Agenda item

The licensing officer presented their report.  Members had questions for the licensing officer.

 

The representative for the applicant for the review addressed the sub-committee and presented witnesses.  Members had questions for the applicant’s representative and the witnesses.

 

The environmental protection officer addressed the sub-committee.  Members had questions for the environmental protection officer.

 

The licensing responsible authority officer addressed the sub-committee.  Members had questions for the licensing responsible authority officer.

 

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

 

The representatives for the premises addressed the sub-committee.  Members had questions for the representatives for the premises.

 

The sub-committee noted the written representations from the other persons presented in the agenda.

 

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

 

The meeting adjourned at 4.20pm for the sub-committee to consider its decision.

 

The meeting reconvened at 4.50pm and the chair advised everyone of the decision.

 

RESOLVED:

 

That the council’s Licensing Sub-Committee, having considered an application made under Section 51 of the Licensing Act 2003 by the Space Investments Limited for the review of the premises licence issued in respect of the premises known as Wazobia Restaurant, 670 Old Kent Road, London SE15 1JF 1JF having had regard to all relevant representations has decided to modify the licence.

 

Conditions

 

1.  That clearly legible signage shall be prominently displayed where it can easily be seen and read by customers, at all exits from the premises and in any external areas, requesting to the effect that customers leave the premises and locale in a quiet and orderly manner with respect to local residents. Such signage shall be kept free from obstructions at all times.

2.  That a dispersal policy to assist with patrons leaving the premises in an orderly

and safe manner shall be devised and maintained regarding the premises. A copy of the dispersal policy shall be accessible at the premises at all times that the premises are in operation.

 

The policy should include (but not limited to):

i.  Details of customer/staff egress at the premises shall be managed to minimise causing nuisance.

ii.  Details of public transport and taxis in the vicinity and how customers will be advised in respect of it.

iii.  The management of the “winding down” period at the premises.

iv.  Details of the use of security/stewarding in respect of managing customer dispersal from the premises.

v.  The management of ejections from the premises.

vi.  How any physical altercations at the premises are to be managed

 

All staff shall be trained in the latest version of the dispersal policy. Details of which will be recorded in the staff training logs at the premises. The dispersal policy shall be made immediately available to responsible authority officers on request

 

3.  That clearly legible signage stating a dedicated contact telephone number for the premises will be prominently displayed where it can easily be seen read by passers-by. The signage will state that the phone number shown can be used to contact the premises in respect of any complaints regarding the operation of the premises. Such signage will be free from obstructions at all times. The telephone in respect of this number, if a mobile phone, must be on the duty manager’s person at all times.

4.  That a sound limiting device (or similar equipment) shall be installed at the premises, be maintained in full working order and be in use at all times that the premises are in operation under this licence. All amplification equipment, entertainment devices and amplified instruments shall be routed through the sound limiting device (or similar equipment) which shall be calibrated so that the level of amplified sound at the premises does not cause a statutory or public nuisance. Particular regard must be given to the attenuation of bass frequencies. Only management staff shall have access to the sound limiting device (or similar equipment) and shall be able to demonstrate that it is in use at the immediate request of responsible authority officers.

5.  The sound limiter shall be of a multiband type that can attenuate bass frequencies specifically in addition to other bands of frequencies.

6.  A qualified professional acoustic consultant shall be employed to calibrate the sound limiter at the premises and to arrange the layout, installation and orientation of the speakers at the premises so that sound transmission is minimised.

7.  A signed and dated report from the acoustic consultant regarding the calibration of the sound limiter and any amendments to the speaker installation at the premises report shall be kept at the premises and provided to authorised officers immediately on request.

8.  Once the sound limiter has been calibrated, its control settings shall not be altered at any time, except for when altered by a qualified professional acoustic consultant or the premises’ sound engineer.

9.  The operational panel of the noise limiter shall be secured by key or password and access shall only be by persons authorised in writing by the Premises Licence Holder. A log of such authorised persons shall be kept at the premises and be made immediately available to authorised officers.

10.  That all external doors and windows at the premises shall be kept closed except to allow ingress and egress to and from the premises.

11.  That condition 842 is re removed from the premises licence.

12.  That Condition 845 to be amended to include that the SIA registered door supervisors shall remain at the premises until all patrons have vacated the premises and until at least 30 minutes after the premises close.

