Agenda item

38 St John’s Wood Terrace, London, NW8 6LS

16/11987/LIPN

1.

Playing of Recorded Music - Indoors

Monday to Sunday: 10:00 – 23:00

Seasonal Variations/Non-Standard Timings:

From the end of permitted hours on new Year’s Eve to the start of permitted hours on New Year’s Days.

Amendments to application advised at hearing:

None

Decision (including reasons if different from those set out in report):

The Sub-Committee considered an application by West End Investments Ltd for a new premises licence in respect of 38 St John’s Wood Terrace, London, NW8 6LS.

The Licensing Officer advised that the application was for a shadow licence to mirror a new premises licence granted by the Licensing Sub-Committee on 26 January 2017. It was noted however that this application was not identical as it proposed the playing of recorded music and late night refreshment, which was a slight variance. It was also noted that the premises plan submitted was different to the one submitted on 26 January 2017. Finally, it was the Sub-Committee’s understanding that the applicant’s representatives had been instructed by their client not to attend the hearing.

The Chairman expressed concern that the applicants had chosen not to attend the hearing, especially in light of the fact, that the application before the sub-committee was different to the licence granted on 26 January 2017.

Mr Drayan, representing EH, understood that the application wanted to mirror all the licensable activities and conditions on the operator’s licence agreed on 26 January 2017. Anything extra which was stated on the proposed licence would be withdrawn although of significant concern was that the plan demarcating the licensable area was different as it did not include the external area. Mr Drayan confirmed that apart from the differences on the licence already mentioned EH was nevertheless satisfied with the application.

The Council’s Policy Adviser explained to the Sub-Committee that if an applicant had submitted an application with the red line clearly defined on the plan denoting where licensable activities were to take place, they were then prevented from extending the scope of the application without going through the statutory consultation period by either amending the application or submitting a fresh one. This was because interested parties would have decided whether to make representations or not on the application based on the details before them.

The Sub-Committee noted that because the plan demarcating the licensable area was different from the original application various proposed conditions were now not relevant to the application.

The Licensing Officer advised that the applicant was aware the plans were different but had decided to leave it to the Sub-Committee to make a decision. The Legal Advisor endorsed the view of the Policy Advisor and confirmed for the record that the Sub-Committee was therefore obliged to deal with the application before them as it was and derived no such authority to amend the plan to include the external area for the purposes of determining the application as that would be unlawful and out of keeping with the intention and spirit of the Licensing Act 2003. The Council’s Policy Adviser also clarified that the application before the Sub-Committee was requesting both on and off sales of alcohol whilst the original operator’s licence granted had withdrawn the provision of off sales. There had been no indication from the applicant that they wished to withdraw off sales or that they would agree to the same restrictions imposed on the operator’s licence. The applicant was not present to clarify the issues raised by the Sub-Committee.

Mr Brown, from Westminster Citizens Advice Bureau, advised the Sub-Committee that it would not be able to extend the premises licensable area without going through the relevant consultation processes. The objections raised by local residents related to the external area and surprise was expressed that the applicant was not present to provide clarity on their application. The Sub-Committee was reminded that there was no presumption to award a shadow licence even if it mirrored the operator’s licence. Mr Brown provided a background to the case of Extreme Oyster, Star Oyster Ltd v Guildford Borough Council (2013) EWHC 2174   which concerned the use of shadow licences.

Mr Brown highlighted that conditions had been imposed on the licence granted on 26 January 2017 but as the applicant was not present reassurances on the application could not be received. No information was available on who the applicant was and what experience they had in running a licensed premises, let alone explaining to the Sub-Committee in oral evidence how they were going to best promote the licensing objectives. If granted the applicant could potentially use the licence immediately and it would be unknown for what purpose. The applicant had stated that a shadow licence had been applied for to provide protection if the operator’s licence was surrendered, however Mr Brown suggested that this was unnecessary as the freeholder was protected under Section 178 of the Licensing Act 2003.

After careful consideration of the application the Sub-Committee came to the view that further information on the application was required from the applicant. The Sub-Committee was of the view that the applicant needed to provide further clarity on, but not limited to, the licensing history of the applicant and the unexplained discrepancies between the existing licence granted on 26 January 2017 and the current shadow licence application. It was recognised that the application was not the same as the original application as it was not for the same premises and it would not automatically follow that if the Sub-Committee were minded to approve the application that similar conditions would be given in respect of this application; it was for different licensable activities and conditions had been proposed which were not relevant to the application. The Sub-Committee felt it was most unfortunate for all parties that the applicant had not attended the Sub-Committee to provide the further information required. The Sub-Committee felt that it could not arrive at a proper Decision without the required information/clarification from the Applicant in respect of the many issues highlighted above. As such it was considered appropriate to adjourn the application to a future Sub-Committee meeting to allow the applicant an opportunity to attend and explain their position fully to the Sub-Committee.

2.

Late Night Refreshment – Indoors

Monday to Sunday: 23:00 – 23:30

Seasonal Variations/Non-Standard Timings:

From the end of permitted hours on new Year’s Eve to the start of permitted hours on New Year’s Day.

Amendments to application advised at hearing:

None

Decision (including reasons if different from those set out in report):

Deferred (see reasons for decision in Section 1).

3.

Sales by Retail of Alcohol – On and Off Sales

Monday to Saturday: 10:00 – 23:00

Sunday: 10:00 – 22:30

Seasonal Variations/Non-Standard Timings:

From the end of permitted hours on new Year’s Eve to the start of permitted hours on New Year’s Day.

Amendments to application advised at hearing:

None

Decision (including reasons if different from those set out in report):

Deferred (see reasons for decision in Section 1).

4.

Hours Premises Are Open to the Public

Monday to Saturday: 10:00 – 23:00

Sunday: 10:00 – 22:30

Seasonal Variations/Non-Standard Timings:

From the end of trade on New Year’s Eve until the start of trade on New Year’s Day.

Amendments to application advised at hearing:

None

Decision (including reasons if different from those set out in report):

Deferred (see reasons for decision in Section 1).