Agenda item
43 Charing Cross Road, WC2H 0AP
Minutes:
WESTMINSTER CITY COUNCIL LICENSING SUB-COMMITTEE No.4
(“The Committee”)
Thursday 9 December 2021
Membership: Councillor Karen Scarborough (Chairman)
Councillor Susie Burbridge
Councillor Aziz Toki
Officer Support: Legal Advisor: Viviene Walker
Policy Officer: Kerry Simpkins
Committee Officer: Kisi Smith-Charlemagne
Presenting Officer: Jessica Donovan
Application for a Variation of Premises Licence in respect of 43 Charing Cross Road London WC2 0AP 21/07520/LIPV
FULL DECISION
Premises
43 Charing Cross Road London WC2 0AP
Applicant
Cumulative Impact Area
West End
Ward
St James’s Ward
Special Consideration Zone: None
Summary of Application
The Committee has determined an application for a variation of Premises Licence under the Licensing Act 2003 (“The Act”). The Premises intend to operate as a restaurant. This variation application sought to removal of the licensable activity for the sale of alcohol, conditions relating to the sale of alcohol. Extension the opening hours, to include late night refreshment to 03:00am. (During the consultation period the hours were agreed with the Police to be reduced to 01:00) and the submission of new, updated premises plan. The premises have had the benefit of a licence (21/06269/LIPT since September 2009. There is a resident count of 191.
Current Activities and Hours
Hours premises are open to the public:
Monday to Sunday 07:00 to 00:00 hours
Seasonal Variations: Sundays before a Bank Holiday 23:00 to 00:00. From the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.
Sale by retail of alcohol (on and off sales):
Monday to Saturday 10:00 to 00:00 hours
Sunday 10:00 to 23:30 hours
Seasonal Variations: Sundays before a Bank Holiday 23:00 to 00:00. From the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.
Late Night Refreshments(Indoors and outdoors):
Monday to Sunday 23:00 to 00:00 hours
Seasonal Variations: Sundays before a Bank Holiday 23:00 to 00:00. From the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.
Proposed Activities and Hours
Hours premises are open to the public:
Monday to Sunday 07:00 to 01:00 hours
Seasonal Variations: Sundays before a Bank Holiday 23:00 to 00:00. From the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.
Late Night Refreshments(indoors and outdoors):
Monday to Sunday 23:00 to 01:0 hours
Seasonal Variations: Sundays before a Bank Holiday 23:00 to 00:00. From the end of permitted hours on New Year’s Eve to the start of permitted hours on New Year’s Day.
Representations Received:
· Metropolitan Police Service (PC Adam Deweltz) (Withdrawn 8th September 2021)
· Licensing Authority (Roxsana Haq)
· Covent Garden Community Association (CGCA) (David Kaner)
Summary of issues raised by objectors:
· The Licensing Authority had concerns in relation to the application and how the premises would promote the four licensing objectives.
· The Premises would harm the Licensing Objectives related to Public Nuisance and Crime and Disorder. The premises are in the heart of the West End CIZ and the proposed extension of LNR hours will, in our view, give rise to harm to the Licencing Objectives both in the immediate vicinity and in the wider area.
Policy Position:
Under Policy HRS1, applications within the core hours set out in the policy will generally be granted for the relevant premises uses, subject to not being contrary to other policies in the Statement of Licensing Policy and applications for hours outside the core hours set out in the policy will be considered on their merits, subject to other relevant policies and with particular regard to the matters identified in Policy HRS1.
Under Policy FFP1, applications outside the West End Cumulative Zones will generally be granted subject to 1. The application meeting the requirements of policies CD1, PS1, PN1 and CH1. 2. The hours for licensable activities are within the Council’s Core Hours Policy HRS1. 3. The operation of any delivery services for alcohol and/or late-night refreshment meeting the Council’s Ancillary Delivery of Alcohol and/or Late-Night Refreshment Policy DEL1. 4. The applicant has taken account of the Special Consideration Zones Policy SCZ1 if the premises are located within a designated zone. 5. The application and operation of the venue meet the definition of a fast-food premises in Clause D.
