Content

Notification of decision following a Licensing Panel hearing to
determine an application for the variation of a premises licence
under section 34 of the Licensing Act 2003
 
PREMISES:  
White Bear, 198 Kingsley Road, Hounslow TW3 4AR
 
APPLICANT:  First Management Systems
Ltd, in respect of White Bear, 198 Kingsley Road, Hounslow, TW3
4AR.
  
TAKE NOTICE
THATON 12 December
2023 following a hearing before the Licensing and General
Purposes Sub Committee (the “Licensing Panel” or
“Panel”),
 
HOUNSLOW COUNCIL,
as the Licensing Authority for the Premises
RESOLVED that:
 
the application to vary a
premises licence White Bear, 198 Kingsley Road,
Hounslow TW3 4AR is REFUSED.
 
 
REASONS:
 

1.   
The Licensing Panel convened to determine an
application by First Management Systems Ltd in respect of
White Bear, 198 Kingsley Road, Hounslow TW3 4AR
(“the “Premises”) for the variation of a premises licence under the
Licensing Act 2003. 
 
 

2.   
The Premises are currently licenced for the
following activities and hours:
 

(a) 
Supply of alcohol
Monday to Wednesday, 08:00 to 00:00
Thursday to Saturday, 08:00 to 02:00
Sunday, 08:00 to 00:30
On Christmas Eve, until 03:00
On New Year’s Eve, 24 hours
 
(b) 
Live and recorded music:
Monday to Wednesday, 08:00 to 00:00
Thursday to Saturday, 08:00 to 02:00
Sunday, 08:00 to 00:30
On
Christmas Eve, until 03:00
On New
Year’s Eve, 24 hours
 
(c) 
The opening hours of the premises
Monday to Wednesday 08:00 to 00:30
Thursday to
Saturday 08:00 to 02:30
Sunday
08:00 to 01:00
 
The
application sought to extend the opening and licensable hours on
Friday and Saturday only by an additional hour as
follows:
 

(a) 
Supply of alcohol for consumption on the
premises:
Friday to
Saturday 08:00 to 03:00 
 
(b) 
Live Music and Recorded Music (Indoors)
Friday to
Saturday 19:00 to 03:00
 
(c) 
Hours premises are open to the public:
Friday to
Saturday 08:00 to 03:30
 

3.         
A copy of the application with the proposed conditions was attached
as Appendix A of the agenda pack. The Applicant proposed
additional conditions which are shown at paragraphs 4.2 to 4.6
(inclusive) (page 8) of the agenda pack.
 

4.         
A copy of the existing licence and conditions was
attached at pages 23-31 of the agenda pack. The Premises are
situated in an area of mainly residential properties and also within the Cumulative Impact Policy Area
for Hounslow.
 

5.         
The hearing was held as an in-person meeting. The
Licensing Panel consisted of three members and all members of the
Licensing Panel were in attendance throughout the hearing and
during deliberation which took place separately in a closed
session.  
 

6.         
The Licensing Panel carefully considered all the
relevant information including:
 

·      
Written and Oral representations by all the
parties

·      
The Licensing Act 2003 and the steps
appropriate to promotethe
Licensing Objectives

·      
The guidance issued under section 182 of the
Licensing Act 2003 (“the Statutory
Guidance”)

·      
Hounslow Council’s licensing policy including
the Council’s Cumulative Impact – special policy

·      
The Human Rights Act 1998
 

7.         
A representation was received from the Licensing
Enforcement Team concerned that the hours sought were in excess of those listed in the core hours policy
objective of the Council’s Statement Licensing Policy
2020-2025 (“the Policy”). They argue that the
Policy places the onus on the Applicant to demonstrate robust
measures have been put in place and that the application should be
refused. If, however, the Licensing Panel were minded to grant the application, they suggest an additional
condition relating to a search policy which should be implemented.
A copy of the representation is shown as Appendix C (pages
32 to 35) of the agenda pack.
 

8.         
There were no representations and/or objections to
the application from the police or any other responsible
authorities and/or other persons. 
 