13.  That party walls, floors and ceilings between the commercial premises and residential dwellings shall be designed to achieve the following minimum airborne insulation weighted standardized level difference:

 

55db DnTw+Ctr

 

Proof of the insulation installation, including all details of the installation and any reports as to effectiveness of the insulation to prove that the above standard has been met, signed off and dated by a qualified acoustic consultant, shall be kept at the premises and be made immediately available to authorised officers on request.

 

The insulations acoustic performance shall be maintained thereafter.

 

Reasons for the decision

 

This was an application for a review of the premises licence known as Wazobia Restaurant, 670 Old Kent Road, London SE15 1JF 1JF (the premises).

 

The licensing sub-committee heard from the legal representative for the applicant who advised that the applicant company (Space Investments Limited) managed the properties above Wazobia Restaurant.  From the planning history, the flats were established before the premises and when the planning permission for the restaurant was given in 2008, it was subject to a condition that the premises closes at 23:00 hours for the residents amenity. 

 

Similarly there was a need for the residents to be protected from any noise pollution from the premises.  A significant number of complaints had been made by the residents that consisted of loud music, loud bass, shouting and disorderly behaviour.  The disturbance caused by the premises had resulted in a number of tenants to ask to be released from their tenancies early and move out. 

 

The sub-committee heard from one of the tenants who advised that the music appeared to get louder at 03:00 hours and although they wore earplugs in bed, the noise from the bass still penetrated through pillows held over the tenant’s ears.  The tenant had moved their bed to escape from the walls to escape the vibrating. The floor also vibrated from the music in the premises.  The tenant advised whenever the DJs turn the music down, they scream into the microphone, making it impossible to sleep; the noise was continuous and vibrated through her body.

 

The sub-committee was advised by the legal representative for the Applicant that nothing had changed since the previous sub-committee decision on 31 October 2023 and the position had been consistent since 2021. The sub-committee was reminded that the noise and nuisance team (NNT) had witnessed statutory noise nuisance on two occasions from the premises, in May and June 2023. 

 

Richard Vivian, a noise specialist, had been instructed by the applicant, who had attended the flats above the premises on Friday 8 March 2024 and measured the noise from the premises between 23:00 until 02:00 the following morning. Noise was clearly audible, with the lyrics of songs intelligible.  The music witnessed was intrusive in the flats directly above the premises.

 

Although there was a serious problem with noise breakout in Flat 1, Flats 4 and 5 were equally disturbed, demonstrating a wider issue involving all of the flats. The premises response had two answers.  First, the issue could be fixed with a sound limiter.  However, the expert for the premises didn’t specify the type/model of sound limiter and speaker used.  The data in front of the sub-committee was therefore, misrepresenting the day to day process of the restaurant. 

 

The testing by the expert for the premises, Richard Wilding, had been carried out at 14:00-15:00 when there was more traffic on the road that would mask the music played, thus underestimating the effects of the music played at 02:00 to 03:00. Sound checks undertaken Mr Wilding did not play a representative type of music, so when the premises were open the effect was much worse than when the tests were carried out. 

 

Sound insulation works had also only been done over the previous two weeks and the applicant’s expert was not informed of this to enable his attendance or supervision.  Despite this, being done on Wednesday 31 July 2024, on Friday 2 and Saturday 3 August complaints had been received from Flat 1 of the floor vibrating with the bass.  It was unreasonable to expect the residents to have to go to bed after 03:00  when the premises closed and still be able to get up for work at 05:00 .  It was the view of the expert for the Applicant that a sound limiter on its own would not work. 

 

Given that the evidence showed that the problems generally started after 23:00, the applicant stated it was an appropriate and proportionate response that the premises operating hours be reduced to 23:00.  It was also in line with Southwark’s statement of licensing policy (SoLP) because the area was defined as being residential. 

 

The environmental protection team (EPT) also recommend that the hours should be back to this time. Finally, the premises was not permitted to operate until 03:30 as this was a breach of planning permission. Conditions on their own would not solve the problem.  A reduction in hours was sought.

 

The licensing sub-committee heard from the officer from the EPT who stated that he supported the review application.  There had been a history of complaints leading to warning letters being issued. 

 

A statutory noise nuisance was witnessed 2 May 2022 which resulted in a noise abatement notice being issued.  This abatement notice was contravened on 4 June 2022. Ordinarily, this would result in a prosecution.  This did not happen because the premises licence holder was cooperative and agreed to resolve the matter amicably.  Since this time, only one noise complaint had been received.  Because of this, NNT officers have not been able to witness it.