SUBMISSIONS AND REASONS
Ms Jessica Donovan, Senior Licensing Officer, summarised the application as set out in the report before the Sub-Committee., she advised the Licensing Sub-Committee that they had before them an application for variation of premises licence. The Premises are located within the St James’s Ward and within the West End Cumulative Area Zone but not in a Special Consideration Zone. Ms Donovan informed the Sub-Committee that the Metropolitan Police Service had made an objection, however after agreeing conditions with the Applicant, their representations were subsequently withdrawn.
Mr Luke Elford, speaking on behalf of the Applicant outlined the nature of the variation sought. He explained that the existing Licence for a Pizza Express was transferred to the Applicant in July 2022 and this application was to vary the licence to update the layout of the Premises to a Kentucky Fried Chicken (KFC), remove the Sale of Alcohol (On and Off-sales) as a licensable activity and to remove conditions pertaining to the Sale of Alcohol from the Premises Licence. Mr Elford advised the Sub-Committee that his client also sought to extend the hours for Late Night Refreshment (Indoors) from 23:00 - 00:00 Monday to Saturday (23:30 Sunday) to 23:00 - 01:00 Monday to Sunday and to amend the Opening Hours from 07:00 - 00:30 Monday to Saturday (00:00 Sunday) to 07:00 - 01:00 Monday to Sunday.
Mr Elford explained that the layout of the Premises had changed as part of the re-branding from a Pizza Express to a KFC. He advised the Sub-Committee that the revised layout plans could be found at pages 117 - 119 of the agenda pack and the existing layout can be observed at page 127. Mr Elford felt that it was best to deal with the layout so that the discussion regarding the licensable activities were in conjunction with the correct layout. He informed the Sub-Committee that KFC premises do not sell alcohol and so the Applicant asked that the Sale of Alcohol as a licensable activity is removed. Mr Elford also confirmed that his client had agreed further conditions to promote the Licensing Objectives.
Mr Elford informed the Sub-Committee that the existing Premises Licence permitted the Premises to trade until 00:30 Monday to Saturday and until 00:00 on Sunday. He confirmed that his client sought a small increase to those hours until 01:00 Monday to Sunday (+ 30 minutes Monday to Saturday and +1 hour on Sunday). Mr Elford advised the Sub-Committee that his client was prepared to remove the Sale of Alcohol as a Licensable Activity altogether. Mr Elford felt that this meant that the Premises would be significantly less impactful upon the Licensing Objectives than a Premises that sold alcohol.
Mr Elford advised the Sub-Committee that his client was prepared to amend and reduce its hours of operation from 07:00 - 00:30 Monday to Saturday 07:00 - 00:00 Sunday to 10:00 - 01:00 Monday to Sunday. He confirmed that it would result in a net loss of 17 operational hours per week. Mr Elford informed the Sub-Committee that, although no change to the capacity condition (condition 15) was proposed as part of the application, upon further review of the layout his client was prepared to reduce the capacity numbers. He advised the Sub-Committee that the current capacity condition stated: The number of persons permitted in the premises at any one time (excluding staff) shall not exceed: Ground floor 90 persons First floor 80 persons with no more than 168 persons at any one time.
Mr Elford Advised the Sub-Committee that his client was proposing that the condition be amended to state: The number of persons dining at the premises at any one time shall not exceed: Ground floor - 25 persons First floor - 75 persons with no more than 100 persons dining at the premises at any one time. He confirmed that this was a reduction of 68 persons.
Mr Elford advised the Sub-Committee that the application would reduce the overall capacity of the Premises. He felt that the conditions proposed, including the additional conditions agreed with the Metropolitan Police would promote the Licensing Objectives and meet the requirements of CD1, PS1, PN1, and CH1; he commented that there is no evidence to the contrary. Mr Elford informed the Sub-Committee that the operation of the venue could only be described as meeting the definition of a Fast-Food Premises. He noted that in relation to DEL1, his client was an experienced operator of these types of premises with a plethora of policies and procedures dealing with such matters. Mr Elford added that his client was happy to discuss additional measures regarding deliveries.
The Sub-Committee sought clarification on why the basement was included in area of licensable activities and the conditions offered on deliveries. Mr Sameer Botwala, on behalf of the Applicant in response confirmed that the basement would house the kitchen area and where the food would be prepared. Mr Elford also informed the Sub-Committee that his client has agreed a no deliveries after 23:00 hours condition.
Ms Roxsana Haq on behalf of the Licensing Authority confirmed that the Licensing Authority welcomed the changes made to the application. She noted that the premises are within the West End Cumulative Impact Area, and it is the Licensing Authority’s policy to refuse applications within the West End Cumulative Impact Zone for: pubs and bars, fast food premises, and music and dancing and similar entertainment unless an exception is made. Ms Haq advised the Sub-Committee that the Licensing Authority maintained its objections and it would be for the Sub-Committee to determine if the application was an exception.
Mr David Kaner, speaking on behalf of the Covent Garden Community Association (CGCA) advised the Sub-Committee that the original application was for Late Night Refreshment (LNR) until 03:00. He noted that the application had been amended for LNR until 01:00. However, the concern of the CGCA, on behalf of local residents, remained the same. Mr Kaner explained that by offering late night refreshment after the end of Core Hours the premises would encourage customers to remain in the area rather than leave and this would add to the cumulative impact already being experienced.
Mr Kaner advised the Sub-Committee that removing the Sale of Alcohol from the licence would be beneficial, however the sale of alcohol after 23:00, on the previous licence, was ancillary to a table meal and the licensing policy makes clear that alcohol sales associated with a meal are less likely to give rise to issues. He added that in any case, it was not in the KFC operating model to sell alcohol. Mr Kaner commented on the Applicant’s statement suggestion that the opening hours permitted by the licence will be reduced with the premises opening at 10:00 rather than 07:00. However, he felt that it should be noted that Pizza Express actually opened at 11:30am, despite being permitted to open earlier than this. Therefore, this reduction will have no impact.
Mr Kaner informed the Sub-Committee that capacity of the premises for seated customers would be reduced from 168 to 100. However, Pizza Express rarely operated to the limit of its seating capacity. Hence like the hours in the morning this is a “benefit” with little or no impact. Mr Kaner informed the Sub-Committee that the impact of the premises was not just related to how many people can be seated but the number of people who use the premises. Mr Kaner noted that even if some customers eat in at KFC, the time they spend in the restaurant, will be much shorter than in a Pizza Express. Hence a greater turner over of customers and a greater impact despite the smaller seated capacity.
The Sub-Committee sought further information on the estimated transactions on a daily/weekly basis and the additional hours. The Sub-Committee also sought clarification the proportion of takeaway deliveries and how those deliveries would be managed so that they do not cause nuisance. Mr Botwala was unable to provide information on the expected transactions, he confirmed that deliveries would make up 20% of the business and would be done through their delivery partners, Uber, just Eat and Deliveroo. Mr Elford confirmed that there was a modified version of Model Condition 98 to ensure that the Licence Holder has a process to manage deliveries so that they do not give rise to nuisance and a condition to ensure that deliveries are only made to bona fide location and not to people using local landmarks and then consuming the meal in the street.
Mr Richard Brown speaking on behalf of the CGCA advised the Sub-Committee that this was a judgement call and they needed to decide if the reduction in capacity, they should consider D18 of the Statement of Licensing Policy. He added that later hours for LNR will add to the cumulative impact already being experienced and the application for any extension of LNR should be refused.
Conclusion
The Sub-Committee has a duty to consider the application on its individual merits and took into account all of the committee papers, submissions made by the Applicant and all other parties and the oral evidence given by those parties in attendance during the hearing in its determination of the matter.
The Sub-Committee was mindful of the fact that the Licensing Authority had maintained their representations, on the basis that the Premises fall within the West End Cumulative Impact Zone (CIZ), therefore, the application needs to be considered under CIP1, FFP1 and HRS1. As such, the Sub-Committee had to be satisfied that the application will not add to the CIZ. For that reason, the Sub-Committee refused to grant permission for the extended hours for Late Night Refreshment.
The Sub-Committee noted that representations had initially been made by the Metropolitan Police Service, however, these had been withdrawn following discussions with the Applicant.
