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Agenda item

Yahala, London Street, London, W2 1HH

App

No

Ward /

Cumulative Impact Area

Site Name and Address

App

Type

Licensing Ref No.

1.

Hyde Park Ward / Not in Cumulative Impact Area

Yahala

26 London Street

London

W2 1HH

Premises

Licence Variation 

20/070/L76IPV

 

Minutes:

WCC LICENSING SUB-COMMITTEE NO. 4

 

Thursday 15th October 2020

 

Membership:           Councillor Karen Scarborough (Chair), Councillor Louise Hyams and Councillor Rita Begum

 

 

Officer Support:       Legal Advisor:         Horatio Chance

                                Policy Officer:          Kerry Simpkin

                                Committee Officer:  Tristan Fieldsend

                                Presenting Officer:  Michelle Steward

 

 

Application for a Variation of a  Premises Licence 20/07076/LIPV

 

Full Decision

 

Premises

 

Yahala

26 London Street

London

W2 1HH

 

 

Applicant

 

Mr Afil Efkih

Represented by Mr Paul Jones (Innpacked Solicitors)

 

 

Cumulative Impact Area?

 

Not in a Cumulative Impact Area

 

 

Ward

 

Hyde Park

 

 

Summary of Application

 

The Applicant sought to:

 

·       To permit the delivery of Late- Night Refreshment via reputable delivery agents, e.g. Uber Eats, Deliveroo, Just Eat between the hours of 23:00 to 04:30.

 

·       To remove conditions 15 (a) to (f), 16 and 18.

 

·       To add 5 additional conditions.

Proposed Activities and Hours

 

Late Night Refreshment [Indoors]

 

Monday to Sunday 23.00 to 04.30

 

Conditions to be Removed

 

Condition 15 excluding (g):

 

(i) Alcohol shall not be sold, supplied, consumed in or taken from the premises except during permitted hours.

 

In this condition, permitted hours means:

 

On weekdays, other than Christmas Day, Good Friday or New Year's Eve, 10:00 to 23:00

On Sundays, other than Christmas Day or New Year's Eve, 12:00 to 22:30

On Good Friday, 12:00 to 22:30

On Christmas Day, 12:00 to 15:00. and 19:00 to 22:30

On New Year's Eve, except on a Sunday, 10:00 to 23:00

On New Year's Eve on a Sunday, 12:00 to 22:30

 

(ii)  Alcohol may be sold or supplied for one hour following the hours set out above and on Christmas Day, between 15.00 and 19.00, to persons taking table meals in the premises in a part of the premises usually set apart for the service of such persons and for consumption by such a person in that part of the premises as an ancillary to his meal. For other purposes or in other parts of the premises the hours set out above shall continue to apply.

 

NOTE - The above restrictions do not prohibit:

 

(a)  during the first thirty minutes after the above hours the consumption of the alcohol on the premises;

 

(b)  during the first twenty minutes after the above hours, the taking of the alcohol from the premises unless the alcohol is supplied or taken in an open vessel;

 

(c) during the first thirty minutes after the above hours the consumption of the  alcohol on the premises by persons taking table meals there if the alcohol was supplied for consumption as ancillary to the meals;

 

(d)  the sale or supply of alcohol to or the consumption of alcohol by any person residing in the licensed premises;

 

(e)  the ordering of alcohol to be consumed off the premises, or the despatch by the vendor of the alcohol so ordered;

 

(f)    the sale of alcohol to a trader or registered club for the purposes of the trade or club;

 

(g)  the sale or supply of alcohol to any canteen or mess, being a canteen in which the sale or supply of alcohol is carried out under the authority of the Secretary of State or an authorised mess of members of Her Majesty's naval, military or air forces;

 

(h)  the taking of alcohol from the premises by a person residing there;

 

(i)    the supply of alcohol for consumption on the premises to any private friends of a person residing there who are bona fide entertained by him at his own expense, or the consumption of  alcohol by persons so supplied;

 

(j)    the supply of alcohol for consumption on the premises to persons employed there for the purposes of the business carried on by the holder of the licence, or the consumption of liquor so supplied, if the liquor is supplied at the expense of their employer or of the person carrying on or in charge of the business on the premises.

