Agenda item

Application for a new Premises Licence.

RECEIVED an application made by Mr Abdul Jalil Azimy for the premises known as Kabul Cuisine, 394 Green Lanes, Palmers Green, N13 for a new Premises Licence.

 

NOTED

 

1.      The introduction by Mark Galvayne, Principal Licensing Officer including:

 

a.      The application was seeking to vary the hours being sought for the opening of the premises, provision of late night refreshment and recorded music.  The supply of alcohol was not being sought.

 

b.      The applicant had agreed to the conditions requested and had also agreed to amend the hours originally being sought under the application for opening Sunday –Thursday to 11:00 – 00:30 and Friday – Saturday to 11:00 – 02:30 ; recorded music Sunday – Thursday to 11:00 – 23:00 & Friday – Saturday 11:00 – 02:00; and late night refreshment Sunday – Thursday to 23:00 to 00:00 and Friday – Saturday 23:00 – 02:00.

 

c.      Representations had been received objecting to the hours being sought under the application from the Metropolitan Police, Licensing Authority and 19 other persons residing in the local area.

 

d.      The omission of the general description of the premises and floor plan, which should have been circulated as an appendix to the application form on the agenda.  Copies of both documents were tabled for the Sub Committee at the meeting with members noting that the intended use of the premises was as an Afghani cuisine restaurant and take away consisting of 11 tables and 60 seats.  No alcohol would be sold on the premises or supplied with take away deliveries.  Smooth recorded dining music would be played and their would be no amplified music.

 

2.      The opening statement of Ms Ellie Green, Principal Trading Standards Officer, including the following points:

 

a.      Whilst supportive of the amended hours agreed with the applicant for Sunday – Thursday the representations submitted by Trading Standards still remained in relation to the proposed hours of operation for Friday – Saturday.

 

b.      The representations related to the prevention of Public Nuisance, with concerns raised about the close proximity of the premises to residential properties and the subsequent potential for nuisance to be caused by customers arriving at and leaving the premises and noise disturbance.

 

c.      A significant number of representations had been received from local residents in the area expressing concern about public safety, parking and the potential for noise disturbance.  The Out of Hours Licensing Enforcement Team had carried out an observation outside the premises on 15 September 2012.  The quiet nature of the area after midnight had been noted and this had supported the view that granting a late night licence would create the potential for noise disturbance and be detrimental to the area.

 

d.      As a result Trading Standards did not feel the hours (as amended) being sought under the application on Friday – Saturday would be appropriate and the licensing conditions agreed would be sufficient to control the potential for noise and disturbance.  Under the steps considered necessary for promotion of the licensing objectives Trading Standards were seeking for the amended hours agreed with the applicant on Sunday – Thursday to also cover Friday – Saturday.

 

3.      The following issues highlighted in response to questions asked following the submission by Ellie Green (Principal Trading Standards officer):

 

a.      Trading Standards had noted the concerns raised within the representations from local residents about limited parking in the area but no parking survey had been undertaken.  Tricia MacFarlane (Legal Representative) reminded the Sub Committee that parking was not a matter that could be considered under the Licensing Objectives.

 

b.      Conditions relating to noise insulation or the use of a noise limiting device would usually be dealt with under the planning process.  From a licensing perspective conditions relating to regular assessment of noise levels and the requirement for noise levels to be reduced, when required, were felt to be more effective and had been included for this application.

 

c.      A separate licence would be required for the use of any copy regulated recorded music on the premises, which was not a matter to be considered under the Licensing Act 2003.  Use of recorded music would only be licensable under this Act if being used for entertainment purposes.

 

d.      Members noted:

·              the concerns highlighted about the potential of the premises to attract customers to a residential area late at night who had consumed alcohol elsewhere (given the number of licensed premises in the vicinity) and the correlation between alcohol and the potential for disruption;

·              The need to recognise, at the same time, that the application was not seeking permission for the supply of alcohol on the premises.

 

4.      The opening statement of Steve Earlsmore, Metropolitan Police, including the following points:

 

a.      Whilst also supportive of the amended hours agreed with the applicant for Sunday – Thursday the representations submitted by the Metropolitan Police still remained in relation to the proposed hours of operation for Friday – Saturday.

 

b.      The representations related to the prevention of Public Nuisance, with concerns raised about the close proximity of the premises to residential properties and the subsequent potential for nuisance to be caused by customers arriving at and leaving the premises and noise disturbance.

 

c.      As a result the Metropolitan Police did not feel the hours (as amended) being sought under the application on Friday – Saturday would be appropriate and the licensing conditions agreed would be sufficient to control the potential for noise and disturbance.  Under the steps considered necessary for promotion of the licensing objectives they were also seeking for the amended hours agreed with the applicant on Sunday – Thursday to be extended to cover Friday – Saturday.