9.         
During the Licensing Panel hearing Mr Cooray, being
the director of the Applicant company and a Mr Constantine who was
the freeholder of the premises attended as the Applicant
representatives (“the Applicants”).
 

10.     
Mr Charlie Hennessy and Mr Barry
Croft, Licensing Enforcement Officers
(“Licensing Enforcement”), attended the hearing
for the Community Enforcement and Regulatory Services.
 

11.     
Licensing Enforcement reiterated their objection and
said that as the Premises is located within the Hounslow Special
Licensing Policy Area (“CIA”) the onus was on
the Applicant to show the application will not add to the
cumulative impact being experienced in the area and undermine the
licencing objectives. They considered that the extended hours
applied for would cause disturbance and public nuisance to the
local area and that the Applicant had also not addressed the
Council’s core hours outlined in the Policy. If however, the application was granted, a condition
ought to be added to ensure all persons entering were searched on
Fridays and Saturdays from 22:00 hours until the closing
time.
 

12.     
During the hearing the Applicants explained that the
Premises had a long history and that they had been operating at the
Premises for fourteen years. They had recently invested in the
Premises by improving the lighting around the Premises, upgrading
the CCTV and installing a fence and
removing the seating outside to prevent loitering. The Applicants
reiterated that they were only seeking an additional hour on
Fridays and Saturdays and were of the opinion
that this would not add to any potential existing issues.
They were keen to implement these extended hours as Fridays and
Saturdays are the Premises’ busiest days in which the extra
hour would bring in a significant income. Due to various reasons
such as the pandemic and increasing costs, the business was
struggling and they were concerned by
what the future for the business would be if the variation to the
Licence was not granted. The Applicant also explained that the
business had tried various other avenues to bring in business such
as food, but that given the Premises is located
in an area with lots of food options locally, it did not
work and so they do not serve food. In responding to queries of the
Licensing Panel, the Applicant explained that generally they could
have up to 100 people on Fridays and Saturdays and the extra hour
would allow the customers to buy more drinks and increase revenue.
 
 

13.     
The Licensing Panel were concerned that residents
may be disturbed given the late hours and that the suggested
additional hour to allow for people to buy more drinks would
increase the risk for people to drink in excess which may lead to
anti-social behaviour and accordingly issues with the prevention of
crime and disorder, public safety and
public nuisance. The Applicants acknowledged that there would
always be some form of problems but that this would be the case
whether at 2am or the later closing time of 3am. They could not
completely prevent the issues but only try their best to mitigate
them which they proposed to do through their existing and proposed
conditions. The Applicants explained that they proposed to include
a search policy and were in the process of implementing a search
identification system for ID’s to be scanned on entry, albeit
not to the standard which Licensing enforcement sought. SIA
stewards also manage people when leaving the Premises and assist
with directing people to their onward journey home to prevent
loitering.
 

14.     
During the hearing, the Licensing Panel queried
whether there had been any previous complaints and whether police
were called to deal with issues. The Applicants stated that Police
were often called to the premises and that most of their staff had
been working there for at least 3-4 years so were aware of
procedures. The Applicant acknowledged there were sometimes issues
or complaints but explained that that it was about how they were
dealt these issues. Most recently there were said to be issues
relating to a noise complaint although given the complaint was
within the licensable hours, it was not investigated. The Applicant
was aware that people complain but thought people often complained
out of a grudge if removed from the Premises for unruly behaviour
or offences. In relation to noise complaints, the Applicant stated
that they play a mixture of music and have a diverse range of
customers, albeit generally the same regular customers. The
Applicants also try to mitigate noise by closing doors after a
certain time in the evening and having double glazed
windows.
 

15.     
The Licensing Panel noted the Applicants’
representation that the additional hour would bring more income,
but concerns were raised that the Premises could become a
destination venue known for its late opening and cause a problem
for local residents through public
nuisance and possible crime and disorder. The Applicants indicated
that they hoped the more regular customers would bring friends etc
and so more income would be received from the additional customers.
In further questioning, whilst the Applicant mentioned SIA security
were present and assisted in dispersing the customers when closing,
it was understood that people generally dispersed within the last
hour and so if more customers were present, it may be difficult to
control particularly if some of those customers were intoxicated.
The Licensing Panel were not comforted by the Applicants’
instance that this could be the same case at any time during the
day as it would be at closing time as it was considered that there
is a higher risk in the early hours of the morning when there is
less police or enforcement availability.
 
