Agenda item

Ward CIA* SCZ**	Site Name & Address	Application Type	Licensing Reference No.
St James’s   * None   ** None	Tesco 41-45 Strutton Ground SW1P 2HY	New Premises Licence	21/13958/LIPN
*Cumulative Impact Area ** Special Consideration Zone

 

WCC LICENSING SUB-COMMITTEE NO. 4

(“The Committee”)

 

Thursday 10 March 2022

 

Membership:           Councillor Karen Scarborough (Chairman) Councillor Melvyn Caplan and Councillor Aisha Less

 

Officer Support        Legal Advisor:         Horatio Chance

                                Policy Officer:          Aaron Hardy

                                Committee Officer:  Sarah Craddock

                                Presenting Officer:  Emanuela Meloyan

 

Application for a New Premises Licence in respect of Tesco, 41 – 45 Strutton Ground, London SW1P 2HY 2SR 21/13958/LIPN

 

Full Decision

 

Premises

 

TESCO

41- 45 Strutton Ground

LONDON

SW1P 2HY

 

Applicant

 

Tesco Stores Limited

 

Represented by Jeremy Bark (Solicitor, Bryan Cave Leighton Paisner) and Hardish Purewal (Tesco Licensing Manager).

 

Ward

 

St James’s

 

Cumulative Impact

 

N/A

 

Special Consideration Zone

 

N/A

 

Activities and Hours applied for

 

Retail Sale of Alcohol (Off Sales)

 

Monday to Saturday 08:00 to 23:00 

Sunday 09:00 to 22:30

 

Seasonal Variation: None

 

Late Night Refreshment

 

Monday to Sunday 23:00 to 00:00

 

Hours Premises are Open to the Public

 

Monday to Sunday 06:00 to 00:00

 

Seasonal Variation: None

 

Summary of Application

 

The Licensing Sub-Committee has determined an application for a New Premises Licence under the Licensing Act 2003 (“The Act”). The Premises intends to operate as a supermarket selling a range of goods and services including the sale of alcohol for consumption off the Premises.  The Premises is located within the St James’s Ward.

 

The Premises has had the benefit of a Premises Licence since 2013.  The current Premises Licence (16/07810/LIPT) can be seen at Appendix 3 of the Committee Report along with the Premises history.  There are no supporting documents from the Applicant.

 

Representations Received

 

·       Environmental Health Service – Dave Nevitt

·       10 Interested Parties (Objectors) – Nancy Stockmeyer and Christine Goldsmith.  Christine will be calling John Ougan as a witness.

Richard Brown, Licensing Lawyer, Citizens Advice Bureau

 

Summary of Representations

 

The Environmental Health Service have made a representation in relation to the application as the proposals are likely to increase the risk of Public Nuisance and may impact upon Public Safety.

 

Concerns from local residents and local business were raised regarding the prevention of crime and disorder, public safety and the prevention of public nuisance.

 

Local Businesses were concerned that a Tesco Store would kill of their trade and ruin the market especially with the lack of customers due to the pandemic.

 

Local residents maintained their representations, raising concerns regarding the number of Tesco stores already in the area where it was easy to purchase cheap alcohol, additional noise, extra traffic including the noise of deliveries and litter. Local residents advised that Strutton Ground was largely residential with flats above the commercial Premises at street level and that whilst there is a street market during the day, the street was usually quiet by 5pm and Sundays were peaceful.  The proposed Tesco store could attract drinkers who might congregate in Strutton Ground and its immediate area, thereby creating a nuisance for residents.  The hours for the sale of alcohol seems unreasonably long and the provision for indoor refreshment late at night risks a noisy exit at midnight.

 

Policy Considerations

 

HRS1

·       Applications within the core hours set out below in this policy will

generally, be granted for the relevant premises uses, subject to not

being contrary to other policies in the Statement of Licensing Policy.

Applications for hours outside the core hours set out in Clause C

will be considered on their merits, subject to other relevant policies,

and with particular regard to the following:

 

The demonstration of compliance in the requirements of policies CD1, PS1, PN1 and CH1 associated with the likelihood of the effect of the grant of a licence for later or earlier hours on crime and disorder, public safety, public nuisance and the protection of children from harm.

