Agenda item - Basement And Ground Floor, 49 Lexington Street, W1

Basement And Ground Floor, 49 Lexington Street, W1

Meeting of Licensing Sub-Committee (4), Thursday 19th October, 2017 10.00 am (Item 3.)

App

Ward /

Cumulative Impact Area

Site Name and Address

Application

Licensing Reference Number

West End Ward /

West End Cumulative Impact Area

Basement And Ground Floor, 49 Lexington Street, W1

New Premises Licence

17/09666/LIPN

Minutes:

LICENSING SUB-COMMITTEE No. 4

Thursday 19^th October 2017

Membership: Councillor Jean Paul Floru (Chairman), Councillor Louise Hyams and Councillor Murad Gassanly

Legal Adviser: Horatio Chance

Policy Adviser: Chris Wroe

Committee Officer: Tristan Fieldsend

Presenting Officer: Daisy Gadd

Relevant Representations: Environmental Health and six local residents.

Present: Mr Alun Thomas (Solicitor, representing the applicant), Mr Maxwell Koduah (Environmental Health) and Sir Norman Rosenthal and Mr Andrew Edmunds (local residents).

Basement and Ground Floor, 49 Lexington Street, London, W1F 9AP (“The Premises”)

17/09666/LIPN

Late Night Refreshment - Indoors

Monday to Saturday: 23:00 to 00:30

Sunday: 23:00 to 00:00

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 Day.

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 Shaftesbury Carnaby Plc for a new premises licence in respect of Basement and Ground Floor, 49 Lexington Street, London, W1F 9AP.

The Licensing Officer provided an outline of the application to the Sub-Committee.

Mr Thomas, representing the Applicant, informed the Sub-Committee that the Premises was previously licensed but this had lapsed due to the death of the Premises owner. Subsequently no application to reinstate the licence within the required twenty-eight-day period had been made. Following a period of closure, a new operator had now taken over the Premises and was seeking a premises licence on terms slightly less then what was permitted previously. Mr Thomas suggested that where a licence had lapsed the City Council’s Statement of Licensing Policy (“SLP”) generally granted new applications on terms which were similar. The provision of recorded music had been withdrawn from the application and twenty-three model conditions, including a works condition, were proposed.

Mr Thomas noted concerns raised over the garden area however the conditions proposed would ensure this area would not be used for regulated entertainment including music. It was the intention for the garden area to operate as it had done previously and for which no complaints had been received. The Sub-Committee was informed that historically there was seating located outside the Premises and this was included in the plans detailing the licensable area. New applications usually excluded external areas from the licensable area but as this application was based on an historic licence it was appropriate to include this area in the application.

In response to a question from the Sub-Committee Mr Thomas confirmed that any music played at the Premises would be of a background nature with no music played in the garden area.

Mr Koduah, representing Environmental Health (EH), confirmed the Premises was located in the West End Cumulative Impact Area (CIA). The previous licence had lapsed but whilst it had operated no complaints had been received. It was considered though that the conditions on the previous licence were considered insufficient to promote all four licencing objectives. EH had therefore proposed conditions to be added to the licence which included requiring the use of a noise limiter on any amplification system installed. If the applicant was prepared to accept EH’s proposed conditions, then EH would withdraw their representation.

In response to questions Mr Thomas explained that it was the Applicant’s preference not to have model restaurant condition 66 placed on the licence as model condition 38 had been proposed instead which more accurately reflected what was permitted historically. Also, Mr Thomas could not confirm how long the licence had been lapsed for but he was under the impression it had operated within the last twelve months.

Sir Normal Rosenthal, a local resident, informed the Sub-Committee that his property shared a party wall with the Premises. It was stated that Lexington Street was very fragile and already experienced significant levels of people drinking and smoking on it with customers from local premises often obstructing the pavement. The importance of protecting the historical integrity of the street was stressed as concerns regarding waste and the playing of music remained.

Mr Andrew Edmunds, a local resident, addressed the Sub-Committee and explained how previously the full extent of the old licence had never been utilised at the Premises. It was stated that the Premises always closed before 23:00 hours as the street was very residential in nature. It was submitted that if the Sub-Committee granted the application before it then it would set a precedent and allow other licenced Premises to apply for later hours. The disposal of waste was a significant issue and doubt was expressed whether the street’s infrastructure would cope with an intensification of use at the Premises.

