Agenda item

The Royal Borough of Kensington and Chelsea

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

27 February 2025

 

Present at Hearing:-

Committee:                              Councillor Marie-Therese Rossi (Chair)

                                         Councillor David Lindsay

                                         Councillor Abdullahi Nur

 

Officers:                           Paul Phelan (Licensing)

                                         Lindsey Le Masurier (Legal)

                                         Holly Weaver (Governance)

                                         Tommy Hanmer (Governance)

                                         Nimca Muhudin (Governance)  

 

Applicant:                                Jack Spiegler (Legal Adviser)

                                         Tom Wright

                                         Chris D’Sylva

 

Responsible Authority:           Keith Mehaffy (Noise and Nuisance)

Objectors:                               Hristo Mitchkovski

                                         Terrie Tanaka

                               

 

NOTTING HILL FISH SHOP SUSHI LIMITED, GROUND FLOOR,

118 TALBOT ROAD, LONDON, W11 1JR

(“the Premises”)

 

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

Prior to the hearing, the Applicant amended the Premises plan so as to exclude the basement floor from the licensable area.

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

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 permission for the sale by retail of alcohol on the Premises:-

 

Monday to Sunday    from 12:00 to 23:00 

 

2.    To grant permission for the sale by retail of alcohol off the Premises:-

 

Monday to Sunday    from 12:00 to 23:00 

 

3.    To grant permission for the opening hours at the Premises to be:-

 

        Monday to Sunday    from 10:00 to 23:30

 

4.    This licence is subject to the following conditions proposed by the Applicant (some of which were amended at the hearing with the Applicant’s permission), namely:-

 

4.1   Consumption of alcohol inside the Premises shall cease, and the Premises shall close to patrons and all patrons shall have left the Premises, no later than 30 minutes after the end of the permitted hours for the sale by retail of alcohol on the Premises.

 

4.2   Subject to any necessary pavement licence, the sale and supply of alcohol for consumption on the front external forecourt and, where applicable, any Summertime Terrace shall cease at 21:30 each day and such external areas shall be cleared of all customers by 22:00.  (For the avoidance of doubt, the front external forecourt is covered by on sales of alcohol and any Summertime Terrace would be covered by off sales of alcohol.)

 

4.3   Except for 4 customers waiting to be seated inside the Premises, the sale and supply of alcohol for consumption inside the Premises, and subject to any necessary pavement licence, on the front external forecourt and any Summertime Terrace, shall be by waiter/waitress service and served only to seated customers taking a substantial table meal there and for consumption by such persons as ancillary to their meal.

 

4.4   Except for alcohol or other drinks consumed on the front external forecourt and, where applicable, any Summertime Terrace, no alcohol or other drink shall be taken from the Premises in an open container.

 

4.5   Subject to condition 5.10, the front external forecourt (and, where applicable, any Summertime Terrace) shall close to customers between 22:00 and 08:00 and all customers shall leave such area(s).  All tables and chairs shall be rendered unusable between 22:00 and 08:00. 

 

4.6   A daily incident log shall be kept at the Premises for a period of at least 12 months from the date of last entry, and made available on request to an authorised Officer of the Council or the Police, which will record the following:

 

a.    all crimes reported to the venue

b.    all ejections of patrons

c.     any complaints received

d.    any incidents or disorder

e.    all seizures of drugs and offensive weapons

f.      any faults in the CCTV system repaired within 24 hours

g.    any refusal of sale of alcohol

h.    any visit by a relevant authority or emergency service

i.      any lost property found or handed to staff at the premises

j.      any other relevant incidents to be recorded

 

4.7   A dedicated telephone number for the Designated Premises Supervisor or the duty manager shall be displayed so that it is visible from the public highway and maintained for use by any person who may wish to make a complaint during the operation of the licence, which shall be provided to the Licensing Authority and local residents’ associations. Any change to the number shall be notified to the Licensing Authority and to local residents’ associations within 7 days of the change.

