Agenda item

Application to vary a premises licence.

RECEIVED the application made by Mr Musa Aktas for the premises known as and situated at Akdeniz Supermarket (Enfield) Ltd, 463-465 Hertford Road, Enfield, EN3 5UT to vary a Premises Licence.

 

NOTED

 

1.    The introductory statement of Ellie Green, Principal Licensing Officer, including the following points:

a.  This application was for a variation of the premises licence.

b.  The current licence dated from 14/2/2014 and permitted opening hours and sale of alcohol 08:00 to 23:00 daily.

c.  The application sought 24 hour daily opening and sale of alcohol 08:00 to 02:00 daily.

d.  The licence had not been subject to review.

e.  The application was subject to representation received from the Licensing Authority on the grounds of prevention of public nuisance.

f.  The premises was located in the Enfield Highway Cumulative Impact Policy Area. Therefore the Cumulative Impact Policy (CIP) applied to this application. The CIP core hours for sale of alcohol Monday to Sunday were 08:00 to 00:00.

g.  This application sought hours that were outside the core hours and was therefore subject to the presumption against grant that was implicit in a CIP (LB Enfield Licensing Policy s.9.22/23).

h.  The Licensing Authority considered it appropriate that any part of an application outside the CIP should be refused, with the part of application within the CIP to be granted.

i.  Where the CIP applied to an application, it was for the applicant to put forward information why the application should be an exception to the policy and be granted.

j.  No written information had been received from the applicant, but she had now had sight of a letter and table submitted on 8/1/16 by the licensing agent and circulated to all parties.

k.  The Council’s Licensing Policy was last reviewed in January 2015 with specific reference to CIPs and the core hours were extended from 23:00 to 00:00.

l.  It was raised by the Chair that the current licence permitted opening hours 08:00 to 23:00 daily while the licensing agent’s table showed 24 hour opening at the supermarket. The licensing agent advised that since the licence was granted on 14/2/14, the shop opening hours had been 24 hours a day.

 

2.    The statement of Charlotte Palmer, Licensing Enforcement Officer, including the following points:

a.  This application was to extend sale of alcohol from 23:00 to 02:00 daily.

b.  This area of Hertford Road was one of mixed commercial and residential use. The premises was on the corner of Hertford Road and East Road, which was a residential cul-de-sac. On the other side, the shop adjoined residential dwellings, and there were more residences opposite.

c.  There had been complaints received from a local resident on 26/10/15 and 28/10/15 in respect of noise from deliveries and waste collections in the early hours of the morning, in breach of licence conditions. The licence holder was informed and advised. On 18/11/15 the complainant confirmed that the issues had stopped and they were happy for the complaint to be closed.

d.  Licensing Authority officers were concerned that sale of alcohol would attract a greater number of customers late at night and lead to disturbance in the early hours of the morning at a time when there were lower ambient noise levels.

e.  The premises was within a drinking control zone as well as a CIP area.

f.  The locality was already an area of concern in respect of anti-social behaviour and public nuisance.

g.  The presumption in cases of applications outside CIP hours was that they should be refused.

h.  There was no documentation to justify granting against the CIP. The document provided by the licensing agent pertained to other shops in the Akdeniz Supermarket chain.

i.  Officers recommended alternative licensed hours in line with the CIP ie. until 00:00, noting that the CIP applied to alcohol sales and licensable activities.

j.  In response to a query by the Chair, it was confirmed that officers would be happy for opening and licensed hours to be the same ie. until 00:00.

 

3.    Charlotte Palmer responded to questions as follows:

a.  At Members’ request a clarification of a drinking control zone was given, that these were designated areas, of which there were a number across the borough, with signs to advise customers that they should not drink alcohol in the street. In these zones it was an offence to drink alcohol after being required by a Police officer or PCSO not to do so.

b.  In response to the Chair’s query whether there had been any breaches of licence conditions, Charlotte Palmer advised that this application came about following her conversations with the licence holder and an officer visit further to the complaints received. There were already conditions on the licence regarding times for deliveries and refuse disposal. In the discussions, she confirmed that the conditions applied to all goods. There had been a difference of opinion in respect of the legislation. Following the discussions, a transfer and vary DPS application was submitted and granted. The premises seemed to be complying with conditions now. The noise nuisance had stopped and so officers had taken no further action.

