Agenda item

Ward CIA* SCZ**	Site Name & Address	Application Type	Licensing Reference No.
Marylebone   * None   ** None	Shawarma N More 123 Baker Street W1V 6RZ	Premises Licence Variation	22/09054/LIPV
*Cumulative Impact Area ** Special Consideration Zone

 

WESTMINSTER CITY COUNCIL LICENSING SUB- COMMITTEE NO. 1

(“The Committee”)

 

Thursday 1 December 2022 – Item 1

 

Membership:           Councillor Aziz Toki (Chairman)

                                Councillor Iman Less and Councillor Melvyn Caplan.

 

Officer Support:       Legal Advisor:         Viviene Walker

                                Policy Officer:          Daisy Gadd

                                Committee Officer:  Sarah Craddock

                                Presenting Officer:  Roxsana Haq

 

Other Parties:          Shekhar Bharania (Philip Jones Legal on behalf of the Applicant, Shawarma N More Limited) and Mushtaq Ali (Owner of Shawarma N More)

 

Maxwell Koduah (Environmental Health)

Dave Morgan (Metropolitan Police Service)

 

Asitha Ranatunga, (Cornerstone Barristers representing Bickenhall Freehold Limited), Richard Brown, (Citizens Advice Westminster) representing The Marylebone Association, Barbara Malcolm (McGlashans Property Services), Salim Khoury (local resident), John Evans (local resident), Guy Austin (Marylebone Association), Michael Elford (Bikenhall Freehold Limited) and Councillor Barbara Arzymanow (Marylebone Ward).

                             

Application for Variation of a Premises Licence – Shawarma N More 123 Baker Street London W1U 6RZ – 22/09054/LIPV

 

                                           Full Decision

Premises

 

Shawarma N More

123 Baker Street

London W1V 6RZ

 

Applicant

Shawarma N More Limited

 

Ward

Marylebone

 

Cumulative Impact Area

N/A

 

Special Consideration Zone

N/A

 

 

Activities and Hours applied for

 

·       Late Night Refreshment (Indoors and Outdoors)

Monday to Sunday 23:00 to 03:00 hours

 

·       Hours Premises are Open to the Public

Monday to Sunday 10:00 to 03:00 hours

         

Summary of Application

 

This is an application for a variation of a Premises Licence under the Licensing Act 2003 (“The Act”). The Premises propose to extend the hours for Late Night Refreshment (Indoors and Outdoors) 23:00 to 03:00 hours and the Opening Hours 10:00 to 03:00 hours Monday to Sunday. The Premises have had the benefit of a licence since July 2022 under reference 22/01952/LIPN.  The Sub Committee noted the supporting documents provided by the Applicant at pages 41 to 49 of the main report.

 

Representations Received

 

·       Metropolitan Police Service (Dave Morgan)

·       Environmental Health Service (Maxwell Koduah)

·       Ward Councillor (Cllr Barbara Arzymanow)

·       Marylebone Association (Guy Austin)

·       Bickenhall Freehold Limited (Asitha Ranatunga)

·       53 Local Residents

 

Summary of Representations

 

·       This application if granted would undermine the licensing objectives, namely, the Prevention of Crime and Disorder.

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

·       The proposed late night food service will result in customers consuming food on the pavement outside the establishment as there is no sizeable indoor  seating at the premises.

·       The provision of late-night refreshment will cause noise, litter, crime and traffic in the area.

·       We do not want this business to become a destination venue for those who have been out drinking until 3am.

·       This application impacts the objectives of preventing public nuisance and crime and disorder.

·       This application will not promote the licensing objectives, namely, the Prevention of Public Nuisance, Crime and Disorder and the Protection of Children from Harm.

·       The premises are in a highly residential area. Residents would be subjected to having their quiet enjoyment/sleep disturbed into the early hours.

·       The granting of this application would set a new precedent for Marylebone which has the potential to change the area’s unique character forever.

·       Baker Street is becoming increasingly noisy and dirty, and this issue will get worse if food outlets are allowed to operate overnight.

·       Late opening hours may lead to an increase in anti-social behaviour.  Residents of Bickenhall Mansions already find strangers sitting on the front doorsteps of Bickenhall Mansions eating fast food late at night and this problem will worsen if food outlets open overnight.

