Agenda item

The licensing officer advised that references to ‘Sunday to Monday’ at paragraph 1.2 of the report should read ‘Monday to Sunday’. It was also clarified that the applicant was seeking to add one hour to the terminal hour of licensable activities and the closing time of the premises on the morning that Greenwich Mean Time changes to British Summer Time.

The licensing authority stated that the premises was in the Clerkenwell cumulative impact area. The applicant was seeking to reinstate the licensable hours previously in operation before the licensable hours were reduced in November 2014 following the introduction of the late night levy. It was noted that the Police had suggested additional conditions relating to CCTV equipment, and the Noise Team had suggested amended conditions relating to noise.

The Police did not consider the current licence to be fit for purpose for a venue carrying out licensable activity until 04:00am. It was commented that the Police contacted the applicant in mid-December 2016 to enquire about plans for the premises, door supervisor arrangements, and further details of the operating schedule; however the Police had not been able to meet with the applicant. The Police reported that the applicant would accept additional conditions suggested in relation to the operation of CCTV equipment; however the Police maintained their objection to the application due to the insufficient information received on other aspects of the application.

Following a question, it was advised that the Police was aware that there may be a change of ownership to the premises.

The Licensing Authority stated that, although the premises previously had later licensable hours, in practice the premises had not previously operated to the full extent of its licence, and for this reason it was considered that a late licence had not been adequately tested at the premises. It was also commented that the applicant had not demonstrated sufficient knowledge of the licensing objectives and an understanding of the risks to the cumulative impact area. The Licensing Authority would expect additional information and conditions to be offered in relation to door supervision, dispersal arrangements, vertical drinking, PubWatch schemes and work with Parkguard.  For this reason the Licensing Authority considered that the application should be refused.

The applicant’s representative circulated a skeleton argument to the Sub-Committee which contained an appraisal of cumulative impact issues. It was confirmed that this had previously been received by the Police.

The applicant’s representative advised of a possible change of ownership to the premises. If the ownership of the premises was to change then the operating hours and staffing arrangements would need to be confirmed, however in either case the premises would offer substantial food at all times, last entry would be two hours before the terminal hour, and at least one SIA qualified member of staff would be on the premises after 11:00pm. It was commented that the resident representations received did not raise issue with how the current business operated, and it was acknowledged that the premises’ dispersal policy was in need of updating. It was suggested that this could be agreed with the Licensing Authority through conditions.

Following a question, the applicant advised that he had received an offer from a potential buyer of the premises, however the sale value had been agreed with reference to the previous licensable hours. For this reason the applicant was seeking to reinstate the previous licensable hours. 

The Sub-Committee queried why a food-led venue would wish to open until 04:00am. In response the proposed new owner of the premises advised that he intended to operate a high-class venue and wanted to be flexible to his patrons’ needs. Although it was acknowledged that few customers would want food in the early morning, it was suggested that shift workers may wish to eat at different times.

Following a question, the proposed new owner advised that whilst substantial food would be available at all times, it was not intended for alcohol to only be available with food.

The Sub-Committee asked how the application would not adversely impact the cumulative impact area. In response, the proposed new owner advised that he would operate a high-class venue which would not attract antisocial behaviour. It was commented that the price of alcohol at the premises would mean that customers were unlikely to consume large quantities of alcohol.

In response to a question, the proposed new owner advised that he had worked in the sector since 2003 and had been a DPS since 2006. He had considerable management experience and operated a number of premises across London.

In summary, the Police advised that they had not heard enough to satisfy them that the grant of the application would not undermine the licensing objectives. The Licensing Authority had no further comments.

The Noise Team circulated a suggested dispersal plan. The applicant advised that they did not envisage any difficulty in complying with the suggested plan. 

The applicant stated that the licensable hours applied for had not presented any issues when they were previously in operation at the premises and the premises had operated successfully for a number of years. The premises was to operate primarily as a high-class restaurant with substantial food available at all times. Last entry would be two hours before the terminal hour and the proposed owner was an experienced manager of licensed premises. It was reported that, should the sale of the premises proceed, staff would likely be transferred by TUPE and the DPS would likely remain the same. It was commented that the DPS had an extensive knowledge of the premises and local area.

RESOLVED: 

The Sub-Committee decided to refuse the application for a variation of the premises licence in respect of Burger Lobster, 38-42 St Johns Street, EC1M 4AY

REASONS FOR DECISION:

The Sub-Committee listened to all the evidence and submissions and read all the material. The Sub-Committee reached the decision having given consideration to the Licensing Act 2003, as amended, and its regulations, the national guidance and the Council’s Licensing Policy.

The Sub-Committee took into consideration Licensing Policy 2 and Home Office Guidance 13.30. The premises falls within the Clerkenwell cumulative impact area.  Licensing policy 2 creates a rebuttable presumption that applications for variations to premises licences that are likely to add to the existing cumulative impact will normally be refused, unless an applicant can demonstrate why the operation of the premises involved will not add to the cumulative impact or otherwise impact adversely on the promotion of the licensing objectives.

The Sub-Committee noted that the hours sought were well outside core hours for restaurants and cafes suggested by Licensing Policy 8.

The representative for the applicant emphasised that the variation was to restore licensing hours which were reduced on application in 2014. However, the Police and Responsible Authorities gave clear evidence that increasing the hours would be likely to have a negative cumulative impact on crime and disorder and public nuisance.

The Sub-Committee also noted the response by the prospective owner that although food would be available it would be possible to simply order a drink without eating.

The Sub-Committee concluded that granting this variation would be likely to impact on the licensing objectives of public nuisance and crime and disorder.

The applicant had failed to demonstrate in the Operating Schedule that there would be no negative cumulative impact on the licensing objectives. Under licensing policy 9 paragraph 67 the operating schedule must include all information necessary to enable the Licensing Authority and Responsible Authorities to assess whether the steps outlined for the promotion of the licensing objectives are satisfactory. The applicant had failed to demonstrate an awareness of risks, for example by a Risk Assessment, a knowledge of the local area, or the reasons for the special policy.

The applicant placed reliance on the fact that the premises previously had extended hours. The Police made the point that the conditions on the licence were not fit for purpose. Although the premises previously had later licensable hours, in practice the premises had not previously operated to the full extent of its licence, and for this reason the Licensing Authority considered that a late licence had not been adequately tested at the premises. The extended hours had been used by what had been a French restaurant some years ago, however this appeared to be a different sort of business model. The new owner had yet to confirm his policies and staff. The conditions offered at the hearing had been vague and insufficient information had been given to satisfy the responsible authorities.

There appeared to be no exceptional circumstances why this application should be granted. The fact that the prospective owner had experience of operating similar premises elsewhere could not be regarded as exceptional (licensing policy 2, paragraph 7). However, there would be no legal reason why the applicant should not make a further application if able to give detailed proposals in the Operating Schedule.

The Sub-Committee concluded that it was proportionate and appropriate to the licensing objectives and in the public interest to refuse the application.