Agenda item

The licensee outlined the reasons why he considered that the application for the review was not valid as set out in a skeleton argument circulated to the Sub-Committee and interleaved with the agenda papers.

 

In response to questions the licensee reported that the case of Akin v Stratford did not help as it did not deal with a defect it in the application.  He stated that the application was not valid as it not been served properly.  He did not consider that he had been prejudiced but that the review was invalid as there had not been compliance with the form. The licensee also stated that the application had been made in the name of the Pollution Team which was not a responsible authority and did not have a legal personality.  He did not consider that the Sub-Committee would have jurisdiction on that point alone.

 

Anne Brothers, pollution team, reported that a notice had been served on the recognised responsible authorities electronically. There were minor defects in the application but no prejudice had been caused to the licensee.

 

The legal officer advised the Sub-Committee that there were three points to consider:-

1)    Had the application been made by a responsible authority

2)    Was there evidence of service

3)    Had the review application been fully completed.

 

Regarding point 1 - it had been accepted that Ms Brothers had the delegated authority on behalf of the London Borough of Islington.  There were a number of responsible authorities within the same Authority.  It was available for the Sub-Committee to consider that the Pollution Team was a responsible authority. The Sub-Committee could also consider whether the application should have been made by the London Borough of Islington and if this was an error, was it fatal and would it have made the application invalid?

Regarding point 2 - was the Sub-Committee satisfied that the application had been served as required? The Sub-Committee could take a view when considering the regulations.  If not served as required, was this a fatal mistake?

Regarding point 3 – the Sub-Committee would need to consider if the form had been fully completed.  The licensee had submitted that this was a procedural requirement. Was the application so defective it was invalid, had there been substantial compliance, were they minor defects and had the respondent been disadvantaged or prejudiced.

 

In response to questions the legal advisor stated that the respondent had invited the Sub-Committee to consider case law and the Sub-Committee could consider this during deliberation.

 

Following an adjournment to consider the issues, the Sub-Committee returned to the meeting room to raise questions for clarification.

 

1)     The licensee was asked to clarify if the Sub-Committee should be considering regulation 27 A rather than B as detailed in submissions.  The respondent confirmed that 27 B was an administrative error.

2)     The licensing authority was asked if electronic applications were accepted by email and if this had been agreed.  The licensing authority confirmed that electronic applications would have been agreed at the time. Electronic applications were accepted and then responsible authorities notified by email.

The licensee stated that evidence of that agreement had not been forthcoming.

 

The Sub-Committee adjourned further to consider the validity of the application. Prior to the announcement of the decision the legal officer advised that, in the Home Office Guidance, the Health Board applied to Wales.

 

RESOLVED that the review application was valid and that the Licensing Sub-Committee would consider the review application regarding The Sekforde Arms.

 

REASONS FOR DECISION

The Sub-Committee dealt with the preliminary legal issues raised by the licensee and the conclusion of the Sub-Committee was that the review application was valid.

 

The Sub-Committee considered all the points made and decided:-

1)    that the application was properly made by a responsible authority;

2)    there was substantial compliance with the requirements to complete the application form.  The defects in the application form were minor administrative errors that have not caused prejudice to the respondent;

3)    the application was served in accordance with regulations 21B and 27A of the Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005.

 

The reasoning of the Sub-Committee in relation to the three points above is as follows:-

1)    It was accepted by the licensee that Ms Brothers had delegated authority to submit a review application. The licensee submitted, that in order for the application to be valid, the form should state that it was made by Ms Brothers, on behalf of the London Borough of Islington as the responsible authority was the London Borough of Islington. However, the Sub-Committee concluded that a responsible authority could be part of the same local authority as the licensing authority eg the planning authority and trading standards are both responsible authorities within the London Borough of Islington. Therefore, the Sub-Committee found the responsible authority for minimising or preventing the risk of pollution of the environment or of harm to human health, was the pollution team.

