Agenda item

The licensing officer stated that additional papers had been circulated. It was noted that there was a current live planning application for a change of use to a restaurant and public house. This had not been withdrawn. Planning officers had advised that the use of the rear yard would be in breach of the s106 agreement and Planning would need to take enforcement action.

One resident stated that he had concerns about alcohol sales and that they should be ancillary to a table meal. The change of use would need a planning application. The planning application had not been withdrawn and so contradicted the current licensing application. There had been a previous unlawful use as a public house and there had been noise disturbance to residents. The operating schedule did not show how the premises would be managed. Amplified music would be entirely inappropriate given the residential area. The hours sought were outside framework hours. There should be conditions to protect residents which would include a limit to framework hours, no amplified music, a programme of sound insulation, conditions related to dispersal and alcohol to be served to seated and indoor patrons only. A second resident stated that the premises had always operated as a restaurant and was in a cumulative impact area. A glass conservatory had been added at the rear at the premises but with no noise mitigation. They asked that this licence be as restrictive as the original. The building was wholly unsuitable to play amplified music and sound insulation work would need to be carried out. The use of the rear area should not be considered. A telephone number from the applicant had been refused. A third resident stated that a new planning application had been submitted for a restaurant/public house. The applicant should withdraw that planning application if that is no longer the intention. The ward councillor stated that it was not clear what the intention of the application was. It had been proposed to have a late night bar but this had now been amended. He read out a number of suggested conditions that should be imposed. These included alcohol sales to be ancillary to a table meal, that there be no vertical drinking, that hours reduced to framework hours, the prohibition of the use of the rear yard, that windows should remain closed after 9pm except for access and egress, that a limit of six smokers be permitted to stand outside and that hours for bottling out be restricted.

In response to questions, it was noted that the previous licence had only four conditions. The residents stated that there had been a lack of engagement from the applicant and they had tried to engage with the applicant but this had not been successful.

The applicant stated that the application was for the premises to be used as a pizzeria restaurant. Following the concerns raised, the hours had been reduced, conditions had been agreed with the responsible authorities and they had withdrawn their representations. Conditions that alcohol would be ancillary to a table meal and that there be no vertical drinking were agreed. The responsible authorities had withdrawn their representations in response to the conditions agreed. There was a current planning application for a change of use and the home office guidance made it clear that planning and licensing were separate regimes. The applicants’ representative stated that the Sub-Committee should determine the application set out before them. With regard to Licensing Policy 1, there were no planning issues and the application was consistent with the lawful use as a restaurant. Should planning allow later hours, the applicant would need to abide by the licensing.  Regarding licensing policy 2, the premises was located in a cumulative impact area, the responsible authorities had been positive and the applicant had demonstrated a high standard of management Regarding licensing policy 3, it was considered that there was no need to rebut the presumption as the premises was already in existence and mitigation with the additional conditions was more than adequate. Regarding the proposed conditions from Councillor North, he stated that with the S106 agreement condition should not be replicated as it was a legal agreement and the rear yard was not a matter for licensing. Allowing six smokers outside the frontage was accepted. It was considered that a more appropriate time for the closing of windows and doors would be 11pm and with regards to a bottling out condition it would be open to the Sub-Committee for consideration.

In response to questions, it was noted that the applicant had run a pizza restaurant for six years which had no vertical drinking. There were no off sales of alcohol. He stated that the premises had been run as a pub previously, so it was planned to be a pub and a restaurant, however planning consent had taken a long time and a business decision had been made to operate as a restaurant only. The licensing officer reported that there was a licence for the premises in existence since 2005. The applicant stated that he had spoken to a couple of neighbours but not fully engaged. He said that he engaged with patrons at his bars and nightclub but that in the restaurant, people would come in for pizza, wine or beer and then leave. For future engagement he would invite neighbours to the restaurant. If there were complaints he would apologise and they could go through the agent. The applicant’s representative stated that was a procedure to increase the level of noise protection to ensure that they would not cause a nuisance and conditions were in place to prevent issues. The Sub-Committee noted that there was a proposed condition that asked that a telephone number be made publicly available and it was concerned that the applicant was not aware of this condition.  The applicant was asked about the bottling out condition and he initially stated that unfinished bottles could be taken home. When the terminology was explained he stated that all the bins were in the back yard.  The applicant’s representative stated that the s106 dealt with the use of rear yard and there would be an unnecessary duplication if a condition was added to the licence.

