Present: On Behalf of the Applicant
Mr Philip Kolvin, QC; Mr Marcus Lavell, Counsel; Mr Jodie Harsh, Director & Creative Lead; Mr John Common, Food & Beverage Director; Dr Phil Hadfield, Late-Night Economy/Policy Expert; Mr Adrian Studd, Crime & Disorder Expert; and Mr Richard Vivian, Acoustics Expert.
Mr Ian Watson, Environmental Health Service (EHS); Mr Kevin Jackaman, Licensing Authority; and PC Bryan Lewis, Metropolitan Police Service (MPS).
Representations: Representations had been received from the Metropolitan Police Service (MPS); the Environmental Health Service (EHS); the Licensing Authority; Nimax Theatres (subsequently withdrawn); and residents.
Applicant: Immerse London Ltd
Ward: West End
CIA: West End
Summary of Application
The application was for a new premises licence.
Attached at Appendix 2 of the Report of the Director of Public Protection & Licensing that was before the Sub-Committee was an “Application Summary and Proposed Draft Conditions” in which it was noted that –
“The Windmill Theatre was originally built as a silent cinema named the Palais de Luxe in 1909, but in 1930 was remodelled as a 320-seat theatre by Laura Henderson, who ran it principally as a nude review bar until the end of the Second World War. Thereafter, and until 1960, it was operated as a performance venue, hosting comedians such as Jimmy Edwards, Spike Milligan, Harry Secombe, Peter Sellers, Michael Bentine and Tony Hancock. From 1960 until 1994 it was used successively as a cinema/casino, erotic theatre, and cabaret. From 1964 the theatre was taken over by the Owide family who operated it as a table, later lap, dancing venue until 2018 when its sexual entertainment venue licence was revoked because of licence breaches. By this time, the theatre was in a seedy and dilapidated state.
The current applicants have purchased the theatre, and have invested £7 million in restoring it as a first-class performance venue/cabaret appealing to a wide audience befitting London’s international standing as a centre of entertainment.
There is, however, a serious barrier to the proposed operation, namely, that the existing licence (20/03225/IPVEM), while permitting opening until 5:30 am on Monday to Saturday and 3.00 am on Sunday nights, is restricted to a capacity of just 150 persons which is half the number for which the theatre was designed. This may have been sufficient for a lap dancing venue which depends for its trade on a small number of high paying customers with a much higher ratio of staff and performers. It is completely insufficient for this centrally located London performance venue. Even if it were possible to run the theatre economically with that capacity, it would not be possible to create the atmosphere in which a successful venue depends.
The applicants have therefore set out to devise a regime whereby a larger capacity can be accommodated in a way which is consistent with Westminster’s Statement of Licensing Policy and/or can justifiably be treated as an exception to the Policy.
The scheme of this application has 3 principal elements:
1. Hours: There is no increase in licensed hours.
2. Use: The principal use of the building will be a 250-seat performance venue, with ticketed entry, with primary performance ending at 3 AM. There will be a smaller 100 capacity theatre lounge in the basement available only to Friends of the Windmill Theatre, theatregoers, guests of the proprietor, or those attending a pre-booked private function closing at 5:30 AM. Therefore, from 3:30 AM the capacity of the venue as a whole will be no more than 150 persons, as at present.
3. Restrictions on Entrants: As stated above, the only people who may attend at all are members of the Friends of the Windmill Theatre, theatregoers, guests of the proprietor, and those attending a pre-booked private function. Therefore, there will be no “walk up” visits available to the general public.
4. Additional Controls: The venue will employ a) a minimum of 4 SIA door supervisors on Great Windmill Street; b) designated street marshals; c) designated noise control officers. These individuals will be employed specifically to attenuate any exterior impact from the operation.
The licence application has therefore been tailored to enable this iconic building to be restored in a manner consonant with its location and history, and to be used and operated so as not impact unreasonably on local residents or harm the aims of the West End Stress Area policy.”
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. The Chairman explained the procedure that would be followed at the meeting before inviting the Presenting Officer, Ms Jessica Donovan, to present the report.
PRESENTATIONS AND SUBMISSIONS
Ms Donovan summarised the application as set out in the report before the Sub-Committee noting that representations had been received from the Environmental Health Service (EHS), the Licensing Authority, the Metropolitan Police Service (MPS), and one interested party which had subsequently been withdrawn after discussions with the applicant.
Ms Donovan noted that further submissions had been received and these had been circulated to members of the Sub-Committee in the Additional Information Pack.
In conclusion, Ms Donovan noted that the Premises was located in the West End Ward and was within the West End Cumulative Impact Area.
Mr Kolvin stated that the application provided the opportunity to restore one of Soho’s historic cultural buildings and replace its use as a sexual entertainment venue with an entertainment use appealing to a wide demographic. He stated that the Team behind the application comprised experienced West End operators, a Michelin starred chef, and a well-known music producer.
The nub of the application was a proposed increase in capacity of 200 for part of the night and that there were five salient features to place in the licensing balance, as follows –
1. Change of Use: the change of use would be to one supported by Westminster City Council’s Statement of Licensing Policy because of its lesser impact on the Licensing Objectives.
2. No Change in Hours
3. Introduction of New Controls: including controls to manage arrival, entry, interior management, dispersal, and protection & oversight of the vicinity.
4. Formulation of Controls in Accordance with Westminster City Council Policies.
5. Support for the Application by Independent Experts
Mr Kolvin proposed that, if the application was granted, it would mean that the venue could operate as a theatre without being half empty and having to resort to use as a sexual entertainment venue. This would allow the applicant to pay for the Production Team and Artists needed to produce a spectacle with domestic and international appeal.
Mr Kolvin stated he would address the following matters.
Page 6 of the Applicant’s bundle provided a commentary on the Council’s Cultural Venue policy, including theatres and performance venues.
(a) Cumulative Impact Area policy
It was noted that such venues have less impact [than other licensed premises] and there was no presumption within the Council’s CIA policy requiring the applicant to show exceptional circumstances. Rather, the Council’s policy required the applicant to demonstrate that granting the application would not add to cumulative impact.
(b) Core Hours policy
The policy signified a more flexible approach to regulated entertainment and there was no presumption against granting the application: the requirement was that the applicant show that granting the application would not add to cumulative impact in the area.
These were contained in the proposed Premises Licence conditions and the Venue Strategy, and that 16 of the 18 proposed new controls were of substance.
[Mr Kolvin then detailed the proposed new controls including a Dispersal Strategy and the provision of security staff].
Mr Kolvin commended the measures as a comprehensive code of controls to promote the Licensing Objectives, as set out in the Council’s Statement of Licensing Policy, complementing the new use of the premises, which was, in itself, also supported by the Council’s Statement of Licensing Policy.
3. Evidential Support for the Application: Expert Evidence
Mr Kolvin then referred to the following reports in the Applicant’s bundle.
(a) Licensing Policy
Report by Dr Philip Hadfield, who had significant experience of licence applications within the area and who provided an independent perspective on policy.
[Mr Kolvin then referred the Sub-Committee to various paragraphs in Dr Hadfield’s report].
(b) Noise Impact Assessment
The report of Mr Vivian Richard of Big Sky Acoustics, which reached similar conclusions from an acoustics perspective to that of Dr Hadfield.
[Mr Kolvin noted that Mr Richard had made several recommendations in the appendices to his report regarding noise management and dispersal and that the applicant had surpassed those recommendations by some distance].
(c) Licensing Objectives
The report of Mr Adrian Studd, former Metropolitan Police Service (MPS) Commander, who had significant experience in policing this area.
[Mr Kolvin noted that Mr Studd reached similar conclusions to those of Dr Padfield and Mr Richard and he referred the Sub-Committee to various paragraphs within Mr Studd’s report].
Mr Kolvin noted that there was also a letter of support from the landlord of the premises.
In conclusion, Mr Kolvin stated that meritorious applications under the Council’s Statement of Licensing Policy generally displayed two characteristics viz., they –
1. Were of the right type of use; and
2. Carefully considered the risks and brought forward comprehensive controls to meet them which were then further improved through the consultation process.
He stated that, in this case, the applicant was seeking some latitude from the Sub-Committee and, in return, was bringing a far more benign use with no casual “walk ups”; strict door procedures; identification of guests; internal controls, including bar service and ancillary alcohol; a very long “winding down”; a highly controlled dispersal; and protection for the surrounding streetscape.
Based on these proposals, Mr Kolvin invited the Sub-Committee to treat this application as having been conscientiously formulated and one which would, if granted, benefit Soho.
In response to a number of questions by Members of the Sub-Committee, Mr Kolvin provided the following information.
1. Regarding the Windmill Theatre’s reliance on the objectification of women as its main selling point, ranging from the nude tableaus of the 1930s to lap dancing as recently as 2018, and how the Theatre would respect, protect, and promote the rights of women, it was noted that The Windmill Theatre had pushed the boundaries by persuading the Lord Chamberlain that nude tableaus did not objectify women or damage any interest of public importance.
The introduction of [more recent] legislation allowed nude performers to move, followed by the introduction of lap dancing which permitted dancers to come off the stage and perform for the individual gratification of men give rise to a more sensitive position which Westminster City Council had strived to regulate by way of Sexual Entertainment Venue (SEV) licences.
The applicant was not applying for a SEV licence and there would be no sexual entertainment permitted under the applied-for premises licence. The applicant wished to put on cabaret performances which would appeal to a domestic and international audience of all ages and genders. Consequently, the previous use of the Windmill Theatre was the opposite of the applicant’s intentions.
2. Regarding the “Friends of the Windmill Theatre”, it was proposed to set up a “Friends” Association with a Membership Committee and there were likely to be Membership benefits arising from being a Member of the Club.
It had been proposed that “Friends” would be able to “walk up” to the Theatre but, on reflection, it had been decided not to offer that benefit to anyone as was made clear in revised Condition 1: Admission to the Premises, as set out in the amended conditions on Page 19 of the Additional Information Pack.
3. Regarding the operation of the basement venue, “Hendersons”, it was noted that the applicant had a large production team with a large number of artists and that some of these artists would perform through the night in much smaller numbers appropriate to the size of the venue which had a capacity of 100 persons.
It was the applicant’s intention to link Hendersons to the main theatre such that, as the main theatre emptied, some customers would descend to the basement premises thereby reducing the numbers of persons disgorging out of the main theatre. Food from the main restaurant would be available in Hendersons but it would not be in the same fine dining style as Hendersons would operate in a style similar to a lounge bar.
4. In accordance with amended Condition 23, performances would take place continuously when the theatre was open.
It was anticipated that the last “star turn” would appear at 2 AM followed by increasingly low-key acts to encourage people to consider making their way home. In addition, proposed Condition 44 [On the Ground Floor and Mezzanine, the sale of alcohol shall cease at least one hour before the Ground Floor and Mezzanine closes] would be a further prompt for people to leave.
[Mr Kolvin then detailed the wind down process including last entry to the premises, and the requirement to pre-book entry to Hendersons. It was noted that the requirement to pre-book entry to Hendersons would prevent customers from leaving the main theatre and entering Hendersons without a booking. It was in this way that the management would be able to limit the number of customers in Hendersons in accordance with the proposed conditions].
5. Regarding the Dispersal Strategy, it was not anticipated that there would be a mass exodus from these premises. Therefore, the dispersal issues were different from those relating to pubs and clubs. It was proposed that people would start to leave after the headline Act had finished at 2 AM.
Even if nobody was to go to Hendersons after 2 AM, there would still only be an exodus of, at most, 250 persons, which was wholly manageable. In addition, there would be door staff at each of the exits to assist customers to disperse. It was believed that most of the dispersal of customers would be towards Shaftesbury Avenue. In addition, arrangements had been made to ensure that Uber pickups would be made from Shaftesbury Avenue, and SIA staff who would communicating by way of ear pieces, would be peppered around the area to ensure a calm and safe dispersal of customers
6. Tickets for both the main theatre and Hendersons would have to be pre-booked as there would be no “walk up” for either venue. Therefore, it would not be possible for customers to the main theatre who had not pre-booked a ticket for Hendersons to then buy a ticket to Hendersons.
Mr Ian Watson, Senior Practitioner (on behalf of the Environmental Health Service)
Mr Watson stated that he had met with the applicant and the applicant’s legal representatives at the premises with PC Reaz Guerra when the matter of proposed conditions had been discussed, and he noted that proposed Condition 23 had been suitably amended to reflect Westminster City Council’s Model Condition (MC) 86.
Mr Watson, referring to the Plans in the report before the Sub-Committee, addressed the following issues –
1. Capacity: the present capacity was 150 and it was proposed to increase this number to 350 until 03:30 hours and 150, thereafter. It was proposed that the ground floor and mezzanine accommodate up to 250 people.
Having consulted with the District Surveyor, it was proposed that, depending on the layout, the basement premises could, in accordance with public safety requirements, accommodate between 120 and 140 persons.
2. Noise Breakout: having identified the potential sources of noise breakout from the ground floor, mezzanine, and basement areas it was proposed that the measures referred to in the report of Richard Vivian of Big Sky Acoustics addressed these concerns and that the layout of the basement area meant that there was very little likelihood of any noise breakout from this area. In addition, the proposed conditions in relation to potential noise breakout and nuisance were sufficient.
[Mr Watson noted that there had never been any complaints about noise breakout from these premises].
3. Smoking Area: the proposed smoking area outside the front door had historically always been used as a smoking area and had never attracted any complaints.
4. Dispersal: it was noted that the Dispersal Strategy was comprehensive and that issues of noise attenuation had been addressed by Richard Vivian in his report and officers agreed with his conclusions that any noise issues were manageable, particularly given that there had never been any issues of noise nuisance associated with these premises.
Referring to the photograph of the entrance to the basement premises, it was noted that the nearest residents lived above the “Be at One” cocktail bar across the road from the Theatre’s main entrance. Therefore, they were unlikely to be affected by any noise from the basement premises, and that the main entrance doors to the theatre would be of a suitable acoustic design.
5. Movement of Customers within the Premises: it was noted that, from the Plans, it was not clear whether customers exiting the main theatre had access to the basement premises by some internal means.
6. Operating Hours & Sale of Alcohol: it was noted that clarification was required on the times it was proposed to end the sale of alcohol in the main theatre and how that dovetailed with the operation of the basement premises.
In response to a Member’s question, Mr Watson confirmed that he was satisfied that the applicant had taken all reasonable measures to prevent the possibility of noise nuisance as a result of the operation of the premises, noting that Mr Vivian had addressed the issue of having acoustic doors to prevent noise breakout and that the layout of the basement premises were such that it was unlikely that they would be a source of noise nuisance.
Mr Kevin Jackaman, Senior Licensing Officer (on behalf of the Licensing Authority)
Mr Jackaman stated that the Licensing Authority had maintained its representation as the premises fell within the West End Cumulative Impact Area (CIA).
The Licensing Authority particularly welcomed Proposed Condition 23, as amended, as it brought the sale of alcohol within the relevant Council policies as set out in the Council’s Statement of Licensing Policy. It was noted that the proposed hours for licensable activities were within the Council’s Core Hours policy and the licensing authority was satisfied that the applicant had demonstrated that granting the application would not add to the cumulative impact within the CIA. In addition, that the sale of alcohol and late-night refreshment (LNR) would be ancillary to the premises primary function as a cultural venue and limited, after 11 PM to persons using the premises in its primary function. The
It was noted that the hours applied for were outside the core hours for cultural venues (9 AM to Midnight) and, therefore, it was for the applicant to demonstrate the merits of the application in accordance with Policy HRS1. In so doing, it was noted that the applicant had applied for the same hours as the existing premises licence, but was seeking an increase in capacity of the premises of up to 200 persons until 3:30 AM. Therefore, it was for the applicant to demonstrate that this increase would not add to the cumulative impact in the area.
Mr Jackaman referred to a letter from the Soho Society which expressed concern about the proposed increase in the capacity of the premises.
PC Bryan Lewis (on behalf of the Metropolitan Police Service)
PC Lewis stated that the Police objection was in relation to the Cumulative Impact Area (CIA) policy and concerns about potential dispersal problems. However, if the Sub-Committee was minded to grant the application, he noted that agreement had been reached on most of the proposed conditions. However, there remained a condition proposed by the Police which had not been agreed i.e., the use of polycarbonate drink ware (rather than glassware), which was a normal request by the Police for late-night venues. In addition, the Police would like clarification on the operation of the premises during the transition between the main theatre closing and entry to Hendersons.
The Chairman noted that, with regard to the use of polycarbonate products, Westminster City Council would favour the use of drinking vessels deemed to be safe in that they could not be used to cause injury, and which were, unlike polycarbonate items, environmentally friendly.
In response to a Member’s question about customers being allowed to pour drinks from bottles, PC Lewis stated that the later premises stayed open serving alcohol, the greater the possibility of a higher consumption of alcohol and the greater the risk of crime and disorder involving use of bottles as a weapon. It was for this reasons that the Police requested the use of polycarbonate drink ware in late-night premises.
Questions from Officers
In response to an invitation by the Chairman, the Sub-Committee’s Legal Officer, Ms Viviene Walker, and Policy Officer, Mr Kerry Simpkin, asked if Mr Kolvin, on behalf of the applicant, could clarify a few matters, which they set out, in his summing up to the Sub-Committee.
The Chairman invited the parties to sum up their presentations.
Mr Watson (on behalf of the Environmental Health Service)
Mr Watson stated that the applicant had submitted numerous documents in support of the application which addressed the various matters that would be of concern to the Environmental Health Service (EHS). However, there were still some matters that had to be addressed, as follows.
No conditions had been proposed in relation to the operation of the smoking area and it was for the Sub-Committee to decide whether conditions should be imposed, such as restricting the number of smokers and/or the hours of operation of the smoking area.
Confirmation that the fire exit doors would be of acoustic quality.
Transiting of People from the Ground Floor & Mezzanine to Basement Premises
Whether the transition of people from the main theatre area to Hendersons would be by internal or external means, given that the reception areas were in different locations.
Capacity of the Basement Area
As the basement area had never been subjected to a capacity limit, the Sub-Committee could agree to the final capacity being determined upon completion of the works in accordance with the relevant Westminster City Council Model Conditions.
PC Bryan Lewis (on behalf of the Metropolitan Police Service)
PC Lewis noted that having a premises within a premises could make the premises more difficult for the premises’ management and security staff to manage. In particular, it was easier for staff to refuse entry into a premises from outside than it was to refuse entry from one area to another area if both areas were within the premises.
Philip Kolvin, QC (on behalf of the applicant)
Before summing up his presentation, Mr Kolvin addressed the following points that had been raised in the previous discussion.
Acoustic Doors and Noise Breakout
Conditions 8-11 & 25 on Pages 20 & 21 of the Additional Information Pack set out the relevant conditions intended to address any potential noise nuisance and/or concerns.
All external doors would be of a high mass design with no gaps to prevent noise breakout. The motivation to ensure that there was no noise breakout was the requirement to be able to set the sound limiters within the premises at an appropriate level conducive to performance.
Movement of Customers between the Main Theatre & Hendersons
Customers would be able to move from the main theatre to Hendersons by way of two internal staircases thereby obviating the requirement to exit and re-enter and adding to the cumulative of impact in the area.
It was to be hoped that there would be no drunkenness at these premises as the application was an attempt to create an alternative use of a premises in Soho that was not a late-night, alcohol dominated premises. However, there would be a Security Plan to address any misbehaviour.
This was addressed in Paragraph 23 of the Skeleton Argument on Page 15 of the report by the Director of Public Protection and Licensing. The applicant was of the view that it would not be appropriate for guests dining at an expensive restaurant with a Michelin starred Chef to use polycarbonate drinkware and/or to have drinks poured for them at their table by waiting staff while watching a performance.
The use of polycarbonate drinkware, in accordance with the Council’s policy, was more appropriate for customers who were drinking outside the premises and/or where there had been a number of incidents of injuries being inflicted by or with broken glass, none of which was applicable to the applicant.
Therefore, the applicant asked that the Sub-Committee not impose such a condition.
Sequential or Contemporaneous Performance
In accordance with the ancillary condition regarding the sale of alcohol, performances in the main Theatre and Hendersons would be contemporaneous, that is, there would be performances of one sort or another in both venues at the same time.
It was the applicant’s proposal that there be a limit of no more than 15 persons in the smoking area at any one time up to 03:30 hours, and no more than five persons in the smoking area at any one time after 03:30 hours.
Capacity of Hendersons Basement Premises
A plan had been circulated showing the layout of the basement premises, Hendersons, that would accommodate 100 persons. However, the applicant was anxious to maintain the current licence capacity of 150 persons.
It was proposed that this this type of premises i.e., a high-class food & beverage cabaret performance venue at the top of the market, while not unusual in, say, New York, was an unusual proposition for London. Accordingly, the applicant, having spent £7 million on the project, hoped that the project would be a success. What the applicant did not know at this time was whether there would be a demand for even later performances in the main Theatre. If there was a demand to keep the main theatre open until later on an occasion such as an awards ceremony, then the applicant would close Hendersons and proposed condition 44 catered for this possibility.
Mr John Common, Food & Beverage Director (on behalf of the applicant)
In response to questions regarding the layout of the premises, Mr Common stated that, from the ground floor of the premises, there were two routes to Hendersons: one was the external staircase next to the fire exit on Archer Street; and the other was a staircase on the opposite side of the building. There was, in addition, a further level between the ground floor and Hendersons which had toilets.
At this stage in the proceedings, the Chairman adjourned the meeting to allow Members to retire to consider their decision. He 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 5-working days.
The Chairman then closed the live part of the virtual meeting.
It was the Sub-Committee’s decision to Approve the application, as set out in the Summary Decision attached as an Appendix to these minutes.
REASONS FOR THE DECISION
Having read the report by the Director of Public Protection and Licensing that was before it; the written submissions of the applicant and those parties objecting to the application; and, having heard presentations and representations by, and/or on behalf of, those parties present at the proceedings, as well as the responses by those parties to questions put to them by Members of the Sub-Committee, the Sub-Committee was satisfied that, in accordance with the Home Office Guidance, and on the evidence before it, it was reasonable, appropriate and proportionate, in all the circumstances, to APPROVE the application.
In reaching its decision, the Sub-Committee took the following matters into consideration.
1. This was an application for a New Premises Licence which, if granted, would be conditional upon the applicant surrendering the existing Premises Licence.
2. The applicant had presented a comprehensive list of proposed conditions which, after consultation with the various Responsible Authorities, had been amended and subsequently agreed by the responsible authorities that had made representations on the initial application.
3. The application complied with policy set out in the Council’s statement of licensing policy such that the subcommittee was satisfied that, in all the circumstances, it was reasonable, appropriate and proportionate to grant the licence.
The meeting ended at:
 Cumulative Impact Area
 Special Considerations Zone
 Page 15 of the Additional Information Pack
 Set out on Page 9 of the Applicant's bundle; Page 19 of the Additional Information Pack.
 Pages 38 to 50 of the Additional Information Pack.
 Pages 51 to 74 of the Additional Information Pack.
 Pages 75 to 82 of the Additional Information Pack.
 The Theatres Act 1968
 Condition 23 [Model Condition 86]: The licensable activities authorised by the licence and provided at the premises shall be ancillary to the main function of the premises as a performance venue.
 Page 23 of the Additional Information Pack
 Additional Information Pack, Page 21
 See report by Richard Vivian: paragraph 8.1 on page 63 of the Additional Information Pack.
 Condition 44: On the Ground Floor and Mezzanine, the Sale of Alcohol Shall Cease At Least 1 Hour before the Ground Floor and Mezzanine closes.
 Revised Guidance issued under section 182 of the Licensing Act 2003, April 2018