Agenda item

Application for a variation of a Premises Licence.

RECEIVED the application made by Mr Ajahar Ali for the premises situated at Indian Fusion, 252A High Street, Enfield, EN3 4HB, for a variation of a premises licence.

NOTED

1.    The introductory statement of Ellie Green, Principal Licensing Officer, including

1. The application for consideration was for variation of a premises licence.
2. The premises was currently licensed for alcohol only until 23:00 daily, and close at 24:00.
3. Mr Ajahar Ali, the Premises Licence Holder (PLH) and designated premises supervisor at Indian Fusion was seeking to add late night refreshment at the premises until midnight daily and also the delivery of late night refreshment until 03:00 daily.
4. The premises was located in the Edmonton Cumulative Impact Policy Area, known as a CIP; therefore there was an automatic presumption against grant of applications outside the CIP core hours, namely midnight. As a result, the Police and the Licensing Authority objected to the application with regards to the hours. Two further representations had also been received by Other Persons against the application, these have been given references IP1 and IP2 in the report at Annex 6. Additional information provided by IP2 is shown in the supplementary report no 2.
5. Proposed additional conditions to be added to the licence should the application be granted in full or in part, have been accepted by the applicant.
6. It was for the applicant to present how their application will mitigate the impact that the policy outlines, and why this application should be an exception to the policy.
7. The applicant Mr Ali is not being represented legally today but has responded to some of the representations received, his written representation is presented in the Supplementary report.
8. Victor Ktorakis is here on behalf of the Licensing Authority, and PC Martyn Fisher on behalf of the Metropolitan Police. 
9. Mr Altman is a licensing consultant who is here to represent his client (representation IP2), who wishes to remain anonymous.

2.    The introductory statement of Victor Ktorakis (Licensing Enforcement Officer), including:

1. The premises was located in the Edmonton CIP area, and the location was already an area of concern regarding crime and disorder and public nuisance.
2. The onus was on the applicant to show why an application outside the CIP policy would have no negative cumulative impact in the locality.
3. The premises was located in a mixed commercial and residential area with residential properties nearby bedrooms were located near the back of the premises. There was concern that residents could be disturbed by vehicles entering and leaving the premises late at night.
4. The PLH had been advised by the Licensing Enforcement Officer on 27/06/17 that they had received evidence that they had been trading late night refreshment (LNR) without a licence and that he should not hand over any hot food or drink after 23:00, however an inspection on 30/06/17 by out of hours Licensing Enforcement Officers showed that this was still happening. A formal warning letter was sent to the PLH on the 3/07/17.
5. Representation is made on the grounds of prevention of public nuisance as the observations and alleged illegal trading has reduced the Licensing Authority’s confidence in those running this premises.

3.    The statement of PC Martyn Fisher on behalf of Metropolitan Police Service, including:

1. The Police supported the Licensing Authority Objection and made representation on the grounds of prevention of crime and disorder.
2. That an incident took place when the applicant was a victim of a robbery in June of this year when taking a delivery of food to an address at 02:15 this was at a time the applicant should not have been trading.
3. The premises is near to flats and complaints have already been received about noise.

4.    There were no questions put to the Licensing Authority or Police representative.

5.    The statement of Mr Mark Altman (Joshua Simons & Associates) who was attending on behalf of an Other Person reference IP2, including:

1. Representation is made on the grounds of prevention of crime and disorder and prevention of public nuisance
2. That trading had been carried out surreptitiously at the rear of the premises and with deliveries taking place after 23:00.
3. In the supplementary agenda 2^nd pack there is a report which details the investigation carried out at the premises of Indian Fusion.
4. That the operation of a hot takeaway delivery service has been taking place since May this year and being advertised on websites
5. The applicant had referred in his letter to Ellie Green of the 07/08/17 of trading in a ‘trial period’ during the late night hours of 23:00 to 02:30 outside of normal opening hours. There was no ‘trial period.’ This was an offence contrary to the Licensing Act.
6. Where a CIP applies, it is incumbent upon the applicant to demonstrate an understanding of potential cumulative impact and setting out the steps they will take to promote the licensing objectives in their application.  The applicant has not provided a statement on this.
7. That the application should be refused in its entirety 

