Agenda item

App No	Ward / Cumulative Impact Area	Site Name and Address	App Type	Licensing Ref No.
1.	West End Ward / Not in Cumulative Impact Area	Catsteps Cafe 33 D'Arblay Street London W1F 8EU	New Premises Licence	20/07106/LIPN

 

LICENSING SUB COMMITTEE No. 2

Thursday, 8 October 2020

 

Membership:                         Councillors Tim Mitchell (Chairman), Barbara Arzymanow and                                                Aicha Less.

 

Legal Officer:                        Viviene Walker

Policy Officer:                       Aaron Hardy

Committee Officer:             Toby Howes

Presenting Officer:              Jessica Donovan

 

APPLICATION FOR A NEW PREMISES LICENCE 20/07106/LIPN

 

Present:                                 Mr David Inzani, Poppleston Allen, Solicitors, for the Applicant                                               (Catsteps Café Ltd); Jonathan Arana-Morton, Company Co-                                               founder & George Whitaker, Finance Director, Applicant;                                                Richard Brown, Citizens Advice Bureau Licensing      Project                                                (representing residents); Daisy Gadd, Licensing Authority; and                                                Ayesha Bolton, Environmental Health Service.

 

Applicant:                                  Catsteps Café Ltd (trading as “The Breakfast Club”)

Ward:                                          West End
Cumulative Impact Area:         West End

Summary of Application

The application was for a new premises licence to operate a family run café/bar with external tables and chairs for which it had the benefit of a Tables and Chairs licence. This was a new premises application with no premises licence history. However, the premises had previously been granted Temporary Event Notices which were detailed in Appendix 3 of the report.

Proposed Licensable Activities and Hours

Sale by Retail of Alcohol (On and Off Sales)

Monday to Saturday:  10:00 hours to 23:30 hours
Sunday:                                   12:00 hours to 22:30 hours

 

Hours Premises Are Open to the Public

Monday to Sunday:     09:00 hours to 23:00 hours

Seasonal variations/non-standard timings: from the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.

Representations Received

1.     Environmental Health (Ayesha Bolton)
Licensing Authority (Angela Seaward)

2.     Other Persons

3.     Representation Received through Public Access, 10 September 2020

Summary of Issues Raised by Objectors

Environmental Health

There was an objection to the application by Westminster City Council’s Environmental Health Service on the grounds that granting the application would have the likely effect of causing an increase in Public Nuisance and impact on Public Safety within the area. Officers were of the view that the conditions provided in support of the application did not address their concerns.

Licensing Authority

The premises was located within the West End Cumulative Impact Area (CIA). The operating hours applied for licensable activities fell outside Westminster’s Core Hours and there was, therefore, a presumption against granting the application, although each case would be considered on its merits.

As the application was for On and Off Sales, and there was no condition before 20:00 hours potentially allowing alcohol to be a significant part of the operation, the Licensing Authority encouraged the Applicant to make further submissions on how the premises would not add to the CIA. In addition, how the conditions relating to the operation of the premises as a restaurant would be applied to customers from 20:00 hours, preventing the premises, or a part thereof, from operating as a bar.

Other Persons

Representations were received from several persons objecting to inter alia the application to play amplified recorded music (now withdrawn); the failure of the application to meet guidelines for staff and customer toilet facilities; that Companies House records indicated that this was not a family run café/bar as stated in the application, and that the premises were insufficiently equipped to prevent nuisance caused by smells and refuse and that the lack of adequate toilet facilities resulted in public order offences with customers urinating in public.

Policy Position

The Premises was located within the West End Cumulative Impact Area and, as such, various policy points had to be considered, namely CIP1, HRS1 and PB2. The Applicant had to demonstrate how the Premises would not add to cumulative impact in the West End Cumulative Impact Area.

Policy CIP1

It was the Licensing Authority’s policy to refuse applications in the CIA other than applications to vary hours within the Core Hours under Policy HRS1. Applications for other licensable activities in the CIA were subject to other policies and must demonstrate that they would not add to the cumulative impact in the CIA.