 

The officer recommended that the hours for the premises be reduced, but if the hours were reduced to have an additional noise limiter condition would be disproportionate.  If the sub-committee were to maintain the hours, then a noise limiter would not solve issues without further insulation being installed.  It was an either/or situation.  The officer recommended an (amended) condition in respect of the sound limiter device (condition 4 above).

 

The licensing sub-committee heard an officer from the Metropolitan Police Service who confirmed that there had been one reported incident from the early hours of Christmas Day 2023, where there was a fight outside of the premises, although there was no information if the fight came from inside the premises. There were no reports specifically attributed to the premises itself.

 

The licensing sub-committee heard from licensing as a responsible authority officer (LRA) who stated that a balance of the needs of local residents needed to be weighed against the needs of the premises.  Reducing the hours of the premises to 23:00 would likely kill the business.  At a minimum the conditions imposed at the previous hearing on 31 October 2023 needed to be imposed again.  It was vital that sound insulation be implemented, and a practical and enforceable condition was required I respect of it.  The officer for LRA stated that it was an either/or situation.  It would be disproportionate to impose robust conditions and also significantly reduce the hours. 

 

The licensing sub-committee heard from the representative for the premises who stated that because the application was for a review of the premises licence, it was a matter for the sub-committee to look at the issues arising after the grant of the licence unlike a new application when looking the committee looks at SoLP.  The sub-committee were charged to look at the causes of concern only, not statements of licensing or planning policy.  It was the view of the legal representative for the premises that the issues complained of amounted to a private nuisance.  The complaints came from one building only and there was recourse via other council departments or by way of a private action in court.

 

It was the view of the premises that the planning issues raised by the applicant were a red herring.  The premises had operated in its current form for in excess of ten years and as such, was now immune from prosecution.  The applicant could have insulation on their side, but they chose not to.  The applicant failed to inform prospective tenants that the premises was open until 03:00 .  Also, the applicant informing its tenants not to tell the council about any noise issues would need to be disclosed in any future conveyancing. 

 

At present, the complaints predominantly came from Flat 1. When the review application was considered on 31 October 2023, the then tenant in Flat 1 wrote a letter of support of the premises, saying they were happy.  Immediately after that hearing, the applicant served notice on them.  When the current tenancy commenced in January 2024, the tenants started complaining almost immediately. 

 

None of the conditions imposed at the 31 October 2023 hearing were implemented because the decision did not take effect until the conclusion of the appeal. Because of the risk that the appeal could result in different condition requirements, requiring alternative/additional works to be undertaken, commercially, it was sensible to wait.

 

The premises had spent nearly £20,000 to implement the recent works to the premises in addition to instructing Richard Wilding to the test of the noise limiter. This had required bringing in a new owner to invest money.  The report from Richard Wilding demonstrated that at least 55dB was achieved in three out of four tests.  Where 55dB was not achieved, it reached 54dB.  Prior to the recent reset of the noise limiter, noise was at 41dB.  Furthermore, the restaurant now had two layers of ceiling tiles and dampening in the void. Regardless, the premises advised that they were agreeable to set the noise limiter at 55db, in line with council policy. The premises was also content with the proposed conditions. 

 

The licensing sub-committee noted the representations of the other persons both in support of the review the review application and also, those supporting the premises.

 

The licensing sub-committee also considered the video footage that had been submitted by the applicant.

 

This was a review application of a premises licence submitted under Section 51 of the Licensing Act 2003 (LA2003) in respect of Wazobia Restaurant, 670 Old Kent Road, London SE15 1JF. The review application is dated 7 August 2023.

 

The premises is located on the ground floor of a four storey building on Old Kent Road, a major arterial road with a high volume of traffic both day and night. The premises has the benefit of a licence with opening hours: Sunday to Thursday until midnight and Friday and Saturday until 03:30  with licensable activities until 30 minutes prior to closing.

 

The sub-committee were advised that the premises was largely was a food led restaurant with dancing after.

 

The primary cause of concern that has driven this review application has been complaints of noise nuisance from the premises that has literally driven out tenants from the flats above.

 

There has been a lengthy history of regarding to this application.  The application originally came before the licensing sub-committee on 31 October 2023 and it was decided that the premises licence should be modified with conditions. 

 

The applicant appealed the decision, which is their right to do. On the 10 June 2024, District Judge Benjamin remitted the review application back to the sub-committee to consider the application afresh.  This, the sub-committee has done and has considered very carefully all of the written, verbal and visual submissions before it.