Statutory Guidance
 

16.     
The Licensing Panel considered the Statutory
Guidance which states:
 

“2.1    Licensing
authorities should look to the police as the main source of advice
on crime and disorder. They should also seek to involve the local
Community Safety Partnership (CSP).”
 

17.     
Furthermore, the Statutory Guidance states the
following:
 
“Public Nuisance

2.20 The 2003 Act enables licensing authorities and
responsible authorities, through representations, to consider what
constitutes public nuisance and what is appropriate to prevent it
in terms of conditions attached to specific premises licences and
club premises certificates. It is therefore important that in
considering the promotion of this licensing objective, licensing
authorities and responsible authorities focus on the effect of the
licensable activities at the specific premises on persons living
and working (including those carrying on business) in the area
around the premises which may be disproportionate and unreasonable.
The issues will mainly concern noise nuisance, light pollution,
noxious smells
and litter.

 

             
………

 

2.22 Conditions
relating to noise nuisance will usually concern steps appropriate
to control the levels of noise emanating from premises. This might
be achieved by a simple measure such as ensuring that doors and
windows are kept closed after a particular time, or persons are not
permitted in garden areas of the premises after a certain time.
More sophisticated measures like the installation of acoustic
curtains or rubber speaker mounts to mitigate sound escape from the
premises may be appropriate. However, conditions in relation to
live or recorded music may not be enforceable in circumstances
where the entertainment activity itself is not licensable (see
chapter 16). Any conditions appropriate to promote the prevention
of public nuisance should be tailored to the type, nature and
characteristics of the specific premises and its licensable
activities. Licensing authorities should avoid inappropriate or
disproportionate measures that could deter events that are valuable
to the community, such as live music. Noise limiters, for example,
are expensive to purchase and install and are likely to be a
considerable burden for smaller venues.

 

         
………

 

2.24 Where applications have given
rise to representations, any appropriate conditions should normally
focus on the most sensitive periods. For example, the most
sensitive period for people being disturbed by unreasonably loud
music is at night and into the early morning when residents in
adjacent properties may be attempting to go to sleep or are
sleeping. This is why there is still a need for a licence for
performances of live music between 11 pm and 8 am. In certain
circumstances, conditions relating to noise emanating from the
premises may also be appropriate to address any disturbance
anticipated as customers enter and leave.

 

………

 

2.26 Beyond the immediate area
surrounding the premises, these are matters for the personal
responsibility of individuals under the law. An individual who
engages in antisocial behaviour is accountable
in their own right. However, it would be perfectly
reasonable for a licensing authority to impose a condition,
following relevant representations, that requires the licence
holder or club to place signs at the exits from the building
encouraging patrons to be quiet until they leave the area, or that,
if they wish to smoke, to do so at designated places on the
premises instead of outside, and to respect the rights of people
living nearby to a peaceful night.”

 

The Council’s Licensing Policy 2020-2025
 

18.     
The Policy states the following:
 
“54. Each of the
four licensing objectives are of equal importance and therefore
each needs to be considered with equal weight.
 
55. The Council expects
applicants to risk assess their proposals and put forward measures
aimed at promoting the licensing objectives.
 
LP2 The
Four Licensing Objectives
 
1.
Prevention of Crime and Disorder
Whether
the proposal includes satisfactory measures to mitigate any risk of
the proposed operation making an unacceptable contribution to
levels of crime and disorder in the locality.
 
2. Public
Safety
Whether
the necessary and satisfactory risk assessments have been
undertaken, the management procedures put in place and the relevant
certification produced to demonstrate that the public will be kept
safe both within and in close proximity
to the premises.
 