 

In this condition, any reference to a person residing in the premises shall be construed as including a person not residing there but carrying on or in charge of the business on the premises.

 

Condition 16:

 

16.   No person under fourteen shall be in the bar of the licensed premises during the permitted hours unless one of the following applies:

 

(a)  He is the child of the holder of the premises licence.

(b)  He resides in the premises, but is not employed there.

(c)   He is in the bar solely for the purpose of passing to or from some part of the premises which is not a bar and to or from which there is no other convenient means of access or egress.

(d)  The bar is in railway refreshment rooms or other premises constructed, fitted and intended to be used bona fide for any purpose to which the holding of the licence is ancillary.

 

In this condition "bar" includes any place exclusively or mainly used for the consumption of intoxicating liquor. But an area is not a bar when it is usual for it to be, and it is, set apart for the service of table meals and alcohol is only sold or supplied to persons as an ancillary to their table meals.

 

Condition 18:

 

18.      The Variation will have no effect until the refurbishment of the premises as shown in the submitted plans have been assessed as satisfactory by the Environmental Health Consultation Team and this condition has been removed from the Licence.

 

 

Proposed Conditions to be Added

 

·                All deliveries of hot food shall be made by the premises licence holder, his staff members or by a reputable carrier.

 

·                 No customers shall be permitted to call at the premises after 00:00 Monday to Saturday or 23:30 Sunday.

 

·                 The premises licence holder shall ensure that all individuals engaged in delivering hot food to customers’ homes shall arrive and depart the premises with a minimum of noise.

 

·                 Any motorised vehicles engaged in the delivery of food which are waiting at the premises shall ensure the engines are switched off during the preparation of each order.

 

·                 Where a delivery driver has concerns further to child protection at any address to which food has been delivered these concerns shall be made known to the premises licence holder with a minimum of delay whereupon the premises licence holder shall report the matter to Westminster’s Emergency Duty Team.

 

 

Representations Received

 

·       Environmental Health (Maxwell Koduah)

·       Mr John Zamit (South East Bayswater Residents’ Association)

 

 

Summary of issues raised by objectors

 

·                 The hours requested to provide late night refreshment would have the likely effect of causing an increase in Public Nuisance and may affect Public Safety within the area.

 

·                 Enabling deliveries until 04:30 hours would create a nuisance to residents from the noise generated from engine vehicles, the opening and closing of doors, engine fumes and delivery drivers congregating outside the Premises.

 

 

Policy Position

 

Under policy HRS1 applications for hours within the Council’s core hours policy would generally be granted, subject to not being contrary to other policies in the Statement of Licensing Policy (“SLP”).

 

 

DECISION

 

Having considered all the submissions made by all parties, the Licensing Sub-Committee decided to grant the application in part.

 

Mr Jones, representing the Applicant outlined the proposals to the Sub-Committee. He advised that due to the Covid-19 pandemic the hospitality industry was experiencing very challenging times and therefore businesses were having to adapt in order to remain viable. Therefore, this application was seeking to permit the delivery of late-night refreshment between the hours of 23:00 and 04:30. The opening hours for the Premises would not be extended and therefore no new customers would be entering the restaurant after the current terminal hour. The only increase in footfall would be from delivery drivers accessing the Premises to pick up deliveries and this was unlikely to have any impact on what was already a busy and vibrant area. The only difference with the current operation was that from 00:30 deliveries could be undertaken to customers in the local area. No representations had been received from local residents and also the Police and the Licensing Authority had raised no objections to the application either. It was recognised that concerns had been raised however and these included the potential for public nuisance, but Mr Jones advised that there was no evidence to support this view and the Applicant was a very experienced and responsible operator. Clear instructions would be provided to delivery drivers in order to mitigate any potential noise nuisance and if complaints did occur then the Applicant would revaluate which delivery companies it used. In response to a question from the Sub-Committee Mr Jones stated that if the hours sought were a cause for concern the terminal hours for deliveries could be scaled back to 02:30 hours, however this was likely to affect the financial viability of the Premises. The operation was very small and catered primarily for local residents in the area.

