Agenda item

Cinquecento, Basement and Ground Floor, 233 Portobello Road, LONDON, W11 1LT (Colville)

Decision:

The Royal Borough of Kensington and Chelsea

Decision of the Licensing Sub-Committee (“Committee”)

23 May 2024

 

Present at Hearing:-

Committee:                      Councillor Marie-Therese Rossi (Chair)

                                Councillor Aarien Areti

                                Councillor Claire Simmons

 

Officers:                  Paul Phelan (Licensing)

                                Lindsey Le Masurier (Legal)

                                Holly Weaver (Governance)

                                Nimca Muhudin (Governance)

                                Jerome Treherne (Governance)

 

Applicant:                        Emanuele Tagliarini (Applicant)

Thomas O’Maoileoin (Legal Adviser)

                               

Objector:                 Caroline Atkins

 

Cinquecento, 233 Portobello Road, London, W11 1LT(“the Premises”)

The Committee has considered an amended application for the variation of a premises licence under the Licensing Act 2003 in respect of the above Premises.

The Committee has considered the committee papers and the submissions made by all of the parties, both orally and in writing.

The Premises already has a Premises Licence and the Applicant was initially seeking the following variations:-

(1)  to permanently extend the licensing area by adding the rear first-floor roof terrace;

(2)  to remove conditions 18 and 33 of the current Premises Licence;

(3)  to amend conditions 30, 31 and 32 of the current Premises Licence

During the hearing, the Applicant amended their application to instead seek the following variations:-

 

(1)  to temporarily extend the licensing area by adding the rear first-floor roof terrace for a time limited period until 30 September 2024; and,

(2)  to use the rear first-floor roof terrace for licensable and non-licensable activities on Fridays, Saturdays and Sundays only between 10:00 until 17:00 during such time limited period.

 

 

As a result of the application being amended, the Applicant agreed to:-

(1)  not remove condition 18 but to replace it with revised condition 18

(2)  not to remove condition 33 but to replace it with revised condition 33

(3)  to amend the date and times contained in condition 30

(4)  to amend the date contained in condition 31

(5)  to amend the date contained in condition 32

(6)  to amend the dates shown on the First Floor Plan of the Premises Licence

The Applicant also agreed to permanently amend condition 22 so that the door leading onto the first-floor terrace would be kept closed from 17:00 hours until 10:00 hours the following day (instead of being kept closed from 21:00 hours until 08:30 hours the following day).

In reaching its determination, the Committee has had regard to the relevant legislation, the Secretary of State’s Guidance (“Guidance”) and the Licensing Authority’s Statement of Licensing Policy (“SLP”).

In summary, the Committee has determined, after taking into account all of the individual circumstances of this case and the promotion of the four licensing objectives:-

 

1.    To grant temporary permission to extend the licensing area to include the first-floor roof terrace of the Premises between the hours of 10:00 until 17:00 on Fridays, Saturdays and Sundays only for a time limited period until 30 September 2024 in accordance with the plans attached to the existing licence (except that the wording relating to the First Floor Plans shall be amended to read ‘First Floor plan – time limited to 30 September 2024’ and ‘First Floor plan – from 1 October 2024’ respectively).  For the avoidance of doubt, if the Applicant wishes to extend this permission beyond 30 September 2024 and/or to include other times or days, they will need to apply for a fresh variation of the licence.

 

2.    To amend existing condition 18 so that it reads as follows:-

 

‘From 1 October 2024, no staff or customers shall be permitted on the first-floor rear terrace for licensable and non-licensable activities at any time.  For the avoidance of doubt, up to 30 September 2024 , staff and customers shall be permitted on the first-floor rear terrace for licensable and non-licensable activities on Fridays, Saturdays and Sundays only between the hours of 10:00 and 17:00’.

3.    To amend existing temporary condition 33 so that it reads as follows:-

 

‘The existing conditions on the licence will apply permanently to the extended basement floor, extended ground floor as well as the additional first floor of the Premises (excluding the roof terrace) and the existing conditions on the licence will also apply for a time-limited period until 30 September 2024 in relation to the first-floor rear terrace’.