The licensing officer advised the Sub-Committee that bottling out hours could be added to the condition regarding the collection of refuse.

In summary, the interested parties were concerned that they would need to enforce against the use of the back yard when the garden was just below residential balconies. This was not a neighbourly action. They expected that the noise nuisance would add to the cumulative impact and expected that conditions would be in place. He had lodged an application with planning for a public house only two months previously and the applications needed to be consistent.

The applicant’s representative stated that the premises was to be run as a restaurant and not a pub. There was an outstanding planning application. The applicant had been involved in licensing for 20 years, currently running a premises in Archway, He had the advice of a consultant and understood the implications of not following the conditions. He considered that the impact would be mitigated due to the extensive conditions applied.

RESOLVED

That the application for a new premises licence, in respect of The Empress, Ground Floor and Basement, 360 St John Street, EC1V 4NR 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 2 & 3.  The premises fall within the Bunhill Cumulative Impact area.  Licensing policy 3 creates a rebuttable presumption that applications for the grant or variation of premises licences which are likely to add to the existing cumulative impact will normally be refused following the receipt of 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.

Twelve local resident objections had been received.  Three residents attended with Councillor North. One resident explained that they owned the freehold of their building. Conditions had been agreed with the responsible authorities. 

The Sub-Committee noted that the hours sought were within the hours specified in licensing policy 6.

The Sub-Committee heard evidence from the residents about concerns that this would in fact be run as a public house. There had been problems experienced with anti-social behaviour and noise when in a previous operation it had run as The Empress of Russia public house. Planning permission had not been granted for this use. The applicants’ representative explained that initially the applicant had hoped to run a public house but because of delays in obtaining planning permission he had now decided to run the premises as a restaurant. One of the residents said there was confusion because he was not clear why there was a current planning application for a restaurant and public house. The applicant should commit to running the premises as a restaurant, as in this application and withdraw the planning application for a public house.  The Sub-Committee noted that the applicant had not made clear from the start of the meeting that a new application had been submitted to planning for the use of the premises as a public house. The conditions did not include the usual restaurant conditions about alcohol being served ancillary to food and table service.

The residents were concerned about the use of the rear outside yard, which was included in the application for licensing. Under a Section 106 agreement with the residents as freeholder, the use of the area was prohibited.  The applicants’ representative asserted this was purely a planning issue and not a relevant consideration for a Licensing Sub-Committee.  However, the resident explained that they would have to enforce against the applicant if he used the rear yard. The back of the building was a glass extension to the rear yard and there were problems with noise and the close proximity of residents.

The Sub-Committee considered licensing policy 26, where garden tables and chairs are provided outside, users could potentially cause a nuisance. The Licensing Authority expected applicants to provide comprehensive details in their operating schedule how these areas would be managed to prevent noise and smoke fumes to residents. The applicant had not addressed this.

Under licensing policy 22, the Licensing Authority is committed to preventing public nuisance in the vicinity of licensed premises and to protect the amenity of residents. Applicants are expected to address these issues in their operating schedules. Under Licensing Policy 23, paragraph 128, the Licensing Authority will seek to balance the protection of residents from undue noise and the activity that is the natural by-produce of people going about their business, entertainment and leisure.

The Sub-Committee questioned the applicant about arrangements made for ‘bottling out.’ There can be noise nuisance as a result. The applicant was unclear as to what was meant by bottling out and he initially said that this meant when patrons had not finished a bottle of wine and were allowed to take it home. 

The residents were adamant that no consultation had taken place with them. The applicants’ representative emphasised that the applicant had fully consulted with all the Responsible Authorities. The Sub-Committee questioned the applicant on approaches he had made to local residents. The applicant said he had spoken to a couple of neighbours. When the premises opened he said he would invite neighbours to a pizza evening. If there were any complaints he would apologise. Complaints could be made through his agent. The applicant said he had run a number of business such as nightclubs and he would have consulted with neighbours in such a case but this was a restaurant and not the same.