 

SHP1

• Applications for a shop outside the West End Cumulative Impact

Zone will generally be granted subject to the application meeting the requirements of policies CD1, PS1, PN1 and CH1.

 

• The hours for licensable activities are within the Council’s Core

Hours Policy HRS1.

 

• The operation of any delivery services for alcohol meeting the

Council’s Ancillary Alcohol and/or Late-night Refreshment Delivery

Service Policy DEL1

 

 

SUBMISSIONS AND REASONS

 

The Sub-Committee considered an application for a New Premises Licence under the Licensing Act 2003 (“The Act”) by the Applicant Tesco Stores Limited in respect of 41-45 Strutton Ground, London SW1P 2HY.

 

The Presenting Officer Ms Emanuela Meloyan introduced the application.  She  advised that the Premises intended to operate as a retail Premises (supermarket) selling a range of goods and services, including the sale of alcohol for consumption off the Premises.  She confirmed that representations had been received by the Environmental Health Service and 10 Interested Parties.  She outlined that the Premises is located within the St James’s Ward but is not within a Cumulative Area Zone nor Special Consideration Zone and has had the benefit of a Premises Licence since June 2013.

 

Mr Jeremy Bark, Solicitor appearing on behalf of the Applicant, outlined the application before the Sub-Committee.  He gave a brief history of the Tesco brand and their operation, rules and practices.  He emphasised that licensable activities were a very small part of Tesco sales and made up only 6-11% of total sales.  He advised that the Premises would not sell cheap alcohol, single cans of beer or miniature bottles of spirits. Mr Bark explained that the Applicant operated several similar Premises in Westminster with established practices and procedures in place which included extensive staff training, security, mystery shoppers and Challenge 25.  The Premises would have a team of 16-22 members of staff, including a management team and there would usually be a team of 6-7 staff on duty during a shift.  Mr Bark advised that regarding anti-social behaviour staff would expect customers to use the Premises responsibly and bad behaviour would not be tolerated. He then described the various steps staff take when dealing with potential incidents including calling the Police and banning customers where necessary.

 

Mr Bark explained that there had been extensive consultation with both the Metropolitan Police Force and Environmental Health Service and all their proposed conditions had been agreed by the Applicant.  He confirmed that the hours for the Sale by Retail of Alcohol were within the Council’s Core Hours Policy and that the Late-Night Refreshment on offer at the Premises would be restricted to that of a coffee vending machine with no hot food available to customers.  He explained that the Applicant was well-aware of the homelessness issues in the area and reassured the Sub-Committee that Tesco was experienced in migrating issues through their extensive rules, procedures and training of staff.

 

Mr Bark stated that Tesco understood the concerns of local residents, however, emphasised that Tesco stores operated differently than other operators as it followed best practice rules and procedures and all its staff had extensive training.  He outlined that the management team would carry out a risk assessment every eight weeks which would cover the whole operation of the store, that there was a monitor just inside the entrance and CCTV covered every part of the store. He confirmed that the alcohol display was well away from the entrance and that the store was cleaned both inside and outside daily.

 

Mr Bark advised that there would be one delivery per day for fresh and frozen foods via Strutton Ground and these deliveries would take place during 06:00 and 07:00.  All other products would be delivered via Great Peter Street between the hours of 08:00 to 20:00 and there would be no cages on street level that would give rise to nuisance.  He outlined that any waste/rubbish would then be loaded onto the cages and taken away by the same delivery vans. 

 

 

In response to questions from the Sub-Committee, Mr Bark advised that it was the Applicant’s policy not to engage with residents because historically when Tesco had reached out to residents they had been accused of intimidation.  He explained how the self-service tills operated and that CCTV monitored each purchase made.  He advised that the cages used to deliver products and take rubbish away would have rubber wheels, be regularly serviced, and not wheeled on the Strutton Ground clobbered road/pavement.  He outlined that delivery vehicles would not be larger than 10 metres long and emphasised the Applicant’s ‘Good Neighbourhood Policy to the Sub-Committee.