·       Baker Street is a commercial street but there are many residential properties in extremely close vicinity to this property.

 

 

Policy Position

 

HRS1

 

Applications for hours outside the core hours set out in Clause C will be considered on merits, subject to not being contrary to other policies in the Statement of Licensing Policy.

 

FFP1 (A)

 

Applications outside the West End Cumulative Zones will generally be granted subject to the application meeting the requirements of policies CD1, PS1, PN1 and CH1 and the application and operation of the venue meet the definition of a fast food premises in Clause D.

 

 

 

SUBMISSIONS AND REASONS

 

Ms Roxsana Haq, Senior Licensing Officer outlined the application to the Sub-Committee. She advised that representations had been received from the Environmental Health Service, the Metropolitan Police Service, the Marylebone Association, Bickenhall Freehold Limited and 53 local residents.  The Sub Committee noted that the Premises are located within the Marylebone Ward but was not within a Cumulative Impact Zone or a Special Consideration Zone.  She confirmed that the additional submissions from the Interested Parties had been circulated to the Sub Committee.

 

Mr Shekhar Bharania, on behalf of the Applicant, Mushtaq Ali, Owner of Shawarma N More Limited addressed the Sub-Committee.  He explained that the Applicant had applied to extend the hours to provide Late Night Refreshment until 3am because the current Premises Licence (granted on the 7 July 2022) which allowed him to provide Late Night Refreshment within the Council’s Core Hours Policy was not beneficial to the business because of the 14 onerous conditions that had been attached to the Premises Licence.  He stated that the restrictions on the current Premises Licence were not allowing Mr Ali to grow his business.  If Mr Ali was not granted the variation to the Premises Licence, he would surrender his current Premises Licence and open 24/7 serving cold foods which was outside the remit of the Council.  He advised that Mr Ali had to do what was best for his business and that it was not commercially viable to continue operating within the restrictive parameters of the current Premises Licence. 

 

Mr Bharaniaadvised the Sub Committee of a petition that had gained approximately 60 signatures in support of the application because the later opening hours would mean that people did not need to walk to Edgware Road to purchase hot food.  He added this would help reduce crime and disorder in the area as it would reduce the number of people walking around the area late at night.  He explained that the Interested Parties were against Mr Ali and were using deliberate tactics of obstruction to destroy his business and livelihood which Mr Ali depended on to provide for his family. 

 

Mr Bharania advised that the Applicant provided a service to the Arabic community as a place to eat especially during their religious months. He also advised that the signatories collected by the Interested Parties could not be verified as being from local residents and therefore the Sub Committee should disregard their petition.  He stated that the variation to the Premises Licence would not cause public nuisance and crime and order as outlined by the building management company.

 

Mr Bharania advised that the Applicant was complying with all the conditions imposed on him by the current Premises Licence such as using electric bikes and complying with the scheduled waste collections and therefore the Council should allow him to provide Late Night Refreshment until 3am. He emphasised that the Applicant was willing to work in partnership with the Council, however, it was up to the Council if they wished the Applicant to operate his business in a controlled fashion or open 24/7 selling cold food at an ambient temperature.

 

Mr Bharania stated that Mr Ali was entitled to operate his business without having prescriptive conditions placed upon him and that Mr Ali was committed to working with the Council in good faith, however, currently the working relationship was very one sided.  He requested that the Sub Committee consider the needs of Mr Ali’s business and how the current Premises Licence was inadequate for his needs.

 

In response to questions from the Sub Committee, Mr Ali confirmed that he understood that he needed to promote the licensing objectives by not breaching the conditions attached to his Premises Licence.  He advised that this was his first Premises Licence, the operation of the business and confirmed that he did not have a management plan.  He stated that he used electric bikes for deliveries.  He advised that the shop was situated on the corner of Marylebone Road, which was a very busy road with trucks unloading and coaches stopping continuously, and he could not control the noise generated from vehicles using the road. 