6.    The applicant responded to questions as follows:

a.    Councillor Levy referred to the need for an applicant to focus on steps to be taken to promote the licensing objectives, he asked if the applicant understood what was meant by a CIP?  In response Mr Ali said that he explains these points in his letter to Ellie Green and he accepts the conditions suggested by Licensing and the Police should the application be granted in full or in part.

b.    The applicant referred to the list of signatures that he has presented from local residents who have stated that they have not witnessed any noise or unsocial disturbances from the restaurant in the late night hours during a given period. 

c.     Mr Ali was of the opinion that one of the complainants was actually from a competing shop nearby

d.    When asked by Councillor Levy what Mr Ali meant by the ‘trial period’? and why he was operating a business outside of the licensing hours, Mr Ali responded that he had changed the business from  a Chinese to an Indian restaurant but for financial reasons he decided to try selling fried chicken and pizza. 

e.    Mr Ali was asked by Councillor Vince why he was operating outside the licensing hours and had he notified the Licensing Authority? To which Mr Ali replied that he had not notified the Licensing Authority, he said he had known the opening hours but for his personal interest he needed to do this to survive.

f.     In answer to Councillor Pite’s question did you know you were operating outside the legal opening times, he agreed that he did.

g.    Councillor Levy asked if Mr Ali could show any steps he had taken to pursue the licensing objectives and what active steps if any he had taken to ensure no public nuisance would occur.  Mr Ali agreed that he had made a mistake before operating outside the legal time, he could ask drivers not to make so much noise and orders would be taken over the phone only. He confirmed that he did not operate electric cars.

h.    Victor Ktorakis asked if the applicant would consider reducing his application to operate within the CIP boundary hours to midnight.  However Mr Ali said he would want his application hours to remain.

i.      It was noted that there had been a previous case where the CIP conditions had been waived. Each case would be judged on its merits.

7.    The summary statement of Ellie Green, Principal Licensing Officer including:

1. Having heard all the representations, it was for the licensing sub- committee to consider whether the variation application for Indian Fusion is appropriate and in support of the licensing objectives.
2. The licensing sub–committee could decide to either grant the licence in full, grant the licence in part, with amended times/ activities and conditions or to refuse the application.
3. The sub-committee’s attention was drawn to the relevant Home Office guidance and the Enfield Licensing Policy, as set out on pages 3 -4 of the report.

8.    The summary statement of Mr Altman, including:

a.    The applicant has not provided evidence of steps he would take to promote the licensing objectives. 

9.    The representative of the Police and the applicant did not wish to make a summary statement

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 Chairman made the following statement:

In considering this application, the Licensing Sub Committee (LSC) was concerned that the written submission conveyed absolutely no steps that would be taken to promote the licensing objectives, or demonstrate that there would be no negative cumulative impact as a result of extended hours for late night refreshment.

The oral submission of the applicant at the hearing failed to offer any such steps either; and under questioning, Mr Ali the Premises Licence Holder (PLH), was still unable to provide any comfort or any confidence that he understood these licensing objectives at any level, and particularly how they needed to be pro-actively promoted in applications such as the one under consideration this morning.

The LSC was persuaded by the objections submitted by the Licensing Authority and the Metropolitan Police Service that the licence holder has already failed to prove compliance with the current licence; a fact actually volunteered by the PLH in writing on 2 August 2017, and admitted at the hearing itself. 

Previously given advice and guidance had still not been sufficiently heeded.

The LSC recognised that on a subsequent visit by Licensing Enforcement Officers, the premises were closed at 23:00.  However, the panel also heard evidence that the business was actively advertising and promoting sales of hot food from the rear of the premises.

Even if a Cumulative Impact Policy (CIP) was not in place, the objections to such extension of hours as being sought would remain because of the concerns raised over the capacity of the licence holder even to operate the extant licence effectively.

However, where a CIP does apply, it is incumbent upon the applicant to demonstrate consideration and even a basic understanding of potential cumulative impact when setting out the steps, if any, they will take to promote the licensing objectives in their application.

On this occasion, there was no compelling case made for exemption from CIP – in fact, no case was made at all for the LSC to be persuaded otherwise.

As such, the application for extended hours to allow for the licensable activity of late night refreshment until 03:00 hrs was rejected by the Licensing Sub-Committee.

If, in the future, the Premises Licence Holder were to make another application supported by compelling reasons for extended hours, a Sub-Committee might come to an alternative outcome and we suggest Mr Ali seeks professional advice to assist him in this regard.