Agenda item

Ward CIA*	Site Name & Address	Application Type	Licensing Reference No.
West End West End	Wok to Walk, Ground Floor, 4 Brewer Street, London W1F 0SB	Variation of a Premises Licence	20/08558/LIPV
*Cumulative Impact Area

 

Present:                   Dror Appel (Applicant); Marcus Lavell (Counsel for the Applicant); Richard Brown (Citizens Advice Westminster, Licensing Advice Project); and Conrad Roeber (Objector).

 

Representations:    Representations had been received from the Environmental Health Service; the Licensing Authority; and several residents.

Applicant:                Mr Dror Appel

Ward:                       West End

CIA[1]:                         West End

Summary of Application

The application was for a variation of the premises licence to extend the hours for Late Night Refreshment and the opening hours of the premises, as follows:

Monday to Wednesday:     23:00 hours to 04:00 hours

Thursday to Saturday:        23:00 hours to 05:00 hours

Sunday:                              23:00 hours to 01:00 hours

The application also sought to amend Condition 3 of the licence to read “No amplified music shall be played within the premises after 05:00 hours”.

INTRODUCTION

The Chairman welcomed everyone to the meeting and introduced the Members of the Sub Committee and the Council Officers who would be supporting the Sub Committee before explaining the procedure that would be followed at the meeting.

The Chairman then invited the Presenting Officer, Ms Jessica Donovan, to present the report that was before the Sub Committee.

PRESENTATIONS AND SUBMISSIONS

Ms Jessica Donovan, Licensing Officer

Ms Donovan, Licensing Officer, summarised the application as set out in the report before the Sub Committee, noting that several representations had been received, including representations from responsible authorities and local residents.

In conclusion, Ms Donovan confirmed that the premises, which were in the West End Ward, were within the West End Cumulative Impact Area (CIA).

 

Mr Marcus Lavell On Behalf of the Applicant

Mr Lavell stated that, in presenting the application, he would address the following three themes:

1.     The nature of the premises and the application sought;

2.     The concerns of residents; and

3.     The wider policy considerations.

 

The Nature of the Premises

Regarding the nature of the premises, Mr Lavell made the following points.

(a)  The Applicant had been operating several premises in central London for 13 years, some of which traded to 5 AM.

(b)  The nature of Wok to Walk meant that it was not a destination venue and relied on passing trade in areas where there was a large footfall.

(c)  The premises did not sell alcohol and food was made to order for dining in or takeaway. The current application proposed that customers would only dine in after 1 AM.

(d)  When ordering food, customers could choose from several bases and toppings. The present application sought to allow the hot toppings choice from the hot menu (which was more expensive than the cold menu) to be available after 1 AM.

(e)  The number of persons permitted in the premises at any one time was 15 and, with social distancing being imposed, this had been reduced to nine customers.

(f)    The ability to sell hot food to the small number of customers would, over a period, make a significant difference to the revenue of the business.

Concerns of Residents

Mr Lavell addressed the concerns expressed by residents, as follows.

(a)  Potential Noise Impact: several conditions, as set out in the report, had been proposed to address this concern. It was proposed that there be a door supervisor to ensure that the door to the premises remain closed when it was not in use.

(b)  No queueing would be permitted outside the premises after 1 AM. This would be enforced by the SIA door supervisor.

(c)  No music would be played inside the premises.

Mr Lavell proposed that the combination of a limited number of persons, the provision of a door supervisor, and the premises being double glazed would reduce the risk of any significant noise escaping from the premises.

As it was not the Applicant’s intention to trade beyond 2:45 AM on weekdays and Sundays, Mr Lavell sought to amend the application accordingly.

Policy Considerations

Mr Lavell referred to Policy FFP2,[2] specifically Paragraph 2.5.18.[3] He stated that it was Wok to Walk’s business model to sell to passers-by as it was not a destination venue. The limited capacity of the premises meant that, when it was full, passers-by would not be allowed to queue outside the premises. Therefore, there would not be crowds of people outside the premises causing a nuisance.

Mr Lavell noted that there had been no representations from the Police who would have made representations if they thought that the application would give rise to issues of crime and disorder.

Regarding the Policy’s concern about fast-food premises which sold hot food being more attractive to people who had been drinking i.e. customers preferred to eat hot food after leaving late-night premises, Mr Lavell again referred to the limited capacity of the premises, noting that the ability to sell hot food to even a limited number of customers significantly affected the economic viability of the business.

