Agenda item

The licensing officer presented their report. It was noted that the environmental protection team and the trading standards team had conciliated with the applicant. Members had questions for the licensing officer.

 

The applicant addressed the sub-committee. Members had questions for the applicant.

 

The licensing responsible authority officer addressed the sub-committee.  Members had no questions for the licensing responsible authority officer.

 

The meeting adjourned at 11.09am to allow the applicant to consider whether they wished to run the premises as a restaurant or a café/bar.

 

The meeting reconvened at 11.19am and the applicant advised that they wished to run the premises as a café/bar.

 

The Metropolitan Police Service officer addressed the sub-committee.  Members had questions for the police officer.

 

All parties were given up to five minutes for summing up.

 

The meeting adjourned at 11.32am for the sub-committee to consider its decision.

 

The meeting reconvened at 12.00pm and the chair advised everyone of the decision.

 

RESOLVED:

 

That the application made by Henok Tesfamariam for a premises licence to be granted under Section 17 of the Licensing Act 2003 in respect of the premises known as Eden, 342b Camberwell New Road, London SE5 0RW be refused.

 

Reasons

 

The licensing sub-committee heard from the applicant who advised that he had applied for a premises licence between 07:00 and 23:00.  At present the applicant supplied coffee and food.  Some of his customers who attend the premises have asked for traditional Eritrean alcohol and the applicant indicated that he wished to serve this.

 

He ran a bar in Eritrea and worked in one in the UK with a friend for approximately a year. It was the applicant’s intention to be the designated premises supervisor, but was still undertaking the training for his personal licence. It was not the applicant’s intention to provide any dancing, plays or live music.  Any music would be played via a television.

 

The applicant stated that he was happy to accept the operation times for the area as set out in Southwark’s statement of licensing policy 2021-2026 and any other licensing conditions the sub-committee imposed.  The applicant stated again that he had experience working in licensed premises. 

 

The applicant stated that the tables and chairs were fixed and when asked by members, said that there was a capacity of 15. Through discussion, the capacity figure changed to 25.  The food sold at the premises was supplied and transferred from a large restaurant based in Stockwell, frozen in the premises and then reheated. He was essentially selling Eritrean ready meals. 

 

Upon being asked about Southwark’s commitment to avoid the use of single use plastics (Southwark’s statement of licensing policy 2021-2026, paragraph 205), the applicant advised that the food made in Stockwell was transferred in glass containers and the takeaway food was supplied in plastic containers, foil paper glass and laminate containers.  Whilst no representation was submitted from the council’s health and safety team, the sub-committee were concerned of this arrangement and the reheating of food in terms of the promotion of public safety licensing objective.

 

The licensing sub-committee then heard from the licensing as a responsible authority officer who informed the members that the premises was located in the Camberwell district town centre. They advised the sub-committee that Southwark’s statement of licensing policy 2021-2026, (paragraph 132) recommended closing times for restaurants and cafes in this area as Sunday to Thursday 00:00 and for Friday and Saturday 01:00.  The recommended hours for public houses, wine bars, or other drinking establishments and bars in other types of premises are recommended as Sunday to Thursday 23:00 and for Friday and Saturday 00:00. 

 

They further advised that the premises were also located within the Camberwell cumulative impact area, which applied to premises defined as night clubs, pubs and bars, off-licences, grocers, supermarkets, convenience stores and similar premises.  If the premises were to be a true restaurant, then the Camberwell cumulative impact area policy would not apply.   

 

Although the application described the premises as a restaurant/café, to avoid any ambiguity with regards to whether the premises should address the negative cumulative impact if it were to operate as a bar, licensing as a responsible authority sought a condition, which would be consistent with a restaurant. The wording of the condition would be “Intoxicating liquor shall not be sold or supplied on the premises otherwise than to persons taking a substantial table meal and by consumption of such persons as an ancillary to their meal” (the “restaurant condition”).

 

The licensing sub-committee then heard from the Metropolitan Police Service officer who raised similar objections to the application as the officer from licensing (as a responsible authority).  The police officer stated that due to the complete lack of detail within the application, coupled with the applicant’s failure to address the rebuttable presumption created by the premises being in the cumulative impact area, they would recommend that the application be refused.

