Proposal for the Introduction of an Early Morning Alcohol Restriction Order
Contact: John Smith, Licensing Manager; 020 7926 6140; JSmith5@lambeth.gov.uk
On opening the meeting, the Chair explained that this hearing had been convened to consider the proposal to make an Early Morning Alcohol Restriction Order (EMRO) for the corner of Wandsworth Road and North Street in Clapham, and decide whether to recommend the making of such an order for adoption at a meeting of the Full Council. The committee would consider the representations that had been made, and hear from those who had made valid representations who wished to speak. The procedure would be the same for each party; they would address the committee for a maximum of 15 minutes and, with permission, could call witnesses. Questions from the committee would then take place, followed by cross examination (with the permission of the committee) if requested. Where there was more than one representation raising similar issues, those parties should consider nominating a single representative to speak on their behalf. Where parties did not wish to speak, the representations would be considered on the basis of the written submissions. All representations would therefore be taken into account when making the final recommendation.
Presentation by the Licensing Manager
The Licensing Manager informed the committee that:
· An EMRO allowed the Local Authority to restrict the sale of alcohol between the hours of midnight and 6am. It applied only to the sale of alcohol and not to any other licensable activity or opening hours
· The proposal in this case was to restrict alcohol sale for the period midnight to 6am seven days a week in the area specified. This affected four premises: Artesian Well, Lost Society, Mist on the Rocks and Vesco News
· The consultation on the EMRO proposal ran for 42 days ending on 28 November 2013
· A summary of the consultation responses was included in the main agenda pack
· On 23 December 2013, the Licensing Committee ratified the decision to consult on the EMRO proposal
· The options available to the committee were to determine that the proposed EMRO was appropriate for the promotion of the licensing objectives and recommend it to Council; to determine that the EMRO was not appropriate for the promotion of the licensing objectives (in which case the process would halt); or to determine that the proposed EMRO should be modified (in which case a new proposal would need to be made)
Preliminary Legal Issues
Mr Jonathan Smith, representing the Association of Licensed Multiple Retailers (ALMR), Mr Matthew Butt, representing the Artesian Well, and Mr Mark Banks, Director of City Bars Ltd, owners of Lost Society, made submissions on a series of preliminary legal issues, stating that:
· The ALMR representation, submitted almost ten weeks ago, raised a number of procedural issues. This was followed up by several emails to the Licensing Manager in December, but all that had been received in reply was an email on 9 January 2014 addressing only one of the queries
· The issues raised by the ALMR concerned the authority to start the consultation; the fact that no proposed start date for the EMRO was stated; and whether incorrect advice was given to those wishing to submit representations
· On the first point, Mr Smith queried how the consultation started and who authorised it. He submitted that this should have been done by the Licensing Committee, or delegated by that committee to a sub-committee or an officer. He had been informed by the Licensing Manager that the decision was taken by officers and Members but it was not clear exactly who. He stated that some other authorities who were considering EMROs had held hearings of the Licensing Committee where evidence to support an order was taken by responsible authorities before it was decided whether or not to go out to consultation, but this had not happened in Lambeth’s case, where no data or evidence was given alongside the consultation document. He also pointed out that the consultation on Lambeth’s new licensing policy, one part of which involved whether to consider introducing EMROs, had only closed eight working days before the EMRO consultation began. It was acknowledged that the Licensing Committee ratified the decision to consult on 23 December 2013 but this was verification of something already done weeks previously. He also believed that the terms of the proposed EMRO were very Draconian; of all the other authorities considering this measure, none had sought to restrict the sale of alcohol before 2am
· On the second point, Mr Smith submitted that an EMRO, by law, had to be in a particular form, and this included a specified start date. This date could subsequently be changed, but nonetheless had to be stated. No such date was included in this case
· Mr Butt also stated that he had mentioned all the issues he would be raising with the committee to the Licensing Manager in November and December 2103, and also sent an email on 10 January 2014 summarising all the procedural concerns
· His first concern was regarding the 458 representations (as stated in the report). He submitted that all affected persons had to be sent all representations and be informed of the hearing date but believed this had not happened. He had been sent a spreadsheet containing the details of the representations, which had been drawn up by the Licensing department and used as the basis of a mail merge to inform representors, but the ALMR, four companies and a Mr Michael Bertorelli, all of whom had made valid representations, were not mentioned on this spreadsheet. The companies included Golfrate Property Management Ltd, landlord of Mist on the Rocks, Mendoza Ltd, managing agent of Mist on the Rocks, and Fast Lets Ltd, managing agent of the flats above the same premises. Furthermore, his client, the Artesian Well, had not been notified of the EMRO proposal and he believed this to be a breach of the regulations
· Mr Butt further stated that the manner in which the Council required representations be made was a misunderstanding of the EMRO regulations and a breach of the Licensing Act 2003 (Premises Licences and Club Premises Certificates) Regulations 2005 para. 41. Regulation 5.2b of the Licensing Act 2003 (Early Morning Alcohol Restriction Orders) Regulations 2012 stated that representations had to be made in a particular form – a model form was included at Schedule 2 – but this did not mean that that was the only way a representation could be made; merely that it had to contain the information on the model form. However, in all communications, the Council had stated that the only way in which representations could be made was using the prescribed form (either by post or by email). The Licensing Act Premises Regulations (citation as above) also stated that representations must not be rejected if a prescribed form was not used. Mr Butt contended that this discouraged responses to the consultation, and he knew of at least one person who was prevented from making a representation because of this (ref. email included in Representations Pack 6 at p198)