 

4.8   Clearly legible notices shall be displayed at all exits from the Premises requesting patrons to respect the needs of residents and to leave the Premises and area quietly.

 

4.9   No smells generated from the cooking processes at the Premises shall give rise to nuisance to occupiers of neighbouring properties.

 

4.10  No noise or vibration associated with the operation of the building services plant at the Premises shall give rise to a nuisance to the occupiers of the neighbouring properties.

 

4.11  Rubbish, including bottles or cans, shall not be deposited outside the Premises between 23:00 and 07:00 the following day.

4.12  Refuse collections shall not take place between 23:00 and 07:00 the following day.

4.13  Deliveries to the Premises shall not take place between 20:00 and 07:00 the following day.

5.    This licence is subject to the following additional conditions imposed by the Committee(some of which were agreed by the Applicant at the hearing), namely:-

5.1   The Premises shall not be used under the terms of this licence until they have been insulated to prevent the transmission of excessive airborne or impact sound to neighbouring residential dwellings. The insulation works shall be installed in accordance with details submitted to and approved in writing by the Council’s Director of Transport and Regulatory Services and shall thereafter be maintained to the same standard.

5.2   No customers shall have access to the rear external area of the Premises at any time.

5.3   The sale of alcohol for consumption off the Premises, except for any Summertime Terrace, shall be restricted to either:-

a)    customers taking from the Premises unfinished resealed bottles of wine or sake;

b)    alcohol supplied with, and ancillary to, a takeaway meal.

5.4   There shall be CCTV in operation at the Premises and;

a)    A member of staff who has been nominated in writing and who is conversant with the operation of the CCTV system shall be on the Premises at all times when the Premises are open to the public.

b)    If the Premises are not open, and subject to the tests set out by virtue of the Data Protection Act, within 24 hours of a request for access to the CCTV system from either the police or licensing authority, this staff member must be able to show a Police, HMRC or authorised council officer recent data or footage with the absolute minimum of delay when requested.

c)    All recordings shall be stored for a minimum period of 31 days with date and time stamping.

d)    Recordings shall be made available immediately upon the request of a Police or Licensing Officer throughout the preceding 31-day period.

e)    The CCTV system shall be maintained according to the current Home Office specification for premises of this type.

f)      Should the equipment become faulty then the Metropolitan Police will be notified by email and all reasonable efforts made to have any fault rectified within 24 hours.

g)    All entry and exit points will be covered enabling frontal identification of every person entering in any light condition.

5.5   Appropriate signage shall be displayed in a prominent position informing customers they are being recorded on CCTV.

5.6   All staff responsible for selling alcohol shall receive training in the Licensing Act 2003 in terms of the licensing objectives, offences committed under the Act and conditions of the Premises Licence within 2 months of being employed. Thereafter, such staff shall receive refresher training in the Licensing Act 2003 at intervals of no more than 12 months.        

5.7   Signed and dated records shall be kept of all staff training which shall be kept at the Premises detailing the name of each member of staff trained; the date training was provided; details of the person who provided the training and an acknowledgment that staff have been so trained.  Such records shall be kept available for inspection at the Premises at all times the Premises are open by the Police and authorised officers of the Licensing Authority for a period of at least one calendar year from the last date of entry.

5.8   The Premises shall operate a “challenge 25” age verification policy and staff shall be trained in respect of the policy.  Staff shall ask for proof of age from anyone they suspect of being less than 25 years of age. The only acceptable forms of identification shall be a photo style driving licence, a passport, a photo identification card bearing the PASS logo in a hologram format, military ID or recognised photo ID from member countries of the European Union.

5.9   A notice shall be clearly displayed on the Premises showing that a Challenge 25 Policy is operated at the Premises.

5.10  A maximum of 5 customers and staff shall smoke in the designated area for smoking (the vicinity of the front external forecourt) at all times.