 

4.    The statement of Mr Mahir Kilic, licensing agent, on behalf of the applicant, including the following points:

a.  He thanked officers for printing copies of the letter and table submitted on 8/1/16.

b.  The applicant sought to extend licensed hours from the current 08:00 – 23:00 to 08:00 – 02:00 Monday to Sunday.

c.  At the time the application was submitted, no further conditions were proposed as those already in place were considered sufficient to promote the licensing objectives, but the applicant was willing to consider any recommendations from the relevant authorities. The current 14 conditions on the licence were set out on page 8/9 of the agenda pack. He invited all responsible authorities to propose conditions in line with this application. He was pleased to note that the Police service had not made any suggestions and therefore considered the conditions were sufficient.

d.  At around the time the application was made, the Council had received the complaint regarding noise from deliveries. The complaint was brought to the attention of the premises’ management on 13/11/15 and advice was sought from Charlotte Palmer on what should be done. Suppliers were advised to make deliveries from 08:00 and onwards. There had been issues with a particular supplier and they were addressed. The complainant was happy that the noise issue was addressed sufficiently. This showed the good management skills of Mr Aktas and the way he would deal with any issues that may come up.

e.  The additional circulated letter and table set out other Akdeniz supermarkets in neighbouring boroughs. Mr Aktas had been a licensee since 1991 and was very experienced. All the premises he was affiliated with had 24 hour opening; only one sold alcohol 24 hours. The minimum licensed hours in other shops in Hackney was to 00:00 in the week and 01:00 Friday and Saturday.

f.  Akdeniz Enfield had been open since February 2014 when the licence was granted, with opening 24 hours a day and alcohol sales only between 08:00 – 23:00.

g.  Mr Aktas wanted to be able to offer alcohol in part of the hours he was already trading.

h.  Mr Aktas understood the CIP and that it was for the applicant to prove that the premises will not contribute to crime and disorder or other issues.

i.  Mr Aktas was a current personal licence holder.

j.  Mr Aktas was happy to propose an extension of licensed hours from 23:00 to 02:00 and that there would be at least two personal licence holders present at the shop.

k.  The CIP was designated to prevent people drinking on the street and to prevent anti-social behaviour. The Akdeniz chain already had other premises in high crime areas, such as Hackney, and had later licensed hours there. The management could deal with anti-social behaviour in the hours they were seeking to sell alcohol.

l.  The applicant was happy to offer other conditions. If shop staff saw anyone going outside and opening a can or bottle of alcohol and consuming it instantly they would be happy to refuse to sell to those individuals if they visited the premises again.

m.  The Chair asked for re-iteration of what the applicant was now offering. The agent advised that the applicant was happy to have a condition to refuse to sell alcohol to any individual who was not complying with the drinking control zone policy in that street.

n. The agent advised that other than that he could not think of any other appropriate conditions. This applicant had 25 years’ experience in this sector: he should be considered an exceptional applicant.

 

5.    The agent and applicant responded to questions as follows:

a.  The Chair observed that conditions had been offered at the hearing, but questioned why they were not put into the written application (while acknowledging that applicants were entitled to supplement their application at the hearing). The agent advised that this had not been believed necessary, but he wanted to highlight that Mr Aktas already has six personal licence holders at the premises.

b.  Councillor Fallart referred to the CIP policy and asked for more information as to why this premises should be exempted from the presumption against granting. The agent stated that the CIP was introduced to discourage anti-social behaviour. This was clarified by the Licensing Enforcement Officer in that the drinking control zone was to prevent consumption of alcohol in the street, but the CIP was an actual policy with a 00:00 cut off time for sale of alcohol, and the two were separate. The agent stated that he believed this applicant to be in an exceptional position. He had demonstrated that he could run licensed premises in other boroughs, and he would do the same in Enfield. He had the management skills and the staff to be able to do that. The premises would not cause problems for the local residents. The Police were satisfied with the information provided and did not believe that the shop would cause any anti-social behaviour or crime and disorder in the area.