· On the issue of the consultation, Mr Butt believed that the 23 December 2013 Licensing Committee meeting was held in order to comply with the requirement to begin a hearing within 30 days of the conclusion of the consultation. While he accepted that it was within the committee’s power to then adjourn until this hearing, this could only happen if the meeting was properly convened and he believed this was not the case. Regulation 6.4 of the Licensing Act 2003 (Hearings) Regulations 2005 required notification of any hearing to be sent 10 working days in advance but the ALMR – and, it was believed, the other representors not included on the aforementioned spreadsheet – were not notified of the 23 December meeting. He believed that this hearing also did not comply with the Hearings Regulations as notification and copies of the representations had not been sent to all the required parties. His evidence for this was the spreadsheet which purported to list all the representors but, it had been established, was incomplete. It was accepted that parties to the hearing were informed in advance that no substantive issues would be discussed on 23 December 2013 and consideration of the EMRO proposal would be deferred until 15 and 16 January 2014
· Mr Butt stated that a DVD of evidence had been served the previous day and he had been unable to view it. The Chair expressed concern at this as no DVD evidence had been shown to the committee
· Mr Banks submitted that he never received notification of the hearing or copies of the representations directly. He stated that the Licensing Manager had notified the legal representatives for Lost Society, Bevan Kidwell, of the hearing but the representations were not sent until 10 January 2014 (also to Bevan Kidwell). The Licensing Manager had informed him that they were sent to a generic business email address – email@example.com – but he had not found them. An email had been received at that address but it did not have any attachments and did not have details of the hearing. Mr Banks also stated that his wife had made a representation but this did not seem to be included on the spreadsheet and she had not been notified
· Mr Sidrit Braho, a Director of Mist on the Rocks, stated that he had not had notice of this hearing and only found out about it from a customer at the end of December. He had however received notice of the 23 December 2013 hearing
Responding to the points raised, the Licensing Manager stated that:
· The spreadsheet mentioned listed all of the individual representations but business representations were treated separately and not entered onto that list. It was his understanding that the spreadsheet was used as the basis for a mail merge to notify parties and that businesses had been notified separately. He therefore believed all parties had been notified of both hearing dates (23 December 2013 and 15/16 January 2014). Mr Bertorelli was known to him as a Director of the Artesian Well and he could not recall receiving a personal representation from him. In response to this, Mr Butt stated that 458 was the number of representations mentioned in all the papers but it now seemed he was being told it was 458 plus businesses. He also said that, on re-examining the spreadsheet, City Bars Ltd and the British Beer and Pub Association were in fact on there but other businesses were not. He maintained that these businesses were not informed of either date and the ALMR were not informed of the 23 December hearing. The Licensing Manager then stated that the responses which had been recorded on the spreadsheet were in fact those which had been received on the prescribed form. Representations not using the form had been accepted provided they contained the relevant information; if not then they were sent a copy of the form and asked to use that instead. These representations were not followed up any further. It was accepted by Jamie Akinola, Enforcement & Business Development Manager, that he had emailed a number of parties stating that using the prescribed form was the “only” method which would be accepted but this was a private email and reflected the consistent advice being given. Mr Banks pointed out that the representation from Golfrate was made using the form but was not on the spreadsheet and they were not notified of the hearing
· The representations were emailed to Lost Society on 6 December 2013 using the generic email address mentioned above as this was the published business address. Regarding notifying the four affected businesses, letters were sent on 17 December 2013. For the Artesian Well, the letter was sent to the licence holder, Carumi Ltd. Mr Butt stated that Carumi Ltd were the former accountants for the premises but it was acknowledged they were still the current licence holders
· Full packs of all the representations were sent to the affected businesses but not all representors. Mr Jonathan Smith and Mr Butt accepted that this did in fact comply with the requirements
· Regarding the decision to consult on the EMRO, this was discussed at officer level and also with Cabinet Members, but there was no specific written delegation
· There had been many problems with the Council’s email system over the past few weeks and it was not possible to give an absolute assurance that this had not contributed to some of the problems; however, he did not believe it would have affected the consultation, which ended on 28 November 2013
The legal advisor to the committee stated that there were two things for the committee to consider – whether all procedural requirements had been followed to the letter and, if not, whether the shortcomings prevented a fair hearing today. It may be considered that any shortcomings in relation to the adjourned hearing on 23 December 2103 may be cured if adequate notification was given for this hearing. It appeared unclear whether particular businesses were or were not notified. Para. 41 of the Premises Regulations, as cited by Mr Butt, in fact applied only to applications and notices, not to reviews and representations.
In response a question from the committee, it was stated that the affected premises made copies of the prescribed form available on their websites.
At 11.55am, the Committee withdrew from the meeting together with the legal advisors and clerk to deliberate in private in relation to the preliminary issues raised. A copy of the spreadsheet listing the representations made, referred to above, was given to the committee.
At 2.20pm, Members returned to the meeting and the Chair gave the following response on the procedural points raised:
· The late submission of a DVD of surveillance footage as part of the Noise Team’s evidence was not reason to adjourn the hearing. The committee would make a decision as to whether to accept this evidence at the appropriate juncture
· It was accepted that the ALMR did not appear to have been notified of the 23 December 2013 hearing. However, since this hearing was adjourned without any substantive issues being discussed, and parties to the hearing were aware of this having been informed in advance, it was not considered that any disadvantage or prejudice had resulted
· Regarding notice of this (15 January 2014) hearing, this should have gone out on 31 December 2013, taking into account the 10 working days notification period. It was therefore considered that Mist on the Rocks, despite the apparent lack of a formal notice, were not disadvantaged and had had time to rectify any issues with incomplete paperwork prior to the hearing, since they were informed by a customer at the end of December. It was noted that their representatives were present at the hearing. Furthermore the representations from Fast Lets, Mendoza and Golfrate were all submitted via LT Law and no contact details were given for the individual organisations; therefore notice would have gone to LT Law as this was the correspondence address given. Artesian Well was also represented by LT Law and had not complained of not having the appropriate notice; therefore it was considered that all parties represented by LT Law would have received notice of the hearing. Mr Bertorelli was a Director of Artesian Well and therefore should have been aware of the hearing, since the venue was informed (via LT Law). He was also in attendance. It was noted that Mr Banks’ address had been wrongly transcribed on the spreadsheet but this only affected the street name, and the number and post code were correct. It was thus considered that notice would have been sent. On the balance of probabilities, the committee did not believe there were grounds for adjournment on this point
· On the subject of the form used to submit representations, the regulations required that representations be in a specified form which had to contain particular information, as outlined in Sch. 2. This included a statement of truth. On the balance of probabilities, it was considered that any representations not submitted on the prescribed form would not be likely to contain such a statement, and therefore would not be in the required form. Officers had stated that the advice from the Council had been consistent – that the prescribed form must be used. Anyone submitting a representation not on this form was sent a copy of it and told to resubmit. It was acknowledged that the Enforcement & Business Development Manager had stated to certain parties that the prescribed form was the “only” way in which representations would be accepted, but this was a private email and the advice given was sound. Given the number of representations received, it was not considered that the form was difficult to use. It was therefore considered that the issues around the format of representations were not sufficient to warrant an adjournment
· It was submitted that valid representations from certain businesses were not included on the spreadsheet and therefore may not have been considered; however, these representations were in the bundle and would be read and taken into consideration
· It was accepted that there was no start date for the proposed EMRO when the consultation was advertised, and that there should have been. However, the start date could be changed at any time – for example, due to the dates of committee or Council meetings. Furthermore the committee was not aware of anyone who had served a Temporary Event Notice in the proposed EMRO area. For these reasons it was considered that no prejudice was caused to businesses or other persons
· The decision to consult on the EMRO was ratified at a hearing of the Licensing Committee on 23 December 2013. There was no duty to consult affected persons prior to the consultation and therefore there were no grounds for adjournment
In the light of the above, the committee decided that the hearing would go ahead.
Prior to the commencement of the substantive hearing, a question was raised by Mr Jonathan Smith as to whether all Members had read all of the representations, as queries had been raised about the availability of paperwork beforehand. He questioned whether the hearing could go ahead if not. Councillor Palmer and Councillor Tiedemann confirmed that they had read the majority but not yet all of the representations, but would ensure they read the remainder that evening. The Legal Advisor stated that the important thing was that all Members had read all representations before making a decision.