Policy HRS1

Applications for hours within the Core Hours would, generally, be granted. Applications for hours outside the Core Hours would be considered on their merits, subject to other relevant policies.

Policy RNT2

Applications would be granted subject to other policies in the Council’s Statement of Licensing Policy and the relevant criteria and policies CD1, PS1, PN1 and CH1, provided it could be demonstrated that they would not add to the cumulative impact in the CIAs.

SUBMISSIONS AND REASONS

The Sub Committee considered an application by Catsteps Café Ltd, trading as “The Breakfast Club”, 33 D’Arbley St, London W1F 8EU for a new premises licence.

Introduction by Ms Jessica Donovan, Senior Licensing Officer

Ms Donovan introduced the report, noting that additional submissions had been made by the Applicant and that these had been circulated to Members of the Sub Committee.

Submissions on Behalf of the Applicant

On behalf of the Applicant, Mr Inzani, made the following submissions.

(a)  The Breakfast Club was part of a well-known chain of 12 café bars with sites in London, Oxford and Brighton. The premises in D’Arblay Street was the first open in 2005.

(b)  He noted that a number of amendments had been made to the application, as follows –

·       The application to play recorded music had been withdrawn;

·       In accordance with a request by the Licensing Authority, the plans had been resubmitted excluding the external area from the area demarcated by the red line in the plan;

·       The hours on Sunday had been amended to bring them in line with Core Hours;

·       Conditions 11, 25 and 26 to be replaced with the following proposed condition –

The premises shall only operate as a restaurant:

i.       in which customers are shown to the table;

ii.     which provides 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;

iii.    which does not provide any takeaway service of food or drink for immediate consumption; and

iv.    where intoxicating liquor shall not be sold, supplied, or consumed on the premises otherwise than to persons who are bona fides taking substantial table meals and provided always that the consumption of intoxicating liquor by such persons is ancillary to taking such meals.

Except that up to and including 30 September 2020 point iv of this condition shall not apply until 20:00 hours.

The supply of alcohol at the premises shall only be to persons seated.

Relaxing the requirement that the consumption of alcohol be ancillary to taking a table meal was intended to give the applicant some flexibility in its trade which, it was proposed, was needed at this time and would only apply until 20:00 hours and be time limited to correspond with the current Covid-19 restrictions.

It was proposed that the application, as amended, would not add to the cumulative impact in the area.

(c)   Regarding the objections that had been received, Mr Inzani made the following points –

The Ventilation Duct and Nuisance Caused by Odours

In the 15 years that the applicant had been operating these premises, they had never been made aware of any concerns about nuisance caused by odours and was not aware of any complaints having been received by the Environmental Health Service. It was noted that any concerns about the ventilation duct was a planning matter.

Refuse

The issues referred to in the representations were historical and had been previously addressed and the premises had a hygiene rating of 5. Furthermore, Conditions 21 and 22 specifically addressed the issue of litter and refuse collection.

Toilet Provision

There was a staff toilet located in the area restricted to staff and a further toilet for customer use in the basement area. The Environmental Health Service had, therefore, recommended that there be a condition limiting customer capacity to 30 and the applicant had agreed to this condition.

Furthermore, the applicant had not received any complaints about customers urinating in public because of a lack of toilet facilities. It was noted that there were a number of other alcohol-led premises within the vicinity.

External Seating

An additional table shown in the photograph in the papers before the Sub Committee had been placed there in error and had now been removed. The seating provision now comprised two tables of four seats immediately outside the premises which did not require a pavement licence, and 6 tables and 12 chairs granted under the fast-track licence scheme while the road closure was in place. Therefore, the outside seating was limited to 16 customers.

It was noted that there were several other premises with outside seating and that the additional seating was a temporary measure while the road closure remained in place.

The Chairman thanked Mr Inzani for his submission. In response to a number of questions by Members, Mr Inzani made the following points.

(a)  The toilet in the basement was for use by customers only and it was on that basis that the Environmental Health Service had proposed that customer capacity be limited to 30. With the pavement licence in place, the number of covers may exceed 30, but it would be for the management to manage the customer numbers accordingly.