c.  Councillor Pite asked for clarification of the agent’s conclusions regarding the Police’s satisfaction, as her assumption was that this consent was in presumption of compliance with the CIP hours. The agent advised that regardless whether there was a CIP or not, the Police were invited to make comments, and they would make objections to any applications where they were not satisfied that premises would be run within the law. The Police knew who the licensee was in this case, and they would have run checks to ascertain he was a fit and proper person.

d.  The Chair emphasised that in a CIP hearing, the burden of evidence was on the applicant to make a case, and nothing could be assumed from the fact that the Police had not objected. He would not consider giving weight either way to the Police lack of objection and would not consider postponing this hearing to invite the Police. The reason for this hearing was that the Licensing Authority had objected and their representation related to prevention of public nuisance and not to crime and disorder. He asked to hear about steps which would be taken to prevent public nuisance. In respect of noise issues, the agent referred to the information given on page 24 regarding the noise complaints from the local resident. These were raised first with the applicant on 13/11/15 and the complainant confirmed the issues had stopped on 18/11/15. The complainant was happy that the necessary steps had been taken. This had been the only complaint since Mr Aktas had been involved with the premises. The agent stated that he had already addressed why this application should be an exemption to the CIP. The applicant was an experienced licensee and he had a proven track record with his other businesses. Taking account of his experience and the additional conditions proposed earlier, it was considered that the exemption should be applied.

e.  Councillor Pite raised that the other Akdeniz supermarkets listed in the table bore little resemblance to this premises in this part of Hertford Road which was largely residential, and that some of their licensed hours ended at 23:00 and 00:00 and she still required more information about why this application requested a 02:00 terminal hour. The agent advised that no local residents had made representations against this application, including the complainant from 2015. This was proof that Mr Aktas could manage the premises well and not cause noise or nuisance. Mr Aktas had already spoken with all suppliers and ensured there were no deliveries before 07:00. He believed that sale of alcohol would not cause noise or nuisance and there was no evidence that there would be any issue. Akdeniz supermarkets had been granted all the licensed hours they had applied for without restriction from any other councils and had no previous refusal to any applied for hours.

f.  The Chair confirmed that the LSC considered each application on its individual merits. He raised that the noise nuisance complaint had arisen from the regular trading at the premises and asked about additional steps proposed to prevent noise and public nuisance given that sale of alcohol later may attract a different type of customer and change the nature of the business, which would change the potential impact on local residents. The agent clarified that there was no evidence and this was speculation about what may occur. This premises had been operating 24 hours a day for non-licensable activities and there had only been one occasion when a noise complaint was received and this was addressed as soon as it was brought to the management’s attention. This should convince the panel that if any issue arose in the future it would be dealt with appropriately.

g.  In response to the Chair’s further query whether it was acknowledged that selling alcohol beyond 00:00 would change the nature of the business, the applicant advised that from 23:00 the premises did not get local people shopping, but did get people driving there by car. If this application was granted, the shop takings would increase. Generally the shop did not serve local people after 00:00.

h.  Members raised that this point was quite concerning. The noise from the delivery lorry in the early hours had led to a complaint as the ambient noise level was much lower in the area at that time and it was a concern if customers from other areas would be driving to the shop with the related noise from car doors etc during normal sleeping periods. The agent advised that the complaint regarding the delivery lorry was in the side road where it disturbed a neighbour, but vehicles usually parked at the front of the premises. There had been no complaints regarding customers parking outside the premises to do their shopping.

i.  The Chair asked further about steps for the prevention of public nuisance, and that it was the responsibility of the applicant to justify any exemption to the CIP. The agent re-iterated that if any issues arose, the applicant would deal with that issue immediately to prevent it occurring again, but that there were no issues which needed to be addressed specifically.

j.  The Chair pressed further regarding appropriate additional steps and demonstration of full understanding of the CIP and addressing that existence of the policy was sufficient for refusal. The agent advised that he had already stated a number of things including that Mr Aktas had 25 years’ experience; the premises had six personal licence holders; a condition had been offered whereby two personal licence holders would be present during all licensed hours; and the shop already had 18 CCTV cameras. He did not believe the premises would contribute to crime and disorder or to noise and nuisance in the area. The premises was exceptional because the licence holder was already so experienced and had good staff and management and adhered to all rules.