 

Mr Bark advised that the Premises was not located with a cumulative impact area or a special consideration zone and that the Applicant had applied for Sale of Retail of Alcohol within the Council’s Core Hours Policy.  He further advised that other Premises in the area were operating within these hours.  Mr Bark stated that staff had two breaks during each shift and a suitable cigarette area for the staff would be discussed with the residents. Mr Bark then explained that all delivered were consolidated and there would be around 10 deliveries per week (one delivery each morning and three additional ones during the week). 

 

The Sub-Committee noted that page 124 of the report stated that there was a resident court of 546 in the Vicinity and therefore this was a highly residential area.  Mr Bark confirmed that the Applicant had been in touch with the homeless hostels and the Police regarding the anti-social behaviour and homeless people in the area to ensure that they did not add to the issues.  He emphasised that Tesco had regularly reported anti-social behaviour to the Police and did not shy away from their responsibly of keeping their shops and the surrounding area a safe place for their customers.

 

Mr Dave Nevitt appearing on behalf of the Environmental Health Service addressed the Sub-Committee.  He advised that the Premises had been empty for quite a while which had probably pleased the residents.  He further advised that it was a highly residential area, (including the Peabody Housing Estate with 546 residents) and therefore the Environmental Health Service had maintained their representation to ensure the Premises would have the minimum amount of impact on the residents.  He also added that the proposal for Late Night Refreshment was beyond core hours even if it was restricted to selling hot beverages from a coffee machine. 

 

Mr Nevitt requested that no more than 15% of the sales area shall be used for alcohol and that Environmental Health’s main concern was the deliveries to the Premises. Mr Bark advised that he was happy to have the condition ‘No more than 15% of the sales area shall be used at any one time for the sale, exposure for sale, or display of alcohol’ attached to the Premises Licence.  Mr Bark also suggested wording for a condition regarding Late Night Refreshment which was ‘Late Night Refreshment shall be limited to the use of the Coffee Vending Machine by customers during only the permitted hours.

 

Mr Nevitt advised that no deliveries could take place in St Matthews Street as it was a very narrow street.  He added that transit vans were used by the market traders to make deliveries to Strutton Ground.  He stated that the marketplace was very busy between 10am and 3pm. He advised that the Premises was not situated in a CIA or Special Consideration Zone and therefore it was reasonable for the Applicant to apply to operate within the Council’s Core Hour Policy.  Mr Nevitt outlined that model condition 81 (works conditions) and model condition 33 (prominent signage) had been agreed with the Applicant and he considered there were sufficient other proposed conditions in the operating schedule to migrate the resident’s concerns. 

 

Mr Richard Brown, Westminster Citizens Advice Bureau, representing Arabella Atlee who lived next door and shared a party wall with the Premises gave a brief history of the Premises to the Sub-Committee.  This included Morrisons being granted a Premises Licence in 2013 and then a variation to that Premises Licence in 2014.  He advised of Ms Atlee’s concern regarding the anti-social behaviour in the area, the possible noise transmission through the party wall and the late-night opening hours until midnight along with the sale of alcohol being allowed until 23:00.  He confirmed that Ms Atlee would prefer an earlier closing time and a later opening time such as was agreed by the Sub-Committee in 2013.  He emphasised that customers would be confused regarding the late-night refreshment offer and might expect to be able to purchase hot food which could cause issues for staff.

 

Mr Brown stated that he had advised Ms Atlee that Tesco could open as a convenient store without a Premise Licence.  He stated the City Council’s SLP regarding applications for a shop outside of the West End Cumulative Impact Zone which would generally be granted subject to the application meeting the requirements of policies CD1, PS1, PN1 and CH1.  Mr Brown then emphasised the huge anti-social behaviour and homelessness problem in the area to the Sub-Committee.