The Sub-Committee noted that the hours requested for the supply of alcohol for consumption on the Premises were thirty minutes beyond core hours Monday to Thursday and one hour on Sundays.

In response to a question from the Sub-Committee Mr Thomas was of the opinion it would not be necessary to impose a condition on the licence requiring the use of a sound limiter. The condition would have no effect as only background music would be played and conditions had been proposed to control this so as to prevent nuisance. In addition, Mr Thomas confirmed that there would be no loud speakers located within the garden area. In summary what was being proposed was no more than what had been in operation under the previous licence. Just because the previous licence had not been operated to its full extent did not mean the application before the Sub-Committee should be restricted in such a way. The Premises would operate as a restaurant and not as a pub or bar.

After carefully considering the application and the evidence provided by all parties the Sub-Committee agreed to grant the application. The extensive conditions proposed by EH were considered appropriate and would ensure that that the Premises upheld and promoted the licensing objectives. The serious concerns raised by the residents had been noted and it was decided therefore to impose restaurant model condition 66 on the licence. This would ensure the Premises had to operate as a restaurant and provided residents with reassurance over the nature, style and character of the operation. It was also noted that the hours requested for the sale of alcohol for consumption on the premises were beyond core hours on Mondays to Thursdays and also on Sundays. As such, due to the residential nature of the area, and the fact the Premises was located in a CIA, the hours for the sale for the sale of alcohol were reduced to core hours in order to minimise any potential nuisance to residents. The Sub-Committee was also of the opinion that these restrictions were necessary as it was currently unknown who the operator of the Premises would be and once this became known then a variation to the licence could always be applied for in future. The Sub-Committee was satisfied that the nature of the operation and the fact sales of alcohol would be restricted to within core hours would ensure it would not add to cumulative impact in the area. The Sub-Committee was satisfied that the premises would uphold and promote the licensing objectives and therefore granted the application accordingly.

Recorded Music – Indoors

Monday to Saturday: 10:00 to 00:00

Sunday: 12:00 to 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:

The applicant advised that the provision of recorded music had been withdrawn from the application.

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

The Sub-Committee granted the application, see reasons for decision in Section 1.

Sale by Retail of Alcohol – On and Off Sales

Monday to Saturday: 10:00 to 00:00

Sunday: 12:00 to 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):

The Sub-Committee granted the application, see reasons for decision in Section 1.

Hours Premises Are Open to the Public

Monday to Saturday: 10:00 to 00:30

Sunday: 12:00 to 00:00

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 Day.

Amendments to application advised at hearing:

None.

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

The Sub-Committee granted the application, see reasons for decision in Section 1.

Conditions attached to the Licence

Mandatory Conditions

1. No supply of alcohol may be made at a time when there is no designated premises supervisor in respect of this licence.

2. No supply of alcohol may be made at a time when the designated premises supervisor does not hold a personal licence or the personal licence is suspended.

3. Every supply of alcohol under this licence must be made or authorised by a person who holds a personal licence.

4. (1) The responsible person must ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotions in relation to the premises.

(2) In this paragraph, an irresponsible promotion means any one or more of the following activities, or substantially similar activities, carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises—

(a) games or other activities which require or encourage, or are designed to require or encourage, individuals to;

(i) drink a quantity of alcohol within a time limit (other than to drink alcohol sold or supplied on the premises before the cessation of the period in which the responsible person is authorised to sell or supply alcohol), or

(ii) drink as much alcohol as possible (whether within a time limit or otherwise);

(b) provision of unlimited or unspecified quantities of alcohol free or for a fixed or discounted fee to the public or to a group defined by a particular characteristic in a manner which carries a significant risk of undermining a licensing objective;

(c) provision of free or discounted alcohol or any other thing as a prize to encourage or reward the purchase and consumption of alcohol over a period of 24 hours or less in a manner which carries a significant risk of undermining a licensing objective;

(d) selling or supplying alcohol in association with promotional posters or flyers on, or in the vicinity of, the premises which can reasonably be considered to condone, encourage or glamorise anti-social behaviour or to refer to the effects of drunkenness in any favourable manner;

(e) dispensing alcohol directly by one person into the mouth of another (other than where that other person is unable to drink without assistance by reason of a disability).

5. The responsible person must ensure that free potable water is provided on request to customers where it is reasonably available.

