Agenda item

29 Shepherd Market, W1

17/02442/LIPN

1.

Late Night Refreshment (Indoors and Outdoors)

Amendments to application advised at hearing:

Mr Grisy confirmed that the application was being amended so that licensable activities would conclude at 22:30 Monday to Saturday and 22:00 on Sunday. That effectively meant that the application for late night refreshment no longer had to be determined.

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

The Sub-Committee was not required to consider this aspect of the application. 

2.

Sale by retail of alcohol (On and Off)

Amendments to application advised at hearing:

Mr Grisy confirmed that the application was being amended so that licensable activities would conclude at 22:30 Monday to Saturday and 22:00 on Sunday.  He also advised that the Applicant was not seeking off sales.

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

The Sub-Committee was initially required to decide whether there should be a further adjournment of the hearing for the application.  The director of the company, Mr Shervin Sepanje, had requested an adjournment of the application when it had previously been scheduled on 25 May 2017 due to illness.  The Sub-Committee had then adjourned the application.

The Sub-Committee was informed immediately prior to the hearing on 27 July 2017 that Mr Sepanje was continuing to suffer from hypertension and that he was requesting a further adjournment.  The Licensing Service had attempted to contact Mr Sepanje for some time prior to the 27 July hearing but only received communications from Mr Grisy, Operations Manager at the Applicant Company, shortly before it was due to take place.

Following the request for a further adjournment, the Licensing Service had contacted the parties to the hearing in order to see whether they were content for the application to be adjourned.  Mr Thomas, representing Orbiton Estates who are the managing agents for residents at Carrington House, requested that the matter was discussed at the hearing itself as he had not seen any evidence to confirm the medical prognosis for Mr Sepanje.

The hearing on 27 July 2017 was attended by Mr Grisy.  He continued to request an adjournment as Mr Sepanje had not been able to attend.  Mr Thomas indicated that he was now satisfied with the explanation given regarding the medical prognosis and was not insisting that the hearing proceeded in the absence of Mr Sepanje. However, the Sub-Committee was able to ascertain that Mr Grisy was sufficiently knowledgeable about the application that it would not prejudice the Applicant’s case if the matter was heard.  This included Mr Grisy being able to confirm that the application was being amended so that licensable activities would conclude at 22:30 Monday to Saturday and 22:00 on Sunday with the premises closing to the public half an hour later each night.  The hearing therefore proceeded.

Mr Grisy stated at the hearing that off sales were not being sought.  He expressed the view that the proposed conditions which had been agreed by the Applicant would ensure that there would be no public nuisance.  The amended terminal hours would be earlier than other premises in the area, including two public houses close to Carrington House and there would therefore not be issues with dispersal.  A high level of footfall occurred in Shepherd Market between 23:00 and 23:15.  He made the point that the premises were not in one of the Council’s designated cumulative impact areas.  He was content for the same conditions to be on the licence as existed at the Applicant Company’s premises situated immediately next door at 27 Shepherd Market which is known as Iran Restaurant.   

Mr Grisy wished to respond to some of the points made in the Orbiton Estates’ written representation.  These included that 27 Shepherd Market was a separate entity from 29 Shepherd Market with the usage being completely different.  Sushi, caviar and champagne were being provided at 29 Shepherd Market.  He clarified that there would be no outside seating at the premises.

The Sub-Committee heard from Mr Nevitt, on behalf of Environmental Health.  He stated that 29 Shepherd Market was in a separate building from the Applicant Company’s other premises in 27 Shepherd Market.  27 Shepherd Market had kitchen and cooking facilities whereas this was not being provided at 29 Shepherd Market.  It did not appear that food was being prepared at the premises.  Mr Nevitt asked for clarification on how food was being taken from 27 to 29 Shepherd Market.

Mr Nevitt advised the Sub-Committee that 29 Shepherd Market was currently an empty shell of a building which had not been fitted out.  He believed he had agreed with the Applicant that a capacity would be decided following completion of the works.  The Applicant had agreed reduced hours which were less than Core Hours and also that notices would be prominently displayed at any area used for smoking requesting patrons to respect the needs of local residents and use the area quietly.  There was no mechanical plant or kitchen extract associated with the premises and therefore this would not be a source of noise.

The Sub-Committee asked Mr Grisy about how food would be delivered at 29 Shepherd Market.  He replied that the Applicant Company was developing a central kitchen point from where food such as caviar and sushi would be delivered to a number of sites, including 29 Shepherd Market. 

Mr Nevitt referred to the Applicant having agreed the Council’s model restaurant condition, MC66.  Mr Grisy was asked by Mr Nevitt and the Sub-Committee whether the Applicant was able to comply with the various aspects of the condition, including being able to provide substantial table meals.  He replied that the food provided such as sushi would be in keeping with the description of a substantial table meal.

Mr Thomas was given the opportunity to ask Mr Grisy some questions.  These included whether it was proposed that food was made, cooked and prepared off site.  Mr Grisy replied that food would be stored and served at 29 Shepherd Market.  He also asked what alcohol would be served.  Mr Grisy replied that it would be wine and champagne.  Mr Grisy refuted the idea that alcohol was ever sold without food at 27 Shepherd Market (this being suggested by Mr Thomas based on what was said in evidence at a hearing to consider a licence for those premises).  Smokers would be advised not to loiter outside the premises.

Mr Thomas also asked how the Applicant would proceed at 29 Shepherd Market considering that there was no A3 planning use and no extract.  Mr Grisy replied that there would be no food physically cooked on the premises.

Mr Thomas expressed concerns that the Applicant was agreeing MC66 when it did not appear to him that it could be complied with.  He queried whether substantial table meals were being provided and particularly questioned whether food was being prepared on the premises.  In terms of the small size of the premises, Mr Thomas doubted that customers would be taken to their tables and would receive waiter or waitress service when there was barely room for 15 covers.  He added that MC66 should not be amended as the Metropolitan Police had withdrawn on the basis of the Applicant having agreed the condition.  He clarified at this point that he was requesting that on behalf of Orbiton Estates the application should be refused.

Mr Thomas referred to the Council’s refusal of the planning permission for the use of the ground and lower ground floor as a café (Class A3) at 29 Shepherd Market.  He emphasised that whilst the planning and licensing regimes were separate, the planning decision that the ‘introduction of another A3 use within Shepherd Market would intensify an existing over concentration of A3 uses in this area’ reflected that it added to cumulative impact in what Mr Thomas described as ‘a mini cumulative impact area’.   Mr Thomas believed that up to 20 people leaving the premises until 23:00 still had the potential to cause nuisance to local residents.

Mr Thomas concluded with the points that it was more comforting that licensable activities were ceasing at 22:30.  It had also been confirmed to him that there would be no tables and chairs outside the premises.  However, his clients were still concerned that there was the potential for noise nuisance to local residents at this location because the alleyway was so narrow.  He also believed that MC66 could not be complied with, though he did accept that there was an advantage to residents that there would be no cooking at the premises.  Mr Thomas referred also to Mr Deavin’s representation.  Mr Deavin lives in close proximity to the premises. 

Mr Panto was asked for legal advice by the Sub-Committee on his view as to whether MC66 could be amended.  Mr Thomas had asserted that it should not be amended as it had been agreed between the Applicant and the Police prior to the Police withdrawing their representation.  Mr Panto replied that he was of the opinion that it was legitimate to do so.  The Sub-Committee was still focussing on whether the licensing objectives were being promoted or not.  A particular matter for the Sub-Committee to consider was whether in the event food was not being prepared at the premises this was adversely impacting on the licensing objectives.  It was possible that an amended MC66 would not have an adverse impact on the licensing objectives.

Mr Thomas recommended that the correct manner in which to proceed would be for the Applicant to withdraw the application, re-submit it and consult the Police afresh regarding the application rather than amending MC66.  Mr Panto advised that there was always the potential for a scenario that when parties who have made representations in response to an application agree conditions with an Applicant and subsequently withdraw their representations, a hearing would take place if other parties’ representations were maintained.  It was always risky for parties to withdraw their representations when the hearing continued.  He added that the remaining parties at the hearing had the legitimate right to look at the proposed conditions and for the Sub-Committee to decide whether they should be retained, amended or removed. 

Mr Grisy explained that in his view food would be prepared on the premises and therefore complied with MC66 in the same way as other premises which offered sushi on their menu.  The fresh fish would be cut, marinated, oiled and spiced on site. 

Mr Grisy confirmed that there would be two personal licence holders on the premises at all times the restaurant at 29 Shepherd Market would be operating.

The Sub-Committee, in granting the application for the amended hours, considered that the application promoted the licensing objectives.  The Applicant had taken a number of steps to achieve this by responding to the concerns of those who had objected.  The Police’s concerns had been addressed, the Applicant having agreed to operate pursuant to model condition 66.  The Applicant had also agreed Environmental Health’s proposed conditions.  The Applicant had responded to Orbiton Estates’ concern that the application had originally sought to extend the terminal hours for the sale of alcohol beyond the existing terminal hour of 23:00 Monday to Saturday and 22:30 on Sunday by reducing the proposed hours for licensable activities to 22:30 Monday to Saturday and 22:00 on Sunday and the closing time half an hour later.  Mr Grisy had also confirmed that there would be no off sales, no late night refreshment and no external seating.

The Sub-Committee considered that the proposed hours were in keeping with those in Shepherd Market and that there was no reason to believe that the premises would cause public nuisance to residents either as a result of the operation itself or customers dispersing.  Members noted that there would be no odours or noise from a mechanical plant or kitchen extract.  The Applicant had also offered conditions that there would be no background music inside or outside the premises which the Sub-Committee attached to the premises licence.

The Sub-Committee took the view that the Applicant was confident that all the aspects of MC66 would be complied with and therefore did not seek to amend this condition.  In the event that conditions such as MC66 were not complied with, there was the potential for the premises licence to be reviewed.

The Sub-Committee noted Mr Thomas’ case regarding the application adding to cumulative impact but took the view that planning and licensing are separate regimes.  The planning policy places an emphasis on existing A1 retail use being protected.  The introduction of another A3 use within Shepherd Market would intensify an existing over concentration of A3 uses in this area.  In respect of the licensing position, Shepherd Market is not located in one of the Council’s designated cumulative impact areas.  The Sub-Committee did not deem it inappropriate for premises to operate at 29 Shepherd Market under the 2003 Licensing Act but the decision to grant the licence was without prejudice to any requirement to obtain planning permission and should not be taken as an indication that such permission would be granted.

Mr Grisy had stated he was content for the conditions on the 29 Shepherd Market premises licence to reflect those on the 27 Shepherd Market licence. These included that ‘no noise would be permitted to emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance’.  The hours for deliveries and the removal and movement of rubbish were also restricted.

3.

Hours premises are open to the public

Amendments to application advised at hearing:

Mr Grisy confirmed that the application was being amended so that the closing time for the public would be 23:00 Monday to Saturday and 22:30 on Sundays.

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

The Sub-Committee granted the application with the amended opening hours.