k.  Councillor Pite raised the reason for CIP areas and drinking control zones in the borough which were preventative measures for the protection of residents due to concern about risks, and she still did not consider that the applicant had addressed those concerns. The agent advised that all local residents had been invited to make comments and none had made an objection. He was satisfied that they would not be disturbed. There was a review mechanism if the residents or responsible authorities needed to invoke it in future. Mr Aktas would work with the local residents and if they were ever disturbed he would address the issue immediately.

l.  The Chair asked why sale of alcohol was needed to 02:00 seven days a week. The applicant advised that people came into the shop when they were passing by and stopped to do their shopping. As they were shopping for groceries and then were told outside licensed hours that they could not purchase alcohol, the problem was they would leave all their shopping and go to other premises that were licensed 24 hours.

m.  The Chair asked about the cost of making sure there were two personal licence holders on the premises during all licensed hours. The applicant advised that those staff were already working at the premises so there would be no additional cost.

n.  In response to Charlotte Palmer’s query whether any of the other Akdeniz supermarkets were in CIP areas in other boroughs, this information was not available, but it was believed that the Stoke Newington store was just outside a CIP area and Hackney Well Street and Islington Seven Sisters Road could be. It was not known if any of the other stores had been granted licensed hours outside the CIP core hours, or when the other boroughs’ policies came into effect and whether that was after those licences were already in place. It was confirmed that none of the other Akdeniz supermarket licences had been reviewed for any reason.

o.  In response to Charlotte Palmer’s further questions, it was confirmed that Mr Aktas had been running the Hertford Road premises since 15/3/14. He had also been around other shops, but for about one year had purely dedicated himself to this shop. His partner had been named on the licence before and it was transferred to Mr Aktas’ name in 2015.

p.  The Chair raised that information given had been contradictory regarding where the shop’s customers would come from ie. locally or from out of the area. The agent clarified that from 00:00 the customers were not usually local people, but were Turkish speaking individuals who came to London to do grocery shopping and to buy the ethnic products that Mr Aktas sold.

q.  In response to the Chair’s point that this could mean additional risk to surrounding residents, the agent advised that the profile of these customers was generally family members aged between 25 to 40 years who lived outside London or ran businesses outside London and were not able to buy ethnic foods where they lived. The application was to enable Mr Aktas to serve his existing clientele who lived outside London but did their shopping at Hertford Road as it was easily reachable from the M25 and this is where they liked to do their shopping. The clientele was not street kids.

r.  The Chair asked further about the risk in the CIP. Referring to the earlier offer to refuse sales to those seen drinking alcohol outside he asked how that would take effect and the possibility this could create antagonism. The agent advised that if any individual was not acting in an orderly manner outside the premises, staff would warn them and ask them to leave and to not consume alcohol. If they refused and later came back to buy from the shop, staff would refuse to serve them.

s.  Members highlighted policy s.8.4 which related to licensed premises situated in or immediately adjacent to residential areas and avoidance of disturbance to local residents, and, given that this premises was adjacent to a residential area and East Road was a cul-de-sac with limited, if any, turning area, whether the applicant had any concerns. The agent advised that it needed to be understood that this premises already operated 24 hours a day. In response to more queries further to the suggestion that selling alcohol would lead to an increase in late night customers, the agent advised that a grant would not necessarily mean there would be an increase in customers as there were already shoppers coming to the premises at those times and Mr Aktas just wanted to sell alcohol in those hours.

 

6.    The summary statement of Ellie Green, Principal Licensing Officer, including the following points:

a.  Members’ attention was drawn to the policy and guidance sections of the officer report, in particular to para 6.12: that the sub-committee was best placed to make decisions about appropriate opening hours in their area based on their local knowledge and in consultation with responsible authorities.

b.  The fact that the premises was located in the Enfield Highway CIP area was emphasized.

c.  It was for the LSC to decide whether the applicant had demonstrated to its satisfaction that this application should be an exception to the CIP, otherwise the presumption was against grant outside CIP core hours.

d.  Having heard all of the representations, the LSC must take such steps as it considered appropriate for the promotion of the licensing objectives.

 

7.    The closing statement of Charlotte Palmer, Licensing Enforcement Officer, including the following points:

a.  The key issue was the proximity of the premises to local residents, and the location of the premises within a CIP area.

b.  There had been previous noise complaints from a local resident.

c.  The Licensing Authority deemed it appropriate that licensed hours should end at 00:00 in line with the CIP.