5.11  A litter sweep shall be carried out in the immediate vicinity of the Premises before the Premises opens to the public.

5.12  The forecourt and the pavement immediately outside the Premises shall be kept in a clean condition and shall be washed on a weekly basis (and, where necessary, in the interim).

6.     This licence is subject to any other conditions in the Operating Schedule provided that they do not conflict with this document.

7.     The licence is subject to any relevant mandatory conditions.

Preliminary Matters

8.     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 and Councillor Lindsay was nominated as substitute chair in the event that the Chair lost her connection during the meeting.

 

9.     In addition to the main papers, the following additional papers were received:-

 

1. Additional Submission from Applicant^[1]
2. Additional submission from Objector^[2]
3. Additional submission from Objector^[3]
4. Additional submission from Objector^[4]
5. Additional submission from Applicant (amending the premises plan)^[5]

10.   The Application was made by Notting Hill Fish Shop Sushi Limited who were represented at the hearing by Mr Jack Spiegler, Mr Tom Wright and Mr Chris D’Sylva.

 

11.   Mr Keith Mehaffy, Principal Environmental Health officer, attended the hearing on behalf of Noise and Nuisance.

12.   Mr Hristo Mitchkovski and Ms Terrie Tanaka attended the hearing to speak in objection to the application.

 

13.   The Licensing Officer, Mr Phelan, then introduced the amended application.  He explained that the application^[6] was for the grant of a new premises licence.  The Premises comprised a lower ground floor, ground floor and forecourt (although no licensable activities would be taking place on the lower ground floor). 

 

14.   He advised that the Applicant was seeking on and off sales of alcohol from 12:00 to 23:00 on Mondays to Sundays and for the opening hours to be from 10:00 to 23:30 on Mondays to Sundays.

 

15.   He referred the Committee to the representation received from Noise and Nuisance^[7] and 3 representations received from the other parties^[8].  He added that there had been no complaints made against the Premises in the last 24 months nor any Temporary Event Notices submitted in the last 12 months.  Lastly, he advised that the Planning Department had not made a formal representation but had referred the Committee to the ongoing planning application relating to the Premises^[9].

 

Submissions and Questions of the Applicant

 

16.   Mr Spiegler then addressed the Committee and explained that the Premises was a small 12-seater sushi restaurant covering the ground floor and small external forecourt.  He pointed out that the hours sought by the Applicant were modest and in line with the Council’s midnight policy^[10].  Furthermore, the Applicant had not applied for regulated entertainment or late-night refreshment.  Therefore, this was a ‘lower risk’ type of premises.

 

17.   However, in order to mitigate concerns raised, the Applicant had agreed the majority of the conditions suggested by Noise and Nuisance and was agreeable to some of the other conditions suggested by the Legal Officer.  Mr Speigler pointed out that general concerns regarding the area, such as anti-social behaviour, could not be attributed to the Premises and that the Applicant had submitted a robust operational management plan^[11].

 

18.   Turning to the objectors’ concerns, he noted that such objections mostly related to the Applicant’s other nearby 45-seater bistro restaurant known as ‘Dorian’^[12] which was a successful Michelin star restaurant.  The Applicant conceded that there had been some issues there affecting nearby residents that needed to be addressed.  He referred to the email that had been sent to local residents^[13] and pointed out that no responses had been received.  However, he advised that the Applicant had an open-door policy and was still willing to meet with residents to discuss their concerns.

 

19.   In response to questions from the Committee and the Legal Officer, Mr Spiegler advised that:-

 

1. The Premises was primarily to be a restaurant where customers were to be seated and eating a meal;
2. There would be a take-away service for customers to be able to take home food;
3. At some point in the future, there may be a 3^rd party delivery service such as Deliveroo;
4. The output of the Premises was limited by its size in any event;
5. Dispersal was covered in section 3 of their operational management plan;
6. The external forecourt adjoining the Premises was narrow and would accommodate a single bench with a maximum of 6 customers;
7. The Applicant would be applying for Summertime Terrace covering 2 parking bays.  This area could potentially accommodate a maximum of 16 customers.

