Decision

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

1. 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.
2. 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.
3. 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.  
4. 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

1. 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.
2. There were no representations and/or objections to the application from the police or any other responsible authorities and/or other persons. 
3. 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”).
4. Mr Charlie Hennessy and Mr Barry Croft, Licensing Enforcement Officers (“Licensing Enforcement”), attended the hearing for the Community Enforcement and Regulatory Services.
5. 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.
6. 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.  
7. 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.
8. 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.
9. 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

1. 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).”

1. Furthermore, the Statutory Guidance states the following:

“Public Nuisance

1. 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.

              ………

1. 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.

          ………

1. 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.

………

1. 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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.”

1. 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.
2. 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.
3. 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

1. 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.”

1. 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.

1. 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.

1. 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.
2. 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.
3. 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.
4. 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.”

1. 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

1. 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.
2. 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.”
3. 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.
4. 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.
5. 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.
6. 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.
7. 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

1. 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.