 

Ms Arabella Atlee, local resident, stated that no one was notified that Tesco was moving into this Premises.  She advised that she had lived in Strutton Ground for over 10 years and emphasised that it was not a suitable area for a Tesco store.  She outlined the noise nuisance that had occurred when the Premises was previously open as a Morrisons and how she could hear every single movement through the party wall.  She explained that deliveries in the area were an issue as the surrounding roads were far too narrow for large delivery vehicles.  She showed the Sub-Committee photographs of where a Tesco lorry had got stuck in Monk Street.  She advised of the noise that the delivery cages made even with rubber wheels as well as the health and safety hazard of bumping into people.  She referred to her tucked away porch area where people used as a place to smoke, drink, urine etc.,  She considered that the anti-social behaviour had increased throughout the 10 years with alcohol, drugs, and litter everywhere.  She requested that no more than 10% of the sales area be used for alcohol instead of 15% of the sales area.  She pointed out that the marketplace closed during the weekend whereas the proposed Tesco store would remain open bringing people unnecessarily to Strutton Ground.  She emphasised that the residents needed respite from the hustle and bustle at the weekends.

 

Ms Nancy Stockmeyer, as local resident, stated that she lived above the Premises and based on her previous experience with Morrisons, the new Tesco store would create continuous noise nuisance which would be especially bad during the early hours and then again during the late evening hours.  She advised of her concern about deliveries and requested that they be at respectable times during the day.  She asked if the Premises would have shutters.  Mr Bark advised that it was highly unlikely that a store of this size would have fitted shutters.  Ms Stockmeryer also referred to the impact of Deliveroo on the area.

 

Mr John Ougan advised of the increase in anti-social behaviour in the area. He outlined how people stole from the already established Tesco and Sainsburys stores without being confronted due to the stores being able to claim from their insurance.  He further advised that the anti-social behaviour would also deter tourists.

 

Mr Bark advised that the Premises has planning permission to operate as a store and suitable insulation would be fitted to ensure that noise did not escape and be heard by residents.  He outlined that he would expect that any anti-social behaviour in or outside of the Premise would be reported to the Responsible Authorities.  He advised that the Premises had no history of complaints.  He emphasised that it was important for Tesco to ‘get this right’ or else the Responsible Authorities and local residents could call for a Review of the Premises.

 

Mr Nevitt advised that his concern was that residents were not disturbed by construction noise and the day-to-day operation of the store.  He supported Tesco using acoustic treatment in the Premises.  He suggested that Tesco liaise with residents during the construction of the shop and on a regularly basis afterwards to prevent noise and public nuisance.  Mr Bark confirmed that this would be arranged Mr Brown welcomed Tesco regularly liaising with residents going forward.

 

Mr Bark advised that Tesco worked incredibly hard to avoid issues such as noise and public nuisance arising and set out how residents could call a Review of the Premises Licence if anti-social behaviours increased in Strutton Ground after the opening of the Tesco store.  Mr Bark advised that general cleaning of the store occurred during quieter periods of the day and deep cleaning occurred every three months and not during anti-sociable hours.  He explained that everything regarding the operation of the store was carefully programmed.

 

In response to questions from the Sub-Committee, Mr Bark confirmed that he was happy to accept the condition ‘No more than 10% (instead of 15%) of the sales area shall be used at any one time for the sale, exposure for sale, or display of alcohol’ be attached to the Premises Licence. He further confirmed that he was not willing to accept shorter operational hours and he considered that the conditions on the Premises Licence would mitigate all the concerns of the residents.  He advised that deliveries would be a challenging issue however Tesco had a team of professionals that would risk assess the situation and therefore he did not accept that deliveries would cause a health and safety problem in the area.  He then emphasised that no objections had been received from the hostels, the statutory homelessness authorities and most importantly the Metropolitan Police Force. 

 

Mr Bark advised that Tesco programmed their tills so alcohol could not be sold outside the agreed hours.  He also emphasised the high tec CCTV in the store and that there would be a SIA on duty from 7pm onwards to prevent anti-social behaviour.  He advised that risk assessments were carried out every 8 weeks and additional SIAs would be employed if it was shown that they were needed for the smooth operation of the store.  The Sub-Committee discussed with Mr Bark the rational for deliveries to take place early in the morning and heard that it was not unusual for deliveries to take place at 06:00 hours.  The Sub-Committee welcomed the suggestion that the Applicant was prepared to withdraw their application for Late Night Refreshment and simply turn off the coffee machine at 23:00.  The Sub-Committee further welcomed Tesco offering to provide a direct telephone number to residents to continue dialogue after the meeting.

