Agenda item

The licensing officer reported that the premises were in a cumulative impact area and this was a variation to include the back garden.  The Planning Department were not clear regarding the use of the rear garden and the onus was on the applicant to ascertain whether a planning application was required.

The licensing authority reported that they had submitted a representation on the grounds of public nuisance.  They had considered licensing policies 1, 2, 9, 10, 11, 12, 18 and 20.  The garden would more than double the size of the premises and there had been no reference in the application as to why the premises would not add to the cumulative area.  Applications in these areas should be refused unless the Sub-Committee was satisfied that the premises would not add to the cumulative impact.  The operating schedule did not supply detail on how the outside area would be controlled and there was no reference to capacity or dispersal issues.  There were historic anti-social behaviour issues around that area and the application would add to an already large area but had not put forward controls.  The applicant had not sufficiently dealt with issues in the schedule and had made no response to the representations that had been made.

A local resident who lived next door and whose garden ran parallel to the restaurant stated that he had two children that needed their sleep and if this licence was granted the children would no longer be living in a healthy family friendly environment.  In 2011 the restaurant had opened their garden without consent.  They had put boards up and advertised on their website.  Customers were not seated at tables or drinking alcohol with their meals.  There were persons under the age of 16 present.  The premises were in a cumulative impact area and there was a rebuttable presumption.  He considered that noise levels would increase, signage would not be sufficient and there would be anti-social behaviour which would be harmful to his family.  A private walkway leading to the property would become insecure and would no longer be safe for children to play in.  Local residents usually rented properties and so moved on where there was a nuisance property and did not object to applications.  He asked that the application be refused but if it was not, that the hours be reduced to 11-5pm on Mondays to Thursdays, that food waste be disposed of properly and that the alleyway not be opened to the public. There should be a smoking area in the garden, there be no glass bottles and that customers be seated.  There should be no parties or BBQs.

The licensee reported that there would be 35 customers in the garden.  Their clientele was quiet and they had been in the area for five years, complaint free.  There had been no incidents and there would be no off sales.  All customers would be served at tables and would be monitored by staff.  He was seeking to appease the local authority and agree to conditions.  Outside dining was increasing and in the summer months they had seen trade fall off.  In 2011 they had opened their garden to friends.  No money had changed hands. They did not advertise this event to the public and when asked to by their neighbour he had dispersed the crowd immediately. 

In response to questions he was not aware that there was a planning issue.  He would be happy to restrict the hours.  He was aware of the cumulative impact policy but did not consider that the premises would contribute to it.  Customers would be drinking wine with a meal. The applicant stated that the representation from public health had been solicited from the local resident. The Chair stated that the Sub-Committee needed to balance the requirements of both customers and residents and was concerned that the conditions, hours and the mention of the cumulative impact was not in the original application.  The applicant stated that he had approached the local resident several times but had found him unapproachable.  It would not be a problem to restrict an area of garden for smoking.  This would be a full service restaurant and staff could speak to guests if required.  There would be 35 customers outside and 35 inside. 

In summary, the licensing authority stated that it was unfortunate that conditions had not been communicated before the meeting.  The officer had concerns that the premises customers would be doubled.  He considered that the applicant should have considered further conditions prior to the meeting.  He did not believe that the applicant had considered the cumulative impact policy or adequately addressed public nuisance concerns.

The licensing officer reported that the representation received from the Whittington Health team was from a health visitor and not from Public Health as a responsible authority.

The local resident stated that the rear garden had been neglected following the event in 2011. 

The applicant apologised for not approaching the licensing authority with changes prior to the meeting.  He thought that negotiation would occur at the meeting.  He considered that he required the licence for the on-going sustainability of the business and the increasing trend for people to eat and drink outside resulted in lost business in the summer.

RESOLVED

That the application for a premises variation at Seasons, 53 Stroud Green Road, N4 3EF 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 Policies 1 and 2 and also home office guidance paragraphs 13.20 and 13.30.  The premises fall under the Holloway and Finsbury Park 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.

Under licensing policy 1 the Licensing Sub-Committee considered the location of the premises and the character of the area.  The garden was situated closely to residential premises containing young children and opening the garden doubled the capacity of the premises. There was a potential impact on the licensing objectives of public nuisance and protection of children from harm given the evidence that the children needed sleep in the daytime as well as night.

Home office guidance 8.35 states that applicants are expected to include positive proposals in their application on how they will manage potential risk and where specific policies apply in the area.  Applicants are also expected to demonstrate an understanding of how the policy affects their application.  Licensing policy 9 states that applicants are expected to describe in the operating schedule how high management standards will be achieved in relation to promoting the licensing objectives.  Applicants are required effectively to complete their own detailed risk assessment to enable the licensing authority to assess the adequacy of steps outlined for the promotion of the licensing objectives.

The Sub-Committee considered that the applicant had failed to rebut the presumption and had failed to demonstrate in the operating schedule the measures he would take to address the potential negative cumulative impact on the licensing objectives of public nuisance and the protection of children from harm. He seemed unaware of the potential for a negative impact on the licensing objectives of opening up the garden from 11am to 11pm.  There were no exceptional circumstances in this case.