 

4.    To amend existing temporary condition 30 so that it reads as follows:-

 

‘Up to 30 September 2024, the first-floor rear terrace shall be kept clear of all staff and customers between 17:00 hours and 10:00 hours the following day on Fridays to Sundays for licensable and non-licensable activities.  For the avoidance of doubt, there shall be no staff or customers on the first-floor rear terrace at any time on Mondays to Thursdays for licensable and non-licensable activities’.

5.    To amend existing temporary condition 31 and make it a permanent condition on the licence so that it reads as follows:-

 

‘There shall be no music or amplified sound played on the first-floor roof terrace’.

6.    To amend existing temporary condition 32 so that it reads as follows:-

 

‘Up to 30 September 2024, notices will be placed in the first-floor rear terrace reminding customers that they are in a residential area’.

 

7.    To amend existing condition 22 (with the Applicant’s permission) so that it now reads as follows:-

‘The doors leading onto the first-floor rear terrace shall be kept closed each day from 17:00 hours until 10:00 the following day’.

8.    This varied licence is subject to the following additional conditions imposed by the Committee (as agreed by the Applicant at the hearing) namely:-

 

8.1      Up to 30 September 2024, there shall be no more than 10 customers on the first-floor roof terrace at any one time on Fridays to Sundays.  For the avoidance of doubt, there shall be no customers on the first-floor roof terrace at any time on Mondays to Thursdays. (TEMPORARY CONDITION)

8.2      The door to the first-floor roof terrace shall be fitted with a self-closing device that is maintained in a proper working condition.  (PERMANENT CONDITION)

9.    The existing conditions on the licence shall remain in force, except in so far as they are varied by this Determination and, for the avoidance of doubt, shall apply to the entire licensable area as shown on the premises plan.

 

10. This varied licence is subject to any relevant mandatory conditions.

 

11. This varied licence takes effect once the self-closing device on the door to the first-floor roof terrace has been fitted as per paragraph 8.2.

 

Preliminary Matters

12. The Chair introduced the members, identified the parties attending and who wished to speak and outlined the procedure.  The Chair confirmed that cross-examination would be permitted.  No declarations of interests were made.

 

13. There were no additional papers.

 

14. The application was made by Cinquecento (Portobello Road) Limited.  Mr Emanuele Tagliarini (Director) attended the hearing and was represented by his legal adviser, Mr Thomas O’Maoileoin.

 

15. The Committee recognised that 2 representations had been received opposing the application from local residents.  One of the objectors, Ms Caroline Atkins, attended the hearing.

 

16. The Licensing Officer, Mr Phelan, then introduced the application[1].  He explained that the Premises operated as a restaurant and had the benefit of an existing premises licence[2] which covered the basement, ground and first floor of the Premises.  He advised that the application had been adjourned from an earlier hearing date[3] at the Applicant’s request.

 

17. He went on to explain that the Applicant was seeking to remove existing conditions 18 and 33 from the licence and to amend existing conditions 30 to 32 so as to permit the daily use of the first-floor roof terrace from 10:00 to 21:00 hours daily.  He added that the previous temporary permission which enabled the Applicant to do so had expired on 4 August 2023.

 

18. He explained that there had been no objections received from any of the Responsible Authorities.  However, 2 local residents had objected to the application[4].  No objection had been raised by the Planning Department[5].

 

19. Lastly, he advised that there had been 9 noise complaints received in the last 24 months[6] and 8 Temporary Event Notices submitted in the last 12 months[7].

 

Submissions and Questions of the Applicant

20. Mr O’Maoileoin then addressed the Committee.  He advised that the application related to the first-floor roof terrace and went on to apologise on behalf of his client for the disturbances that had been caused during the 2-year temporary permission.  He said that there was no excuse for such disturbances and that he would not try to defend the indefensible. 

 

21. Given the above, Mr O’Maoileoin advised that the Applicant was now seeking to amend the application so that it would be for a time-limited period which would run in line with British Summer Time or the existing pavement licensing regime timings (whichever ended soonest) and would only cover the lunch-time trade which would cease by 17:00 every day.  Later, in the hearing, the application was further amended so as to only apply to Fridays, Saturdays and Sundays.

22. He referred the Committee to the Dispersal and External Management Plan[8] dated April 2024 which had been ‘beefed up’ substantially.  He added that there were now new managers at the Premises and that the staff were fully aware of their responsibilities.

