Agenda item
Application for a New Premise Licence for Code Floors 3-4, 34 Westferry Circus London E14 8RR
Minutes:
At the request of the Chair, Ms Kathy Driver, Licensing Officer introduced the report which detailed the application for a new premises licence for E14 Lounge Ltd. to be held in respect of Code, Floor 3-4, Westferry Circus, London, E14 8RR (“the Premises”). The application sought authorisation for the sale by retail of alcohol, regulated entertainment, and the provision of late night refreshment. With the exception of late night refreshment, which commences at 23:00 hours, the hours sought for all licensable activities were 12:00 hours to 02:00 hours seven days per week. The premises would close to the public at 02:30 hours although the report before the Sub-Committee incorrectly stated this to be 02:00 hours.
The application attracted representations against it from the police, Environmental Health, the Licensing Authority, and local residents. The representation from the residents was in the form of a letter undersigned by eighty people.
The Sub-Committee was informed at the start of the meeting that conditions had been agreed with the Environmental Health officer and the Police. As a result, the representation from Environmental Health was withdrawn, however the police objection remained. The objections were based predominantly on the licensing objectives of public safety and the prevention of public nuisance.
The Sub-Committee heard from Frank Fender on behalf of the applicant. He reminded the Sub-Committee that the Premises were not located within a Cumulative Impact Zone and that the presumption was in favour of granting unless there were good reasons to refuse. The Premises operated only on two floors. Th fourth floor would be a restaurant only with no regulated entertainment and only background music. The third floor was intended to be a lounge bar with regulated entertainment. There was no dance floor or flashing lights; it was intended to be a cabaret-style operation. It was not to operate as a disco.
The applicant stated that the main entrance, located by the riverside, had the potential to give rise to noise disturbance later in the evening and so this entrance and exit would be used only to 22:30 hours. After that time, entry and exit would be via the underground car park only. Security staff would patrol in the car park, which would address any noise concerns. All the proposed police conditions were agreed.
The applicant had various policies in place except for a transport management plan. The applicant was willing to accept a condition that a plan be produced and agreed with the police and the licensing authority before licensable activity takes place.
Mr. Fender suggested that the residents may not have been fully aware of what they were signing, as this was common with petitions. The representation expressed a number of concerns and the applicant has sought to address those concerns. Mr. Fender also explained that an agreement for no entry or exit after 22:30 hours applied only to the riverside entrance, not to the premises as a whole.
At the request of the Chair PC Mark Perry explained that conditions had been agreed. However, his main concern related to a terminal hour of 02:00 hours and the use of the car park. The car park was shared with residents and users of a gym. There was the potential for it to become congested with patrons, Ubers, with the associated nuisance that comes with that. There was also the risk of taxis and other vehicles pulling up and blocking the roundabout underneath Westferry Circus and which gave rise to the risk of crime and disorder. That issue had not been resolved to the police’s satisfaction. PC Perry said it was unique in that entry and exit at certain times would be via an underground roundabout and an underground car park. Adding alcohol to the mix also gave rise to a public safety risk from road traffic collisions.
PC Perry welcomed the proposal for a traffic management plan but did not agree that it should be for the police to agree; his view was that it should be before the Licensing Sub Committee for them to approve. No plan has been put in place and he suggested that the lack of a plan to date indicated the possibility that there is no safe plan for the egress of patrons, which was the greatest concern to him.
The Sub Committee then heard from Corinne Holland on behalf of the Licensing Authority, she explained that one of her concerns was around the potential for public nuisance arising from large numbers of people leaving at around 02:30 hours. She noted also that the planning permission allowed for the use of bi-folding doors and these were shown on the plans. This had the potential to create a internal terrace area that could be opened to the front of the building. That potential for noise escape had not been mentioned in the management plan.
Smoking was another area of concern. After 22:30 hours, if the main doors were closed, it was said that smoking would take place on Westferry Circus. The noise management plan, at Page 83, stated that after 22:30 hours the Premises would not be able to accommodate smokers. Escorting smokers from the Premises would appear to require four staff members and she expressed doubts as to whether this was workable.