 

Mr Koduah, representing Environmental Health, confirmed that the additional conditions he had circulated to the Sub-Committee and all interested parties had now been withdrawn. He advised that he had concerns over the proposal to delete condition 15 as this could result in the loss of the restaurant component on the licence therefore permitting the Premises to operate as a bar. As such, it was proposed that model condition 38 be imposed from 23:00 Monday to Saturday and 22:30 on Sundays. Mr Koduah also questioned the enforceability of the conditions offered by the Applicant and suggested alternative additional conditions including requiring delivery drivers to wait inside the Premises when picking up food to be imposed on the licence if the Sub-Committee was minded to grant the application.

 

Mr Brown of the Citizens Advice Bureau, representing the South East Bayswater Residents Association (SEBRA), explained that their primary reason for the objection to the application was the potential noise disturbance to nearby residents it would create. Members were advised that there were residential buildings in close proximity to the Premises, on both sides of London Street. SEBRA believed that delivery drivers would cause a nuisance due to double parking; cars and particularly motor scooters arriving and leaving; opening and shutting of vehicles doors; noise from motorbikes/scooters; delivery personnel and fumes from cars and engines throughout the night.SEBRA was also still not clear as to the purpose of deleting Condition 15 and if this constituted a relaxation of the ‘table meal’ condition, it would want the condition to remain.

 

Mr Zamit, representing SEBRA, expressed concern over the application. Residents’ amenity in the local area was already being impacted by the noise caused by delivery drivers late at night servicing other premises, therefore extending the hours for late night refreshment to 04:30 hours here would exacerbate these issues currently experienced.

 

The Sub-Committee carefully considered the application and decided that the Applicant had notprovided sufficient reasons relating to that part of the application regarding the extension of hours for Late Night Refreshment and the removal and modification of the conditions as it was not persuaded that granting the application in full would promote the licensing objectives. The Sub-Committee therefore refused that particular aspect of the application.

 

The Committee did however grant permission to remove Condition 15 (excluding 15 1 (g) which would remain in full force and effect) and 18 from the Licence to ensure there was no conflict with the hours already permitted regarding the sale by retail of alcohol. These conditions would no longer appear on the Licence.

 

Conclusion

 

The Committee was not bound by previous decisions of licensing premises that may or may not have been granted within the area. The Committee had to consider the evidence before it and whether the four licensing objectives would be promoted. The Committee heard evidence from all of the respective parties and in the light of considering that evidence refused the application in part relating to late night refreshment deliveries for the reasons outlined below.

 

It was the Committee’s considered view that the increase in licensable activities would lead to public nuisance particularly when delivery vehicles were leaving the Premises, amongst other things. In terms of the policy considerations, the Committee had regard to Policy HRS1 which states: “Applications for hours within the core hours set out below in this policy will generally be granted, subject to not being contrary to other policies in the SLP”.

The Committee appreciated it had discretion when considering the merits of the application but took the view that granting the application would be contrary to other policies. The Committee had regard to all relevant policies under the SLP in particular Policy PN1; the prevention of Public Nuisance. Policy PN1 states: “To prevent public nuisance the Licensing Authority will apply the following criteria and take into account the following considerations, where relevant, in determining applications and reviews”. Paragraphs 1-3 of the SLP set out the various considerations the Committee should have regard to and the reasons for the policy were contained in paragraphs 2.2.9-2.2.16 of the SLP.