In elation to the other variations sought, the Sub-Committee decided that the Applicant had provided valid reasons as to why the granting of the application would not add to negative cumulative impact in the CIZ and thus promote the licensing objectives.
Having carefully considered the committee papers and the submissions made by all the parties, both orally and in writing, the Committee has decided, after taking into account all of the individual circumstances of this case and the promotion of the four licensing objectives:
1. To refuse to grant permission for the extended hours for Late Night Refreshment. The Committee came to the overall conclusion that the additional hours would have a negative impact on the cumulative impact area leading to the licensing objectives being undermined.
2. To grant permission to vary the layout of the plan submitted to the Licensing Authority.
3. To grant permission to remove all licensable activities pertaining to the sale of alcohol from the Premises Licence.
4. To grant permission to remove Mandatory Conditions 1 to 8(iv) from the Premises Licence.
5. To grant permission to remove conditions 11, 12, 13, 14, 16, 17, 18, 19, 20 and 23 from the Premises Licence.
6. To grant permission to amend condition 15 (now condition 11).
7. To grant permission for the Opening Hours of the Premises Monday to Sunday 10:00 to 01:00 hours.
8. That the Licence is subject to the following conditions imposed by the Committee which are considered appropriate and proportionate to promote the licensing objectives.
Conditions imposed by the Committee after a hearing with the agreement of the Applicant
9. The premises shall install and maintain a comprehensive CCTV system as per the minimum requirements of the Westminster Police Licensing Team. 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 are open for licensable activities and during all times when customers remain on the premises and will include the external area immediately outside the premises entrance. All recordings shall be stored for a minimum period of 31 days with date and time stamping. Viewing of recordings shall be made available immediately upon the request of Police or authorised officer throughout the entire 31-day period.
10. 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 are open. This staff member must be able to provide a Police or authorised council officer copies of recent CCTV images or data with the absolute minimum of delay when requested.
11. The number of persons permitted in the premises at any one time (excluding staff) shall not exceed:
Ground floor 25 persons
First Floor 75 persons
With no more than 100 persons at any one time.
12. Notices shall be prominently displayed at exits requesting the public to respect the needs of local residents and to leave the premises and the area quietly.
13. No noise shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.
14. The highway and public spaces in the immediate vicinity of the premises shall be kept free of litter from the premises.
15. All waste to be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.
16. An incident book shall be operated by staff employed at the premises and made available for inspection by the Police or the Licensing Authority upon reasonable request.
17. An incident log shall be kept at the premises and made available on request to an authorised officer of the City Council or the Police. It must be completed within 24 hours of the incident and 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) all seizures of drugs or offensive weapons
(f) any faults in the CCTV system
(g) any refusal of the sale of alcohol
(h) any visit by a relevant authority or emergency service.
18. Handbag hooks will be fitted to tables throughout the premises.
19. A minimum of 2 SIA licensed door supervisors shall be on duty at the premises from 20:00 hours until 30 minutes after close to assist with dispersal. They must correctly display their SIA licence(s) when on duty so as to be visible.
20. The Premises Licence Holder shall risk assess the need for additional SIA licensed door supervisors at other times based on a documented risk assessment. A copy of the risk assessment shall be kept at the premises and produced to Police and/or an authorised officer of Westminster City Council on request.
21. All SIA licensed door supervisors shall wear high visibility yellow jackets or vests.
22. A copy of the premises dispersal policy shall be made readily available at the premises for inspection by a Police Officer and/or an authorised officer of Westminster City Council.
23. There shall be no delivery from 23:00 hours until the premises are closed.
24. Orders for delivery will only be taken for delivery to a verified business or residential address.
25. Delivery drivers/riders shall be given clear, written instructions to use their vehicles (cars, mopeds, cycles etc) in a responsible manner so as not to cause a nuisance in the vicinity of the licensed premises or the delivery location, not to leave engines running when vehicles are parked and not to obstruct the highway or footway. Drivers/riders who do not comply with the instructions will not be permitted to make deliveries on behalf of the licensee.
This is the Full Decision of the Licensing Sub-Committee which take
effect Forthwith.
Licensing Sub-Committee
9 December 2021
Supporting documents:
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Report 43 Charing Cross Road_Redacted, item 4.
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