 

23. He went on to say that although he was aware that it was not a licensing objective, the Applicant was seeking to use the first-floor roof terrace for financial reasons as they were not able to apply for a pavement licence on Portobello Road itself due to the narrowness of the street.

 

24. He further acknowledged that Ms Atkins worked from home during the daytime and advised that the Applicant would be giving her his contact details so that she could liaise with him directly going forward.

 

25. He noted that daytime noise was generally less intrusive than night-time noise when alcohol was more likely to be consumed.

 

26. In response to questions from the Committee, Mr O’Maoileoin/the Applicant advised that:-

 

      i.         The premises licence conditions had not been previously complied with due to poor management for which there was no excuse;

     ii.         New management was now in place who were fully aware of the conditions on the licence;

    iii.         The upstairs area was not used on Mondays to Wednesdays and it was mostly used for lunch on Fridays to Sundays.  The Applicant was therefore now seeking to use the terrace on Fridays to Sundays until 17:00 until either the end of British Summer Time or when the Council’s pavement licence regime ended for 2024 (whichever was the soonest);

   iv.         A shutter could be put on the door which led to the first-floor roof terrace;

     v.         If the temporary licence were to be granted by the Committee, and if the Applicant were to fail again, then it would be a fruitless exercise seeking to apply to vary the licence in the future to use the first-floor roof terrace;

   vi.         The Applicant was happy to put rubber covers on the furniture legs to reduce noise on the terrace.

 

27. The Chair emphasised the fact that conditions were placed on premises licences for good reasons and they were not to be ignored or flouted.  In this particular instance, there had been breaches involving use of the first-floor roof terrace beyond 21:00, smoking on the terrace as well as many noise complaints over a considerable period of time. She noted that ‘change of management’ was often cited as a resolution to such issues.  Mr O’Maoileoin acknowledged the Chair’s concerns and reiterated that the consequence of failing again would mean ‘game over’ for the Applicant long term.  He noted that many of the complaints could have been avoided through good management measures and that bridges needed to be built with the local residents.

 

28. In response to a question from the Legal Officer, Mr O’Maoileoin confirmed that no residents’ meetings had taken place to date[9].

 

29. In response to questions from the Objector, Mr O’Maoileoin/the Applicant advised that:-

 

      i.         If the temporary licence were to be granted this time then the Applicant would need to re-apply the following year either for a permanent or further temporary permission;

     ii.         The Applicant would make contact with Ms Atkins prior to any future application;

    iii.         The courtyard in the basement area was used to store rubbish;

   iv.         Noise from the air-conditioning flue and/or the kitchen extractor would be investigated.

 

Submissions and Questions of the Objector

 

30. Ms Atkins then addressed the Committee and stated that she appreciated the Applicant’s apology and amendment to the application.  She advised that she spoke on behalf of other neighbours too including her next-door neighbour and her downstairs neighbour.  She added that it was likely that no further complaints had been lodged with the Council due to the high turnover of rentals in the area.

 

31. She went on to say that she did not consider that the first-floor roof terrace should be used for eating and drinking as it was enclosed space which caused sound to be echoed – for example, sound from music escaping from the inside of the Premises when the door to the roof terrace was left open and noise from loud voices and children.  She advised that she tended to open her rear windows more so than her front windows due to the street noise.  However, she was finding that she had to shut her rear windows when the roof terrace was in use due to the noise emanating from it.

 

32. She went on to say that did not consider that the existing awning covering the terrace nor the notices on the terrace reminding customers that they were in a residential area to be of any use and she stressed the importance of keeping the door to the terrace closed whilst the Premises was open.

 

33. In response to questions from the Committee, she advised that:-

 

      i.         Although most of the complaints related to use of the roof terrace in the evening, they also occurred to a lesser extent during the daytime;

     ii.         She would prefer it if the Applicant were not given a second chance to prove themselves;

    iii.         Although the Applicant had amended the application so that the roof terrace would only be used until 17:00 on Fridays to Sundays, she considered that weekends should be a ‘quiet time’ too as she did not work from 9-5 on Monday to Friday.

 

34.There were no questions of the Objector from the Applicant.

 

Conditions Discussion

35. The conditions discussion proceeded on the basis of the amended application – temporary use of the first-floor roof terrace for a time limited period for licensable and non-licensable activities on Fridays to Sundays from 10:00 until 17:00.