 

5.      The following issues highlighted in response to questions asked in relation to the submission by Steve Earlsmore (Metropolitan Police):

 

a.      The request made by the Sub Committee for future representations from the Metropolitan Police to include details of any relevant crime and safety problems reported in the area.

 

6.      The opening statement of Mr Guy Jackson, as a local resident & interested party, including the following points:

 

a.      Support was expressed for the representations made by Trading Standards & the Metropolitan Police.

 

b.      As a local resident he was specifically concerned about the potential for nuisance to be caused by customers arriving at and leaving the premises late at night and noise disturbance in the surrounding residential area, particularly when alcohol had been consumed.

 

7.      The following issues highlighted in response to questions asked following the submission by Mr Guy Jackson (Interested Party):

 

a.      Confirmation was provided that the supply of food and provision of recorded music, provided it was set at ambient levels, was not as of significant concern as the potential of the premises to generate nuisance and noise by attracting customers who had consumed alcohol elsewhere late at night.

 

b.      In terms of the provision of late night refreshment Mr Jackson’s preference, as a local resident, would be for this to cease at midnight throughout the week.

 

c.      The context provided by Mr Jackson relating to the residential character and nature of the area surrounding the applicant’s premises.

 

8.      The opening statement of Mr J.F.Lake, as a local resident & interested party, highlighting concerns in relation to:

 

a.      the potential for nuisance to be caused by customers arriving at and leaving the premises late at night and noise disturbance in the surrounding residential area, particularly where this also involved the consumption of alcohol; and

 

b.      parking difficulties already being experienced in the area, which it was felt would be made worse should the application be granted;

 

9.      The following issues highlighted in response to questions asked following the submission by Mr Lake (Interested Party):

 

a.      As a result of comments made by Mr Lake during his opening statement the legal representative reminded the Sub Committee of the need to focus their consideration around the details of the application made and how this related to the Council’s Licensing Objectives.  The application had not included provision for the supply of alcohol on the premises so any concerns highlighted in relation to this issue should be ignored and not treated as a relevant consideration, which the Chair confirmed the Sub Committee had recognised.

 

b.      Whilst accepting that it would be difficult to distinguish between the nuisance caused by the applicants premises (should the application be granted) as compared to any of the other late night premises already operating along that area of Green Lanes, both of the Interested Parties felt granting of the license would have the potential to cause further disturbance.

 

c.      Confirmation was provided that despite the number of licensed premises operating in the vicinity of the applicant’s premises the area was not located in any of the Council’s Cumulative Impact Policy Areas.  Further clarification was sought and provided on the immediate proximity of these licensed premises to both the applicant’s premises and surrounding residential areas.

 

d.      In terms of the level of noise disturbance currently being experienced late at night by the Interested Parties, Mr Lake confirmed this was on an infrequent basis.

 

e.      Details were sought on the levels of nuisance experienced under the previous licence held at the premises, which had permitted hours of opening and recorded music 24 hours a day 7 days a week.  Both Interested Parties confirmed that the previous restaurant (The Mixed Grill) to which this applied, had not operated for a long period of time so no specific problems or disturbance had been experienced.

 

10.    The opening statement of Mr Azimy, applicant, including the following points:

 

a.      The applicant had agreed to reduce the hours of operation being sought under the original application from 04:00, but it had not been possible to resolve the representations still in place on the hours being sought on Friday – Saturday.

 

b.      The revised hours being sought on Friday – Saturday were felt to be essential, in order to maintain the viability of the business and other premises in the immediate vicinity were already operating late into the evening.

 

c.      Confirmation was provided that no alcohol would be sold on premises

 

11.    The following issues highlighted in response to questions asked following the submission by Mr Azimy (Interested Party):

 

a.      The applicant anticipated that his main custom would be from the restaurant, which was focussed on Afghan cuisine.  Customers using the restaurant would be permitted to consume their own alcohol on the premises, which the Principal Licensing Officer confirmed was not a licensable activity.

 

b.      In terms of the take away facility it was anticipated the bulk of orders would be phone deliveries rather than walk-in.

 

c.      The later hours being sought on Friday & Saturday were in order to maintain the viability of the business.

 

d.      Confirmation was provided that the music to be provided would only be ambient background music for customers dining in the restaurant.

 

e.      The premises operated a charcoal grill with wooden floors in the restaurant, although it was planned to provide softer Afghan carpets in the future.

 

f.       The applicant highlighted that no residents on Green Lanes had submitted representations against the application

 

12.    The closing statement of Mark Galvayne, including the following points:

 

a.      Clarification was provided that the type of food to be sold or use of the premises under the license being sought for take away or eat on purposes was not subject to conditions.

 

b.      The Policy considerations needing to be taken into account when considering the application, as detailed in section 5 of the report accompanying the application from the Principal Licensing Officer which included:

 

·              The need to consider whether stricter conditions would be required with regard to licensing hours being sought for premises situated in or immediately adjacent to residential areas to ensure that disturbance to local residents is avoided.  This would particularly apply in circumstances were it was likely that disturbance would be caused to residents by concentrations of people leaving, particularly during normal night time sleeping periods (Policy Section 8.4).