 

Mr Ali advised that he had not received any complaints from the Environmental Health Service or the Licensing Authority.  He explained that on the 13 September 2022, three Nando workers came into the Premises at 10pm and asked him to prepare a bag of food for them to collect after their night shift.  The officer attending the premises saw the bag which contained only cold food, including a drink and he noted that the grills were off.  He advised that 90% of his customers were underground workers, hotel workers and NHS hospital staff.  There were no queues as customers were served very quickly and there were no tables and chairs inside the Premises.

 

The Sub Committee noted that the Premises are very small and if the application was granted it would be the only Premises selling hot food in the early hours of the morning in the area.  This could create queues and noise nuisance which could disturb the residents.  The Sub Committee were also concerned that the Applicant had no written management plan.  The Sub Committee advised Mr Bharania that all applications were considered on their own merits and the operating hours of other establishments in the area was not a consideration in their decision making. 

 

The Sub Committee noted the correspondences between the Applicant and the Police on the 19 November 2022, and how the Applicant could not provide the Police with the CCTV footage that they had requested.   Mr Bharania advised that the Applicant was making every effort to comply with the conditions on the Premises Licence however they were very onerous and one sided. Mr Bharania stated that this was an application for a variation to the Premises Licence not a Review Hearing.  The Sub Committee advised that they needed to have confidence that Mr Ali could promote the licensing objectives.  Mr Bharania stated that Mr Ali was sorry for what had happened regarding the CCTV footage incident and that everyone makes mistakes.

 

Mr Maxwell Koduah, for the Environmental Health Service advised the Sub Committee of the various breaches to the Premises Licence which included the complaint made on the 14 September 2022 on behalf of 224 apartments in close proximity to the Premises regarding trading beyond the permitted hours of the Premises Licence.  This complaint triggered an investigation from the Council’s City Inspection team which culminated into the issuance of a notice letter and the Premises were placed on a regular monitoring schedule which highlighted breaches regarding the selling of hot food and the table and chairs been left outside beyond the trading hours.  He stated that the breaches of selling hot food at 1am was very serious as it was way beyond what was stated in the Premises Licence.  He confirmed that the City Inspector witnessed the breaches of the licence conditions.

 

Mr Koduah advised the complaints had been received from residents regarding the operation of the business before the current Premises Licence had been granted up to core hours in July 2022.  He stated that the report contained evidence that the Premises were operating in breach of its Premises Licence two months after the Premises Licence was granted.  The Premises were trading without the CCTV being installed/working.  Mr Koduah advised that if the Sub Committee was minded to grant that there should be a condition attached to the Premises Licence stating that there should be no seating inside the Premises.  He further advised that this was a very new Premises Licence and was already well conditioned.  Mr Koduah stated that the Environmental Health Service considered that as presented, the application would have the likely effect of causing an increase in Public Nuisance and may affect Public Safety within the area.

 

PC Dave Morgan, for the Metropolitan Police Service explained that the Police’s position remained the same as in July 2022, which was that if the provision of late-night refreshment was granted to 3am it would undermine the Licensing Objectives, namely The Prevention of Crime and Disorder.  He stated the policing problems in an already demanding area and the concern regarding recent events that have allegedly taken place at the Premises such as the breaches in trading hours and the failure to supply CCTV for a criminal offence which was being investigated. 

 

He advised that the Premises would also become a destination point for people leaving the West End looking for hot food and that the Sub Committee could see from the photographs contained in the report that their customers were mainly people who had been out for the night, and not shift workers.  He advised that this area was a hot spot for crime and disorder and referred to the ‘heat map’ contained in the report.  He stated that the Police considered that with all the evidence provided it was unlikely that the Applicant would promote the licensing objectives if he was granted a variation to his current Premises Licence.

 

Mr Asitha Ranatunga, from Cornerstone Barristers representing Bickenhall Freehold Limited advised that the Sub Committee should have no confidence that this Premises would comply with the licensing objectives if it were granted a variation to its current Premises Licence.  He stated the breaches of the conditions which had taken place over the summer regarding trading beyond core hours, the lack of acknowledgement from Mr Ali today that mistakes had been made and most importantly no offer or reassurance from Mr Ali that he was making amends and putting in place measures to ensure these breaches would not reoccur. 

