover Street and therefore there was no realistic possibility that the application was likely to negatively impact on residents. Mr Spiegler suggested that if the application was refused then it could have potentially damaging effects on the financial viability of the Premises.

Conclusion

The Sub-Committee carefully considered the application and recognised it had a duty to consider each application on its individual merits and that it was not bound by previous decisions of licensing premises that may or may not have been granted within the area. The Sub-Committee noted that the Premises had opened in the Autumn of last year and hence had not been trading very long, however, the length of time the Premises had been open did not prevent such an application being made to the Licensing Authority. The Sub-Committee had to consider the evidence before it and whether the four licensing objectives would be promoted. The Sub-Committee heard evidence from all the respective parties and in the light of considering that evidence refused the application.

The Sub-Committee noted that the Premises was first and foremost a restaurant and that there was no intention by the Applicant to operate it as a Bar or indeed night club venue. This was reinforced by the fact that model restaurant condition 66 had been offered as one of the proposed conditions and that the proposed bar areas were not to be drink led because food would be on offer. It was the Sub-Committee’s considered view, however, that the increase in licensable activities would lead to public nuisance, in particular problems with dispersal and noise when customers were leaving the Premises. Whilst a dispersal policy had been produced the Sub-Committee did not feel that this went far enough because of the endemic problems within the area associated with public nuisance and the ability of the premises licence holder to overcome these particular obstacles that would promote the licensing objectives.

The locality of the area was a crucial factor in the decision making of the Sub-Committee because whilst it was accepted that the area was dominated by commercial premises there were also residential properties in close proximity to the Premises. The Sub-Committee noted that there was an 81 residential count within the area.  With that specific issue in mind it could not ignore the fact that granting the application would exacerbate the problems residents already experienced with noise, loud voices, banging of car doors and disturbance relating to super sport cars. In addition, there would be a likely increase in vehicular traffic and footfall which would undoubtedly affect local residents.

The Sub-Committee felt also that with the potential of late hours the Premises could become a destination venue allowing people to drink alcohol until 02:00 hours with the Premises closing at 02:30 hours adding further problems to the area that would further undermine the public nuisance licensing objective, thus causing negative cumulative impact. The Sub-Committee also considered the global impact for the area as this could have the potential to change the character of the neighbourhood leading to the problems identified above.

The Sub-Committee accepted that whilst the Premises was not located in the Cumulative Impact Area, the residents’ concerns of negative cumulative impact and public nuisance were taken into account in reaching this decision.

The Committee felt that it needed to strike the right balance when considering the merits of the application and the evidence before it and did not arrive at the decision to refuse the application lightly having regard to the full set of circumstances of the case. It did properly consider whether the proposed conditions offered would mitigate the concerns of residents but was not persuaded by the Applicant that these would go to the heart of the problems associated with nuisance. In fact, the Sub-Committee came to the conclusion that any increase in hours would have the reverse effect by further compounding the fears of residents resulting in a negative impact and this approach would not help the Applicant to achieve the promotion of the licensing objectives which ultimately was what the 2003 Act was designed to do. The application was therefore refused accordingly.

2.

Late Night Refreshment - Indoors

Amendments to application advised at hearing:

None.

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

The Sub-Committee refused the application (see reasons for decision in Section 1).

3.

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 reasons for decision in Section 1).