 

36. In terms of amending existing condition 18, it was agreed that the words ‘from 5 August 2023’ needed to be amended.

 

37. In terms of amending existing condition 30, it was agreed that the words ‘up to 4 August 2023’ needed to be amended, reference to 21:00 hours needed to be replaced with 17:00 hours and for the condition to stipulate which days it applied to. 

 

38. The Applicant agreed that existing condition 31 could be permanently amended so that no music or amplified sound could be played on the first-floor roof terrace.

 

39. Likewise, the Applicant agreement that the words ‘up to 4 August 2023’ in existing conditions 32 and 33 would need to be amended.

 

40. In light of the discussions, the Applicant also agreed to amend existing condition 22 so that the door leading onto the first-floor roof terrace would be kept closed from 17:00 (instead of 21:00) until 10:00 the following day.

 

41. The Applicant was also agreeable to a temporary condition limiting the number of customers on the first-floor terrace to 10 customers at any one time and for a permanent condition requiring the door to the first-floor terrace to be fitted with a self-closing device prior to using the first-floor roof terrace.

 

42. Lastly, it was noted that the premises plan would need to make it clear that the first-floor roof terrace was only included for a temporary period.

 

Conclusions of the Committee

 

43. In making its decision the Committee has taken into account all relevant sections of its SLP and the Guidance. The Committee considers the following paragraphs of the Guidance and its SLP are particularly important but it should be emphasised this is not an exhaustive list as the Committee has considered all relevant provisions of both documents.  Relevant paragraphs are: 1.9, 1.11-1.12, 1.16-1.17, 1.19, 2.20-2.26, 8.41–8.44, 8.47-8.48, 9.37-9.38, 9.42-9.44, 10.10, 10.13-10.14, 13.10, 14.10, 14.12-14.13 and 14.51-14.52 of the Guidance and paragraphs 2.1, 2.4, 2.7, 3.7-3.10, 6.1- 6.3, 8.8, 13.1-13.5, 14.1, and 14.5-14.6  of the SLP.

 

44. The Committee considered the merits of the application and the representations made by all the Parties. The Committee noted that no representations had been made by the Responsible Authorities.  However, 2 representations had been made by local residents mainly on the ground that the application would not promote the prevention of public nuisance licensing objective.  The Committee noted the high turnover of rentals in the locality and Ms Atkins’ observation that this may be the reason that there were only 2 representations made in relation to this application. 

 

45. The Committee also noted the fact that 9 noise complaints had been made to the Council over the last 24 months which mostly concerned use of the roof terrace in breach of the conditions on the licence.  Ms Atkins representation[10] also listed numerous other dates when she had been disturbed by use of the roof terrace including loud talking, the door to the terrace being left open causing music escape from inside of the premises and use of the terrace beyond 21:00.

 

46. The Committee acknowledged the Applicant’s apology and the amendments made to the application.  They also noted that new management was in place who had been fully appraised as to the conditions on the premises licence.

 

47. Whilst the Committee were initially reluctant to grant the application based on the recent disturbances caused when the roof terrace was in use, they decided on balance to give the Applicant one last chance to prove that he was capable of using the roof terrace without causing nuisance to the neighbours.  They considered this to be the Applicant’s ‘last chance saloon’ and wanted to make it very clear that the Applicant must ensure that the conditions on the licence are adhered to so that the licensing objectives are promoted.  If this were not to be the case then any further application to use the roof terrace would be viewed dimly. 

 

48. The Committee were pleased to see that the conditions discussion was productive and that the Applicant was agreeable to several concessions being made as well as the extra conditions being added.

 

49. In light of the amended application and the above-mentioned agreed conditions, the Committee decided to grant a temporary licence until 30 September 2024.

 

This is the full reasoned Decision reached by the Licensing Sub-Committee.  If the Parties are unhappy with the Decision, they can appeal to the Magistrates’ Court within 21 days of the Decision being issued.

 

Licensing Sub-Committee

23 May 2024

 

 



[1] See Appendix B

[2] See Appendix A

[3] 21 March 2024

[4] See Appendix C

[5] See Appendix F

[6] See Appendix D

[7] See Appendix E

[8] See pages 32-29

[9] As required by existing condition 25

[10] See pages 44 to 58

Supporting documents: