Agenda item

Basement and Ground Floor, 125-127 Westbourne Park Road, W2

17/12417/LIPN

1.

Regulated Entertainment – Playing of recorded music (indoors)

Amendments to application advised at hearing:

The proposed terminal hour for regulated entertainment in the Basement (Number 127) was 23:30 Monday to Saturday and 23:00 Sunday.  Core Hours was proposed for regulated entertainment on the Ground Floor of Numbers 125 and 127 (23:30 Monday to Thursday, midnight Friday and Saturday and 22:30 on Sunday).

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

The Sub-Committee heard from Mr Browning, representing the Applicant.  He stated that this was an application for a new premises licence to replace a licence which previously lapsed in June 2017 (09/10275/LIPD).  He explained that he and his client had looked to engage with all the parties who had submitted representations in respect of the application and as a result the Applicant had made some changes to the application.  These included some amendments to the proposed hours of operation.

Mr Browning believed that a key reason for the concerns of objectors was that a previous operation at the premises had caused nuisance to local residents.  Mr Browning indicated that the operating of the premises would be very different now.  Mr Gorst was also the owner of The Oak Pub at 137 Westbourne Park Road. 

The Applicant was proposing that Number 125 would operate as a bar on the Ground Floor and a back of house operation in the Basement.  Number 127 would operate as a restaurant on the Ground Floor with a private dining area in the Basement.

Mr Browning sought to explain the proposed amended hours for the premises.  He confirmed there would be no private entertainment which was on the lapsed licence.  The amended hours were set out during the hearing and were as follows.  The proposed terminal hour for regulated entertainment in the Basement (Number 127) was 23:30 Monday to Saturday and 23:00 Sunday.  Core Hours was proposed for regulated entertainment on the Ground Floors of 125 and 127 (23:30 Monday to Thursday, midnight Friday and Saturday and 22:30 on Sunday).  Late night refreshment in the Basement of 127 was sought until 23:30 Monday to Saturday.  Late night refreshment on the Ground Floor of 125 and 127 was sought to Core Hours.  The proposed hours for the sale of alcohol in the Basement of 127 was until 23:00 Monday to Saturday and 22:30 on Sunday.  The sale of alcohol on the Ground Floor of 125 and 127 was sought until Core Hours.  The proposed opening hours for the Basement at 127 were until 23:30 Monday to Saturday and 23:00 Sunday.  The proposed opening hours for the Ground Floor at 127 were midnight except 23:30 on Sunday.  Opening hours were sought until Core Hours at Number 125.

In response to a question from the Sub-Committee Mr Gorst advised that there was no access from the Ground Floor of Number 125 to the Ground Floor of Number 127.

Mr Browning also addressed the Sub-Committee on the proposed conditions.  Conditions had been agreed with the Police who had withdrawn their representation and the majority of conditions proposed by Environmental Health had been agreed.  His client was content to adopt a Challenge 25 policy.  The Applicant had agreed a condition with the Police that all outside tables and chairs (which had not been a part of the previous licence) would be rendered unusable by 23:00 hours each day.  The Applicant had not agreed a condition proposed by Environmental Health that the supply of alcohol within the bar area in Number 125 would be ancillary to a table meal and had proposed an alternative so that all public licensed areas would have alcohol ancillary to a table meal apart from the blue shaded area (the bar) in Number 125 on the plans.  The Applicant was also requesting that the supply of alcohol in Number 125 was not via waiter or waitress service only which had been sought by Environmental Health.

The Applicant was requesting that the condition proposed by the interested parties requiring the whole premises to operate as a restaurant was not applied to the premises licence.  Mr Browning also referred to two other proposed conditions from the interested parties being a duplication of conditions sought by the Responsible Authorities.  He was content that the interested parties’ condition that there was no super-strength sale of beer or cider be attached to the licence.

The Sub-Committee asked Mr Browning whether it was proposed that off sales could be taken outside and consumed immediately outside the premises.  Mr Browning and Mr Gorst replied that there was no current proposal seeking to permit the sale of alcohol for consumption immediately outside the premises. 

The Sub-Committee heard from Mr Watson, representing Environmental Health.  He advised that the limited conditions on the previous lapsed licence had not been deemed by Environmental Health to be adequate to meet the licensing objectives of public safety and the prevention of public nuisance.  Environmental Health had therefore proposed a number of additional conditions.  Mr Watson referred to the lapsed licence that after 23:00 alcohol was required to be ancillary to a table meal.  Mr Watson indicated that there was agreement between the Applicant and Environmental Health regarding the proposed hours.

Mr Watson confirmed that there had been no tables and chairs application by the previous operators of the premises.  He explained that the Applicant would still need to obtain planning consent to have alcohol provided to patrons at outside tables and chairs even if it was found that the area immediately outside the premises was private forecourt. 

Mr Watson also confirmed that it was only possible for patrons to go from the Basement of 125 to 127 and vice versa and not between the respective Ground Floor areas.  There was toilet provision on both the Ground Floor and Basement areas for 125 and 127. 

Mr Watson informed the Sub-Committee that there had been a complaint received in relation to collections of bottles at 04:00 when the premises had previously operated.  He referred to Mr Gorst having an arrangement for the collection of bottles at The Oak which meant that this did not take place early in the morning.

The Environmental Health proposed condition (21 listed on the operating schedule) had taken into account the possibility that the Applicant was planning to use tables and chairs directly outside the premises.  Mr Watson said he would accept the removal of his proposed condition if the Applicant no longer planned to use them. 

Mr Watson stated that following the amendments to the hours and subject to the Applicant agreement on the condition regarding the collections of bottles not taking place at night, he was reasonably content with the application.  He was not disputing the Applicant’s request that alcohol was not ancillary to a table meal in the bar area or that there should not be a requirement for waiter/waitress service.

Mr Gorst, in response to the Sub-Committee, stated that he was happy for both deliveries and collections not to take place between 22:00 and 07:00.

The Sub-Committee heard from Mr Scotney.  He stated that he was concerned on the grounds he had seen seating outside the premises earlier that morning and he was keen to clarify its use.  Mr Gorst responded that he did not believe he had seating outside the premises at the current time.  He reiterated that it was not his intention to have seating outside.  The Sub-Committee asked the Applicant whether he would be willing to have a condition that there would be no seating outside.  Mr Browning replied that he believed such a condition would be unduly restrictive in terms of preventing people sitting there even if alcohol was not consumed there.  He added that patrons might want to sit and smoke outside.

Mr Scotney referred to a complaint he had made to the Council’s Noise Team due to noise emanating from the The Oak, owned by the Applicant.  He asked how the Applicant would prevent noise nuisance at 125-127 Westbourne Park Road given the breach of a condition at The Oak.  He confirmed to Mr Gorst that the complaint had been in the early hours of the morning on New Year’s Day.  Mr Gorst wished to make the point that he had managed the premises for 17 years with the only previous complaint being related to bottle collections which he had resolved by not having late collections.  Mr Gorst said that the matter on New Year’s Day had been dealt with immediately with the DJ turning the music down.  Mr Scotney commented that his partner on the morning in question had visited the premises and not been given assurances that the matter was being addressed.  It was later clarified by Mr Watson that the complaint had been received at 02:36 and due to New Year’s Day being a very busy time for the Council’s Noise Team, there had been a visit to The Oak at 03:52 when no noise had been audible from the premises.

