Agenda item

The licensing officer reported that two documents had been circulated and tabled a plan of the premises in the area. These would be interleaved with the agenda papers.  She reported that drone footage would also be shown of the location.

The licensing authority reported that this premises was in a cumulative impact area.  The application was to extend the hours for two floors with possibly an increase of 200 additional people.  150 of these could be on the roof terrace.  There was nothing in the acoustic report regarding management of the dispersal arrangements.  This area abutted the Hackney cumulative impact area where core hours were 2am.  The area was already saturated and extremely busy.  This new application contained reduced conditions to the current licence.  He stated that he would expect evidence to persuade the Sub-Committee why granting the licence should be permitted. He considered that this application was not exceptional to the policy and there was nothing in the application that would persuade the authority to deviate from the policy.  He stated that the applicant should come back and address the special nature of the application.  The northern line was not on the night tube and nothing had changed in the area since the Licensing policy was brought in.  He considered that there would be an additional 200 people for three hours at this location.

The noise officer stated that she had proposed compromise timings that had not been accepted.  The measurement position for the roof was 5Ba below maximum levels agreed with the previous acoustic consultant.  She did not know about the maximum capacity and was concerned that people noise could not be controlled.  Customers talking in the bar on the first floor would be affected by the loud music and would be talking very loudly on the roof terrace.  Noise levels could depend on the wind direction.  No dispersal policy had been submitted.  For the temporary event notice a football game had been screened which would generate a lot of noise. 

In response to questions it was noted that the applicant had agreed to reduce the sound levels to 80 dBA.

The applicant’s representative stated that the application was to allow the roof terrace to remain open after midnight.  The overall capacity of the premises was 300 and that was not changing.  They had operated temporary event notices in 2016 where the roof terrace had been open until 2am and in 2017 until 3am. There had been no complaints. The premises would not cause concerns.  The location was next to six lanes of traffic and across the road was outside a cumulative impact policy area.  The premises was not near the Farringdon/Clerkenwell areas of cumulative impact.  There was no area of special policy on the other side of the road.  There were no resident, Councillor objections or police objections.  The noise team would withdraw their objection if the hours on the roof terrace was closed at 1am. There were no complaints from the closest residents in Cowper or Tabernacle Street.  There had been one complaint in  five years.  This was following a re-opening and was a teething issue.  They set a lower level as a result of this.  There was no evidence that the extension of hours would undermine the licensing objectives. The licensing policy was based on historical data which was outdated.  The police were the main source of crime and disorder and they had not objected to the use of the roof terrace until 3am. TENs had been used up until 2am and 3am.

The acoustic consultant stated that they considered that the sound levels had been set too high so were happy to reduce the level. A survey was undertaken when the terrace was full and in use which covered the worst case scenario.  Noise could not be heard from the terrace above the noise from cars.  Measurements along Tabernacle Street did not show any drop off in noise following the closure of the terrace. He considered that the noise terrace did not make a significant impact. There had been no complaints from residents.

The Sub-Committee was shown drone footage which was described by the applicant’s representative as showing roof terrace encased by high rise all around.  He stated that this was why the roof terrace had operated without complaint. He was confident that the roof terrace could be used until 3am without complaint and bring the use into line with the rest of the building.

In response to questions it was stated that temporary event notices had operated until 2am in 2016 and up to 3am in 2017 without complaint.  The noise survey indicated (as detailed on page 5 of the acoustic survey) that there was no noise increase associated with the premises being open longer.  The graph in the survey indicated the noise levels on Singer Street remained consistent, indicating that the roof terrace did not affect noise levels on the street. It was noted that there was a noise peak at 3.30am at dispersal.  It was noted that closing time at XOYO was 5am.  The applicant’s representative stated that people smoked outside XOYO which was why there was a sustained increase in noise from 2.30am.  It was noted that the peak may be related to the dispersal in Singer Street although it was stated that no residents had objected to the noise from dispersal. Councillor Shaikh stated that extending the hours would allow more people in the area for longer which would have a cumulative effect and that the data did show an increase in noise when customers were leaving the premises.  In relation to dispersal the applicant’s representative stated that the overall capacity was not increasing.  Some customers may leave but the premises did not allow new admissions after 1 – 1.30am. The premises operated normally at full capacity.  The dispersal time for XOYO was 5am and for Club Aquarium at 7am. The capacity for Golden Bee was 300 persons.  Even without the roof terrace operating the premises was at full capacity and there would be no overall increase. Management led a graduated approach to dispersal.  A dispersal policy was not included in the application as it was stated that applications needed to be appropriate and proportionate.  There had been no complaints in five years and it was not considered necessary to include a document where no concerns had been raised. The premise was already licensed until 3am and dispersal had not been an issue. Hours were not being extended but the application was to allow the roof terrace to be used until 3am.  Dispersal would continue as it was currently. Currently there were 8 or more door supervisors, there were notices regarding dispersal around the building, door supervisors were there to keep the noise level down when customers were leaving and taxis were ordered.  This practice would continue.