(b)  It was confirmed that the name of the premises was “The Breakfast Club” and the application has been made by Catsteps Café Ltd.

 

Submissions by Richard Brown, CAB Licensing Project, on Behalf of Adrian Bulboaca, Local Resident & Manager of Commercial Premises on D’Arblay Street

Mr Brown referred to his written submissions in the Additional Information Pack sent to Members of the Subcommittee. In so doing, he made specific reference to the following concerns.

(a)  Nuisance caused by odours emanating from the premises because of inadequate ventilation ductwork. In particular, the ventilation extraction did not have a hood and odours were emitted at street level, permeating residential and commercial premises.

(b)  The condition proposed by Environmental Health Services that the customer capacity be limited to 30 as there was only one customer toilet, should include the number of customers that could be seated in the outside area. Furthermore, should either the staff toilet or the customer toilet not be working, one toilet for 30 customers and staff was not sufficient.

(c)   Specific reference should be made to Wardour Mews in Condition 21 to ensure that it was not just the front of the premises that was swept and/or washed and refuse stored accordingly.

(d)  The description of some of the applicants premises as “secret bar” gave rise to concern should approval be given to conditions which would allow the premises to operate as a bar until 8 PM.

(e)  Customers queueing at the front of the premises had the effect of obscuring the adjacent shop frontage, causing damage to decorative greenery, and creating litter.

(f)    Various policy considerations should be taken into account, including Policy PN1 regarding nuisance, along with the Council’s model condition on smells and odours.

The following information was provided in response to questions by Members –

(a)  Mr Inzani stated that he was not aware of any plans to upgrade the duct extracting fumes from the premises. However, the matter of the ductwork had been referred by Environmental Health Services to Planning Services.

(b)  To address concerns about queueing, Mr Whitaker stated that the applicant now used a queueing app called “Walk Up” across its premises whereby customers would be sent a message when their table was available. If a queue did ever form outside the premises, customers were directed to queue from the Mews. Mr Whitaker confirmed it was the company’s intention to continue to use the app post-coronavirus.

Submission on Behalf of Environmental Health Services

Ms Ayesha Bolton, Environmental Health Officer, made the following submissions.

(a)  In response to a request by Environmental Health Services (EHS) for further information, the Applicant had provided the asked-for information and had made significant amendments to the application. In response, EHS had proposed that the customer capacity be limited to 30, and the applicant had agreed to this proposed condition.

(b)  As a consequence of the Applicant’s agreement to the condition limiting customer capacity to 30, and the amendments to the application, EHS no longer had any objections to the application.

In response to a question by the Chairman regarding the adequacy of having only one customer toilet when considering the additional seating outside, Ms Bolton stated that the use of the outdoor seating area would vary with the seasons and, because it was now October, she was satisfied that one toilet and the condition restricting customer capacity to 30 was sufficient.

Submissions on Behalf of the Licensing Authority

Ms Gadd, Senior Practitioner (Licensing), stated that, following mediation with the Applicant, the only remaining matter of concern was the temporary proposal to exclude the requirement to order a substantial table meal when ordering alcohol before 8.00 pm. The requirement for customers to be seated before being served reduce the possibility of vertical drinking taking place.

Regarding the location of the premises within the West End Cumulative Impact Area (CIA), Ms Gadd reminded the Sub Committee of the test to be applied i.e., that the granting of the application should not add to the cumulative impact in the area.

Referring to Condition 28 in the papers before the Subcommittee, Ms Gadd proposed that, because two tables and four chairs were located on a private forecourt in front of the premises, the wording of the condition should be amended, as follows –

“… by persons who are seated in an area appropriately authorised for the use of tables and chairs …”

to be reworded to read:

“… by persons seated in an area used for outside tables and chairs…”.

In so rewording the condition, this would incorporate the tables and chairs located on the private forecourt and would avoid any concerns regarding enforcement.

Ms Gadd confirmed that the licensing authority had no further comments on the Council’s policies.