 

2)    The Sub-Committee noted the defects in the application form identified by the licensee.

·         The name of London Borough of Islington was not added at the top of the application form.

·         The name of London Borough of Islington was not included as responsible authority.

·         Tick boxes regarding the sending of the application to responsible authorities and the consequence of these requirements not being met when not completed.

 

The Sub-Committee noted the decisions of R v Secretary of State for the Home Department exp Jeyanthan (2000) 1 WLR 345 and Akin v Stratford Magistrates (2014) EWHC 4633 (Admin).  The Sub-Committee were also directed by the licensee to an article available through Google by Jonathan Gaunt QC and Nicholas Cheffings entitled ‘Notices: When is a defect not a defect?’  The Sub-Committee found that the case of Akin was the most persuasive as it related directly to a review application under the Licensing Act 2003. The Sub-Committee concluded that the defects in the review application were not significant and that there had been substantial compliance with the requirements to complete the application form. The Sub-Committee noted that the licensee confirmed that there was no prejudice to him as a result of the defects in the notice.

 

3)    The Sub-Committee considered the provisions in paragraphs 21B and 27A of the Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005.

 

The applicant provided evidence that the review application had been sent to each responsible authority, including the Director of Public Health, on the same day that the application was submitted to the licensing authority in satisfaction of paragraph 27A.  The Sub-Committee received oral evidence from the licensing authority that all the responsible authorities had previously indicated that applications could be sent to them by email and that it was not needed to be given in writing. Therefore, the Sub-Committee was satisfied that the requirements of 21B had also been met.

 

Consideration of Review Application

 

Prior to consideration of the item the Chair asked if there had been any agreement between the parties.  It was noted that proposed conditions 2 and 3 and 6 and 7 with an amended time of 22:15 were agreed with both parties.  However, proposed condition 8 had not been agreed. The licensee agreed that music be limited but should not be vetoed.

 

The licensing officer reported that the skeleton argument about the validity of the review, the response from the pollution team and the reply to this response had been circulated to members.  These would be interleaved with the agenda papers. The licensee stated that he would not have any difficulty working with Ms Brothers from the pollution team.

 

The pollution team officer spoke to the review application.  The review related to the licensing objectives for the prevention of crime and disorder and the prevention of public nuisance. The premises were situated in a quiet residential side street and noise complaints had increased significantly since March 2018. There had been 89 complaints from March to September and a further 11 since the review had been submitted. The majority of these were complaints about noise outside the premises. At a visit on the 5 October, officers decided to withdraw as patrons approached their vehicle.  It was noted that sound reverberated and furnishings could affect the volume.  The Sekforde Arms had been stripped back and furniture was wooden and there was no absorption. Where music was played above background levels a limiter should be considered.  The premises were a listed building and sound insulation could not be easily installed. The noise team would be happy to work with the licensee to produce a noise management plan.  The removal of the lobby had been concerning.  All attempts to work with the licensee had so far been rejected.  She considered that conditions were proportionate and appropriate and asked that the Sub-Committee add these to the premises licence.

 

In response to questions, the noise officer reported that noise complaints had not been received from one or two residents but multiple residents.  The noise disturbance was often intermittent and the noise team could not then stay all evening for a further outbreak. Restricting numbers to 20 outside the premises was proposed as, although 20 people could be noisy they could also be controlled by a door supervisor.  It was considered to be intensely residential in Sekforde Street and it was preferable for customers to stand in Woodbridge Street.  In response to a question asking if 40 customers could stand outside if there were two door supervisors at the premises, the noise officer stated that this would be dependent on the quality of the door supervision as they would need to have a strong presence. Even with a noise management condition the noise officer considered that windows be closed if events were held as there was the issue of reverberation inside the premises and the internal physical conditions allowed no absorption of noise.  It was considered that padded panels could assist and it was noted that the loss of the lobby area allowed noise outbreak.