The Sub-Committee was addressed by Mr Brown.  He stated that Ms Ridgway had particular concerns about noise outside and dispersal of customers.  There was a narrow forecourt and pavement outside the premises and Ms Ridgway was keen that people did not block this area (Mr Brown informed the Sub-Committee that Ms Ridgway has mobility problems but this would be relevant for all people using the street), whilst making noise.  Mr Brown expressed the view that the problem was exaggerated by the premises (125 and 127) being essentially separate as there was no access from one Ground Floor to the other.  The net effect of the bar use at 125 was that it was being extended as the lapsed licence required alcohol to be ancillary to a table meal after 23:00.  The proposal was that in the bar area alcohol would be permitted without a table meal until midnight on Fridays and Saturdays.     

Mr Brown also mentioned that Core Hours was a concern in respect of recorded music.  He asked whether a noise limiter condition could be attached to the licence.  Mr Brown clarified that Ms Ridgway was opposed to the proposed drinking up time and its impact on customers.   

Mr Brown requested on Ms Ridgway’s behalf that tables and chairs were not permitted outside.  He had witnessed a table and four stools outside the premises the previous Monday evening.  He also queried the capacity of 40 in the Basement.

The Sub-Committee also heard from Mr Zamit.  He emphasised that Westbourne Park Road is a very residential street.  Mr Zamit said that The Oak was more of a restaurant than a pub and that it is well run.  He believed the tables and chairs permitted there had significantly less impact than would be the case if they were used at Westbourne Park Road.  He believed it was necessary for the Sub-Committee to make a decision on the use of tables and chairs at Westbourne Park Road as it was potentially the case that planning permission was not required. 

Mr Zamit was concerned that patrons of popular pubs in the area such as The Cow and The Westbourne would frequent the new premises, consuming further alcohol after the other pubs had closed at 23:00 if it was permitted to operate until Core Hours.  Mr Zamit also expressed the view that the Applicant would be aiming to apply for customers to be able to drink outside Number 125 at a later date.  He was keen that the Applicant did not appear to seek alcohol to be sold to customers outside at the current time should be reflected in the conditions.

Mr Zamit said that he had made it clear to the Applicant that he believed customers should leave the premises at 23:30 and that there was not half an hour’s drinking up time.  He was of the view that he had reached agreement with the Applicant on this point.  Mr Zamit expressed the view that if customers left at midnight on Fridays and Saturdays this would cause a nuisance to the neighbours given the residential nature of the locality.   

Mr Zamit sought clarification on the potential for private parties at the premises.  Mr Browning responded that there was no intention to hold private parties.  The application involved private dining in the Basement. 

Mr Browning was given the opportunity to respond to the comments made by the objectors.  He offered a condition that tables and chairs would not be used outside after 21:00.  Mr Scotney and Mr Watson were content with such a condition.  Mr Brown requested on behalf of Ms Ridgway that tables and chairs were not permitted outside at all.  It was felt that any smokers would stay outside longer and cause nuisance if they were able to sit down.  Mr Zamit believed 21:00 sounded a reasonable time for tables and chairs to be removed but sought clarification as to whether it was for pub drinkers or restaurant diners.  He was concerned that residents would be inconvenienced and that the situation had appeared to have changed from no drinks outside to the potential for there to be drinks outside.

Mr Browning requested that a noise limiter condition was not attached to the premises licence.  This was on the basis that the bar would be small, the operation would mainly involve dining and it would not be noisy.  There would be no private entertainment.  Recorded music would tend towards being similar to background music.  Mr Watson referred to entertainment being de-regulated prior to 23:00.  Environmental Health would not be proposing a noise limiter condition in this instance.  There was the option of requesting that doors and windows were closed if regulated entertainment was taking place.  Mr Watson suggested that this could be introduced after 21:00 hours.

Mr Gorst explained that customers when dispersing would be advised to respect local residents with notices being displayed to this effect.  He was content for the Council’s Model Condition 24 to be attached to the licence that a direct telephone number for the manager at the premises would be publicly available at all times the premises is open. 