 

20.   In response to a question from Mr Mehaffy regarding management of refuse and the issues observed outside Dorain, Mr Speigler advised that not all of the rubbish pictured belonged to Dorian.  However, he agreed that improvements were needed in that regard.  He explained that this Premises was a lot smaller than Dorian and would therefore be producing much less waste.  He added that rubbish would be held on site until the twice daily collections were due and that the external area would be swept and kept clean.

 

21.   In response to questions from the Objectors, Mr Spiegler advised that:-

 

1. Odours emitted from the Premises would be subject to a condition on the licence.  Very little odours would be emitted as this was a sushi restaurant with only a small amount of cooking involved;
2. Even if at full capacity of 34 customers^[14], the Premises was still a small restaurant and would comply with any pavement licence restrictions.

 

22.   The Legal Officer explained that a pavement licence would be needed to place tables and chairs on the forecourt and for the Summertime Terrace area.  Pavement Licences were dealt with under a separate statutory regime^[15] by the Highways Department.  The Premises Licence which was under consideration today was, inter alia, to use the forecourt and Summertime Terrace areas for the purposes of on and off sales of alcohol which were licensable activities under the Licensing Act 2003.

 

23.   Mr Phelan confirmed that residents could sign up to the Council’s email alerts notifying them when a pavement licence application had been made.

 

Submissions and Questions of the Responsible Authority

24.   Mr Mehaffy then addressed the Committee and explained that this was not a significant application as the Applicant was only seeking alcohol sales.

25.   In relation to potential odours, he drew the Committee’s attention to the current planning application and noted that the ductwork extended to a high level and operated at a high velocity which was good in his opinion.  He added that the Premises already had a Class E planning use which allowed it to operate as a restaurant.  He observed that whilst sushi was not a high odour food, the Premises could potentially be used by any type of restaurant operator in the future.  He reminded the Committee that conditions attached to a planning permission should not be replicated on the Premises Licence as it was dealt with under the planning regime.  However, the Applicant was willing to accept a condition on the Premises licence to the effect that no smells generated from the cooking processes at the Premises would give rise to nuisance to occupiers of neighbouring properties.

26.   Mr Mehaffy then explained to the Committee that his main concern related to noise and refuse.  However, provided good working practices were adopted by the Applicant and subject to suitable conditions, he did not see any reason why the Premises Licence should not be granted.

27.   In response to questions from the Committee, Mr Mehaffy advised that the Premises was not located on the route of the Notting Hill Carnival.  However, during Carnival, a sound system^[16] was sited on the street opposite the Premises outside Dorian and The Globe. 

28.   There were no questions of Mr Mehaffy from the Legal Officer or any of the parties.  Mr Spiegler advised that the Premises would be boarded up during Notting Hill Carnival in any event.

Submissions and Questions of the Objectors

29.   Ms Tanaka then addressed the Committee and explained that although she lived in Queens Park, she was the freehold owner of a property in Talbot Road which was close to the Premises and which she let out to tenants.

30.   Her main concern was the use of the external forecourt and the Summertime Terrace areas and the effect it would have on local residents, especially a wheelchair bound resident who lived above the Premises.  She did not consider that use of the forecourt should be permitted.

31.   She referred to the issues her tenants had faced as a result of the operation of Dorian over the last 2 years as well as herself having to make an official complaint to the Council about breaches of a Temporary Event Notice held by Dorian last year.

32.   Mr Mitchkovski then addressed the Committee and explained that he was concerned about several issues including the cumulative impact if this licence were to be granted^[17].  He was concerned about more noise being created by outside drinking and considered that licensable activities should only take place inside the Premises.  He mentioned that the application consulted upon had not included the external forecourt area^[18] and that a further application was therefore needed.