 

The trading standards officer asked for Challenge 25 conditions to be added to the licence.  These were agreed by the licensee.

 

The licensing authority reported that the review was supported with the proposed conditions.  It was considered that the number of incidents could be greatly reduced with the addition of these conditions, particularly those relating to noise and the supervision of customers leaving the premises.

 

In response to questions it was reported by the licensing authority that staff had not handled complaints particularly well and it was considered that a better attitude should be adopted when dealing with residents. It was stated that a good manager would know how to deal with customers and residents and build up a good relationship with the local community. At the panel meeting in August, the licensee made a voluntary agreement for an SIA registered door supervisor.  The parties present considered that the door supervisor be SIA registered, however, this had not been noted in the panel minutes. It was noted that the door supervisor for the premises was not SIA registered initially but received her SIA badge on 14 November 2018.

 

Two local residents gave evidence in support of the review.  One resident reported that, under the previous management, if there were any complaints about customers outside they would be moved on quickly.  She considered that mismanagement was the main issue and the public nuisance was having a detrimental impact on residents.  Sekforde Street was a mainly residential narrow street with Grade II listed buildings on both sides. Residents had lived there for decades beside the premises but it became a nuisance when reopened.  Noise complaints were made but often the noise could disappear.  Residents went out in the evening or turned televisions up to escape the noise.  Some measures had been taken but they were insufficient.  Requests to close windows were ignored and it was considered that greater controls were necessary. The second resident reported a lack of co-operation from management.  Customers outside were left unchecked and there was a lack of adequate noise protection.  Residents would prefer to have a co-operative relationship but management had refused to acknowledge facts and dismissed complaints. There was a public meeting held in October to engage with residents which had been welcomed.  However, management had refused to listen, had made no suggestions and stated that residents wanted the public house to close.  Residents were faced with customers outside swearing at all hours, blocking pavements and broken glass outside properties. Following the panel hearing, management took weeks to employ a door supervisor and she had to manage two doors and also collect glasses which was an impossible task.  Pavements were not kept clear and residents had no real confidence in the management.  The licensee had already stated he would appeal the decision before it had even been heard.

 

It was also noted that the licensee had no previous experience of running a public house, staff had been serving drunk customers and there had been limited control of customers blocking the pavement.  The pub garden had been turned into housing so customers were using the public highway instead. Noise nuisance was almost every day of the week.  There was no barrier and no supervision of customers. Customers could be aggressive when asked to move.  One resident reported that she had tried to ask staff to close the windows during the World Cup and this had taken 40 minutes.  When staff noticed she had moved from that room in her house, the windows were re-opened.  She had felt intimidated by the licensee and his manager had handled the situation. Following the reopening in December 2017, the resident had tried to complain by telephone and had left 10 voicemail messages.  Finally she met the manager but little changed. A website telephone number was not available for complaints. The pavement could not be used when there were 20 or 30 people standing outside.  Customers often stood in the road. Customers blocked a dropped kerb and it was considered that it would make a big difference for pushchair/wheelchair users if customers used the area in Woodbridge Street to stand. It was stated that the photos in the agenda pack, indicating crowds outside the premises along the pavement, were a tiny sample of the photos that residents had taken.  This happened regularly during the summer at lunchtime.  Residents stated that The Crown had roped off a section of pavement and used an SIA door supervisor to control customers. There was currently no demarcation at the Sekforde Arms which left the door supervisor with an impossible job. It was also noted that there was a clear area in Woodbridge Street opposite offices and if customers stood in this area it was much less likely to cause a nuisance.