·              The need to consider the density and closing time of licensed premises in the vicinity (Policy Section 8.8.2)

 

13.    The closing statement of Ellie Green, including the following points:

 

a.      The representations made in relation to public nuisance remained, particularly in view of the potential impact of operation of the late night take away on the surrounding residential area.  For these reasons it was felt that the amended hours of operation on Sunday – Thursday should also apply on Friday – Saturday.

 

14.    The closing statements from the Interested Parties, including the following points:

 

a.      Concern was expressed about the precedent that the granting of the license may have in terms of other licensed premises in the area also seeking to extend their hours of operation and impact this would have on the surrounding residential area.  In response Councillor Levy (as Chair of the Sub Committee) advised it was important to recognise that applications would all be considered and judged on an individual basis.

 

b.      Clarification was sought on the review process, should the Sub Committee decide to grant the license applied for.  Trina McFarlane (Legal Representative) confirmed that under the Licensing Act the presumption was now that a license would be granted unless it was felt sufficient reasonable objections had been raised.  Should problems be experienced with operation of any license granted, which it was pointed out the applicant had not given any indication during the hearing would occur, then it would be possible for any resident to seek a review but they would need to have justifiable reasons to do so.

 

15.    The closing statement from the Applicant, including the following points:

 

a.      He had been willing to agree revised hours for operation of the premises over Sunday – Thursday but it would not be possible, from a business perspective, to further amend the hours being sought on Friday – Saturday.

 

RESOLVED that

 

(1)    In accordance with the principles of Section 100(A) of the Local Government Act 1972 to exclude the press and public from the meeting for this item of business on the grounds that it involved the likely disclosure of exempt information as defined in Paragraph 7 of Part 1 of Section 12A to the Act.

 

The Panel retired, with the legal representative and administrator, to consider the application further and then the meeting reconvened in public.

 

(2)     The Chairman made the following statement:

 

“The Licensing Sub Committee has considered all the written and oral submissions from the applicant, the Responsible Authorities, the two local residents here present and the written representations of the other 17 Interested Parties.

 

Despite the strength of feeling voiced eloquently by the local residents and the representations from Trading Standards and the Metropolitan Police, the Sub Committee does not consider that there was sufficient evidence contained within the representations and that the case to refuse or further reduce hours was not made.

 

Much of what we heard was based upon conjecture and potential, but we heard nothing in terms of crime reports associated with the area or episodes of significant (or any) noise nuisance generated by existing premises in the vicinity. The Sub Committee asked this question specifically to the local residents and they too could not substantiate their fears and concerns.

 

We are of course cognisant of the points in the London Borough of Enfield’s Licensing Policy in terms of stricter hours in and around residential premises and the impact upon the licensing objectives from people gathering at takeaways.  However, there needs to be an evidence base of sufficient strength to warrant invoking policy sections 8.4 and 8.8.2,

 

The Sub Committee further acknowledges the acceptance by the Responsible Authorities and the local residents that the applicant had reined in from the hours originally sought; and the acceptance that supply of alcohol was never part of the application.

 

Consequently, the issue of contention required us was to focus on the hours sought for Friday and Saturday nights, and the provision of hot food and recorded music.

 

The applicant asserted that the main thrust of his business was to provide eat-in food to no more than 60 customers at a time on 11 tables.  There would be “smooth recorded dining music” – not loud and disturbing music.

 

There is no doubt, as all the representations made clear, that there can be a link between alcohol and crime and disorder, and yet the submissions on the day spoke almost exclusively to the prevention of public nuisance and other noise disturbance.

 

On the balance of all we have heard and read, we have concluded that the lack of police reports, criminal intelligence reports, episodes of actual noise nuisance and history of noise in the area was sufficient to lead us to determine that this licence be granted in full because, to reiterate, the case from the objectors was not made.

 

As was made clear during the hearing, should any evidence emerge in the future that can be directly attributable to the Kabul Cuisine such that the concerns voiced today should come to pass, there is always scope to call for a review of the licence.  There are also other enforcement mechanisms that exist outside of the Licensing Act, but reviews, much as with representations, do need to be evidence based.”

 

(3)     The Licensing Sub-Committee agreed that the application be granted in full as follows:

 

(i) Hours the premises are open to the public: Sunday to Thursday from 11:00 to 00:30 the following day and on Friday to Saturday from 11:00 to 02:30.

(ii) Recorded music: Sunday to Thursday from 11:00 to 23:00 and on Friday to Saturday from 11:00 to 02:00.

(iii) Late night refreshment: Sunday to Thursday from 23:00 to 00:00 and on Friday to Saturday from 23:00 to 02:00.

 

Conditions (in accordance with Annex 06 to the LSC Report):

 

Conditions 1 to 7, which are not disputed.