 

The Committee was of the view that granting the application would have the potential to cause public nuisance into the late hours. This would be exacerbated by the congregation of delivery drivers outside of the Premises, noise and fumes from delivery bikes and unavoidable noise when delivering food within the surrounding areas to both residential and possibly business addresses areas which would undoubtedly affect local residents.

 

The Committee accepted that the area was busy at all times of the day and night but nonetheless it had to strike the right balance. The Committee sympathised wholly with the Applicant that businesses were struggling in the current climate due to the Covid-19 pandemic and the unfortunate financial implications for the business. However, the Committee was surprised that given the uncertain times the hospitality sector was currently experiencing that the Applicant did not attend the hearing to answer specific questions relating to its operation that would alleviate concerns in relation to nuisance. The role of the Committee was to not try and second guess those parts of the application that were not entirely clear and thus even more an important reason for the Applicant to have been present to answer such questions.

The locality of the area was a crucial factor in the decision making of the Committee because whilst it was accepted the area was dominated by commercial premises there were also residential properties in close proximity to the Premises. The Committee noted that there was a 73 residential count within the area.  With that specific issue in mind it could not ignore the fact that granting the application would cause problems for residents at that time of the night for the above reasons.

 

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, the Home Office Guidance and the promotion of the public nuisance licensing objective. It did properly consider whether the proposed conditions offered would mitigate the concerns or reducing the terminal hour to that proposed but was not persuaded by the Applicant that these measures would go to the heart of the problems associated with nuisance.

 

The Committee came to the overall conclusion that the additional hours would have a negative impact leading to the licensing objectives being undermined which was not what the 2003 Act was designed to do. The Sub-Committee considered it was appropriate and reasonable in all of the circumstances of the case to grant the application in part for the reasons given above.

 

 

The application is granted subject to the following amended conditions in addition to the Mandatory conditions applicable to this type of application:

 

 

13.      In the area hatched pink on the deposited plan, intoxicating liquor may only be sold or supplied to those people taking table meals there and for consumption by such a person as an ancillary to meals served in the licensed premises.

 

14.      Intoxicating liquor shall be supplied to customers seated at the tables only (therefore, for the avoidance of doubt, excluding supply to customers seated on stools at the counters.

 

Conditions which reproduce the effect of any restriction imposed on the use of the premises by specified enactment

 

15.      Alcohol shall not be sold, supplied, consumed in or taken from the premises except on New Year's Eve from the end of permitted hours on New Year's Eve to the start of permitted hours on the following day (or, if there are no permitted hours on the following day, midnight on 31st December).

 

16.      No person under fourteen shall be in the bar of the licensed premises during the permitted hours unless one of the following applies:

(a)  He is the child of the holder of the premises licence.

(b)  He resides in the premises, but is not employed there.

(c)   He is in the bar solely for the purpose of passing to or from some part of the premises which is not a bar and to or from which there is no other convenient means of access or egress.

(d)  The bar is in railway refreshment rooms or other premises constructed, fitted and intended to be used bona fide for any purpose to which the holding of the licence is ancillary.

 

In this condition "bar" includes any place exclusively or mainly used for the consumption of intoxicating liquor. But an area is not a bar when it is usual for it to be, and it is, set apart for the service of table meals and alcohol is only sold or supplied to persons as an ancillary to their table meals.

 

17.      The terminal hour for late night refreshment on New Year’s Eve is extended to 05:00 on New Year's Day.

 

Annex 2 – Conditions consistent with the operating Schedule

 

18.      The premises shall install and maintain a comprehensive CCTV system as per the minimum requirements of a Metropolitan Police Crime Prevention Officer. 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. Recordings shall be made available immediately upon the request of Police or authorised officer throughout the preceding 31-day period.

 

19.      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 to the public. This staff member must be able to show a Police or authorised council officer recent data or footage with the absolute minimum of delay when requested

 

20.      An incident log shall be kept at the premises which 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)      seizure of drugs or offensive weapons

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

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

 

Supporting documents: