Agenda item

Ward CIA* SCZ**	Site Name & Address	Application Type	Licensing Reference No.
West End   *  None   ** None	Mr Foggs Apothecary Basement 34 Brook Street Mayfair W1K 3DN	Premises Licence Variation	23/09083/LIPV
*Cumulative Impact Area ** Special Consideration Zone

 

WESTMINSTER CITY COUNCIL LICENSING SUB-COMMITTEE NO. 3 

(“The Committee”)? 

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Thursday 29 February 2024? 

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Membership:?             Councillor Robert Eagleton (Chair) 

Councillor Ed Pitt Ford 

Councillor Judith Southern 

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Officer Support:         Legal Adviser:            Michael Feeney 

Policy Officer:             Aaron Hardy 

Committee Officer:   Steve Clarke 

Presenting Officer:   Roxsana Haq 

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Other Parties:             Gary Grant (Applicant’s Counsel) 

Charlie Gilkes (Co-Founder Brook Street Bar Limited) 

Duncan Sterling (Co-Founder Brook Street Bar Limited) 

Maxwell Koduah (Environmental Health Service) 

Judy Kuttner (Interested Party) 

Richard Brown (on behalf of Judy Kuttner and Mike Dunn) 

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Application for a Variation of a Premises Licence in respect of Mr Foggs Apothecary, Basement, 34 Brook Street, Mayfair, W1K 3DN (23/09083/LIPV) 

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FULL DECISION 

 

Case Summary 

 

This is an application for a Variation of a Premises Licence under the Licensing Act 2003 (“The Act”).  The Premises operates as a themed bar / public house. 

 

The application proposes to vary the wording of conditions 37, 42 and 43, details of which can be seen in section 1D of the officer’s report. 

 

The premises has had the benefit of a premises licence since 2022. The current premises licence (24/00115/LIPDPS) and licence history can be viewed at Appendix 3 of the officer’s report. 

 

The Premises is located within the West End Ward but does not fall within either the West End CIZ or any Special Consideration Zone.

 

There is a resident count of 23. 

 

Representations were received from the Environmental Health Service, and 3 Interested Parties citing concerns regarding public nuisance and public safety. Subsequently to the publication of the Sub-Committee agenda, one of the representations received from Interested Parties was withdrawn. 

 

Premises 

 

Mr Foggs Apothecary 

Basement 34 Brook Street 

Mayfair 

W1K 3DN 

 

Applicant? 

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Brook Street Bar Limited 

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Cumulative Impact Area? 

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None 

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Special Consideration Zone? 

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None 

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Ward? 

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West End 

 

 

Variations to the Licence Applied For 

 

Condition	Proposed Variation
37.  There shall be no admittance or re-admittance to the premises after midnight (00.00 hours) except for patrons permitted to temporarily leave the premises (e.g. to smoke, make a phone call).	37.  There shall be no admittance or re-admittance to the premises after 01.00 hours except for patrons permitted to temporarily leave the premises (e.g. to smoke, make a phone call).
42.  SIA licensed door supervisors, (the number to be calculated by way of a written risk assessment), shall be on duty from 18:00 at the premises whilst it is open for business, and they must correctly display their SIA licence(s) when on duty so as to be visible. A copy of the written risk assessment is to be made available to the Metropolitan Police and/or the Licensing Authority on request.	42.  SIA licensed door supervisor(s), (the number to be calculated by way of a written risk assessment), shall be on duty from 18:00 (when required) at the premises whilst it is open for business, and they must correctly display their SIA licence(s) when on duty so as to be visible. A copy of the written risk assessment is to be made available to the Metropolitan Police and/or the Licensing Authority on request.
43.  Notwithstanding the SIA condition above (no 42), at least 2 members of door supervisors shall be on duty at the entrance of the premises and patrolling the outside area on Brook Street from 23:00 hours until 30 minutes after the premises close, to supervise and prevent potential nuisance from customers.	43.  Notwithstanding the SIA condition above (no 42), at least 2 members of door supervisors shall be on duty at the entrance of the premises and patrolling the outside area on Brook Street from 23:00 hours until 30 minutes on Fridays and Saturdays after the premises close, to supervise and prevent potential nuisance from customers.