Presentation by the Noise Team
Jamie Akinola, Enforcement & Business Development Manager, and Calvin McLean, Enforcement Operations Supervisor, Enviro-Crime, Noise & Pollution Control, informed the committee that:
· A licence review had been brought against the Artesian Well in December 2011 on the grounds of public nuisance. As a result of this, the Licensing Sub-Committee reduced the hours of the licence and imposed additional conditions. This decision was then appealed and in September 2012 a judgment was reached, the result being a partial increase in hours compared to the Sub-Committee decision and the imposition of further conditions. Following this, the Noise Team made the decision that more proactive involvement was needed to address problems between the venues in the Wandsworth Road/North Street area, and local residents who continued to allege that there were issues regarding alcohol-related public nuisance and dispersal. The views of these two groups were becoming increasingly polarised
· On 27 November 2012, Noise officers met with the management of the Artesian Well and suggested they work in partnership. On 11 December 2012, a meeting was held with representatives of the Artesian Well, Lost Society and Mist on the Rocks and a group was set up to look at measures to deliver improvements. This did not involve residents directly due to increasing tensions and the fact that information and complaints were being supplied to the Noise Team in confidence
· Minutes and action points were produced in relation to these meetings and these showed that they were trying to make progress. It was suggested that copies of these minutes could be provided to the committee but the Legal Advisor stated that additional documents could only be submitted with the consent of all parties, and it was unlikely this could be secured given the amount of representors who were not present. The Chair therefore decided not to allow their submission
· Alongside the partnership meetings, overt video monitoring took place to objectively assess not only the alleged public nuisance but also the effectiveness of actions jointly agreed with the premises, such as increased door supervision and better crowd dispersal. This was part of a wider proactive approach to high profile noise issues in the borough throughout 2012-13 and, it was submitted, was an appropriate and proportionate action to support the licensing objectives
· Many of the complaints from residents about premises in the proposed EMRO area were submitted to senior officers and councillors in confidence rather than to the out-of-hours Noise service, as would usually be expected, as many residents had taken the view that the Noise service had not provided the proactive support they expected. This was the reason that there was no list of complaint data accompanying the Noise Team’s representation. Due to service pressures and confidentiality issues, it was not possible to provide a bespoke complaint handling process in terms of forwarding residents’ comments verbatim to the premises
· This was a very residential area and, despite the best efforts of the premises concerned, it was proving very difficult to effectively control the public nuisance issues, which were directly impacting on the quality of life of local residents. The vast majority of the respondents to the consultation who lived within 250m of the venues supported an EMRO
· The Noise Team believed that an area-based solution was required and this was why an EMRO was seen to be an appropriate measure. Alternatives had been considered but were not found to be suitable: a cumulative impact/saturation zone may curtail further licensed premises and avoid exacerbating the situation but would not deal with the existing problems; reviews of individual premises would be problematic, as the judgment in relation to the Artesian Well review had reinforced the fact that it was difficult to link specific public nuisance or antisocial behaviour problems with specific premises in this area; and partnership working with the venues, while yielding some positive results, had not eliminated the complaints
At this point in the proceedings it was explained that DVD footage comprising six hours of surveillance had been submitted by the Noise Team as evidence. This had been cut down from 9 hours on the advice of legal officers in order to comply with the Data Protection Act (DPA) but was otherwise unedited. A summary had been produced by Mr McLean highlighting both examples of public nuisance and good practice by the venues. The footage had been shown to representatives of the four premises in November 2013 and this was confirmed by the same. The Chair expressed concern that committee members were unaware of this footage and had not therefore viewed it prior to the hearing. Following discussions with all parties present it was decided that, in order to ensure fairness, the representatives of the venues and the ALMR would be invited to view the footage again and compile their own summaries, and the relevant parts of the DVDs would then be shown in open session from 9am the following morning (16 January 2014).
In response to questions from the Committee, Mr Akinola and Mr McLean stated that:
· The affected premises had engaged with the authorities and the meetings mentioned had been facilitated by them. There had been improvements but officers believed these had gone as far as they could
· From the monitoring carried out by the Noise Team, it was believed that dispersal was the biggest problem. One of the premises closed at 1am, another at 2.15am and a third at 3am; midnight was therefore considered to be an appropriate start time for the EMRO as this was when dispersal began and after this point it was sustained. It was clarified that the midnight start time was very much a response to this specific location and there was no desire to take a blanket approach to EMROs across the borough
· Fridays and, in particular, Saturdays were busier than the rest of the week but the EMRO was being sought seven days a week as it was possible there could be specific activities on any given day It was acknowledged that the Artesian Well could only hold events on Fridays and Saturdays because of the terms of their licence; they had to stop at 11.30pm Monday to Thursday and therefore 25% of the issue fell away on these five days. However, the potential for additional events via Temporary Event Notices (TENs) also had to be taken into account
· It was acknowledged that some people believed having all three premises ceasing to serve alcohol at the same time would cause more people to be on the streets at the same time than was currently the case with staggered hours. If all venues were filled to capacity this would be in excess of 500 patrons. However, it was the view of officers that staggered times simply lengthened the dispersal period. There may be a localised impact if the EMRO was approved but the venues would look to disperse as soon as possible
· Complaints were not being made to the telephone hotline but officers were aware that they were being received on a continuing basis. The premises were being informed of this but since some of the complaints were made in confidence, not all details were being relayed. Therefore it was wrong to say there had been no complaints made, as was stated in the representation from Mr Sidrit Braho, manager of Mist on the Rocks
· The issues dated from before Mist on the Rocks opened but, being a 3am venue with dancing and music, it had exacerbated the problems
· The boundaries of the proposed EMRO area were chosen following analysis of monitoring data and discussions between Noise, Licensing and Legal officers
· They disputed the view that it was just one or two residents making vexatious complaints which had caused this situation. There was a core group of 10-12 complainants but other residents were involved too
· The Artesian Well dispersal policy was very good and had been shared with the other affected venues. However, there was a limit to how far venues could be expected to follow customers when they left the premises. Residents were being adversely affected by the cumulative effect of alcohol-related public nuisance from all of the venues
· It was acknowledged that the EMRO only applied to the sale of alcohol and it was possible that if it was introduced, people may buy several drinks just prior to midnight and then stay in the venues, which they would be entitled to do. It would therefore not necessarily be a 100% effective solution and there would still be a role for Noise, Licensing and Community Safety officers to continue a dialogue with the venues around responsible licensing practices
At this point in the proceedings, it was decided to adjourn the evidence from the Noise Team as the hearing would need to be adjourned for the day shortly and certain parties who wished to speak in favour of the EMRO were unable to attend on 16 January.
