Agenda item

The Licensing Officer reported that, since the licence application had been submitted, the Police had withdrawn their representations.  In addition, following discussions between the applicant and resident objectors, agreement had been reached on a number of outstanding issues, culminating in a revised set of conditions, copies of which were laid round.  However, a few areas of disagreement still remained, which were highlighted in yellow on the circulated document. The applicant’s representative suggested that the highlighted areas in the revised conditions should form the basis of discussion.

The applicant’s representative made the following observations:

Revised condition 1: The following opening hours had been agreed with residents: 08:00 to 23:00 hours from Monday to Thursday, 08:00 to 00:00 hours on Friday, 09:00 to 00:00 hours on Saturday and 10:00 to 19:00 hours on Sunday. 

Revised condition 13: As the premises licence holder was not in a position to control third parties, such as vehicles making collections and deliveries, or collection of rubbish, he suggested that a revision be made to condition 13, to read as follows “The premises licence holder shall use reasonable endeavours to ensure that no deliveries or rubbish collections are permitted before 07:00 and after 19:00 from Monday to Sunday and no vehicles shall be permitted to sit outside the premises prior to 07:00 waiting to make deliveries……moved on”.  However, he highlighted the fact that, as all the produce used in the restaurant was fresh each day, the issue of deliveries on Sundays and Bank Holidays was still an issue as the resident objectors wanted no deliveries on those days.

Revised condition 20: As the premises licence holder was not in a position to control third parties, such as waiting taxi/minicab services, he suggested that a revision be made to condition 20, after the word “customers”, to read as follows “and the premises licence holder shall use reasonable endeavours to ensure that any called minicabs…….at any time”

Revised condition 23: It was not lawful to include this condition requesting the licence holder not to seek a Temporary Event Notice.

Revised condition 32: It was not lawful to include this condition requesting the licence holder not to seek a variation to opening or licensed hours.

In response to a question from the Chair, the Legal Officer confirmed that she concurred with the applicant’s representative that the inclusion of revised conditions 23 and 32 would not be enforceable and not upheld by a Court in the event of a challenge.  She advised that it would be possible for the Licensing Authority to enforce to some extent a condition requiring the premises licence holder “ to use reasonable endeavours to ensure that” in revised conditions 13 and 20.

A spokesperson for the resident objectors regretted the fact that the licensee had taken four months to produce the revised conditions, which removed many of the original objections raised by residents. She wished to see the first sentence of the final paragraph of revised condition 1 being retained ie “The Licence Holder shall serve last orders and cease serving alcohol 30 minutes prior to the applicable terminal hour”. However, residents were content to delete the second sentence ie “No new customers…….Sundays”. She thought that revised condition 3 relating to the number of persons who could be served alcohol in the basement of the premises if they were also dining there, lacked a management plan and queried how the numbers would be counted and managed. She appreciated the fact that, with regard to revised conditions 13 and 20, it would not be possible to enforce these as they involved third parties. She understood that revised condition 23 was unlawful, but if a Temporary Event Notice was approved at any future date, residents would have no opportunity to object even if the premises were open until 3 or 4am.  Revised condition 32 had been requested by the residents who wished to have some sort of reassurance from the licence holder that they would not seek to vary the opening or licensed hours in the future by way of a variation application.

A second spokesperson for the residents referred to revised condition 32, which had been a voluntary offer from the licence holder, and suggested that a period of 5 years within which the licence holder should offer not to seek a variation to opening or licensed hours could be reduced to a period of 2 years.

In response to a question from members, the applicant’s representative stated that other restaurants in the area all opened early to provide breakfast.

Members thanked all present for their work to achieve these levels of agreements, especially the residents.

The applicant’s representative reported that this premises and others run by the Prescott Conran owners caused no problems in their localities, even though they were in an area of cumulative impact. The Police and Environmental Health had no objections to this application and now the Licensing Authority had withdrawn theirs.  There had been a large amount of agreement with residents, for which he thanked all involved. He pointed out that the Council’s Licensing Policy permitted exceptions in areas of cumulative impact where the premises were not alcohol-lead, which this premises was not, since it had only 20 seats in the basement floor.  A great deal of financial investment had been made in the premises and the opening and licensing hours would be necessary to realise income to justify the spend already made. He stated that, at most, the maximum noise associated with the premises was less than 1 decibel and it would not therefore add to noise in the vicinity.  The premises was situated 50 metres away from the nearest resident.

In response to questions from members, about the apparent reluctance of the applicant to engage with local residents, the length of time taken to submit the application and the deluge of late submissions by the applicant, the applicant’s representative apologised and said that the late submissions from themselves were to aid deliberations at today’s meeting.  A member of the Sub-Committee sought assurance from the applicant’s representative that this was not “ the thin end of the wedge” and that the applicant would not be likely to apply for a variation to the conditions in the future. The applicant’s representative stated that this would necessitate various levels of approval, including Board level and from the developers, so it would not happen.  He confirmed that no variations to conditions had been sought for the applicant’s other premises and furthermore that there were no plans to do so.  In response to a question about future communications with local residents over activities at the premises, the applicant’s representative drew the Sub-Committee’s attention to new condition 16, suggested by the residents and agreed by the applicant, requiring a meeting with residents and the premises licence holder every six months.

Members expressed concern about the dispersal policy for the twenty persons allowed to drink in the bar area, either before or after a meal, and queried how the applicant proposed to ensure that persons did not remain in the bar after the terminal hour.  Following discussion, the applicant agreed that it would be reasonable for an amendment for a drinking up period to be applied to the bar area to ensure that the condition applying to terminating hours was met. Local residents remained concerned about this and one of their representatives suggested a 15 minute drinking up period being applied in the bar area before closing hours to ensure that the premises close on time.

The Sub-Committee adjourned at 7.28pm to deliberate and reconvened at 7.45pm. However, the Sub-Committee had to adjourn again for a short period to consider the question of whether there could be deliveries to the premises on Saturdays and Sundays, since they had not considered this in their original deliberations.  The Sub-Committee reconvened at 7.53pm.

RESOLVED:

1. That the application for a new premises licence in respect of Unit 1, 62 Turnmill Street, London EC1M 5 NP  be granted to permit:

i) the sale of alcohol for consumption on and off the premises from 11:00 to 23:00 on Monday to Thursday, 11:00 to 00:00 on Friday and Saturday and 11:00 to 19:00 on Sunday

ii) the provision of Late Night Refreshment from  23:00 to 00:00 on Friday and Saturday

iii) the following opening hours: 08:00 to 23:00 on Monday to Thursday, 08:00 to 00:00 on Friday, 09:00 to 00:00 on Saturday and 10:00 to 19:00 on Sunday

2. That the revised conditions as outlined in the document circulated in the meeting, which had been accepted by the applicant and agreed with the resident objectors, with the following additions/amendments shall be applied to the licence:

 i) That a 15 minute drinking up period be applied in the bar area before closing hours to ensure that the premises close on time (paragraph 1 of the revised conditions) and delete second sentence “No new customers……18:00 Sundays”.

ii) The premises licence holder shall use reasonable endeavours to ensure that no deliveries or rubbish collections are permitted before 07:00 and after 19:00 from Monday to Sunday and no vehicles shall be permitted to sit outside the premises prior to 07:00 waiting to make deliveries……moved on”. Deliveries shall be permitted on Sundays and Bank Holidays (paragraph 13 of the revised conditions)

iii) After the word “customers” in line 2 of revised condition 20, add the following “and the premises licence holder shall use reasonable endeavours to ensure that any called minicabs shall not wait in Clerkenwell Road…….at any time” (paragraph 20 of the revised conditions)

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.  The premises fall under the Bunhill and Clerkenwell 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.

The Sub-Committee noted that the application for a new premises licence was likely to add to the existing cumulative impact on the licensing objective of public nuisance. However, the Sub-Committee considered that the applicant had largely demonstrated, through conditions agreed with the residents on the operating schedule,that the impact for any potential nuisance would be mitigated and was satisfied that, with the addition of further conditions, the grant of the premises licence would not be likely to add to the existing cumulative impact in the area. These conditions were for a drinking up period and amendments to the condition concerning rubbish collection, such that the licence holder would use reasonable endeavours to ensure that vehicles would not wait outside the premises for the collection of rubbish or deliveries and to restrict minicabs waiting outside. Although the residents  had requested a condition prohibiting deliveries on Sundays and Bank Holidays, the applicant had explained that this would not be feasible because they served fresh produce every day.

The residents present had asked for specific conditions restricting the variation in the opening or licensed hours for five years and any application for temporary event notices.  Legal advice was given that this would fetter the exercise of statutory powers by the licence holder and that these conditions would in any case be unenforceable.

The Sub-Committee considered that the phrase “shall use reasonable endeavours to ensure” was  appropriate in relation to dealing with rubbish collections and minicabs and taxis, as to require the licence holder to do more would be outside his control and effectively unenforceable as a condition.

Home Office guidance states “The Courts have made it clear that it is particularly important that conditions which are imprecise, or difficult for a licence holder to observe, should be avoided”. However, Peter Prescott gave assurances that there was no intention to seek any increases in the licensing hours.

The Sub-Committee considered that these additional conditions were appropriate and proportionate to the licensing objective of public nuisance and in the public interest.