Ms Holland stated that if granted, there would need to be clear conditions to manage smokers. There was also a planning permission for the use of the roof terrace, which was not part of the plans included with the licensing application, but which could be used for non-licensable activity. Finally, she referred to links between the directors of the applicant company who had also been directors of another company, Nine Lounge Ltd., which operated a shisha bar in Greenwich and which had been convicted of offences relating to indoor smoking and blocking of fire exits.
Kevin Bell then addressed the Sub-Committee on behalf of the residents. He asked that the application be rejected for non-compliance with various planning policies. He stated that there were around 1,000 residents in the nearby vicinity, many of whom were only thirty metres away from the Premises. Two hundred properties could look into the Premises and the residents would suffer a considerable degree of loss of privacy.
Mr. Bell asserted that the applicant would restrict noise but only from 01:30 hours and that it could therefore be assumed that music would be played at maximum volume before then. He suggested that if a noise limiter was to be put in, then the application should be withdrawn and an application made for no noise. He referred also to the possibility of light pollution and that the planning permission required a lighting strategy to be approved by the planning authority. That had not been done.
He stated that the Premises were not suitable for smokers and that this too was recognised in the planning permission. He also expressed concerns around the lack of a traffic management plan. People would inevitably congregate under Westferry Circus and that would lead to litter, public urination and the like. He also stated that there had been no discussion with the estate management over the extent to which they could control the car park.
In response to questions from Members the following was noted;
The applicant confirmed that the capacity of each floor was 160 people and that the light levels would be raised as the evening draws to a close as this indicates to patrons that the venue is close to closing. The applicant was asked how long it would take to disperse 320 people and replied that not everyone would leave at once; dispersal usually occurred gradually over a period of time. When asked how long it would take, in the event that everyone did leave at once, the applicant was unable to give an answer.
Members also explored the issues around egress and use of the car park, noting PC Perry’s concerns. It was accepted by the applicant that it would be security-intensive but it would be implemented. They would ensure that no-one smoked in the car park and that the footpath by the car park would be supervised.
When asked about the likely impact of 320 people on the community late at night, the applicant asserted that the Premises were not in the middle of the estate, but on the edge. The conditions agreed with the Noise Service would mitigate noise nuisance. Further, the applicant stated that they proposed to close the restaurant at midnight or 01:00 hours. When asked by the legal adviser which time was being proposed, the response was that people would stay out later at the weekend and that the Premises were not a nightclub.
With respect to the application seeking authorisation for activities such as films and what was meant by “occasional” the applicant clarified that it would likely be Thursdays to Sundays. They did not anticipate having people in the Premises until 02:00 every day but wanted the flexibility.
Members also sought more information about the car park and a nearby taxi rank. Mr. Bell explained that the car park had 620 spaces, of which 400 belonged to residents. The exit routes would go through those car parking spaces, which contained about £12m worth of cars. The lift down to the car park can hold about six people at a time. The area to the side of the car park was in use 24 hours per day. Mr. Bell asserted that it would not be appropriate to use an unsafe, unlit car park.
When asked how dispersal could be managed in light of this, the applicant again reiterated that not everyone would leave at once. The restaurant would close earlier than the third floor and not everyone would go to the third floor. The security staff would escort everyone and the applicant would have to manage it since that would be a condition of the licence. With respect to a traffic management plan, it was said that this would cost around £3,000.00 to £5,000.00 and the applicant did not wish to do that without knowing a licence would be granted.
Concluding remarks were made. Mr. Bell commented that money could be spent on other measures to reduce some concerns, such as curtains and glazing. He maintained that the application was not appropriate for the location.
Ms. Holland noted that sound limiters could only control music noise, not noise from patrons. She also highlighted that there was no corresponding reduction in opening hours for the fourth floor, if the hours for licensable activity were reduced and that one lift from the Premises to the car park could be problematic.
PC Perry emphasised that the egress route was via an underground car park to an underground roundabout on a busy arterial road. A traffic management plan should have been produced in advance of the meeting. There was a real risk to public safety, both of patrons and other road users, and to suggest that perhaps sixty taxis turning up at once was a viable means of dispersal was not a viable means of removing people from the area.
Mr. Fender asserted that the proposal to devise a traffic management plan upon grant of the licence would suffice to address the concerns raised. The Premises had previously been licensed. The hours sought were not excessive and the nearby Canary Wharf hotel was licensed to 03:00 hours.