 

It was noted that the representations from trading standards and the environmental protection team (EPT) were withdrawn following conciliation with the applicant. However, it was not clear from the EPT’s email withdrawing their representation what hours had actually been agreed (i.e. restaurant hours or pubs/bar hours).

 

The licensing sub-committee noted the written objection submitted by the ward councilor who was not in attendance at the meeting.

 

Both the chair of the sub-committee and the legal advisor to the sub-committee explained to the applicant what the cumulative impact area (CIA) for Camberwell meant. They explained that it applied to night clubs, pubs and bars, off-licences, grocers, supermarkets, convenience stores and similar premises. 

 

The applicant informed to sub-committee that he wasn’t agreeable to the “restaurant condition” as suggested by licensing (as a responsible authority).  On this basis, the CIA policy for Camberwell would apply.

 

It was explained to the applicant that, based on the CIA policy for Camberwell, the premises (as a bar) would add to the existing cumulative impact and that the application would be refused, unless the applicant could demonstrate in the application’s operating schedule that there will be no negative cumulative impact on one or more of the licensing objectives.  The sub-committee asked the applicant to explain this, with particular regard to how the premises would not contribute to crime and disorder and public nuisance within the CIA policy area. 

 

Unfortunately, the applicant failed to address the CIA policy within the operating schedule. At best the applicant referred to the reduced hours he had now accepted and said that he would tell customers to leave the premises quietly. This was far from satisfactory to rebut the presumption, which was dealt with in detail at paragraphs 159-163 of Southwark’s statement of licensing policy.

 

The licensing sub-committee were satisfied that the applicant intended to run a late night bar.  In the application the proposed opening hours were Monday to Thursday 07:00 to 02:00 and Friday to Sunday from 07:00 to 04:00 with the sale by retail of alcohol being the same.  The late night refreshment hours applied for were Monday to Thursday from 23:00 to 00:00 and Friday to Sunday from 23:00  to 01:00.  Even with the reduced hours (Sunday to Thursday until 00:00  and Friday to Saturday until 01:00), the applicant said that he would stop serving food at 22:00 and would not agree to a restaurant condition.

 

Due regard was given to the general equality duty set out in Section149 of the Equality Act 2010, the need for an Eritrean premises in the community when balancing the need to eliminate unlawful discrimination, harassment and victimisation and other conduct that is prohibited by the Act; advancing equality of opportunity between people who share a characteristic and those who don't and finally foster good relations between people who share a characteristic and those who don't. 

However, the applicant failed to address the four licensing objectives and he did not rebut the presumption to refuse this premises licence application because it was in a CIA. 

 

The sub-committee were referred to R (on the application of Westminster City Council) -v- Middlesex Crown Court [2002] EWHC 1104 in which HHJ Baker adjudicated “Notwithstanding the applicant being a fit and proper person and the premises would be well run a licence could be refused on the sole ground that the area was already saturated with licence premises….and the cumulative effect of the existing premises was impacting adversely on the area to an unacceptable level”.  Since the premises is located in the Camberwell CIA, this application is refused.

 

It was unclear to the sub-committee whether the applicant had a language barrier or simply did not understand an operator’s obligations under the Licensing Act 2003.  The sub-committee recommends that the applicant completes his personal licence training and if he is minded to reapply for a premises licence, employs a licensing agent or legal advisor to assist in the application.

 

In reaching this decision the sub-committee had regard to all the relevant considerations and the four licensing objectives and considered that this decision was appropriate and proportionate.

 

Appeal rights

 

The applicant may appeal against any decision:

 

a.  To impose conditions on the licence

b.  To exclude a licensable activity or refuse to specify a person as premises supervisor.

 

Any person who made relevant representations in relation to the application who desire to contend that:

 

a.  The  licence ought not to be been granted; or

b.  That on granting the licence, the licensing authority ought to have imposed different or additional conditions to the licence, or ought to have modified them in a different way

 

may appeal against the decision.

 

Any appeal must be made to the Magistrates’ Court for the area in which the premises are situated. Any appeal must be commenced by notice of appeal given by the appellant to the justices’ clerk for the Magistrates’ Court within the period of 21 days beginning with the day on which the appellant was notified by the licensing authority of the decision appealed against.