Presentation by Interested Parties (1)
The following interested parties spoke in favour of the EMRO proposal:
· Paul Stevens, local resident and Neighbourhood Watch (NHW) Vice Chair: had lived in the area for 14 years and was frequently affected by anti-social behaviour at the weekends. The issue was discussed at every monthly NHW meeting and the complaints were not vexatious. A log of incidents had been maintained stretching back to 2006 and residents had endeavoured to engage with the premises but had reluctantly withdrawn from the meetings as little or no progress was being made. The venues in question were very close to residents’ homes and dispersal of patrons was very disruptive
· William Hope, local resident: had lived in the area for 27 years and believed balance needed to be restored. The premises had previously been restaurants or well-run community pubs with reasonable hours but since the currently operating venues had opened, residents had experienced regular chaos. They were now party venues catering mainly for people from outside the area, which was fair enough but there were far too many people. It was difficult for residents, their families and visitors to live normal lives, particularly on Friday and Saturday nights
· Jill Cramphorn, local resident: had lived in the area for 33 years and spoke as an individual but also had the support of the Clapham Society. Wandsworth Road was busy but very residential and changed character considerably when Lavender Hill began. Public transport was limited and patrons wandered around the area after the venues closed, sometimes littering, urinating or vomiting in people’s doorways. This uninhibited drunken stupidity placed unreasonable limitations on residents’ quality of life, particularly at the weekends
· Patrick Watson, local resident: had lived in the area since the 1980s and no longer felt safe there since the late licences were granted. Residents also had their sleep disturbed. The venues were in denial and blamed each other and an area-based solution, such as an EMRO, was therefore required; this was backed by local councillors and MPs. Video footage showed the dispersal problems and public nuisance. In giving his verdict in relation to the Artesian Well review, the District Judge stated there was no doubt that residents had suffered intolerable nuisance as a result of the collective premises. When they took over the Plough, Mist on the Rocks were asked not to open until 3am but ignored this. The venues carried out irresponsible promotions, admitted drunk people and could not control their patrons. The licensing objectives were not being met in the area
In response to questions from the committee, the above parties stated that:
· The situation got worse when Mist on the Rocks opened
· The venues had cooperated to an extent but customers did not disperse immediately. Noise and public nuisance had worsened as the number of patrons increased. The venues, operating as they did, were not suitable in a residential area and were simply in the wrong place
· Even if an EMRO meant all the venues dispersing at the same time, this would be preferable as the ordeal would be earlier on and be over more quickly
· Door supervisors did try to regulate people but could not manage large crowds crossing the road and this was a danger to the public safety of the patrons themselves
At this point in the proceedings, the time being 5pm on Wednesday 15 January 2014, the committee adjourned for the day.
The meeting resumed at 9.10am on Thursday 16 January. Upon resumption, the specific parts of the video monitoring footage taken by the Noise Team as highlighted by Mr Akinola and Mr McLean, Mr Jonathan Smith, Ms Lana Tricker (representing the Artesian Well in place of Mr Butt) and Mr Banks, were shown to all present at the meeting. In response to questions from members of the committee on the footage and issues raised by it, the following comments were made:
· Lost Society had taxi controllers operating from within the venue. They did not let anyone in after midnight (this was a voluntary measure). Artesian Well also had a midnight cut-off. Mist on the Rocks did have a 1am cut-off but this was being appealed so was not currently being enforced. Mr Braho stated that Mist on the Rocks did operate a cut-off of 1.30am but as this was voluntary he reserved the right to admit people afterwards
· Vesco News was normally open late on a Saturday night but sometimes closed early if they were not busy
· There were other venues further up North Street
· The footage was mainly taken from the corner of Wandsworth Road and North Street in order to provide an overview of the area
· There was frequent traffic noise as well as crowd noise
· Artesian Well had nine door staff but there was still noise and disruption upon dispersal no matter how many security staff were on duty. Officers believed Lost Society and Mist on the Rocks could do more with regards to door supervisors
· There were no dates and times on the footage due to the limitations of the equipment used and this was frustrating
· Mr Banks believed that the overt recording encouraged people to act up to the camera
· The regulatory framework governing licensed taxis was managed by Transport for London (TfL). TfL had been made aware of specific issues at this location but were unwilling to change the regulations. The current firm’s contract ran until 2017 and it was therefore unlikely that a collective agreement with all of the venues could be reached prior to then
· The taxi firm on the corner of North Street and Wandsworth Road did not have enough cabs to deal with the number of people dispersing from the premises. The manager of the cab firm attended most of the meetings between officers and the venues
· Even if there were more taxis, this would not solve the problem of dispersal entirely as not everyone used taxis
· If the EMRO was introduced and all the premises stopped selling alcohol at midnight, it was accepted that many people would be dispersing at once but it was likely that they might want to move quickly to other licensed premises. This could lead to a shorter dispersal period than at present
