Decision Maker: Licensing Panel

Outcome: Recommendations Approved

Is Key Decision?: No

Is Callable In?: No

Date of Decision: October 15, 2024

Purpose:

Content: Notification of decision following a Licensing Sub-Committee hearing to determine a review application for a premises licence submitted under s34 of the Licensing Act 2003   Premises:    299-303 Chiswick High Road, Chiswick W4 4HH   Applicant for Premises Licence:  KSMV Properties Limited (company number 13063529)   Applicant:    Licensing Authority, The London Borough of Hounslow   TAKE NOTICE THAT ON Tuesday 15 October 2024 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 as follows:   1)    The Licensing Panel convened in person on 15th October 2024 to determine an application to vary the Premises Licence for 299-303 Chiswick High Road, Chiswick W4 4HH (“the Premises”) made under Section 34 of the Licensing Act 2003 (“the Act”).  The Panel was quorate and all Panel members were present in person and saw and heard all the written and oral representations.   2)    A copy of the application was shown at Appendix A of the agenda (the “Application”) and the applicant sought to remove Condition 18 from the existing Premises Licence, which limits the playing of regulated entertainment to the basement only.  A copy of the current licence was shown at Appendix B (the “Current Licence”) of the agenda.    3)    No other changes were proposed, although there is a purported condition in Section Md) of the application that, “Noise levels as recommended in the noise report 1082985-01 dated 24/04/2024 to be adhered to at all times.”  It was confirmed during the hearing that this noise report dated 24/04/20204 did not actually contain any such recommendation, and the day before the hearing the applicant also provided an updated noise report dated 14 October 2024, which also did not recommend a noise level.  Therefore, this proposed condition is not applicable.   4)    The Licensing Panel carefully considered all the relevant information including: •       Written and oral representations made by all the parties •       The Licensing Act 2003 and the steps appropriate to promote the Licensing Objectives •       The guidance issued under section 182 of the Licensing Act 2003 (“the Statutory Guidance”) •       Hounslow Council’s Statement Licensing Policy 2020-2025 (“the Council’s Policy”) •       The Human Rights Act 1998   5)    The premises are situated in an area of mixed commercial and residential properties and the applicant intended to combine the properties at 299 Chiswick High Road with 301-303 Chiswick High Road.  The current licence was granted only 3 months ago following a Licensing Panel hearing on 17July 2024.   6)    During the consultation process the authority received six responses, all objecting to the application.  One objection was from a ward member, Councillor Biddolph, with five other objections were from nearby residents. These objections are shown at Appendix C and Appendix D respectively, and one of the principal issues they raised was about the potential for public nuisance by playing loud music on the ground floor of the premises, especially low frequency music (e.g., bass level music) which could travel some distance as well as cause vibrations.  Concerns were also raised about potential public nuisance from customers as they left the premises, as well as public safety and crime and disorder.   7)    For the applicant, Mr Hirji of the Applicant company was in attendance, along with Mr Gibson as his representative.  Councillor Biddolph and two of the resident objectors were also in attendance.   8)    It should be stressed that the application was very limited in scope and regulated entertainment would already be permitted until 23:00 hours Monday to Sunday on both the ground floor and basement.  Therefore, the removal of Condition 18 from the current licence would mean that such regulated entertainment would be permitted on the ground floor for a further hour (until 00:00) on Sunday to Thursday, and for a further two hours (until 01:00 the following day) on Friday and Saturday.   9)    The premises was not yet open and, as referred to in the application, the applicant stated that the variation was being sought as they had been informed by an officer in the Council’s Building Control Team that, due to the lack of easy access to the basement for those with a disability, they could be at risk of disability discrimination by only allowing regulated entertainment in the basement only. Mr Hirji further explained that the premises were intended to be a restaurant and lounge, not a nightclub, and that he wanted to attract more business to this end of Chiswick High Road, which had less footfall that other areas further up the road.    10)The Panel was informed that the updated noise report had tested music at very loud music levels of 93db and the noise test also included bass heavy frequency, i.e., low frequency noise.  The result was that there was minimal break out of noise outside the front of the premises when the doors were closed.  At the rear of the premises music was heard at measurable levels but was not deemed to be impacting on residents. When the front doors were open the noise was noticeable, although it was later stated by Mr Hirji that they would be installing a noise curtain by the front door and improving the noise insulation to the rear fire door, as recommended in the noise report dated 14October 2024.   