Given the unprecedented challenges of Covid-19, Wok to Walk had complied with the Government’s regulations to manage the pandemic. Implementing these measures, along with the significantly reduced numbers of tourists and office workers in the West End, had not only affected Wok to Walk but had affected the West End stress area. He stated that the policy had been put in place to address circumstances which had since been displaced and which may remain displaced for the foreseeable future. Therefore, it was Mr Lavell’s contention that, if the Sub Committee was not persuaded that the application, if granted would have no effect on the stress area, then time and circumstance could provide an exception to the Council’s policies and provide a lifeline to the business.

In response to several questions by Members, Mr Lavell provided the following information.

(a)  That the Applicant now wished formally to amend the application as stated in his presentation.

(b)  The premises did operate, but not consistently, given the circumstances of the pandemic, to sell cold food to the hours specified in the application.

(c)  Regarding the proposed condition that there would be no sales of hot food or hot drink for consumption off the premises after 01:00 hours Monday to Saturday and 00:00 hours on Sunday, the door supervisor would be responsible for informing patrons that there was no takeaway food available after those hours.

(d)  Staff were suitably trained to deal with any disruption both within and outside the premises including possible disruption by customers being told that takeaway food was not available after certain hours. In addition, there were regular staff meetings to discuss dispersal of customers and related issues.

(e)  The Applicant would be willing to prohibit the sale of cold food for takeaway after the prescribed hours if the Sub Committee so wished.

(f)    The premises licence prohibited the playing of music after 11 PM.

Mr Kevin Jackaman On Behalf of the Licensing Authority

Mr Jackaman stated that the proposed Conditions put forward by the Environmental Health Service, as set out in the Additional Information Pack, were welcomed, as were the amendments to the application. However, it remained the Council’s policy to refuse applications for premises which were within a CIA, and that the policy would only be overridden if there were exceptional circumstances. Therefore, the Licensing Authority maintained its representations, noting that it was for the Sub Committee to determine whether the Applicant had established, to the Sub Committee’s satisfaction, that there were exceptional circumstances that would allow the Sub Committee to grant the application.

Mr Maxwell Koduah On Behalf of the Environmental Health Service

Mr Koduah stated that, following discussions with the Applicant, the proposed conditions set out in the Additional Information Pack had been agreed with the Applicant. He noted that, following the amendment to the application by Mr Lavell, it would be necessary to seek clarification on the hours it was proposed that the premises would be open on Sunday i.e., until 11:45 PM or 12 midnight.

Regarding the potential source of noise nuisance, Mr Koduah stated it was customers who were outside the premises or who were walking towards or away from the premises that presented the greatest likelihood of noise nuisance. He stated that having a door supervisor would allow the potential for noise nuisance outside the premises to be managed. However, the premises were not able to control possible nuisance by customers walking towards or away from the premises. It was for this reason that the Environmental Health Service had maintained its representation.

In response to a question by the Chairman, Mr Lavell confirmed that it was proposed that the premises opening hours for Sunday remain the same i.e. until midnight.

Mr Richard Brown, Citizens Advice Westminster, Licensing Advice Project (On Behalf of Mr Conrad Roeber)

Mr Brown stated that Mr Roeber’s representations were set out on Page 10 of the report. In addition, there was as a representation from The Soho Society on Page 25 of the Additional Information Pack supporting Mr Roeber’s representations.

Mr Brown stated that the premises, should the application be granted, would serve as a “honeypot” as identified in the Council’s Statement of Licensing Policy i.e. it would serve to attract customers from other premises at the end of the night. This gave rise to concerns about how the proposed conditions would operate to prevent queueing outside the premises. In addition, fast-food premises tended to have a high turnover of customers which had implications for residents regarding noise nuisance.

Regarding the location of the premises on Brewer Street, near to where it met with Wardour Street and where Old Compton Street met with Wardour Street, could be described as the epicentre of the West End CIA. An inventory by The Soho Society had shown that there were nine licensed premises in this area open until 3 AM. Consequently, if Wok to Walk was open as these premises were closing, customers would not disperse as they left these premises, contrary to the aims and objectives of the CIA policy.

The amendments had significantly changed the application. However, they did not address the issue of the retention of people within the CIA as they left other licensed premises.

Regarding the effect of coronavirus, Mr Brown stated that there was nothing to prevent the premises from remaining open to serve food that was below ambient temperature. However, it was not clear whether the premises had stayed open late at night to serve cold food as its website stated that the premises closed at 1 AM, Monday to Saturday, and midnight on Sundays. In addition, Mr Roeber could not recall the premises being open after 1 AM, the premises having been closed for much of the last year due to the redevelopment of Brewer Street.

Mr Brown suggested that the sale of cold food late at night would be minimal as customers leaving other venues who wanted to buy food would want to buy hot food.