· The footage was compiled and edited for DPA reasons by Mr McLean and the CCTV Service Manager. Mr Akinola considered the resultant footage very objective, open and frank – for example, a comment had been left in where one officer had stated to another that he might be biased due to his involvement in the monitoring; this showed that officers were challenging each other on their assumptions
· It had not been possible to pixelate the bits of the footage affected by the DPA as opposed to editing it out, as this had to be done frame by frame and was therefore too resource intensive
· The footage showed someone sweeping up outside the Artesian Well. Officers believed this was a regular occurrence and that management at that venue took their responsibilities seriously
· The police did not get called to the area often
· It was believed that the resident who lived between Lost Society and Vesco News had never complained
· Officers were wearing high-visibility jackets when the footage was taken. Most people did not seem to be bothered about the filming, suggesting it was unlikely they were modifying their behaviour
· The disruption caused by the dispersal occurred roughly between 12.45am and 3.15am
· Mr Ponnampalam Jegatheesan, proprietor of Vesco News, stated that people often bought sandwiches and water rather than alcohol; however, the footage did show customers buying alcohol and then opening the bottles on nearby railings
· Officers submitted it was clear from the footage that Vesco News were not honouring a voluntary agreement not to sell alcohol in single cans; however, no licence review had been brought. This was because officers had been considering how best to deal with the issues over a period of time and it was now considered that the introduction of an EMRO would deal with all of the alcohol-based problems in the area
· It was the nature of the area and the nature of the venues’ operations which caused officers so much concern. They were not aware of another area in the borough with such acute public nuisance issues given the context
· The footage showed a minor scuffle; it was submitted that this just involved a group of friends but such incidents could nonetheless adversely affect the perceptions of passers-by. This incident was recorded in the Lost Society’s incident book
· The monitoring took place at different times of year and in different weather conditions, including heavy rain, to see whether the problems were seasonal. It was Mr Akinola’s view that public nuisance occurred all year round and it was the overall numbers of patrons, the business models of the venues and the fact it was a residential area which were the root cause of the public nuisance
· No conversations had taken place with TfL to explore the possibility of altering the traffic light phasing to aid dispersal; however, officers considered that this would be unlikely to mitigate the public nuisance
· While the footage showed there were persistent problems with large numbers of people causing a cumulative low level public nuisance impact, it did appear that security staff were doing a good job and there was no evidence of extreme unruly behaviour. This seemed to back up the oral evidence of the Noise Team but not necessarily the residents. The footage was not exhaustive, however
· Patrons in the footage did not appear to be extremely drunk but rather were mildly inebriated, leading to a loss of inhibitions
· The noise from dispersal was more than enough to wake residents
· Customers of these venues tended to want to be out late at night; therefore it was possible that introducing the proposed EMRO would reduce the overall number of patrons. This in turn may ease the problems with dispersal
· If the business models of the premises were to change as a result of an EMRO being brought in – for example, to a restaurant or local pub – this may well have a positive effect on the local area; however, it was not for officers to tell the venues what to do
· Mist on the Rocks picked up trade from the Artesian Well and Lost Society when they closed but was not usually extremely busy. There was no footage of dispersal from Mist on the Rocks from 3am onwards due to the fact that this was not felt to be so much of a problem due to the lower numbers of people involved, and also because of constraints on resources. However, although Lost Society and Artesian Well were seen as the main causes of the public nuisance, Mist on the Rocks also contributed to the problem as some patrons from the other two venues crossed the road to carry on drinking there
· A start time of 1am for the EMRO would have a much lesser impact on the existing problems as the later alcohol was sold, the more people would visit and stay in the area for longer
· There were similar issues in some other parts of the borough, where engagement, ongoing monitoring and, in some cases, licence reviews were taking place. However, the situation in this area was at a more advanced stage due to the historic nature of the complaints, and the Artesian Well review and subsequent appeal. There was also a particular difficulty attributing public nuisance to specific venues. That made an area-based solution, such as an EMRO, more suitable. EMROs could also be considered in other parts of the borough if they were felt to be appropriate and other options had been exhausted
· There had also been problems at a venue called Tonki Gorilla a few hundred metres away but these were separate issues and would be dealt with via a review
· It was not enough for the Noise service to be 100% reactive as this did not allow problems to be targeted effectively. Where information was received, officers would work proactively with all concerned to try to resolve the issues
· Meetings had taken place with the venues between December 2012 and May 2013. Most of the ideas for mitigating the public nuisance issues, such as better dispersal policies and the introduction of crowd barriers, had been implemented by then
· Some of the management and directors at the Artesian Well were very proactive and had engaged well, but others believed Noise officers were harassing them
At this point in the proceedings (1.10pm on 16 January), the committee adjourned for lunch and reconvened at 2.05pm.