11)Mr Gibson stated that the overall conclusion was that the music was contained within the envelope of the premises and it was also stated that the equipment volume level was controlled and would not exceed a certain level.  Mr Hirji stated that they had installed noise insulation to the walls and ceiling and that this exceeded the level requested by Building Control, albeit that was proposed as part of their planning application, not for the application.   12)The agent also corrected an error in the Noise Management Plan attached as Appendix E to the noise report dated 14 October 2024, which referred to regulated entertainment taking place in the basement only.   13)The objectors all expressed their concern that allowing the playing of regulated entertainment on the ground floor would cause nuisance to residents nearby due to the potential for loud music to be played on the ground floor, and from customers after they left the premises, including any customers loitering outside the premises.   Councillor Biddolph also expressed concern over the potential nuisance caused by low frequency noise, and referred to how such low frequencies at music festivals at Gunnersbury Park could be heard over a mile away and caused vibrations too.  Questions were also raised as to whether the noise reports only carried out testing on the basement level or if the tests had also been carried out on the ground floor.     14)Mr Hirji and Mr Gibson explained that the sound system for the ground floor and basement were all tied into one sound system and the controls for the same would be kept in a locked area.  Mr Gibson stated that they would be happy to accept a condition whereby the noise level for the sound system could be set by the Council’s Environmental Health Team.   15)Mr Hirji pointed out the Packhorse Pub, which is near the premises, had later closing times than this premises, were bigger in terms of floor area than the premises, and that the resident objectors had confirmed they were not aware of any issues from their customers.  One of the objectors pointed out that the pub had door staff, which Mr Hirji stated they could have as well.   16)Mr Hirji also explained that he did not expect all the customers to leave the premises at the very end of the evening and that he expected people to gradually leave as the evening went on, so there would not be a large exodus of people at closing time.  He hoped a number of the customers would be local people, who would be able to walk home or catch a bus, in which case they are unlikely to linger outside the premises.   Decision   17)In considering the application and representations, the panel considered the statutory guidance which states:   “Public Nuisance 2.15          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.   2.19          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.”   18)As stated earlier, the scope of the application was very limited in seeking to remove one condition, and the panel noted the concerns of the objectors about the potential for public nuisance due to noise from music being played on the ground floor of the premises, potentially until 00:00 on Sunday to Thursday or 01:00 the following morning on Friday and Saturday.  On the other hand, the applicant stated that they had installed noise insulation above that required by the Council’s Building Control Team as part of their planning application, and they had provided two noise reports that stated noise level tests had actually been carried out and that, “noise from activity inside the building is contained in the building envelope” (Noise report dated 14th October 2024, paragraph 12.2).  Mr Hirji also informed the Panel that insulation had been installed on the walls and ceiling and both he and Mr Gibson stated the noise tests included low frequency tests.  Given the noise reports stated they had actually tested the sound system in the premises at very loud volumes, the panel was minded to favour the conclusion of the noise report dated 14 October 2024.   19)The current licence already contained at Condition 8 a restriction on doors and windows of the premises being kept open from 23:00 when regulated entertainment was being provided, save for access and egress, and if this, along with the noise insulated curtain and remedial works to the rear fire exit were carried out, this should further reduce the risk of noise leakage outside the premises.     20)To further reduce the risk of public nuisance, the panel also considered it advisable to add a condition whereby the maximum sound levels of the sound system in the premises was set by an officer from the Council’s Environmental Health Team and/or the Council’s Licensing Enforcement Team.    21)The panel had, therefore, decided to GRANT the variation to the premises licence as follows:   a.    Condition 18 of the current licence was deleted and replaced with the following condition:   “The maximum noise level permitted by the sound system used at the premises shall be set at a level determined by and to the satisfaction of an authorised officer of the Council’s Environmental Health Team (or similar role) or by an authorised officer of the Council’s Licensing Enforcement Team.  The maximum noise level permitted shall not be altered without prior agreement with the Environment Health Team or Licensing Enforcement Team.”   Right to Appeal   22)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.