Agenda item

Duck & Rice, 90-91 Berwick Street, W1

17/03126/LIPV (Variation to premises licence 15/05416/LIPDPS)

1.

Conditions being varied, added or removed

Amendments to application advised at hearing:

None.

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

The Sub-Committee heard from Mr Grant, representing the Applicant.  He stated that his client was seeking to a limited and controlled extent some outdoor drinking for up to a maximum of 45 people until 22:00.  He referred to the fact that the premises on the ground floor had previously been known as the Endurance which as a result of a review of the premises licence due to issues arising from the use of the outside area had been restricted in terms of outside drinking to a terminal hour of 18:00 hours.  Mr Grant wished to explain the key differences between the operation of the Endurance pub and the operation of Duck & Rice and why he believed a later hour for outside drinking would not cause public nuisance and should be granted.  He also sought to explain the reasons for the application and provide details of the Applicant’s Outdoor Management Plan which he stated would control, to within reasonable limits, outdoor drinking.

Mr Grant made the point that given the previous history of the premises prior to the opening of Duck & Rice it was extraordinary that no individual local residents had objected to the application.  It was the case that the Soho Society as a local amenity society had made a representation objecting to the application.  He added that there were indeed two representations from local residents who lived in close proximity of the premises who had written in support of the application. One of those, Ms Sprosta was in attendance and he had spoken to the other resident, Mrs Trayte who was unfortunately unable to attend the hearing.  Mr Grant believed that Mrs Trayte spoke for many residents when she had told him that anyone who lives in Soho (she had lived in Soho for 72 years) knows that they are moving into a lively, vibrant area which has both residential and commercial aspects.  What residents were seeking was that after a reasonable time they would be able to sleep.  Mr Grant explained that was why the application was being limited to 22:00.  Mrs Trayte, Mr Grant added, wanted Duck & Rice as good operators to have some flexibility in terms of customers being able to drink outside until later.  

Mr Grant commented that it had been demonstrated that Duck & Rice was able to promote the licensing objectives.  It had opened in April 2015.  It operated as a high end Chinese restaurant on the first floor and the ground floor as a gastro pub with a large number of tables.  Mr Grant described the ground floor as a community hub with live jazz, bingo and quiz nights.  It was used by people living in the locality and also office workers in the immediate area, a few of whom had written in support of the application.  He made the point that the management was trusted by the local community.

Mr Grant stated that an application for a new premises licence for the ground floor and first floor had been granted by the Licensing Sub-Committee in 2013 and this had doubled the capacity as the Endurance had operated on the ground floor only.  Since the premises had been operating in 2015 there had been no crime and disorder or noise complaints, including after when the Applicant had been given the flexibility to operate beyond Core Hours on the first floor by the Sub-Committee in October 2015.

Mr Grant made the case that in the event the current application was granted, the outside operation would be different from the Endurance for a number of reasons.  These included having a set capacity.  He referred to 177 patrons having previously been recorded as drinking outside at the Endurance as there had been no set capacity whereas the current application is for a maximum of 45 people.  The overall capacity for the ground floor both inside and outside is 120.  Mr Grant said that he believed that the average age of customers attending Duck & Rice was 35-45 and that this was an older, more mature demographic than when the Endurance had been operating.  Duck & Rice appealed to older people because it acted as a community pub.  The clientele was well behaved.  There was no regulated entertainment at Duck & Rice.

Mr Grant wished to bring to Members’ attention that tables and chairs could be used outside for dining until 21:00.  The Applicant was seeking as part of the application to extend dining outside until 22:00.  It was Mr Grant’s understanding, having consulted the other parties in attendance at the hearing, that there were no objections to outside dining where alcohol was ancillary to food.  The only objections were to alcohol being consumed without food.  Mr Grant added that planning permission had been granted by the Council in 2016 for dining outside until 23:00.

Mr Grant referred to several other premises in the area such as The Blue Post being able to have large numbers of people drinking outside without there being a set capacity at the premises.  Patrons in order to have a drink outside were currently required to leave Duck & Rice at 18:00 hours and could stay at The Blue Post until 23:30.