In response to a Member’s question, Mr Inzani stated it was his understanding that the refuse storage bins on Wardour Street were kept locked and there was a daily refuse collection.

SUMMARY OF PRESENTATIONS

The Chairman invited the various parties to sum up their representations.

Richard Brown, CAB Licensing Project

In summing up his presentation, Mr Brown made the following points:

(a)  During the course of discussions with his client, it had been made clear that the premises’ extract duct was a source of odours from the premises that were a nuisance. Environmental Health Services had requested additional information on the duct and he could confirm that it was at street level.

(b)  With regard to the extract/ventilation duct, there was no planning condition that could be enforced as a Certificate of Lawful Existing Use or Development (CLEUD) precluded enforcement action. Therefore, he proposed that the matter could not simply be left to the Planning Authority to resolve.

(c)   He was not clear whether the limit on customer capacity to 30 persons was 30 persons total i.e., indoors and outdoors, or 30 persons indoors with scope for further customers to sit outdoors in good weather. He stated he would like some clarification on this point in relation to the availability of toilet facilities.

Licensing Authority

Ms Gadd stated that she had nothing further to add to her submission other than to refer to the CIA policy requirement that the Applicant demonstrate an exceptional circumstance before the application could be granted.

Environmental Health Services

In summing up her submissions, Ms Bolton referred to the following matters.

(a)  That it was the Planning Department that would be responsible for any matters to do with the ductwork.

(b)  No complaints had been received from local residents or businesses regarding nuisance in the form of smells or odours as a result of the premises’ ductwork.

(c)   If residents or local businesses wished to complain about nuisance as a result of the ductwork, they should report the matter to the Council’s Noise Team who would investigate any alleged nuisance under the Environmental Health Protection Act 1990.

(d)  Refuse collections in the area took place Monday to Sunday from 10 am to 12 pm.

(e)  The decision to agree to a customer capacity of 30 was based on the temporary approval to outdoor seating until the end of the month. Thereafter, the customer capacity of 30 would apply to customers who would necessarily be seated inside the premises with the concurrent requirement to ensure rules on social distancing were observed.

(f)    Regarding nuisance caused by odours, it was noted that the provisions of the Council’s Model Condition 87 addressed this concern in the following terms –

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.

Mr Inzani, Poppleston Allen, Solicitors, for the Applicant

Mr Inzani made the following points in his closing submission.

(a)  The applicant concurred that there be a suitable amendment to the wording of Condition 28, as suggested by Ms Gadd.

(b)  The points raised by objectors to the adequacy of the toilet facilities had been addressed by the Environmental Health Services Officer, Ms Bolton, including the capacity condition in relation to the number of customers permitted in the premises.

(c)   The concerns raised about the duct and refuse were not impacted by whether or not the sale of alcohol was permitted, but the applicant was happy to address these concerns by the imposition of appropriate conditions, in particular Model Condition 87.

(d)  The bins on Wardour Mews were locked by the applicant. Given the possibility of fly tipping in Wardour Mews, it would be too onerous a response to make the Applicant responsible for all waste in the Mews.

(e)  The purpose of yesterday’s late submission to the Sub Committee was to make the exception to the restaurant condition until 8 pm time-limited in accordance with the Covid-19 legislation which provided the exceptional circumstance in the Applicant’s argument.

In conclusion, Mr Inzani stated that the Sub Committee had before it an application for a licence for premises within the CIA that was within core hours with the restaurant condition supported by policy with a modest, time-limited relaxation of that policy until 8 pm under exceptional circumstances.

The Chairman announced that this concluded the public part of the proceedings and that the Sub Committee would retire to consider its decision. A summary of the Sub Committee’s decision would be issued by the Licensing Service within five working days.

ADJOURNMENT

Having heard the various parties sum up their submissions and representations, the Chairman announced that the Sub Committee would adjourn and that the Members of the Sub Committee would retire to make their decision. He stated that a summary of the Decision would be sent to the parties by the Licensing Service within five working days of today’s hearing.