3.
Prevention of Public Nuisance
Whether
the applicant has addressed the potential for nuisance arising from
the characteristics and style of the proposed activity and
identified the appropriate steps to reduce the risk of public
nuisance occurring.
 
4.
Protection of Children form Harm
Whether
the applicant has identified and addressed any risks with the aim
of protecting children from harm when on the premises or
in close proximity to the
premises.”
 

19.     
The Licensing Panel noted that ultimately it is for a licence
holder to ensure they are operating in compliance with their
licence and to propose measures to promote the licensing objectives
and tackle any issues.
 

20.     
In relation to the core hours, the Policy also
contains policies regarding core hours in Section 2 and the CIA in
Section 3 and appendices 1 and 2 to the same.
 

21.     
The Policy states that the hours for
licensable activity will generally be authorised subject to the
Applicant demonstrating that they understand the area where the
premises are located and that they will promote the four licensing
objectives.  The core hours are:
 
· Monday
to Thursday 09:00 to 23:00
· Friday
and Saturday 09:00 to 00:00
· Sunday
10:00 to 22:30
 

22.     
Furthermore, the Policy goes on to state
that:
 
“Hours may be more restrictive dependent on the
character of the area and if the individual circumstances require
it.
 
Later hours may be
considered where the applicant has identified any risk that may
undermine the promotion of the licensing objectives and has put in
place robust measures to mitigate those risks.
 
It should be noted that
this policy does not apply to those who are making an application
within a Cumulative Impact Area (see section 3) unless they have
been able to demonstrate that the proposed activity or operation of
the premises will not add to the cumulative impact that is already
being experienced.”
 

23.     
Section 3 of the Policy goes on to state:
“84.
The effect of adopting a cumulative impact policy, is to create a
‘rebuttable presumption’, so that applications for new
premises licences and club premises certificates or variations of
these authorisations, which are likely to add to the existing
cumulative impact will normally be refused or subject to certain
limitations, following relevant representations being
made.
 
85. As
such, the applicant will need to demonstrate in their operating
schedule that there
will be no
negative cumulative impact on one or more of the licensing
objectives in order to rebut any such
presumption.
 
86. Applicants are advised
to give consideration to potential
cumulative impact issues when setting out the steps they will take
to promote the licensing objectives as well as showing how they
will mitigate any potential negative harms in their
application.
 
87. Applicants are also
reminded that less weight is likely to be attached to any arguments
relating to there being no complaints from existing premises when
seeking a variation or renewal of an authorisation within a
cumulative impact policy area. This is because, given the nature of
the area and concentration of licensed premises, it can be
difficult to attribute complaints and problems to any particular premises, especially with regards to
nuisance being caused in outside areas.
 
88. This presumption still
requires at least one of the responsible authorities or other
persons to make a relevant representation before the Council may
lawfully consider giving effect to its cumulative impact policy.
This can be done by simply referring to the Cumulative Impact
Assessment which was used by the licensing authority when it
developed this Policy. If there are no
representations, the licensing authority must grant the application
in terms that are consistent with the operating schedule
submitted.
 
89. It should be noted
that special policies are not absolute. The individual
circumstances of each application will be considered on its merits.
The Council will grant applications where the applicant has
demonstrated that the operation of the premises is unlikely to add
to the cumulative impact that is already being experienced in the
area.
 
  ………         
 

LP10 Special Policy Areas – Hounslow,
Isleworth and Heston
It is the
Council’s policy that where a relevant representation is made
to any application within the Hounslow, Isleworth and Heston CIP
area, the applicant will need to demonstrate that the proposed
activity and the operation of the premises will not add to the
cumulative impact that is currently being experienced in these
areas. This policy is to be strictly applied.
 
It should
also be noted that the:
·      
quality and track record of the
management
·      
good character of the applicant,
and
·      
extent of any variation sought,
 
may not be
in itself sufficient.
 
It should
be noted that if an applicant can demonstrate that they will not
add to the cumulative impact in their operating schedule and at any
hearing, then the Core Hours Policy within LP3 will
apply.”
 