33.   He was also concerned about noise from power washing the pavement and smells from odours.

34.   In response to questions from the Committee, the Objectors advised that:-

1. References were being made to the issues caused by Dorian as it was the same owner and management as the Applicant;
2. Ms Tanaka advised that she had not contacted the ward councillors to express her concerns although she was aware that 2 other residents had made complaints to the Council;
3. Mr Mitchkovski advised that he had made complaints about the rubbish at Dorian but was not aware that he could have contacted the ward councillors too

 

35.   There were no further questions of the Objectors from the Legal Officer or any of the other parties.

 

Conditions Discussion

36.   The discussion then turned to the draft conditions which had been circulated to the Parties^[19].

37.   In relation to the condition requiring there to be no smells generated from the cooking processes at the Premises which gives rise to nuisance, Mr Mitchkovski suggested that the word ‘detectable’ should be included.  Mr Mehaffy advised that the additional wording would not be enforceable as there was no such thing as a ‘smell-o-meter’ and that any smells would be subjectively assessed.  He added that the planning regime was concerned with the amenity perspective whereas the licensing regime was concerned with public nuisance.

38.   In terms of the condition requiring the external areas to close to customers and for all tables and chairs to be rendered unusable between 22:00 and 08:00 and for all customers to leave such areas (except for a restricted number of smokers), the Applicant explained that although they would be opening for business at 10:00 each day, they would prefer for the time to be kept as 08:00.  Ms Tanaka stated that she would prefer a later time such as 10:00.

39.   The Applicant was agreeable for all sales and consumption of alcohol, both inside and outside the Premises, to be to seated customers who were served by waiter/waitress service and who were eating a substantial table meal provide that an exception could be made for 4 customers waiting to be seated inside the Premises.

40.   In relation to refuse collections, the Applicant was happy to agree to restricting such collection times between 23:00 and 07:00 but could not commit to putting the refuse out no more than 30 minutes prior to the collection time.  This was because the Applicant had not yet decided whether to use the Council or a private collection service.  Mr Mehaffy observed that whilst it was good practice, the timings were not so important but rather how the rubbish was put outside (ie – adequately packaged to prevent spillages, etc..).  Mr Mitchkovski advised that he would prefer it if the additional wording was retained.

41.   As regards details of insulation works to be carried out at the Premises prior to operation, Mr Spiegler explained that the Applicant had already shared such details with Mr Mehaffy and would therefore prefer it if further approval was not required.  Mr Mehaffy advised that Environmental Health had only received a schedule of works from the Applicant’s contractor and had only been able to provide a few comments on such schedule.  He added that the onus was on the Applicant to show that the insulation works were adequate and any sound contained especially if music were to be played during deregulated hours (08:00 to 23:00).

42.   The Applicant was happy to restrict off sales of alcohol to the Summertime Terrace area, when supplied with a takeaway meal or when customers wanted to take home unfinished resealed bottles of wine.  The Applicant requested that customers could also take home unfinished resealed bottles of sake too.

43.   Smoking was then discussed.  The Applicant advised that smoking would take place in the external forecourt and nearby it.

44.   The Applicant was agreeable to the following conditions:-

1. 30 minutes drinking up time inside after the end of permitted hours for on sales of alcohol;
2. No noise or vibration associated with the operation of plant causing a nuisance;
3. Notices being displayed asking customers to leave the area quietly;
4. Other than alcohol or drinks consumed on the forecourt or the Summertime Terrace, no other drinks were to be taken from the Premises in an open container;
5. Depositing of rubbish and delivery times;
6. Incident log;
7. Displaying a dedicated telephone number;
8. Alcohol consumption on the external areas to cease at 21:30 and all customers to have vacated those areas by 22:00;
9. CCTV and signage;
10. Staff training;
11. Challenge 25 policy and signage;
12. No customers to have access to rear external area of the Premises;
13. Daily sweeping of the Premises and weekly washing of the footway (and sooner if need be).