 

At this point the Legal Advisor to the Sub-Committee referred to Paragraph 2.15 on page 9 of the Home Office Guidance issued under s.182 of the Act which outlined that the Licensing Authority had a duty to safeguard public safety and public nuisance.   Mr Bark responded by advising that the Licensing Sub-Committee should not be using licensing objectives for non- licensing activities.  The Legal Advisor requested Mr Bark to confirm the position regarding model condition 81 and the wording regarding the proposed Late Night Refreshment condition. 

 

In summary:

 

Mr Nevitt advised that he considered that the application had been adequately discussed by all parties.

 

Mr Brown emphasised that the Operating Schedule did include the opening hours of a Premises and that the residents considered 06:00 was extremely early to open the Premises and midnight was extremely late to close it.  He advised that it was very disappointing that Tesco was unwilling to compromise with the residents especially as Mr Bark had mentioned and promoted their ‘good neighbourhood policy’ during the hearing.  He advised it was difficult for the residents not to take this policy ‘with a pinch of salt’.  He emphasised that Reviewing a Premises Licence took a lot of work for already busy residents.   

 

Mr Bark confirmed that the Premises already had suitable planning permission to be used as a shop.  He emphasised that selling alcohol was only a small part of what Tesco sold and that residents always had the opportunity to Review the Premises.  He further emphasised that he considered that the conditions to be attached to the Premises Licence would mitigate all of the resident’s concerns.

 

Conclusion

 

The Sub-Committee realises that it has a duty to consider each application on its individual merits and did so for the purposes of this application. There is no policy presumption to refuse the application.

 

The Sub-Committee noted the very passionate and heartfelt representations made by local residents during the hearing and the knowledge displayed about the local area which was very useful to the Sub-Committee when determining the application. However, the reference to competition in the representations could not be considered as this is not a licensing consideration.

 

The Sub-Committee welcomed the fact that the Applicant took on board the views of local residents that had objected to the application by withdrawing the proposal for Late Night Refreshment during the hearing. This demonstrated to the Sub-Committee that the Applicant was now willing to engage and listen to the parties going forward to sort out issues and reach a fair compromise on matters. 

 

The Sub-Committee noted that the Metropolitan Police had not objected to the application and that the Environmental Health Service had agreed conditions with the Applicant.  The Sub-Committee was pleased that not more than 10% of the sales area shall be used at any one time for the sale of alcohol, that no deliveries shall take place between 20.00 and 06:00 hours on the following day and that the Council’s model CCTV condition imposed on the licence would help promote the crime and disorder and public nuisance licensing objectives.

 

The Sub-Committee noted that the Applicant had multiple established practices and procedures in place which included extensive and regular staff training, security, and Challenge 25. The Sub-Committee further noted the Applicant’s assurances and various undertakings that the Premises would be well run-in accordance with those established practices and procedures already in bedded over time in respect of other licensed premises that are to be applied and adopted for these Premises. The Sub-Committee concluded that these measures would help mitigate the concerns raised by the local residents and ultimately have the effect of promoting the licensing objectives. 

 

The Sub-Committee decided that the Applicant had provided valid reasons as to why the granting of the application would promote the licensing objectives.  

 

Having carefully considered the committee papers and the submissions made by all the parties, both orally and in writing, the Sub-Committee has decided, after taking into account all the individual circumstances of this case and the promotion of the four licensing objectives: -

 

1.        To grant permission for the Sale by Retail of Alcohol (off sales) Monday to Saturday 08:00 to 23:00 hours and Sunday 09:00 to 22:30. There are no seasonal variations.

 

2.        To grant permission for the Opening Hours of the Premises:Monday to Sunday 06:00 to 00:00. There are no seasonal variations.

 

3.        That the Licence is subject to any relevant mandatory conditions.

 

4.        That the Licence is subject to the following additional conditions imposed by the Committee which are considered appropriate and proportionate to promote the licensing objectives.