6. (1) The premises licence holder or club premises certificate holder must ensure that an age verification policy is adopted in respect of the premises in relation to the sale or supply of alcohol.

(2) The designated premises supervisor in relation to the premises licence must ensure that the supply of alcohol at the premises is carried on in accordance with the age verification policy.

(3) The policy must require individuals who appear to the responsible person to be under 18 years of age (or such older age as may be specified in the policy) to produce on request, before being served alcohol, identification bearing their photograph, date of birth and either—

(a) a holographic mark, or

(b) an ultraviolet feature.

7. The responsible person must ensure that—

(a) where any of the following alcoholic drinks is sold or supplied for consumption on the premises (other than alcoholic drinks sold or supplied having been made up in advance ready for sale or supply in a securely closed container) it is available to customers in the following measures—

(i) beer or cider: ½ pint;

(ii) gin, rum, vodka or whisky: 25 ml or 35 ml; and

(iii) still wine in a glass: 125 ml;

(b) these measures are displayed in a menu, price list or other printed

material which is available to customers on the premises; and

(c) where a customer does not in relation to a sale of alcohol specify the quantity of alcohol to be sold, the customer is made aware that these measures are available.

A responsible person in relation to a licensed premises means the holder of the premise licence in respect of the premises, the designated premises supervisor (if any) or any individual aged 18 or over who is authorised by either the licence holder or designated premises supervisor. For premises with a club premises certificate, any member or officer of the club present on the premises in a capacity that which enables him to prevent the supply of alcohol.

8(i) A relevant person shall ensure that no alcohol is sold or supplied for consumption on or off the premises for a price which is less than the permitted price.

8(ii) For the purposes of the condition set out in paragraph 8(i) above –

(a) "duty" is to be construed in accordance with the Alcoholic Liquor Duties Act 1979;

(b) "permitted price" is the price found by applying the formula - P = D+(DxV)

Where -

(i) P is the permitted price,

(ii) D is the amount of duty chargeable in relation to the alcohol as if the duty were charged on the date of the sale or supply of the alcohol, and

(iii) V is the rate of value added tax chargeable in relation to the alcohol as if the value added tax were charged on the date of the sale or supply of the alcohol;

(i) the holder of the premises licence,

(ii) the designated premises supervisor (if any) in respect of such a licence, or

(iii) the personal licence holder who makes or authorises a supply of alcohol under such a licence;

(d) "relevant person" means, in relation to premises in respect of which there is in force a club premises certificate, any member or officer of the club present on the premises in a capacity which enables the member or officer to prevent the supply in question; and

(e) "value added tax" means value added tax charged in accordance with the Value Added Tax Act 1994.

8(iii). Where the permitted price given by Paragraph 8(ii)(b) above would (apart from

this paragraph) not be a whole number of pennies, the price given by that subparagraph shall be taken to be the price actually given by that sub-paragraph rounded up to the nearest penny.

8(iv). (1) Sub-paragraph 8(iv)(2) below applies where the permitted price given by

Paragraph 8(ii)(b) above on a day ("the first day") would be different from

the permitted price on the next day ("the second day") as a result of a change to the rate of duty or value added tax.

(2) The permitted price which would apply on the first day applies to sales or supplies of alcohol which take place before the expiry of the period of 14 days beginning on the second day.

Conditions Consistent with the Operating Schedule

9. The premises shall only operate as a restaurant:

(i) in which customers are shown to their table,

(ii) where the supply of alcohol is by waiter or waitress service only,

(iii) which provide food in the form of substantial table meals that are prepared on the premises and are served and consumed at the table using non disposable crockery,

(iv) which do not provide any take away service of food or drink for immediate consumption,

(v) which do not provide any take away service of food or drink after 23.00, and

(vi) where alcohol shall not be sold or supplied, otherwise than for consumption by persons who are seated in the premises and bona fide taking substantial table meals there, and provided always that the consumption of alcohol by such persons is ancillary to taking such meals.

Notwithstanding this condition customers are permitted to take from the premises part consumed and resealed bottles of wine supplied ancillary to their meal.

10. A Challenge 21 proof of age scheme shall be operated at the premises where the only acceptable forms of identification are recognised photographic identification cards, such as a driving licence, passport or proof of age card with the PASS Hologram.