This application engages the licensing objectives of the prevention of public nuisance, public safety and, to a lesser extent, the prevention of crime and disorder. The Sub-Committee had had regard to all the written representations and documentation as well as the oral submissions of the parties.
It should be stated at the outset that many of the concerns raised could be dealt with by way of conditions. Music noise, for example, could be addressed by a sound limiter condition as agreed. The suggestion that this required a new application was not correct. Issues such as lighting, whilst potentially of relevance to the prevention of public nuisance, are more appropriately left to the planning regime to be dealt with, particularly as the planning permission requires a lighting strategy to be provided to the planning authority. Further, it was not unreasonable to consider that residents themselves have some responsibility for preventing unwanted light from entering their flats and it is not unreasonable to suggest that many flats would have curtains or blinds.
Similarly, the Sub-Committee did not consider there to be a real risk of overlooking and loss of privacy; the nearest properties were around thirty metres away, which is a considerable distance. The Sub-Committee understands it also to be arguable as to whether this would, in any event, suffice to constitute a public rather than private nuisance. However, it too is something that could be mitigated by the imposition of conditions and would not, of itself, justify a refusal of the premises licence.
The Sub-Committee noted the issues around the escorting of patrons wishing to smoke and the practicalities of that. Again, that is something that potentially could be conditioned as suggested or even by the imposition of a condition prohibiting people leaving after 22:30 to smoke from re-entering.
Issues such as the age of the company or its trading history are not relevant to the licensing objectives. The suggestion that there should be a waste management plan is similarly not relevant. Waste is addressed by other statutory controls and it is only in respect of discrete issues where it would be appropriate for waste matters to relevant to the licensing objectives e.g. conditions restricting the emptying of bottle banks.
The main areas of concern for the Committee, however, were the terminal hour and the issues flagged around dispersal of patrons and the potential risks arising. The terminal hour of 02:00, with the Premises closing to the public at 02:30, gave rise to potentially large numbers of people in the vicinity as late as 02:30 or 03:00. Whilst the applicant suggested that these were not particularly late hours, the Sub-Committee disagrees. These were sought seven days per week. Whilst the applicant points to another nearby premises, that is of no assistance. Each application must be dealt with on its own merits and the fact that another premises nearby may have later hours is not a relevant consideration for the Sub-Committee. The Statutory Guidance at paragraph 2.25 provides that:
“Where applications have given rise to representations, any appropriate conditions should normally focus on the most sensitive periods. For example, the most sensitive period for people being disturbed by unreasonably loud music is at night and into the early morning when residents in adjacent properties may be attempting to go to sleep or are sleeping.”
Similarly, paragraphs 16.6 to 16.8 address the issue of hours. These provide that:
“16.6 The Licensing Authority considers that the possibility of disturbance to residents late at night and in the early hours of the morning, and the effect that any such disturbance may have, is a proper matter for it to consider when addressing the hours during which licensable activities may be undertaken.
16.7 The Licensing Authority is concerned to ensure that extended licensing hours do not result in alcohol-related antisocial behaviour persisting into the night and early hours of the morning. For these reasons, applications to carry on licensable activities at any time outside the framework hours will be considered on their own merits with particular regard to the matters set out in the Policy section below…
Applications in respect of premises licences and club premises certificates to authorise licensable activities outside the framework hours, and in respect of which relevant representations are made, will be decided on their own merits and with particular regard to the following.
Thelocation of the premises andthegeneralcharacter ofthe areainwhichthe premises are situated.(i.e.,doesthe area includeresidentialor business premiseslikelyto be adverselyaffected).
The proposed hoursduring whichlicensable activities willbe take place andthe proposed hoursduring whichcustomers will be permittedtoremain onthe premises.
The adequacyof the applicant’s proposals to addresstheissues ofthepreventionof crime and disorder andtheprevention of publicnuisance.
Where the premises havebeen previously licensed, the past operation of the premises.
Whether customers haveaccessto public transportwhen arrivingat orleavingthe premises at nighttime andin the earlyhoursof the morning.
The proximityof the premises to other licensedpremises in thevicinityandthe hoursof those other premises.”
This application seeks to operate considerably outside of framework hours in an area that the Sub-Committee considers to be highly residential. The Premises are surrounded by flats and this gives rise to a very real risk of public nuisance. Whilst the Sub-Committee sought to explore the hours with the applicant, it was not particularly assisted by a suggestion that the restaurant would probably close at midnight or 01:00 hours. The Sub-Committee accepts that it could impose different hours if it saw fit to do so, but it does expect a degree of assistance from applicants as to what may or may not be realistic.