 

Representations Received? 

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·        Environmental Health Service (Maxwell Koduah) 

·        Tarun Patel, Mayfair W1K (Withdrawn 21 February 2024) 

·        Judy Kuttner, Mayfair W1K 

·        Mike Dunn, Mayfair W1K 

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Policy Considerations 

 

Policies HRS1 and PB1 apply under the City Council’s Statement of Licensing Policy (“SLP”). 

 

Policy HRS1 

 

A.    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. 

 

B.    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: 

1.     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. 

2.     If the application is located within a Special Consideration Zone they have demonstrated that they have taken account of the issues identified in that area and provided adequate mitigation. 

3.     Whether there is residential accommodation in the proximity of the premises that would likely be adversely affected by premises being open or carrying out operations at the hours proposed. 

4.     The proposed hours of the licensable activities and when customers will be permitted to remain on the premises. 

5.     The proposed hours when any music, including incidental music, will be played. 

6.     The hours when customers will be allowed to take food or drink outside the premises or be within open areas which form part of the premises. 

7.     The existing hours of licensable activities and the past operation of the premises (if any) and hours of licensable premises in the vicinity. 

8.     Whether customers and staff have adequate access to public transport when arriving at and leaving the premises, especially at night. 

9.     The capacity of the premises. 

10. The type of use, recognising that some venues are more likely to impact the licensing objectives than others; for example, pubs and bars are higher risk than theatres, cinemas and other cultural and sporting venues due to the nature of the operation. 

11. The Licensing Authority will take into account the active measures proposed for a ‘winding down’ period including arrangements for people to be collected from the premises to travel home safely. 

12. Conditions on hours may be attached that require that the supply of alcohol for consumption on the premises ceases a suitable period of time before customers are required to leave the premises. 

13. The council, acting as the Licensing Authority, may reduce hours if, after review, it is necessary to impose conditions specifying shorter hours in order to promote the licensing objectives. 

14. Specific days for non-standard hours should be identified and justified as part of the application to allow responsible authorities and interested parties to evaluate the impact that these licensable activities may have, and to plan accordingly. The consideration of applications for later hours for Bank Holiday Mondays will take into account that later hours are generally granted for preceding Sundays and that the next day is a working day. Non-specific days are expected to be covered by Temporary Event Notices or variation applications. 

 

C.    For the purpose of Clauses A and B above, the Core Hours for applications for each premises use type as defined within this policy are: 

6.   Pubs and bars, Fast Food and Music and Dance venues 

Monday to Thursday: 10am to 11.30pm. 

Friday and Saturday: 10am to Midnight. 

Sunday: Midday to 10.30pm. 

Sundays immediately prior to a bank holiday: Midday to Midnight. 

 

D.    Core hours are when customers are permitted to be on the premises and therefore the maximum opening hours permitted will be to the same start and terminal hours for each of the days where licensable activity is permitted. 

 

E.    For the purposes of this policy, ‘premises uses’ are defined within the relevant premises use policies within this statement. 

 

Note: The core hours are for all licensable activities but if an application includes late night refreshment, then the starting time for that licensable activity will be 11pm. 

 

Policy PB1 

 

A.    Applications outside the West End Cumulative Zone 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 being within the council’s Core Hours Policy HRS1. 

3.              The operation of any delivery services for alcohol and/or latenight 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 Public House or Bar in Clause D. 

 

Submissions  

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The Presenting Officer summarised the Application, highlighting that the premises did not fall within any Cumulative Impact Area or Special Consideration Zone. A representation had been received from the Environmental Health Service who were represented at the hearing by Maxwell Koduah. It was also noted that representations had been received by 3 other Interested Parties, of which one had been withdrawn. The remaining two Interested Parties were being represented at the hearing by Richard Brown. 

 

Gary Grant was present as the Applicant’s Counsel and addressed the Sub-Committee, noting that the reason for the application was two sets of conditions imposed on the licence in the premises’ 2022 application, which were deemed no longer necessary in their original format to promote the licensing objectives. These were conditions 37, regarding the admittance and re-admittance of patrons, condition 42, regarding the requirement for SIA door supervisors, and condition 43, regarding the number of SIA door supervisors. It was highlighted that the premises had operated for 18 months since the 2022 application and there had been no complaints. 

 

It was highlighted that the company were excellent and experienced operators operating 15 licenced premises, including four within Westminster; and that in 14 years of operating premises, no licensing reviews had taken place.

 

The Applicant noted that under the current licence, they were restricted in that no patrons could enter the premises after midnight despite the premises being open until 02:00. The Applicant was minded to push that entry time back to 01:00, and following discussions with the Environmental Health Service, it was agreed that a cap could be introduced whereby 25 patrons would be allowed to enter the premises between midnight and 01:00. It was highlighted that the clientele of Mr Foggs were respectable and quiet, commonly those going for a drink following the theatre. 

 

Another principal change applied for related to SIA door supervisors. It was noted that the premises was currently conditioned to require two SIA door supervisors present until 30 minutes after close every day. It was noted that this was onerous, disproportionate and not viable for the business. The Applicant also highlighted that there were difficulties in hiring door supervisors for shorter periods of time and that the need for door supervisors skewed towards later in the evening and the end of the night. 

 

In response to the representations submitted by interested parties, it was reiterated that after 18 months of trading under the current licence there had been no issues. It was also highlighted that 11 Temporary Event Notices had been granted which ran until 03:00 without any last entry time and they were all successful and safe events. 

 

Members queried whether the absence of complaints and issues during the previous 18 months could have been attributed to the requirements of the conditions on the current licence. The Applicant stated that the requirement was not present at the operator’s other London premises and there were no issues arising from those sites. In response to a question, the Applicant confirmed that on Thursdays they were not so busy but they would be amenable to having one door supervisor on duty.

 

The Environmental Health Service (EHS) had submitted a representation with Maxwell Koduah being present at the hearing. The EHS addressed the Sub-Committee reiterating the discussion and agreement between the Applicant and the EHS regarding the potential introduction of a 25 person cap on the number of new patrons who could be admitted to the premises between midnight and 01:00. Given this, EHS noted that they were now happy with the application because it ensured that there would be gradual dispersal.

 

Richard Brown was present on behalf of two of the Interested Parties and addressed the Sub-Committee noting that it was important for Members to note that the last entry condition imposed on the 2022 application was agreed by the Applicant at the time. 

 

With regard to SIA door supervisors, the Interested Parties noted that the requirement for two door supervisors was indeed excessive for this type of premises from Sundays to Wednesdays; however, the Interested Parties would still like to have seen at least two SIA door supervisors on Thursdays to Saturdays. It was also proposed by the Interested Parties that condition 43 be amended to show Thursdays to Saturdays. 

 

Judy Kuttner was present as an Interested Party and addressed the Sub-Committee highlighting that they had been a resident in the area for 48 years and were aware of other residents who sought to make a representation but had missed the deadline. It was highlighted that the primary concern was not with noise emanating from the premises but with those leaving the premises and making noise. It was appreciated that the current operator was responsible but there was a concern that the licence would sit with whoever operated the premises and should it change hands, residents were not assured that the new operator would be as respectful. The Sub-Committee questioned whether residents experienced increased or prolonged levels of noise nuisance from the premises when they held temporary events until 03:00. It was confirmed that residents could not directly attribute any heightened level of noise to the premises as there were a number of establishments within the vicinity. 

 

Upon questioning from the Sub-Committee, the Applicant agreed that, should the Sub-Committee grant the variation, they would be happy to provide at least one SIA door supervisor on Thursdays, with two SIA door supervisors present on Fridays and Saturdays. As per the conditions, written risk assessments would also be undertaken to determine any further need for SIA door supervisors. The Interested Parties confirmed that they felt that at least two door supervisors should be present on Thursdays, in addition to Friday and Saturdays. 

 

Upon summing up, there were no further comments from the Interested Parties and the EHS. The Applicant highlighted that revenue on Thursdays was just over half of what it was on a Friday, evidencing their desire to reduce the number of SIA door supervisors required on Thursdays. The Applicant’s Counsel also highlighted that the EHS were the guardians of the public nuisance licensing objective and that they agreed with the EHS in that having the ability to admit 25 further patrons between midnight and 01:00 struck the right balance in promoting that objective. Applicant’s Counsel said that in relation to condition 42 the Applicant was willing to agree that from 8pm there would be door supervisors deployed in accordance with a risk assessment from Thursdays-Saturdays, with at least one on Thursdays-Saturdays.

 

It was also further reiterated that no representations were received from the Licensing Authority or the Metropolitan Police Service, and the premises did not fall within any special consideration zones or cumulative impact areas. 

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Reasons and Conclusion 

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The Sub-Committee has determined an application for a Premises Licence Variation under the Licensing Act 2003. The Sub-Committee realises that it has a duty to consider each application on its individual merits and did so when determining this application.  

 

In relation to condition 37, the Sub-Committee considered that the proposed extension of the last entry time to 01:00 was acceptable in light of the agreement reached with EHS to cap the number of people allowed entry after midnight. EHS advised that this would still allow for gradual dispersal, and the Sub-Committee therefore concluded that this would promote the licensing objectives.

 

For conditions 42 and 43, the Sub-Committee considered it appropriate and proportionate to reduce the requirement to have SIA door supervisors at the premises every day. The Sub-Committee accepted the Applicant’s explanation that this was unduly onerous for a premises of this type. The Sub-Committee noted the Applicant’s explanation that Thursdays were not as busy as Fridays or Saturdays but considered that overall there was a growing tendency for Thursdays to be increasingly busy. The Sub-Committee therefore considered it appropriate and proportionate to ensure that at least one door supervisor would be on duty on Thursdays from 8pm, in accordance with the concession made by the Applicant during summing-up.

 

The Sub-Committee in reaching this conclusion noted that the provision of one door supervisor on Thursdays and two door supervisors on Fridays and Saturdays was a minimum and that if the risk assessment indicated that more were needed then more would have to be provided. The Sub-Committee considered that this provision of door supervisors would be sufficient to ensure that dispersal of customers from the premises did not lead to public nuisance.

 

Overall, in granting the application as varied, the Sub-Committee took into account the fact that the Applicant had operated the premises for a considerable period of time without causing any complaints and that the Licensing Authority and the Metropolitan Police were satisfied with the application.

 

Having carefully considered the committee papers, the additional papers and the submissions made by all parties, both orally and in writing, the Committee has therefore decided, after taking into account all the individual circumstances of this case and the promotion of the four licensing objectives to grant the application as follows:  

 

1.     Vary condition 37 to read: ‘Except for patrons permitted to temporarily leave the premises (e.g. to smoke or make a phone call), the number of persons admitted or re-admitted to the premises between midnight and 1:00 hours shall be limited to 25 persons. Except for patrons permitted to temporarily leave the premises (e.g. to smoke or make a phone call), there shall be no admittance or re-admittance to the premises after 01:00 hours.

 

2.     Vary condition 42 to read: ‘On Sundays-Wednesdays, SIA licensed door supervisor(s) (the number to be calculated by way of a written risk assessment), shall be on duty from 20:00 (when required) at the premises whilst it is open for business, and they must correctly display their SIA licence(s) when on duty so as to be visible. On Thursdays-Saturdays, SIA licensed door supervisor(s) (the number to be calculated by way of a written risk assessment but always to be at least one), shall be on duty from 20:00 at the premises whilst it is open for business, and they must correctly display their SIA licence(s) when on duty so as to be visible. A copy of the written risk assessment is to be made available to the Metropolitan Police and/or the Licensing Authority on request.’

 

3.     Vary condition 43 to read: ‘Notwithstanding the SIA condition above (no 42), at least one door supervisor on Thursdays and at least two door supervisors on Fridays and Saturdays shall be on duty at the entrance of the premises and patrolling the outside area on Brook Street from 23:00 until 30 minutes after the premises close, to supervise and prevent potential nuisance from customers.’

 

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

 

5.     That the existing conditions on the licence shall remain in full force and effect save as otherwise varied.

 

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

 

The Licensing Sub-Committee 

29 February 2024