The second floor was a small mezzanine area with around 40 people.  This was a quiet area with background music only.  The applicant’s representative stated that the proposed conditions almost mirrored the current conditions and invited the Sub-Committee to add others if they required.  There was no capacity limit conditioned as this was dealt with in the fire risk assessment, however there was no objection to a capacity condition of 300. The applicant’s representative stated that the fire risk was for the whole building with a capacity of 300. The roof terrace could occupy 150. The fire risk assessment did not include the ground floor but was for the entire Golden Bee premises. This capacity had been agreed with the fire service.  The capacity was not increasing but there would be more room for people to move around the building. The applicant’s representative highlighted paragraphs 15 and 16 in the circulated paper and stated the figures indicated that there were approximately three anti-social behaviour matters in the entire Bunhill area/ward each week. The evidence dated back to 2004.  There had been no public objections to the roof terrace. It was noted that conditions 20 and 22 of the current licence were not included in the proposed conditions.  The applicant’s representative invited the Sub-Committee to adopt the current licence conditions if they preferred.

In summary, the licensing authority considered that this was an ill-conceived application.  There was no fire risk assessment in the submission so there had been no time to consider this.  He considered that more information should have been included in the original application. This was not the forum to raise matters now.  Licensing officers could do inspections if this information had been received previously.  Issues could not be substantiated at this stage. He did not consider that the applicant had rebutted the presumption and considered that the application should be resubmitted taking all issues on board. 

The noise team stated that they visited on the 15^th April following a noise complaint.  Six days later on arrival customers were singing Happy Birthday loudly from the terrace. Temporary Event Notices were for once in a while occasions which was different to extending hours every weekend. She stated you could not control people noise or the direction of the wind.

The applicant’s representative stated that this was a properly submitted application.  The fire risk assessment could be made available.  The capacity was fixed. Later hours were not being applied for.  The Sub-Committee needed to show that the grant of the application would undermine the licensing objectives. There had been no representations from residents or local councillors.  The premises had been operating for five years.  There had been no objections to temporary event notices. There was one complaint about noise following the re-opening which had been accepted as a teething problem and there had been no incidents since.  The report from the noise expert indicated that even when the premises was closed the noise outside remained constant.  There was no discernible difference with noise levels whether or not the premise was open or closed.   He asked that the application be granted as sought.

RESOLVED

That the application for a new premises licence, in respect of Golden Bee, First, Second Floors and Roof Terrace, 262-264 Old Street be refused.

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 1 and 2 and Home Office guidance paragraphs 14:30. The premises fall within the Bunhill cumulative impact area.  Licensing policy 2 creates a rebuttable presumption that applications for new 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.  Home Office guidance paragraph 14.30 states that a rebuttable presumption is created by a special policy that applications for the grant or variations of premises licences, likely to add to the existing cumulative impact will normally be refused or subject to certain limitations, following relevant representations, unless the applicant can demonstrate in the operating schedule that there will be no negative cumulative impact on one or more of the licensing objectives.  Applicants should give consideration to potential cumulative impact issues when setting out the steps they will take to promote the licensing objectives in their application.

This was an application for a new premises licence for all three floors including the roof terrace, although the premises had been operating under a licence with similar conditions with shorter licensing hours for the sale of alcohol on the second floor and the closure of the roof terrace at midnight. The new proposed hour of 3am was a substantial change and likely to have an effect on the cumulative impact of the area and in particular on the licensing objectives of public nuisance and public safety. The proposal was outside core hours set out in licensing policy 8.

Licensing policy 9 stated that it expects the operating schedule to describe how the highest standards of management in licensed premises would be achieved in relation to the promotion of licensing objectives. Paragraph 67 of licensing policy 9 states that 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 were satisfactory. It was also anticipated by paragraph 68 that applicants would have regard to Islington’s licensing policy when preparing operating schedules so that they would be aware of the expectations of the licensing authority and other responsible authorities. This would include the fact that the premises were in a cumulative impact area.

The applicant had produced an acoustic report but the noise officer did not accept that it gave the full story.  The noise officer stated that noise nuisance could vary between nights depending on the direction of the wind.  On two occasions noise had been heard by the team at ground level from the roof terrace including the singing of ‘Happy Birthday’.  She emphasised that people noise could not be controlled.  There was a difference between TENs that only operated once in a while and a licence that operated every day.

The applicant had repeated substantially the same conditions including that members of staff should keep nuisance and disturbance from the roof terrace to a minimum level but he had not described how this would be done in the operating schedule, nor how dispersal would be carried out, nor had he added any conditions about capacity given that the second floor and the roof terrace were to be licensed for the sale of alcohol for an extended period.

The applicant responded to the licensing officer’s observations by saying that there was no point in including a condition on capacity as it would be duplicating other legislation and that capacity would not be increased, that there was a dispersal policy in force, that no complaints had been received when TENs had operated.  These issues were raised at the hearing and were not in the operating schedule and, as the licensing authority stated, were unverifiable by the responsible authorities who had not had an opportunity to consider the information that was being raised at the hearing.

As set out in the document from LBI Parkguard, there were issues of anti-social behaviour and drug use in the area. There was a potential for a cumulative impact on the licensing objectives of public nuisance and public safety which gave rise to the presumption under the special licence and this had not been rebutted in the operating schedule by the applicant. It was not possible to proposed suitable conditions in this case because insufficient information had been provided by the applicant for the risks and solutions to be properly assessed.

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