 

8.    The closing statement of Mr Mahir Kilic, licensing agent, on behalf of the applicant, including the following points:

a.  He drew members’ attention to s.8.7.1 of the Council’s licensing policy that supermarkets may apply to sell alcohol off supplies at times when they were open as a retail outlet for shopping and each application would be considered on its merits.

b.  He considered that this application should be granted, with the conditions that the applicant had proposed.

 

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 involves the likely disclosure of exempt information as defined in Paragraph 7 of Part 1 of Schedule 12A to the Act.

 

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

 

2.         The Licensing Sub-Committee resolved that the application be granted in part as follows:

Hours the premises are open to the public and supply of alcohol (off supplies) from 08:00 to 00:00 daily.

Conditions 1 to 14 on the current licence, which are not disputed.

 

3.         The Chairman made the following statement:

 

“Having carefully considered the written submissions, and listened attentively to the oral representations made by both parties at the hearing, the Licensing Sub-Committee (LSC) resolved that the appropriate steps required for the promotion of the licensing objectives would be to grant the application in part, to the extent that the opening hours permitted under the licence, and hours for licensable activity – namely the supply of alcohol for off sales – be varied from 08:00-23:00 to 08:00-00:00. In so doing, this would bring the licence into conformity with the current cumulative impact policy core hours.

 

The LSC was not sufficiently persuaded by the arguments advanced to support the application for alcohol sales to be extended to 02:00. Whilst the opening hours of the business for sales of non-licensable goods are not necessarily for the sub-committee to determine, the sub-committee was nevertheless concerned to hear through evidence from the applicant’s representative that Mr Aktas had actually been operating the premises licence with 24 hour opening to the public for the best part of two years, when the licence itself permitted terminal opening hours of 23:00 daily. The LSC notes paragraph 9.28 of the Council’s licensing policy statement sets out the following: ‘… The consideration of hours of operation will include the context of each application within each of the licensing objectives. For example, the hours at which noise may occur and the extent to which that may affect local residents’ sleep and relaxation, will be a consideration because late night premises may have an impact on the local environment and can cause public nuisance.’

 

That said, the focus of our deliberations centred on whether the applicant was able to demonstrate circumstances as to why the CIP should not apply to these premises by way of the application to vary the hours. The LSC considered the statutory Guidance, specifically paragraph 13.30, where we took into account whether the applicant’s representations rebutted the presumption to refuse the application by the applicant demonstrating that there would be no negative cumulative impact on any of the licensing objectives, in particular the prevention of public nuisance.

 

We were concerned that the written application itself offered absolutely no additional steps intended to be taken to promote the licensing objectives. We were further concerned that the applicant had asserted that the current conditions were sufficient, despite the fact that there was evidence of noise nuisance associated with the business by way of late night deliveries of existing supplies. We were satisfied that this did represent a failure to comply with current conditions.

 

Furthermore, rather than pro-actively taking additional steps, the applicant explicitly sought to offload that responsibility on to the licensing authority inviting it to make suggestions that Mr Aktas would be willing to accept. The LSC viewed this as a failure to properly demonstrate understanding of the policy or comprehend the nature of CIP related hearings, where the onus falls upon the applicant to make the case to demonstrate that there would be no negative impact on the CIP of the area.

 

During the hearing, the applicant did offer the possibility of additional conditions to the effect that there would always be two premises licence holders on the premises at all times; and that were troublesome customers to be attracted, the premises licence holder would refuse sales to them on a subsequent visit, but gave no indication as to how such a condition would be managed or implemented in practice. This was the extent of the additional steps offered to promote the licensing objectives, and the LSC did not consider this to be appropriate, or sufficient to rebut the presumption against the refusal to grant the variation in full.

 

By definition, the existence of the Enfield Highway Cumulative Impact Policy acknowledges that the location is already an area of concern in relation to public nuisance and alcohol-related crime and disorder.

 

Under repeated questioning, the applicant (through his representative) did not appear to acknowledge or fully appreciate that extending the hours under which alcohol may be sold, would materially change the nature of the business. In fact, the evidence we heard was contradictory. We were first told that most of the additional business would be from local residents doing late night shopping, during which they would be able or might choose to purchase alcoholic products. Then, we were told that the extension of hours would attract customers from outside of the area to come and do their shopping in an ethnically based supermarket.