 

Mr Ranatunga advised that the Premises had continued to undermine the licensing objectives and that he represented 224 flats who were disturbed by people constantly eating hot food right outside their building.  He further advised on four points, namely: a) later opening hours of the Premises would increase the risk of anti-social behaviour in the area, b) people were already sitting on the resident’s steps eating hot food late at night which was a concern for the residents, c) other fast food outlets in the area closed at midnight so people would be attracted to this Premises and d) the Premises had already been breaching the conditions on their current Premises Licence.  Mr Ranatunga outlined the six occasions that breaches had occurred since September 2022, which were listed in the Additional Information Pack that had been circulated to all parties.  He concluded that the Premises had no management plan in place which indicated that Mr Ali did not grasp the seriousness of promoting the licensing objectives.

 

Mr Richard Brown, from Westminster’s Citizens Advice and representing local residents advised that there were 53 objections along with the Responsible Authorities, which was a significant number of people, which do not want any fast food premises operating beyond core hours in this area.  He advised the hot food was for take away only and residents had experienced in the area an increase in crime, litter, anti-social behaviour, and delivery drivers since the granting of the current Premises Licence.  He advised that the Council’s policy indicated that Premises that sold hot food attracted people who had been drinking and therefore both caused and added to problems to an area.  He advised that these issues had been well rehearsed at the Licensing Sub Committee on the 7 July 2022 and the Sub Committee had ‘decided to grant the licence with core hours as they were concerned that any later hours would detrimentally impact the licensing objectives, namely, public nuisance and crime and disorder’.   Mr Brown advised that there needs to be a balance between business and residents and that is why core hours were agreed on the 7 July 2022. 

 

The Sub Committee heard from the local residents in attendance at the meeting who all strongly stated that they did not want this business to become a destination venue for those who had been out drinking alcohol until 3am.  This was because the Premises were in a highly residential area and residents would be subject to noise nuisance, increase in crime and anti-social behaviour such as littering, urination on the streets and strangers sitting on their front doorsteps eating their hot food.

 

Councillor Barbara Arzymanow, representing the Marylebone Ward advised that the three ward Councillors strongly objected to an extension of hours at this Premises because this was mainly a residential area where people were trying to get a good night’s sleep.  She advised of the consultation that was held at short notice regarding this application and stated that the outcome was that there was already too many take away outlets in the area.  She concurred with the residents regarding the anti-social behaviour already in the area and that granting this application would increase the anti-social behaviour already there.  She referred to the Premises’ website which stated that they opened until 3am which clearly indicated that they were breaching their current Premises Licence.

 

During the summing up, Mr Koduah advised that the Sub Committee should only depart from the Council’s policy if the Premises had demonstrated good working practices which this Premises clearly had not done based on the report before the Sub Committee.

 

During the summing up, Mr Bharania advised that the current Premises Licence was not commercially viable so in his opinion the solution would be for the Council to continue to regulate the business but give Mr Ali an extension of hours until 3am.  The Sub Committee asked how they could be sure, after everything they had heard and the evidence in the report, that Mr Ali would promote the licensing objectives.  Mr Bharania replied that Mr Ali was very willing to work with the Council to ensure that he was compiling with all the conditions attached to the Premises Licence.

 

Conclusion

 

The Sub-Committee has a duty to consider the application on its individual merits and took into account all the committee papers, supplementary submissions made by the Applicant and the oral evidence given by all parties during the hearing in its determination of the matter.

 

The Sub-Committee noted that representations were received from the Metropolitan Police Service, Environmental Health Service, Marylebone Association, Bickenhall Freehold Limited and 53 local residents, all cited public nuisance as an issue in relation to the later hours. All representations were considered by the Sub-Committee.

 

The Sub-Committee considered the evidence of the Police to be strong and compelling as the Police have extremely au fait with the area and are aware of the existing challenges from a policing perspective, Marylebone area has during the later hours and the sheer number of people that could mitigate to the area from the West End CIZ from 23:00 hours onwards.

 

On balance, the Sub-Committee decided that the Applicant had not provided sufficient reasons as to why the granting of the application would promote the licensing objectives and therefore refused the application for the extension of hours for licensable activities.

 

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

 

Licensing Sub-Committee

1 December 2022