 

The licensee spoke against the review.  He stated that he did not recognise the deterioration in the number of complaints and The Sekforde Arms had always been a rowdy pub.  Those interested parties in support of the pub also worked on Sekforde Street and Woodbridge Street and had not been disturbed by noise.  Residents had chosen to live near the pub and he considered that The Crown was a noisier pub.  The public meeting was arranged in October to speak to residents. He did not consider that he was unapproachable or unreasonable. The windows were re-opened on the occasion detailed, as an elderly woman had fainted.  Air conditioning could not be installed as this was a listed building and windows needed to be opened for ventilation. He would consider using more soft furnishings. The lobby was removed as it was unsightly however, the proposed condition to prevent use of the door after 9pm would reduce noise.   He considered that if customers outside were moved away from residents, in an area across the road, it would solve the noise issues.  His door supervisor thought she was SIA registered but did not realised the licence had lapsed. He did not consider that the customers were aggressive. He did not want to accept arbitrary conditions at the residents meeting.

Regarding the proposed conditions he reported the following:-

Condition 1 – If all windows were closed it would be too hot to use the room.  He considered a compromise would be to open the windows at the end on the Woodbridge Street side.

Conditions 4 and 5 - If the land where the tables and chairs are place belong to the licensee, he could not be required to have a table and chairs licence. This was a legal point detailed in the papers.

Condition 8. 20 was considered an arbitrary number and customers would move to The Crown making The Sekforde unprofitable.

Condition 9 would mean that customers who lived on Sekforde Street would breach the condition.

Condition 10. It was considered that this was only necessary for Thursdays/Fridays and busy evenings only.

Condition 12. He had wanted access to neighbouring premises to witness the noise nuisance.

Condition 13. He didn’t understand this condition.

Condition 14. He did not consider the flue caused nuisance.

Condition 15. There had been no complaints received regarding collections and deliveries.

 

In response to questions he responded that, although there may be 100 people outside on occasion, numbers very quickly reduced with a surge at about 6pm. He stated that The Crown was a very similar pub which had 200 customers outside.  He accepted that The Crown was not in such a residential area but they received no complaints.  He considered that 100 people, as a peak number, was appropriate if well managed.Although he was inexperienced he had advertised for experienced managers. He considered that his managers would be able to manage inappropriate behaviour and deliver good service. The Sub-Committee advised the licensee that the designated premises supervisor was normally involved in the day to day running of the premises.  It would also be expected that the managers would have personal licences. The Sub-Committee was advised that one manager had training in Australia and had previous managerial experience.  The licensee advised that he was in overall charge and lived above the premises and would be happy for one of his managers to become the designated premises supervisor. He did not consider that a complaints policy was required in writing.  He expected his staff to respond appropriately to complaints eg if residents stated that the street was crowded.  He reported that the 89 complaints did not come through to him but he had responded to complaints and had put changes in place. The night patrol had told him he was doing a good job. During the World Cup he did not consider that the noise was excessive. The licensee was advised that there was evidence that the anti-social behaviour team felt intimated and complainants had been met with aggression. In response he stated that he was approachable and was not rude. He did say what he thought and he considered that his reputation had been sullied.  It was reported that the public line was extremely busy and the manager had given his personal number to residents.  The manager reported that they were looking to set up monthly meetings and was receptive to joining Pubwatch.  The licensee reported that they intended to close for two weeks over Christmas and the New Year to look at running the pub in a better way. They were seeking to invite residents to make suggestions, hold more formal meetings with residents, monitor the noise outside and inside and supervise customers leaving.  They did not have a written dispersal policy. They had volunteered to have a door supervisor and it was only six weeks ago that it was realised she no longer held an SIA licence as it had lapsed. She had previously held a licence so this was considered preferable to finding another SIA door supervisor at short notice.

 

In summary, the noise officer stated that an outside area for drinking should be closer to the premises and not across the road. Commercial waste should be collected separately. All windows should be closed and the refuse condition should be maintained.  The licensee should maintain the business according to what the premises could withstand.

The interested parties reported that the vast majority of supporters lived away from the premises.  The licensing officer advised that there were 10-15% of local residents that were in support from Sekforde Street, Woodbridge Street and many from Scott House.  The interested parties considered that the door supervisor could not be a door supervisor as well as collect glasses.  They urged that the application be supported. The licensee stated that residents were always welcome and if only 20 persons were allowed outside the premises would not survive. 