Mr Browning was asked by Mr Panto whether his client wished to apply for recorded music if it was likely to be background music only as background music is not licensable.  Mr Browning replied that Mr Gorst wished to retain recorded music in the event he wished to play more than incidental background music.  He was content with Mr Watson’s suggested condition that doors and windows were closed at 21:00 if regulated entertainment takes place.

The Sub-Committee did have concerns that it had not been clear prior to and throughout the hearing as to what was being proposed by the Applicant, including in terms of the hours sought.  The Sub-Committee, having received clarification, decided to grant the amended hours sought by the Applicant for licensable activities in Number 125 and Number 127, considering that conditions would be attached to the licence which would promote the licensing objectives.   

The Sub-Committee noted that there had been very limited conditions on the previous lapsed licence.  Members agreed with Mr Watson that further conditions were needed to promote the licensing objectives including those proposed by Environmental Health.  The conditions that the Sub-Committee decided it was necessary and proportionate to attach to the premises licence, in addition to or instead of those proposed, took into account that the premises are in a highly residential neighbourhood.  The major concern of residents, which the Sub-Committee shared, was the use of the outside area.  The Applicant had offered that tables and chairs would be removed from the outside area at 21:00 and this was attached as a condition by the Sub-Committee.  There would however be no consumption of alcohol permitted in the outside area or in the outside stairwell, including off-sales prior to 23:00, as this would add to the potential for local residents experiencing public nuisance. 

The Sub-Committee had considered attaching a condition that after 21:00 and at any time when regulated entertainment takes place, doors and windows would be kept closed.  Mr Browning clarified that he was offering that doors and windows would be kept closed after 21:00 only when regulated entertainment was taking place.  The Sub-Committee decided that it was appropriate to attach the condition Mr Browning was offering.  The Applicant had also indicated that regulated entertainment would typically be of a background nature and that as suggested by Mr Watson it was not proportionate to require a noise limiter condition. 

The Chairman made the point to residents that if there were any persistent issues with noise nuisance caused by the premises, there was the potential for the premises licence to be reviewed.  In addition to the requirement that doors and windows are closed after 21:00 when regulated entertainment is taking place, a condition was attached to the licence that ‘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’.

The Sub-Committee attached conditions proposed by Environmental Health and agreed by the Applicant that there would be no deliveries or collections, including bottles, between 22:00 and 07:00 hours the following day.  This was to prevent nuisance to local residents.  The Sub-Committee also amended the condition proposed by Mr Zamit/SEBRA to the Council’s Model Condition 29 (which was agreed by the Applicant) that ‘in the case of off sales, no super-strength beer, lagers, ciders or spirit mixtures of 5.5% ABV (alcohol by volume) or above shall be sold at the premises’.

2.

Late night refreshment - indoors (Basement)

Amendments to application advised at hearing:

None.

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

Granted, subject to conditions as set out below (see reasons for decision in Section 1).

3.

Late night refreshment - indoors (Ground Floor)

Amendments to application advised at hearing:

None.

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

Granted, subject to conditions as set out below (see reasons for decision in Section 1).

4.

Sale by Retail of Alcohol (Basement)

Amendments to application advised at hearing:

None.

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

Granted, subject to conditions as set out below (see reasons for decision in Section 1).

5.

Sale by Retail of Alcohol (Ground Floor)

Amendments to application advised at hearing:

None.

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

Granted, subject to conditions as set out below (see reasons for decision in Section 1).

6.

Hours premises are open to the public (Basement)

Amendments to application advised at hearing:

None.

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

Granted, subject to conditions as set out below (see reasons for decision in Section 1).

7.

Hours premises are open to the public (Ground Floor)

Amendments to application advised at hearing:

The proposed opening hours for the Ground Floor at 127 were midnight except 23:30 on Sunday.  Opening hours were sought until Core Hours at Number 125.

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

Granted, subject to conditions as set out below.

8.

Seasonal variations / Non-standard timings

Amendments to application advised at hearing:

None.

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

Granted, subject to conditions as set out below.