 

Conclusions of the Committee

45.   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, 10.13-10.15, 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, 8.2, 8.8, 12.1–12.4, 13.1-13.5, 14.1, and 14.5-14.6  of the SLP.

 

46.   The Committee considered the merits of the amended application and the representations made by all the Parties. The Committee noted that Noise and Nuisance did not object to the application in principle provided that suitable conditions were attached to the licence.  However, 3 representations had been made objecting to the application mainly on the ground that the application would not promote the prevention of public nuisance licensing objective.  The Committee also heard from the Objectors regarding wider issues they had encountered in relation to the Applicant’s other premises (Dorian) and a Temporary Event Notice held in the street by the Applicant last October.

 

47.   The Committee noted that the hours for licensable activities and opening times sought by the Applicant fell well within the Council’s midnight policy contained in its’ SLP.  The Committee were satisfied that the hours sought were acceptable.  They were also aware that the Premises could operate as a restaurant irrespective of whether or not a premises licence were to be granted for alcohol sales (and that the planning application, which was currently under consideration, would deal with the installation of various equipment to control noise and odour levels, if granted).

48.   The Committee therefore focused their main concerns on potential public nuisance that could arise as a result of alcohol sales as well as use of the outside areas for licensable activities.  An additional layer of control would also arise via the separate pavement licences which would be required to place tables and chairs on the front external forecourt and the Summertime Terrace^[20].

49.   In terms of drinking up times, alcohol sales inside the Premises would terminate at 23:00 and customers would need to have left this area by 23:30 (which is when the Premises closes)^[21].  Alcohol sales on the front external forecourt and Summertime Terrace would cease at 21:30 and customers would need to have vacated such areas by 22:00^[22]. Furthermore, except for 5 smokers, all customers would need to have left the front external forecourt and Summertime terrace between 22:00 and 08:00; as well as all tables and chairs being rendered unusable between those times^[23].

50.   All alcohol sales inside and outside the Premises would be to seated customers being served by waiter/waitress service and ancillary to a substantial table meal.  The Committee were agreeable to an exception for 4 customers waiting to be seated inside the Premises^[24].  Therefore, the Premises would not be operating as a seated bar.  A condition was also added preventing any drink in an open container being taken from the Premises unless it was to be consumed on the front external forecourt or the Summertime Terrace.

51.   The Applicant had also agreed to keeping a daily incident log^[25], displaying a dedicated telephone number^[26] and notices requesting customers leave the Premises quietly^[27], not generating any smells from cooking processes^[28], not causing noise or vibration from plant^[29] as well as restricting the time that rubbish could be deposited and refuse collected to between 23:00 and 07:00^[30].  The Committee decided not to include the extra wording requiring rubbish not to be put out any earlier than 30 minutes before collection time for the reasons requested by the Applicant.  Deliveries to the Premises were restricted to between 20:00 and 07:00 with the Applicant’s agreement too^[31].

52.The following further conditions were also added to the licence^[32]:-

1. Not using the licence until the insulation works had been installed in accordance with details submitted to and approved in writing by the Council and maintained to the same standard thereafter.  The Committee agreed with Mr Mehaffy that the works needs to be approved by Noise and Nuisance.
2. No customers were to have access to the rear external area.
3. Other than off sales of alcohol within the Summertime Terrace, restricting such off sales to customers taking away half finished wine or sake and where supplied with a takeaway meal.  Therefore, no customers would be able to enter the Premises with the sole purpose of buying and taking away alcohol. 
4. CCTV and signage
5. Staff training
6. Challenge 25 policy and signage
7. Restricting smokers to a maximum of 5 persons at any one time
8. Litter sweep and pavement washing

53.   Overall, the Committee were satisfied that the time sought and the conditions attached to the licence were appropriate and proportionate and would promote the licensing objectives.

 

This Decision has immediate effect.  If problems are experienced, then an application for a review of the Premises licence can be made.       

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

27 February 2025