11. The premises shall install and maintain a comprehensive CCTV system as per the minimum requirements of the Westminster Police Licensing Team. All entry and exit points will be covered enabling frontal identification of every person entering in any light condition. The CCTV system shall continually record whilst the premises is open for licensable activities and during all times when customers remain on the premises. All recordings shall be stored for a minimum period of 31 days with date and time stamping. Viewing of recordings shall be made available immediately upon the request of Police or authorised officer throughout the entire 31-day period.

12. A staff member from the premises who is conversant with the operation of the CCTV system shall be on the premises at all times when the premises is open. This staff member must be able to provide a Police or authorised council officer copies of recent CCTV images or data with the absolute minimum of delay when requested.

13. A record shall be kept detailing all refused sales of alcohol. The record should include the date and time of the refused sale and the name of the member of staff who refused the sale. The record shall be available for inspection at the premises by the police or an authorised officer of the City Council at all times whilst the premises is open.

14. The approved arrangements at the premises, including means of escape provisions, emergency warning equipment, the electrical installation and mechanical equipment, shall at all material times be maintained in good condition and full working order.

15. The means of escape provided for the premises shall be maintained unobstructed, free of trip hazards, be immediately available and clearly identified in accordance with the plans provided.

16. All emergency exit doors shall be available at all material times without the use of a key, code, card or similar means.

17. All emergency doors shall be maintained effectively self-closing and not held open other than by an approved device.

18. The edges of the treads of steps and stairways shall be maintained so as to be conspicuous.

19. All tables and chairs shall be removed from the outside area by 23.00 hours each day.

20. After 23:00 hours, no customers shall be permitted to use the open garden at the rear of the premises.

21. During the hours of operation of the premises, the licence holder shall ensure sufficient measures are in place to remove and prevent litter or waste arising or accumulating from customers in the area immediately outside the premises, and that this area shall be swept and or washed, and litter and sweepings collected and stored in accordance with the approved refuse storage arrangements by close of business.

22. The door opening on to the beer garden and the entrance door shall be kept closed after 23:00 hours except for the immediate access and egress of persons.

23. No noise generated on the premises, or by its associated plant or equipment, shall emanate from the premises nor vibration be transmitted through the structure of the premises which gives rise to a nuisance.

24. Loudspeakers shall not be located in the entrance lobby or outside the premises building including the rear open beer garden.

25. A noise limiter must be fitted to the musical amplification system set at a level determined by and to the satisfaction of an authorised officer of the Environmental Health Service, Premises Management so as to ensure that no noise nuisance is caused to local residents or businesses. The operational panel of the noise limiter shall then be secured by key or password to the satisfaction of officers from the Environmental Health Service and access shall only be by persons authorised by the Premises Licence holder. The limiter shall not be altered without prior agreement with the Environmental Health Service. No alteration or modification to any existing sound system(s) should be effected without prior knowledge of an authorised Officer of the Environmental Health Service. No additional sound generating equipment shall be used on the premises without being routed through the sound limiter device.

26. Notices shall be prominently displayed at all exits requesting patrons to respect the needs of local residents and businesses and leave the area quietly.

27. After 23:00 hours patrons permitted to temporarily leave and then re-enter the premises, e.g. to smoke, shall not be permitted to take drinks or glass containers with them.

28. Notices shall be prominently displayed at the rear open garden and front outside area requesting patrons to respect the needs of local residents and use the area quietly.

29. All waste shall be properly presented and placed out for collection no earlier than 30 minutes before the scheduled collection times.

30. No waste or recyclable materials, including bottles, shall be moved, removed from or placed in outside areas between 23.00 hours and 08.00 hours on the following day.

31. No collections of waste or recycling materials (including bottles) from the premises shall take place between 23.00 hours and 08.00 hours on the following day.

32. No deliveries to the premises shall take place between 23.00 hours and 08.00 hours on the following day.

33. No licensable activities shall take place at the premises until the premises have been assessed as satisfactory by the Environmental Health Consultation Team and at which time this condition shall be removed from the Licence by the Licensing Authority.

34. No licensable activities shall take at the premises until the capacity of the premises has been assessed by the Environmental Health Consultation Team and a condition detailing the agreed capacity so determined has replaced this condition on the Licence.

35. No fumes, steam or odours shall be emitted from the licensed premises so as to cause a nuisance to any persons living or carrying on business in the area where the premises are situated.

Supporting documents:

Basement And Ground Floor 49 Lexington Street W1, item 3. PDF 972 KB