 

A considerable amount of the evidence before the sub-committee is dated 2022 and 2023.  The NNT witnessed a statutory noise nuisance on 2 May 2022, after which a noise abatement notice was issued.  A contravention of the noise abatement notice was witnessed on 4 June 2022 and a caution was issued in respect of this.  It is understood that a statutory noise nuisance was also witnessed in March 2018. 

 

Although the premises was not obliged to implement the conditions imposed by the sub-committee on 31 October 2023 until any appeal was finally determined, it is unfortunate that it chose not to do so until very recently.  This would have assisted this sub-committee the extent of the issues complained of to date. 

 

The sub-committee were informed that since the 31 October 2023 hearing, the NTT received only one complaint.  The sub-committee also heard that over the weekend of the 2 and 3 August 2024 the residents in Flat 1 experienced considerable disturbance of noise, after the premises reset the noise limiter.

 

The sub-committee acknowledges that the applicant submitted complaints on their tenant’s behalf.  The applicant may have felt it would be more convenient to their tenants to do this. 

 

The sub-committee recognises the burden on residents is immense and extremely time consuming. Residents want immediate an immediate resolution when they are disturbed at acutely anti-social hours. 

 

Residents are required to call the council late at night/early morning and wait for an investigating officer from the out of hours NNT, where often, there can be a delay in an officer returning the call to the resident and the noise disturbance could have ended.  In the event that the noise nuisance has not ended, an officer would need to attend the resident complainant’s home to assess whether the noise is a statutory noise nuisance, which residents understandably find intrusive and exhausting. 

 

However, because complaints have not been submitted to the council in “real time” has meant that the council has no way of identifying whether a statutory noise nuisance was committed.

 

The sub-committee urges the applicant that in respect of noise complaints, they encourage their tenants of the importance to make complaints of noise disturbance to the council in real time.

 

It is a positive duty of the licensing authority to promote the licensing objectives:

 

“(a)  the prevention of crime and disorder;

(b)  public safety;

(c)  the prevention of public nuisance; and

(d)  the protection of children from harm”.

(Section 4(2) Licensing Act 2003)

 

The Section 182 guidance speaks of the promotion of the prevention of public nuisance and that:

 

“..through representations, to consider what constitutes public nuisance and what is appropriate to prevent it in terms of conditions attached to specific premises licences…”. (Paragraph 2.20)

 

In determining the review application, it must promote the licensing objectives having regard to the application, relevant representations, Southwark’s statement of licensing policy 2021-2026 (published under Section 5 of the Licensing Act 2023 and the Home Office Revised Guidance issued under section 182 of the Licensing Act 2003 (December 2023) (the Section182 guidance).

 

The options available to this sub-committee are:

 

i.  Take no action

ii.  Modify the premises licence

iii.  Excludea licensableactivity

iv.  Removethe designatedpremises supervisor

v.  Suspend the licence

vi.  Revokethe licence.

(Section 52(4) Licensing Act 2003)

 

In view of the options available to the sub-committee, taking no action is not appropriate and would undermine the licensing objectives, which this sub-committee is under a duty to promote. The sub-committee also feel that having heard and considered all of the evidence available before it, that it would be wholly disproportionate to impose options iii, iv, v and vi.

 

The licensing sub-committee has decided it would be appropriate and proportionate to modify the premises licence. Consideration was given whether to reduce the operating hours of the premises.  However, having heard from the experts for both the Applicant and the premises, and the opinions from EPT and LRA, it was decided that it would be disproportionate and excessive to reduce the premises hours and impose conditions, in particular the detailed condition concerning the noise limiter.

 

In reaching this decision the sub-committee had regard to all the relevant considerations, the four licensing objectives and the public sector equality duty and determined that this decision was appropriate and proportionate.

 

In making this decision the sub-committee had regard to the relevant notice and considered this decision was appropriate for the promotion of crime prevention objective.

 

Appeal rights

 

This decision is open to appeal by either:

 

a)  The applicant for the review

b)  The premises licence holder

c)  Any other person who made relevant representations in relation to the application  

 

Such appeal must be commenced by notice of appeal given by the appellant to the District Judge’s Clerk for the Magistrates’ Court for the area within the period of 21 days beginning with the day on which the appellant was notified by this licensing authority of the decision.

 

This decision does not have effect until either

 

a)  The end of the period for appealing against this decision; or

b)  In the event of any notice of appeal being given, until the appeal is disposed of.