 

When questioned on this, the applicant was unable to demonstrate what additional measures might be put in place to mitigate inevitable noise nuisance generated by largely car-borne customers coming into an area late at night, given the location is largely residential, and in particular with a narrow cul-de-sac immediately beside the premises, in which vehicular parking and turning is impossible. When questioned similarly on whether the availability of alcohol into the early hours might otherwise change the nature of the clientele, and aggravate potential noise nuisance, the applicant offered no additional steps to mitigate this possibility as a means of PREVENTING crime and disorder, or additional public nuisance.

 

The main thrust of, and major reliance within the applicant’s submissions, was that the existing conditions were sufficient to warrant the extension of hours. The LSC was not persuaded on this point alone. To support this assertion, we were then told that Mr Aktas (as with other members of his team) has an experience of some 25 years standing, and operates a chain of supermarkets, many of which have operating hours beyond those on the current licence and those being sought. The LSC did not doubt the fact of his experience in setting up supermarkets which are licensed, but confined its questioning and deliberations to the fact that the current application pertains to location which is governed by a cumulative impact policy.

 

Under analysis, the evidence we saw confirmed that one store out of the Enfield borough (Well Street, Hackney) has Sun-Thu licensed hours the same as the Enfield CIP; and that another (Station Road, Wood Green) had Sun-Thu hours in keeping with the current licence.

 

We were then asked to consider that length of experience of successfully running and managing licensed premises within a 24 hours opening hour environment in such locations as Stoke Newington High Street, Hoe Street in Walthamstow, Seven Sisters Road in the Holloway/Finsbury Park area was sufficient in itself to inform the self-belief that they can do the same at 463-465 Hertford Road in Enfield Highway for the hours as applied for.

 

The LSC noted the information presented on the other licensed premises and determined that such locations were not comparable and in any event the LSC was concerned with the premises within the Enfield Highway CIP.

 

Each application must be considered on its own merits, and the LSC decisions are to be given weight in accordance with guidance and policy, one of which points states (Sec 8.4) “that stricter licensing conditions with regard to licensing HOURS may be required for licensed premises situated in or immediately adjacent to residential areas to ensure that disturbance to local residents is avoided …”. This will particularly apply in circumstances where, having regard to the location, size and nature of the licensed premises, it is likely that disturbance will be caused to residents in the vicinity of the premises by concentration of people leaving, particularly during normal night-time sleeping periods. It is accepted that applicants’ operating schedules may adequately provide for such circumstances and the Council will not seek to impose stricter conditions unless relevant representations are received and a hearing takes place.

 

This policy point carries significant weight, as it did in this case; but is enhanced in the context of Cumulative Impact Policy that is incorporated within the Council’s Licensing Policy as a whole, which requires premises licence holders to give specific recognition to this point [9.28]. The consideration of hours of operation will include the context of each application within each of the licensing objectives. For example, the hours at which noise may occur and the extent to which that may affect local residents’ sleep and relaxation, will be a consideration because late night premises may have an impact on the local environment and can cause public nuisance. In both oral and written submissions, the applicant failed to satisfy the sub-committee that appropriate measures were in place to mitigate the impact on neighbours of extended hours for the sale of alcohol.

 

The LSC convened under the rebuttable presumption that the application to vary the hours of this licence should be refused on the basis that the hours applied for exceed those specified in the Council’s Licensing policy via the Cumulative Impact Policy.

 

In counter questioning the applicant equally acknowledged that the licensing objectives do work on the principle of prevention, and that he understood the nature of the CIP is predicated by the location being a concern for crime and nuisance.

 

The LSC noted the applicant’s evidence, argument, and lack of pro-active additional steps to strengthen the licence to promote the licensing objectives and determined that the applicant was unable to demonstrate that a grant of the variation, in full, of the licence would not add to the cumulative impact in the area.

 

As the core hours of the CIP had been amended between the granting of the extant licence and the hearing of this application, the sub-committee has granted those parts of the application that are within the CIP core hours to accord with the limit in the CIP core hours, whereas those parts of the application to vary hours that are outside the CIP core hours are to be refused.”