24.     
The Licensing Panel took on board the
Applicants’ responses and the proposed conditions but was of
the view that the Applicants failed to demonstrate that they had
detailed knowledge and understanding of the core hours and the
policy surrounding the Council’s Cumulative Impact
Policy.
 
Decision
 

25.     
The Core Hours Policy is not absolute but requires evidence and/or
argument from the Applicant that hours outside the core hours is
justified and will not undermine the licensing objectives.
In relation to the CIA, the Applicant must
demonstrate in their operating schedule that there will be no
negative cumulative impact on one or more of the licensing
objectives in order to rebut any such
presumption.
 

26.     
In this case, the Premises is a pub and there are
concerns that the cumulative impact from the additional hours could
lead to further disturbance from public nuisance, risk of public
safety and a possible increase in crime and disorder in a
predominantly residential area. The Licensing Panel considered that
the Applicants had not provided sufficient reasoning or evidence to
show compliance with the licensing objectives or to rebut the
presumption required within CIA as indicated by Licensing
Enforcement’s representation. The Policy specifically states:
“there are also real concerns about the
impact on the physical environment, the safety of visitors and
residents, and the environmental disturbance to residents arising
from the users of licensed premises in this area.”
 

27.     
Whilst the Applicant offered a search policy
condition, continued staff training and to implement an ID scanning
system to the Licensing Enforcement’s preference during the
hearing, the Licensing Panel did not think this went far enough to
discharge the onus on the Applicant. Although, the Licensing Panel
chose to not impose any further conditions to the existing licence,
the Licensing Panel would expect that the Applicant continue to
implement such conditions to further promote the licensing
objectives for the existing licence.
 

28.     
The Licensing Panel noted that the Applicants were hoping to
achieve additional income from the extended hours sought but the
Licensing Panel determined that whilst they sympathised with the
Applicants’ business struggles, it was ultimately not a
sufficient reason to grant the application for variation without
overcoming procedures in place to promote the licensing objectives.
Whilst only an extra hour on two days a week, by the
Applicant’s own submissions, this was the busiest days of the
week and a time when there was up to 100 people in the Premises.
The Licensing Panel were therefore of the opinion that the
Applicant already held a generous license in
excess of the core hours and that the Applicant’s
responses in suggesting that issues at 2am would be the same as
issues at 3am was quite blasé and dismissive of potential
issues. The Licensing Panel were concerned that the later hours
with potentially more customers who may be intoxicated could result
in increased anti-social behaviour, noise nuisance and ultimately
crime and disorder putting public safety at risk. Accordingly, this
would undermine the first three of the four licensing objectives
noted above. The Licensing Panel expected to hear further reasoning
as to how the licensing objectives would be promoted and how they
would rebut the presumption given the Premises fell within the CIA.
Given there were already issues indicated, the Licensing Panel
ultimately thought that such issues would only add to the
Cumulative Impact, particularly at a later
time when transport for onward journeys would be harder to
come by and enforcement action from responsible authorities may be
limited.
 

29.     
It appeared to the Licensing Panel that the issue of noise nuisance
is not one that is highlighted as the main cumulative issues in the
Authority’s Cumulative Impact Assessment, with the main
concerns and cumulative impact. Furthermore, Appendix 2, paragraph
43 of the Policy suggests that noise coming from a licenced
premises is not considered cumulative impact, but the noise coming
from customers who have left those premises would be. The Licensing
Panel considered that this would also only add to existing issues
if granted given there is a potential of an increased number of
customers leaving simultaneously at a later
time.
 

30.     
Having taken all the representations into account,
the statutory provisions and the Statutory Guidance issued under
section 182 of the Licensing Act 2003 and the Council’s
Licensing Policy, the Licensing Panel decided
to REFUSE the application to vary the premises
licence.
 

31.     
The Licensing Panel would like
to remind that a breach of the licence including the conditions set
out above could result in a review of the conditions and even a
revocation of the premises licence.
 
Right to Appeal
 

32.     
Any party aggrieved with the
decision of the Licensing Panel on one or more grounds set
out in
schedule 5 of Licensing Act 2003 may appeal to the local
Magistrate’s Court within 21 days of notification of this
decision.