The Sub-Committee were provided with some information on the Applicant’s Outdoor Management Plan by Mr Grant. Proposals in the Plan included that there would be at least one door supervisor who would be on duty seven days a week after 17:00 whilst the outside area is being used.  The Applicant would be prepared to employ more should the risk assessment require it.  The Applicant would also set up barriers which would delineate where the maximum of 45 people would be able to drink.  This would ensure that pedestrians were not blocked on the pavement.  The management team would be required to collect any cups or glasses taken outside.  There would also appropriate signage in place outside to remind customers to leave the area quietly.

Mr Grant said that although his client had applied for a terminal hour of 22:00 for alcohol to be sold to patrons who would be accessing the outside area, the management’s intention was that alcohol would not be sold to patrons going outside after 21:00.  From 21:00, management would begin the dispersal of patrons outside.  He added that if Members of the Sub-Committee had specific concerns about the impact of the use of the outside area for drinking until 22:00, the Applicant could restrict its use to 21:00.

The Sub-Committee was addressed by PC Russell.  She emphasised that management at the Duck & Rice are responsible operators.  There were no recorded crimes at the premises during the previous twelve months.  There were crime issues at Berwick Street and Soho as a whole, with 117 crimes having been reported in Berwick Street, predominantly in the later evening.  The Police were keen that customers did not become victims of crime.  PC Russell requested that there were two SIA door supervisors monitoring the outside area and that glassware was not used outside.

Mr Watson for Environmental Health referred to the long history of problems when the premises had been the Endurance, including public nuisance and flagrant breaches of conditions on the premises licence.  He confirmed the capacity of 120 on the ground floor and that unrestricted drinking was currently permitted outside until 18:00.  He informed the Sub-Committee that the premises did benefit from a ‘tables and chairs’ licence located in Kemps Court.  Since 2015 this had not been renewed.  Mr Watson advised that there had been no recorded noise complaints in respect of Duck & Rice.  He also confirmed that there were currently two licences at the premises, one for the first floor and ground floor and one for the ground floor(this application was a variation to premises licence 15/05416/LIPDPS).

Mr Watson informed Members that he had met with the Applicant to discuss the Outdoor Management Plan.  He stated in relation to SIA door supervisors that he had been informed that the premises had nine dining managers who were all SIA qualified.  It was his view that if the SIA door supervisors were directly employed by the owner of the premises they were likely to have a better idea of the operation than those employed by an external security company.

The Sub-Committee was advised by Mr Watson that there is a residential block behind the premises which had existed for just over a year.  So far there had not been any complaints from residents but it was now being proposed that outside drinking would take place until later.  Mr Watson expressed the view that if the outside area was adequately managed with the use of the barriers, door supervisors and the number of patrons limited to 45 outside the premises, there was unlikely to be additional public nuisance.

The Sub-Committee asked Mr McAnulty why the tables and chairs licence was not currently being used.  He was proposing to move from an operation with no outside activity after 18:00 to an operation with 45 outside drinkers until 22:00.  Mr McAnulty explained that the tables and chairs licence caused confusion.  Customers needed to be informed that they were required to order a meal at the tables and chairs outside.  The location of the tables and chairs was not suitable given that there were bins there that were constantly in use.

The Sub-Committee heard from Mr Rowe on behalf of the Licensing Authority.  He referred to paragraphs 2.4.15 and 2.4.16 of the Council’s Statement of Licensing Policy which relate to the Council’s cumulative impact areas (the application was in the West End Cumulative Impact Areas.  2.4.15 set out the differences between the behaviour of customers at premises who are seated and served by waiter or waitress which was more likely to result in the licensing objectives being promoted and those who are vertically drinking.  2.4.16 sets out that ‘the introduction of measures to reduce the extent of or remove opportunities for vertical drinking can address the underlying reasons for the special policies for cumulative impact’ and Mr Rowe explained that the Applicant was proposing to take the opposite course.  Mr Rowe made the point that the Sub-Committee needed to be satisfied that changing the operation outside the premises would not undermine the licensing objectives.

Mr Panto provided the advice to the Sub-Committee that the Applicant was not seeking an increase in capacity (120 persons could already consume alcohol without a meal within the ground floor part of the premises) or to the proposed hours at the premises.  The application therefore was not contrary to policy and the Applicant was not required to give reasons as to why the application should be a genuine exception to policy.  The application would be considered on its merits but there was still a requirement to demonstrate that it would not add to cumulative impact.

Mr Brown, representing the Soho Society, said that there was no doubt that Duck & Rice was a different kettle of fish from Endurance.  However, allowing significant numbers to engage in vertical drinking risked causing nuisance to residents in close proximity to the premises.  Mr Brown confirmed Mr Grant’s understanding that there was no opposition to the use of tables and chairs being extended until 22:00.  He stated that if the Sub-Committee was minded to relax the requirement for table meals outside, it was the view of the Soho Society that customers should still be seated.  The Soho Society recommended that the terminal hour was less than 22:00 and that the maximum numbers at any one time outside were less than 45 people.  Mr Brown expressed the view that the fact that there had been no complaints in respect of the premises had to be seen in the light of there being no current use of the tables and chairs licence.  The tables and chairs were also not located on Berwick Street unlike the proposed drinking area.  The Kemps Court tables and chairs licence was for 15 chairs and 3 tables which was not similar in numbers to those it was proposed would drink outside.

Mr Brown did not believe that the fact that planning permission had been granted by the Council in 2016 for dining outside until 23:00 assisted greatly in relation to what was proposed for the outside area.  He also did not accept that Berwick Street was characterised by outside drinking establishments.  It was the case that The Blue Post did have outside drinking until later.  It was the view of the Soho Society that 45 people vertically drinking until 22:00 would present a risk.

The Sub-Committee asked Mr Brown whether the Soho Society was content for outside drinking to take place until 21:00 or whether they were insisting that alcohol should continue to be ancillary to a table meal.  Mr Brown replied that it was preferred that the current position remained.  However, if the Sub-Committee was minded to permit vertical drinking, the Soho Society would want the terminal hour to be less than what was currently proposed.

The Sub-Committee also heard from Ms Sprosta, a local resident who had written in support of the application.  She confirmed that she lived in the new block of flats behind the premises in Hopkins Street.  She described Duck & Rice as the safest place she can be.  It was a genuine community pub.  She believed that there should be the flexibility for people to have a drink outside and that there would not be any issues if they were permitted to do so.

Mr Grant was given the opportunity to respond to the comments made by the other parties who had made representations.  He informed those present that his client was amending the application so that outside drinking would cease at 21:00, there would be no glassware used outside after 18:00 (the vessels would be polycarbonate) and on Thursdays to Saturdays there would be a minimum of two SIA doormen monitoring the outside area from 17:00.

The Sub-Committee noted that Duck & Rice is a licensed premises with a local following and had promoted the licensing objectives to date with there being no recorded complaints against the premises or recorded crimes in relation to the premises.  The Sub-Committee accepted that Duck & Rice is well run in contrast to its predecessor, the Endurance pub.  What was being requested now as a result of the proposed amendment or removal of conditions however was a change to the operation so that patrons would be able to drink outside the premises without the need to to have any food significantly beyond 18:00 hours.  Members were conscious that the Applicant had made a number of concessions and considered that the revised terminal hour of 21:00 for outside drinking was appropriate.  Members were keen to get the balance right between the interests of the business in permitting outside drinking and that of local residents who could potentially be affected by any noise caused by patrons who are engaged in vertical drinking as referred to by Mr Brown.  The Sub-Committee decided that a capacity of 40 outside was appropriate, given that this is one third of the capacity on the ground floor, including the outside area.  The Sub-Committee welcomed that the Applicant had offered two SIA door supervisors to monitor the outside area after 17:00 on Thursdays, Fridays and Saturdays.  The door supervisors would be expected to ensure that patrons remained within the barriers and did not block the pavement.

The Sub-Committee noted the concerns of the Police regarding the use of glassware in the outside area and amended the condition proposed by the Applicant so that there would be polycarbonate vessels used outside at all times.  The Sub-Committee considered that this would be easier for the Applicant to comply with rather than having to change the nature of the drinking vessels from glassware to polycarbonate at 18:00 hours.  

Mr Watson advised that a condition that ‘the ground floor concertina door to the rear of the premises shall be kept closed after 21:00 hours’ was no longer needed as these doors had not been incorporated into the layout.  The Sub-Committee removed this condition from the licence.

The application had included two new additional conditions.  One was a works condition which was attached to the licence by the Sub-Committee.  The other related to the Outside Area Management Plan.  The Sub-Committee made an amendment to the latter condition requiring the Outside Management Register in addition to the Plan to be retained on the premises at all times and made available for immediate inspection by any responsible authority.