The Sub-Committee was similarly concerned, as were the responsible authorities, by the egress arrangements. There were photographs of the car park in the report pack (Pages 132-133). The Sub-Committee noted that it was often not the case that all patrons would leave at once. However, it is nonetheless a possibility and one which the applicant had not countenanced. There was only one lift, which could accommodate six persons, which went to the car park. That would likely result at times in people, some of whom are intoxicated, becoming noisier as they are obliged to wait for the lift. They would then need to wait to be escorted through the car park. There would be no realistic way to control noise from those patrons beyond asking them to be quiet. It was also easy to see the potential for other issues arising, such as patrons running off around the car park, which would also give rise to public safety risks.
Equally, in the absence of a traffic management plan the Sub-Committee was concerned to know exactly how traffic issues would be managed. The photographs did show the possibility for the car park entrance and the road into it to be come congested. That again gives rise to the possibility of public nuisance as drivers sound their horns. There is, it appears, little public transport in the immediate vicinity after midnight. The Sub-Committee was also concerned as to possible public safety risks in dispersing people through the car park and into the underground route under Westferry Circus, which is a very busy road and not suited to pedestrians. Again, when alcohol is added to the mix, the potential for accidents seemed to be high. This was not, in the Sub-Committee’s view, a matter to be addressed by way of conditions and plans produced after the licence is granted, but before grant so that Members and the responsible authorities can be satisfied that the proposals are workable and address the risks.
The lack of clarity in the answers given to some questions posed did not give the Sub-Committee a great deal of confidence. Whilst it is right to say, for example, that the applicant must, if a condition is imposed, comply with it the Sub-Committee still needs to have confidence both in the feasibility of the condition as well as in the applicant’s ability to ensure compliance. Whilst there was a dispersal plan, the Sub-Committee was concerned that it was not sufficient, particularly combined with the lack of a traffic management plan.
The Sub-Committee has considered the options open to it. It did not consider that it had heard enough to justify granting the application as sought by the applicant. The Sub-Committee considered the imposition of the agreed conditions and whether any other conditions could also be imposed so as to mitigate its concerns and those of the responsible authorities. This also included consideration of reduced hours to framework hours, although the Sub-Committee had no useful information about that. It was not satisfied that this would suffice to mitigate the concerns raised. The issues of egress and dispersal remained.
It did not consider it appropriate to remove any licensable activities from the scope of the licence as that would not have mitigated its concerns. The Sub-Committee has noted the Statutory Guidance at paragraphs 9.42 to 9.44 and, in particular, the opening sentence of paragraph 9.42 which recognises that licensing authorities are best placed to determine what actions are appropriate for the promotion of the licensing objectives in their areas. Given the points made above, the Sub-Committee was not satisfied that it had before it sufficient evidence to allay its concerns that the risks to public safety and the prevention of public nuisance, especially at the late hours proposed, would be suitably mitigated so as to ensure that the licensing objectives would be promoted.
The decision of the Sub-Committee is therefore to refuse the application.
Supporting documents:
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Code cover report - 23 April 24, item 3.1
PDF 483 KB
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Code Appendices Only - 23 April 24, item 3.1
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Code - Supporting Docs 1, item 3.1
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Code - Supporting Docs 2, item 3.1
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Code - Supporting Docs 3, item 3.1
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Code - Supporting Docs 4, item 3.1
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Code - Supporting Docs 5, item 3.1
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Code - Supporting Docs 6, item 3.1
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Additional Doc 1 - Kevin Bell, item 3.1
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Additional Doc 2 - Licensing Authority, item 3.1
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Code interior 1 - 4th floor, item 3.1
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Code interior 2 - 4th floor, item 3.1
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Code interior 3 - 4th floor, item 3.1
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Code interior 4 - 4th floor, item 3.1
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Code interior 5 - 3rd floor, item 3.1
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Code interior 6 - 3rd floor, item 3.1
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Code interior 7 - 3rd floor, item 3.1
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Code interior 8 - 3rd floor, item 3.1
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Code interior 9 - 3rd floor, item 3.1
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