 

Conditions imposed by the Committee after a licensing hearing

 

5.        The premises shall install and maintain a comprehensive CCTV system as per the minimum requirements of the Westminster Police Licensing Team. (a) All entry and exit points will be covered enabling frontal identification of every person entering in any light condition. (b) The CCTV system shall continually record whilst the premises is open for licensable activities (c) All recordings shall be stored for a minimum period of 31 days with date and time stamping. (d) Viewing of recordings shall be made available immediately upon the request of Police or authorised officer throughout the entire 31-day period.

 

6.        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. 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.

 

7.        All sales of alcohol for consumption off the premises shall be in sealed containers only and shall not be consumed on the premises.

 

8.        All checkouts in the shop area, shall automatically prompt staff to ask for age verification identification in line with the Tesco Challenge 25 policy when presented with an alcohol sale.

 

9.        No super-strength beer, lagers, ciders or spirit mixtures of 5.5% ABV (alcohol by volume) or above shall be sold at the premises, except for premium or craft beers and ciders supplied in glass bottles and cans.

 

10.      No single cans or bottles of beer or cider or spirit mixtures shall be sold at the premises save for premium or craft products.

 

11.      No miniature bottles of spirits of 20 cl or below shall be sold from the premises save for when sold as part of a gift pack.

12.      Prominent signage indicating the permitted hours for the sale of alcohol shall be displayed so as to be visible on entering the premises, where alcohol is on public display, and at the point of sale.

 

13.      A Challenge 25 proof of age scheme shall be operated at the premises where the only acceptable forms of identification are recognised photographic identification cards, such as a driving licence, passport or proof of age card with the PASS Hologram or any other approved by the Home Office.

 

14.      All staff engaged or to be engaged in the sale of alcohol on the premises shall receive training in age restricted sales which shall include induction training completed and documented prior to such staff member selling alcohol and then shall include refresher training so that they receive such training at least twice per year. All such training records shall be available for inspection by a police officer on reasonable request.

 

15.      A digital record of incidents occurring at the premises shall be kept at the premises by the management team and made available on request to an authorised officer of the City Council or the Police. It should be completed within 24 hours of the incident and will record the following: (a) all crimes reported to the venue; (b) any serious incidents of disorder occurring within the premises (c) any thefts or attempted thefts from the premises; (d) any serious issues in relation to the sale of alcohol within the premises; (e) any faults in the CCTV system; or (f) any visit by a relevant authority or emergency service.

 

16.      The premises licence holder shall employ a SIA registered security guard in accordance with the business risk assessment.

 

17.      The licensable activities authorised by this licence and provided at the premises shall be ancillary to the main function of the premises as a retail supermarket.

 

18.      The Store Manager will engage with local resident associations should the need arise.

 

19.      All waste shall be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.

 

20.      Prominent, clear and legible notices must be displayed at all exits requesting staff and couriers to respect the needs of local residents and to leave the premises and the area quietly.

 

21.      No noise generated on the premises, or by its associated plant or equipment, shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.

 

22.      During the hours of operation of the premises, the licence holder shall ensure sufficient measures are in place to remove and prevent litter or waste arising or accumulating from customers in the area immediately outside the premises, and that this area shall be swept and or washed, and litter and sweepings collected and stored in accordance with the approved refuse storage arrangements by close of business.

 

23.      No more than 10% of the sales area shall be used at any one time for the sale, exposure for sale, or display of alcohol.

 

24.      No licensable activities shall take place at the premises until the premises has been assessed as satisfactory by the Environmental Health Consultation Team at which time this condition shall be removed from the Licence by the licensing authority.

 

25.      A direct telephone number for the manager at the premises shall be publicly available at all times the premises is open. This telephone number and/or is to be made available to residents and businesses in the vicinity.

 

26.      No deliveries to the premises shall take place between 20.00 and 06.00 hours on the following day.

 

If problems are experienced then a Review of the Premises Licence can be made.

 

This is the Full Decision of the Licensing Sub-Committee which takes effect forthwith.

 

The Licensing Sub-Committee

10 March 2022