In conclusion, Mr Brown stated that the application, as it stood, was contrary to policy and that the Applicant had not established any grounds that might be deemed exceptional and which would allow a time-limited premises licence to be granted.

Mr Conrad Roeber, Resident

Mr Roeber stated he was speaking on behalf of those residents who had objected to the application as they were all of one mind. He said that residents accepted that Soho was, by its nature, a noisy area, but that there were rules and policies in place to maintain the peace when “Soho went to sleep”. The fact that many premises stayed open till 3 AM was not ideal as far as residents were concerned, but the noise of people dispersing from late night premises very quickly died down.

He stated that the amendments to the application were welcomed. However, the CIA policy was there to protect residents and that residents did not see why that policy should be waived on this occasion as any premises that remained open till late at night would add to the impact in the CIA and add further to the nuisance to residents.

In response to a question by the Chairman, Mr Roeber confirmed that, although the premises had been closed for some time due to the redevelopment in Brewer Street, he could not ever recall the premises having opened later than 1 AM.

In response to a few questions by Cllr Carman, Mr Roeber stated that people would leave other licensed premises within the vicinity at different times and that these premises would be particularly busy on Thursday, Friday and Saturday nights, and very quiet on Sunday and Monday nights. Generally, people started to disperse from the various premises from midnight followed by a brief burst of dispersal activity at 3 AM when the streets would become quiet at about 3:20 AM. Residents had been concerned about the application as first presented as they believed there would be a demand for hot food after 3 AM resulting in continued noise nuisance from the time premises emptied at 3 AM until the time Wok to Walk closed.

In response to a question by the Chairman as to why the residents would be opposed to a time-limited licence as suggested by Mr Lavell, Mr Brown stated he was aware the Sub Committee had been sympathetic to the plight of traders under the current circumstances and that some applications had been granted for discrete periods of time. Not knowing how coronavirus might affect the CIA meant there was nothing upon which the Sub Committee could rely when determining whether the application fell within an exception to the CIA policy based on the effect of coronavirus. However, if the Sub Committee was minded to grant the application, it would be the residents’ request that the variation to the licence be time-limited and for no more than one year.

Mr Roeber noted that, under the 10 PM curfew for licensed premises, the streets and Soho were empty by 11 PM. Not knowing how long the current restrictions might last, he stated he was of the view that granting the application on a temporary basis was a moot point.

In response to a question by Mr Hardy (Policy Officer), Mr Lavell confirmed the proposed operating hours, as amended. He stated that that, if the application was granted on a time-limited basis, it would be appropriate to make it a two-year time limit to allow the premises to react to the effects of coronavirus, which could last for another year; and to allow the business to stabilise in the aftermath of coronavirus which could take a further year.

SUMMING UP

At this stage of the proceedings, the Chairman invited the various parties who had made representations to sum up their representations, if they so wished.

Environmental Health Service

Mr Koduah stated that, if the Sub Committee was minded to grant a temporary licence, government guidance had indicated that September 2021 would be an appropriate end date.

Mr Koduah went on to say that the current operating schedule exceeded Core Hours by one hour but there was no history of complaints about the premises which would indicate that the premises were well managed. If the premises wished to operate beyond the hours currently permitted, the Applicant would have to apply for a Temporary Event Notice (TEN) and there was no history of the premises ever having been granted a TEN.

Mr Lavell confirmed that the premises had trialled selling cold food, which was not a regulated activity, after 1 AM and it had been established that selling cold food late at night was not as popular as selling hot food. He confirmed that the Applicant had never applied for a TEN. He said that the premises had been there for 13 years but had only operated sporadically over the last five years due to the redevelopment of Brewer Street. Most recently, it had re-opened in the middle of August this year.

 

 

Richard Brown On Behalf of Residents

Mr Brown asked the Sub Committee to consider the location of the premises in relation to the very large number of other licensed premises in the area and the number of licensed premises within the vicinity of Wok to Walk.

In conclusion, he referred the Sub Committee to Paragraphs 2.5.18 and 2.5.20 in the Council’s Statement of Licensing Policy and asked that those paragraphs be taken into consideration when the Sub Committee was making its decision.

Conrad Roeber, Resident

Mr Roeber noted that the property that was being redeveloped and which housed Wok to Walk was a residential building with three new one-bedroom flats directly above Wok to Walk which had yet to be occupied. Also, opposite Wok to Walk was a residential block with seven flats.