 

RESOLVED

1)     That the premises licence, in respect of The Sekforde Arms, 34 Sekforde Street, EC1R 0HH, be modified to add the following conditions:-

 

1. Doors and windows to the premises shall be closed by 20:00 every evening and shall be closed at all times, if any events such as a quiz, comedy nights or conferences are held at the premises except for one window per floor, on the ground and first floor, to provide ventilation.

 

2. The use of the door to the Sekforde Street elevation shall cease at 21:00 every night and notices shall be displayed to that effect.

 

3. Prominent, clear and legible notices must be displayed at all exits requesting the public to respect the needs of local residents and to leave the premises and the area quietly.

 

4. Tables and chairs may be placed out subject to the issue of a tables and chairs licence from Street Trading.

 

5. Tables and chairs shall not be set out on the Sekforde Street frontage beyond the window closest to 35 Sekforde Street.

 

6.  Any outside drinking area shall be closed and cleared of customers by 22:15.

 

7.  Outside furniture shall be disabled and taken out of use by 22:15 each night.

 

8.  After 20:00 a maximum of 20 customers may be permitted to stand outside with drinks until 22:15. The area for vertical drinking shall be in Woodbridge Street and vertical drinkers shall not obstruct the public highway.

 

9. After 22:15 any customer who wishes to step outside to smoke shall be directed to Woodbridge Street. Numbers of smokers outside shall not exceed 10.  They shall not obstruct the public highway. They shall not be permitted to take drinks outside with them.

 

10. An SIA registered door supervisor shall be present every Thursday, Friday and on any other night when an event may be held such as quiz/comedy nights or any nights when a large attendance is anticipated.

 

11. The door supervisor will patrol the outside area and will supervise the dispersal of patrons and be present outside until all customers have left the vicinity.

 

12. A limiter shall be installed to restrict all amplified sound to ambient background levels including amplified voice.

 

13. The sound insulation properties of the premises shall be monitored, maintained and adapted as necessary to ensure that amplified sound played or other sound such as impact sounds within the premises does not cause nuisance or undue disturbance to occupiers of nearby premises.

14. In the event of noise nuisance from amplified sound being established from the premises, the licensee shall appoint a noise consultant registered with the Institute of Acoustics or Association of Noise Consultants to prepare a scheme of sound insulation and noise control measures, to prevent persons in the neighbourhood from being unreasonably disturbed by noise from the premises. The scheme shall be submitted for approval by the Council, and the approved scheme fully implemented to the satisfaction of the Council and the licensee notified in writing accordingly prior to any further events at the premises.

If the nuisance includes the structural transmission of sound any survey shall also include investigations and specify remedies in relation to the structural transmission.

15.The licensee shall adopt a ‘Challenge 25’ policy and promote it through prominent display.

 

16.The licensee shall put arrangements in place to ensure that before serving alcohol to persons they believe to be less than 25, staff ask to see accredited proof of age: that is, proof of age cards carrying the ‘PASS’ logo, a Passport or UK Driving Licence bearing the photograph and date of birth of the bearer.

 

17. The licensee shall ensure that staff are trained about age restricted products and ensure that they sign to confirm that they have understood the training. The licensee shall keep records of training and instructions given to staff, detailing the areas covered, and make them available for inspection upon request by the licensing team, police or trading standards.

 

18.The licensee shall require staff to note any refusals to sell to young people in a refusals log. The refusals log shall be made available for inspection upon request by the licensing team, police or trading standards.           

 

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.

 

Before the hearing commenced the Chair of the Licensing Sub-Committee invited the parties to meet and explore whether conditions could be agreed and to see if a consensus could be reached. The Sub-Committee noted licensing policy 29 which stated that the licensing authority believed that the promotion of the licensing objectives is best achieved in an atmosphere of mutual co-operation between all stake holders.

 

The Sub-Committee noted that some progress towards consensus had been made and this was reflected in the conditions imposed by the Sub-Committee.

 

The Sub-Committee noted that the majority of calls to the Council related to the noise outside the premises, although there was also an issue regarding the internal acoustics at the premises. The Sub-Committee noted that the licensing authority was concerned about the way complaints were handled and the supervision of customers outside the premises. The Sub-Committee noted the evidence from the interested parties of the impact of nuisance and anti-social behaviour caused by customers at the premises and obstruction on the pavement.

 

The Sub-Committee noted the evidence of the licensee that he had been managing the pub for the last year only and had recruited experienced members of staff to carry out the day to day management of the premises. The licensee had written to residents and provided his telephone number and indicated to the Sub-Committee that he wanted things to change. The licensee’s manager indicated that he was going to set up monthly meetings with residents and carry out quarterly reviews. The Sub-Committee also noted that the pub was to close for two weeks after the 24 December and the licensee would use this time to find a better way to run the premises.

 

The Sub-Committee noted the submission from the licensee, that, if he was only allowed 20 people outside the premises during the summer, the business would not be profitable. However, the Sub-Committee considered that restricting the numbers of people outside to 20 after 8pm would achieve a balance between the commercial interests of the licensee and the impact on residents.

 

The Sub-Committee decided to modify the conditions of the premises licence for the following reasons:-

 

Condition 1 The Sub-Committee amended the suggested condition on page 471 of the agenda to take account of the licensee’s submissions that some windows needed to be open to allow for ventilation in the premises.

 

Condition 2 and 3 were accepted by the licensee.

 

Condition 4. The evidence before the Sub-Committee was that the tables and chairs were placed on the highway and would require a licence from Street Trading. 

 

Condition 5 was proportionate to prevent nuisance to the residents of 35 Sekforde Street.

 

Conditions 6 and 7 were accepted by the licensee. The Sub-committee noted the compromise offered by the licensee and concluded that it was proportionate and reasonable for the hour of 22.15 to be substituted in the conditions on page 471.

 

Condition 8. The Sub-Committee considered that restricting the numbers of people outside to 20 after 8pm would achieve a balance between the commercial interests of the licensee and the impact on residents.

 

Condition 9. The Sub-Committee considered this was reasonable and proportionate for customers going outside to smoke after 22.15.

 

Condition 10. The licensee accepted that the door supervisor should be SIA registered and was required for every Thursday and Friday night.  The Sub-Committee considered that it was reasonable and proportionate that an SIA door supervisor should also be present on other busy nights at the premises.

 

Condition 11 was not challenged by the licensee

 

Condition 12. The licensee agreed that a limiter should be installed.

 

Condition 13. The Sub-Committee concluded that this condition was necessary to deal with noise nuisance from the premises that might be caused by amplified sound or other sound such as impact sounds within the premises.

 

Condition 14. The Sub-Committee concluded that this condition was necessary to promote the licensing objectives and ensure that there was no public nuisance.

 

Conditions 15. 16. 17 and 18. The licensee accepted that Challenge 25 policy should be applied and promoted at the premises. The Sub-Committee noted that the licensee did not want to display large posters and therefore only required promotion through prominent display.

 

The Sub-Committee noted submissions raised by the licensee regarding the conditions 14 and 15 proposed on page 471 of the agenda and concluded that it was not reasonable or proportionate to impose these conditions.  All other conditions were reasonable and proportionate and would ensure that the licensing objectives would be promoted.

 

Note of the Sub-Committee

The Sub-Committee noted that the senior employees did not hold personal licences.  The Sub-Committee expected that this would be addressed.

The Sub-Committee raised that the designated premises supervisor would be expected to have day to day management of the premises. The Sub-Committee noted that the licensee would be happy for one of the two managers to become the designated premises supervisor on obtaining personal licences.