Marcus Lavell On Behalf of the Applicant

Mr Lavell referred to Mr Brown’s comments that Wok to Walk was in the centre of the West End CIA. As such, the premises were not a destination venue and relied on passing trade from persons already within the stress area having disgorged from licensed premises within the vicinity. Because the premises were within a CIA, it had been agreed to amend the application such that the premises would be closed by the time other licensed premises closed at 3 AM. Consequently, should anyone want to order food to eat in at Wok to Walk, they would have to leave any other premises open until 3 AM in enough time to get to Wok to Walk before it closed at 2:45 AM. By offering hot food, it was proposed that passers-by en route to another venue might be diverted to quieter surroundings where they could order food and sit down to have their food.

Regarding the possible grant of a time-limited licence, Mr Lavell stated that circumstances had changed from when the Council’s Statement of Licensing Policy had been agreed and that the evidential basis for the stress area policy was not presently supported. Accordingly, a time-limited licence would reflect the current circumstances and allow operators to continue to trade in an environment that was markedly different from when the stress policy was introduced.

If the Sub Committee were to find that the changed circumstances allowed an exception to the policy, a time-limited licence that struck a balance [between the needs of residents and the needs of the business] would offer the Applicant a lifeline by allowing the Applicant to charge more for each sale of hot food.

Regarding the three new flats above the premises, Mr Lavell noted that there were already several residential flats in the building and nearby. The premises had been at this location for 13 years and there was no history of noise nuisance from the premises. In addition, the new flats would be built to current building regulation standards so there would be no issue of sound transmission from within the building and any external noise would be managed in the same professional way it had always been managed.

In response to Member’s question, Mr Lavell confirmed that as well as the hot toppings it was proposed to offer, the accompanying noodles could be served either hot or cold.

ADJOURNMENT

At this stage in the proceedings, the Chairman adjourned the meeting so that Members could retire to consider their decision. She stated that the Sub Committee would not announce its decision today but that a summary of the decision would be sent to the various parties within five working days.

The Chairman then closed the Live part of the virtual meeting.

 

DECISION

It was the Sub Committee’s decision to refuse the application as set out in the appendix to this minute.

 

REASONS FOR THE DECISION

The Sub Committee was satisfied that, having considered the papers before it and having heard representations from the various parties in attendance at the meeting, the Applicant had not, in the Sub Committee’s view, made a sufficiently compelling case that the application should be granted as an exception to the Council’s Statement of Licensing Policy.

In particular, the Sub Committee was of the view that, because the premises was one of only very few premises in the area selling hot food late at night, to grant the application, as amended, would mean that the premises would become a destination for persons leaving the numerous late-night drinking venues in the area.

While the provision of a SIA door supervisor to prevent people from queueing outside the premises and to control any noise nuisance concerns outside the premises, it did not address the concerns of local residents about noise nuisance caused by people dispersing from other late-night premises and walking towards the premises as potential customers, or away from the premises having been served or turned away from the premises because it was full.

The Sub Committee was persuaded by representations on behalf of local residents that, to grant the application, would add to the noise nuisance already experienced by local residents living above and opposite the premises as well as other residents living within the vicinity of the premises given the mixed character of the area which included a large residential element.

Members were also concerned that the proposal that there would be no takeaway service after 1 AM, requiring customers buying Late Night Refreshment after that time having to consume purchases on the premises, would only apply if the Sub Committee was minded to add a condition to the licence to this effect. Members were of the view that, if the premises could serve takeaway meals after 1 AM, this would further exacerbate the potential for noise nuisance associated with the premises as a destination venue.

In support of its decision to refuse the application, the Sub Committee relied on Paragraphs 2.5.18 and 2.5.20 of the Council’s Statement of Licensing Policy, as follows –

Premises supplying fast food inside the Cumulative Impact Areas – Policy FFP2

It is the Licensing Authority’s policy to refuse applications in the Cumulative Impact Areas other than applications to vary hours within the core hours under Policy HRSA1

2.5.18: Fast food premises which are open after 23.00 can attract large groups of customers, many of whom have been consuming alcohol in pubs, bars, or night clubs sometimes some distance away. The congregation of people around these premises leads to additional noise and disturbance and further congestion in the area. Although premises which serve cold food and drink are not subject to licensing and may stay open all night, they are not so attractive to people who have been drinking as those providing hot food and drink. The council considers that the addition of hot fast food and hot drink adds to the attractiveness of premises to people who have been drinking and who are more likely to be involved in anti-social behaviour.

2.5.19: …

2.5.20 These issues [crime and disorder and public nuisance] are of concern in the Cumulative Impact Areas where there are high concentrations of fast food premises in addition to other licensed premises. On this basis and because the attraction and retention of people by the premises mitigates against their rapid dispersal from the cumulative impact areas, the Licensing Authority considers that the grant of variations or new licences for fast food premises in the Cumulative Impact Areas should be limited to exceptional circumstances.