In response to cross examination from Ms Tricker and Mr Jonathan Smith, Mr Akinola and Mr McLean stated that:
· The footage was filmed over six nights. Recording began just before midnight and stopped at around 2.45am each night
· The emails included in the Noise representation were to give a flavour of the complaints and correspondence received rather than attempting to provide an exhaustive list. Where the email trails were particularly long, these were edited down to the necessary parts. All the Noise Team had tried to do was to openly disclose the information specifically relating to complaints. It was acknowledged that it would have been possible to disclose everything and redact where necessary
· Some residents had sent recordings as evidence for their complaints in the past and the email submitted on p242 of Representations Pack 2, which consisted simply of YouTube links, was included as an illustrative example of this. Officers did not watch all of these videos; it was accepted therefore that it was not possible to be certain that they constituted relevant complaints. However, they did illustrate the different types of correspondence the Noise Team received
· Residents also sent complaints and correspondence to the local ward councillors, the MP for the area and the Cabinet Member for Safer and Stronger Communities
· It was difficult to log all complaints unless they were made to the out-of-hours service as this would be very resource-intensive
· It was acknowledged that, in not providing full email trails (redacted where appropriate) and time-stamped video footage, officers were asking the committee to make certain assumptions. Mr Akinola was very disappointed that it had not been possible to time stamp the recordings
· A meeting was held on 10 June 2013 between the venues and officers at which the venues were informed that recordings had taken place and further filming would follow. It took a long time to provide this footage to the venues due to the editing which needed to take place to ensure compliance with the DPA. It was felt that the premises had made improvements but these had gone as far as they could go, and complaints were still being received
· Residents were encouraged to keep logs of issues and complaints but no such detailed log had been received which could be submitted as evidence
· Though progress had been made and certain improvements had been implemented, relations between officers and the venues became strained from summer 2013 when the Noise Team began to challenge the premises management to come up with further initiatives. This led some among the venues’ management to believe they were being unfairly targeted
· Mr Akinola, as the senior day-to-day lead of the Noise service, played a key role in the decision to consider and consult on an EMRO. This decision also involved input from Licensing and Legal officers as well as the Head of Environmental Service and Highways, and the Divisional Director of Public Realm. The Licensing Manager gave impartial advice and took a neutral stance. The CCTV manager gave advice on the footage; the police had not been asked for advice
· Officers did not have the specific details of when the decision to go ahead and consult on the EMRO was made but this could be obtained for a future date
· Officers did not ask the venues for any clicker information or business plans before deciding on a midnight start time for the EMRO; however, they believed that they had a good idea of how the venues operated from the surveillance which had taken place. They believed that the maximum number of people were in the venues at around midnight
· No noise monitoring had taken place in the complainants’ premises
Presentation by Interested Parties (2)
The following interested parties spoke in favour of the EMRO proposal:
· Nora Scollen, local resident: had lived in the area for 24 years and felt demoralised by the behaviour of some patrons of the affected premises late at night. She was disappointed that the result of the review of Artesian Well had been partially overturned by the Magistrates’ Court. The area was very residential and community pubs with earlier closing times would be far more suitable than the existing venues. People often used her doorway as a urinal; this was an offence yet nobody was ever penalised. She felt intimidated and no longer safe; furthermore people’s behaviour was dangerous to themselves. She had CCTV footage of some of the incidents, which had disturbed her sleep
· Councillor Nigel Haselden, Clapham Town ward councillor: spoke on behalf of Councillor Christopher Wellbelove, also a Clapham Town ward member, who had made a representation but was unable to attend the hearing. A petition had been put together but given that it had not been submitted prior to the hearing, it was deemed inadmissible. All three ward councillors had been engaged in these issues for many years and supported the EMRO proposal. The public nuisance which took place amounted to an erosion of amenity for residents and they should not be expected to tolerate it. The venues were not badly run but their business plans were wrong for the area. Much of the disruption was noise-based but there was also a clear risk to people crossing the street. Residents did not see the point in calling the Noise service as it took too long to get a response; this meant there were many unreported experiences. The EMRO provided a tool to address the neighbourhood issues and he urged the committee to recommend it to Council
In response to questions from the committee, Cllr Haselden stated that:
· He had visited the area many times but could not say exactly when
· People did move between this area and Clapham High Street so people coming from the High Street did contribute to the problems. Most of the premises in the Old Town area closed at midnight, or 1am at the weekend
· There were too many people in an alcohol-driven environment and inadequate infrastructure for dispersal. Late-night business plans were not appropriate for the area
· An EMRO seemed tailor-made for this area as it extended beyond single premises
· The introduction of a saturation zone in Clapham High Street had been useful as it reversed the assumption of grant when it came to new or variation applications and led to some examples good practice
Presentation by Responsible Authority – Metropolitan Police
Sergeant Steve Strange, Police Licensing Officer, informed the committee that:
· There had been problems with public nuisance in the form of noise and anti-social behaviour (ASB) which caused unacceptable disturbance to residents in this area, which was primarily residential, for a number of years and police fully supported the EMRO proposal as a means of tackling these issues
· The analytical report submitted as part of his representation was compiled by a police analyst and dealt only with reports to police. It concerned trends, numbers and types of offences and aimed to make the bare statistics more digestible. It was important to bear in mind that complaints about low level ASB were often made to the Local Authority, or not at all
· The report showed a peak of incidents on Friday and Saturday nights, with a spike in reports around midnight. This was directly related to licensed premises
· It was not disputed that the premises were well run and the ASB statistics were no higher than average but the venues were simply the wrong type for this area
· Licensed venues were always a magnet for crime and dispersal was the key time. Generally, the later a venue opened, the more public nuisance and ASB took place
· Most patrons from these premises left at closing time. If venues closed at midnight, dispersal tended to be more staggered as people would meet there and then move on, or come early and leave early; this in turn led to less ASB
· There would still be an element of disruption to residents at closing time regardless of the time, but this would be reduced if the terminal hour was midnight and be more tolerable than 2am or 3am
· The venues had engaged with the authorities and put in certain measures to attempt to alleviate the situation but there were still problems
· The police had instigated a review of the licences for Artesian Well and Pizza Go Go (which was no longer at that location) in 201. Artesian Well’s hours were reduced but later partly reinstated on appeal
· He believed the authorities had done everything they could but still the problems persisted and hence the EMRO proposal was supported
In response to questions from the committee, Sgt Strange stated that:
· The recorded incidents in this area were mainly thefts and there were very few violent incidents. The Artesian Well had been commended for helping to secure the arrest of a gang of professional phone thieves
· 70% of phone thefts took place in licensed premises; however, this area had not been highlighted as being a particular problem
· Recorded ASB showed a seasonal pattern, with a peak in the summer months. This was an expected trend
· If a call was taken but the description of the incident did not fit into any of the categories, it was logged under “Contact Record”. This could include some ASB and may not necessarily generate a police response
· Public urination would probably be reported via the 101 number rather than 999, and would be responded to the next day or not at all
· The venues were better run than was the case in 2011 and crime had reduced; however, there were still problems and he believed all other options had been exhausted. It was unlikely there could be dedicated PCSO patrols as it was not considered a high enough priority for the police
· The dynamic of the venues and the area was what made an EMRO starting at midnight appropriate. This level of public nuisance would be far less problematic in a town centre area
· British Transport Police statistics were not included as it was difficult to link these to specific premises or a particular area
· The decision to support the EMRO proposal was an important one and had been approved by the borough commander. Police supported the EMRO in order to tackle public nuisance; there was not enough evidence to consider such an order based on crime and disorder. It would, however, be very likely to have a positive impact on disorder on the area
In response to cross examination from Mr Smith and Ms Tricker, Sgt Strange stated that:
· He could not recall when he first heard of the EMRO proposal but it had been suggested at a meeting of the problem premises group when solutions were being sought to the public nuisance issues. He had very little input into the precise proposal
· He also could not recall when the borough commander expressed his support for the EMRO proposal but thought it was after the consultation began
· He had met the venues, including informally, and an EMRO had been discussed, which he had stated he would support
· It was accepted that, although he had stated that he believed an EMRO would have a “significant and positive impact”, there had only been ten recorded crimes in the area in seven months, almost all of which were phone thefts. He did nonetheless believe it would reduce crime and disorder
· It was impossible to isolate ASB to a specific area, only to a road, due to the way in which it was logged. As a result, the ASB referred to in the report at p162 of Representations Pack 2 involved all of North Street and a large part of Wandsworth Road. Crime reports, on the other hand, had grid references. Mr Smith had researched, via the Home Office website, where the complainants lived in relation to the ASB reports and found that there had been 37 incidents over the same period. 122, as stated in the police representation, was the number for the entire length of Wandsworth Road. He therefore suggested that the figures given to the committee by the police were not fair
· ASB often spread out beyond the immediate vicinity. It was important to have good transport infrastructure to minimise this but such infrastructure was lacking in this area
· He believed that the ASB was seasonal yet the Noise Team in their evidence believed it was not. Mr Smith’s research suggested there were seasonal peaks and troughs
· It was not possible to say with certainty how many of the 122 CAD reports in the police representation related to the four premises, and how many were alcohol-related, but given the timings it was reasonable to believe that the majority were. The guidance stated that an EMRO was specifically to tackle alcohol-related problems
· Public urination could fall into more than one category as there were no definitive guidelines on how to record it
· The venues were particularly busy following events on Clapham Common, although people were encouraged to disperse down Clapham High Street
· The venues had spoken to him regarding the potential effect on their businesses if the EMRO proposal was approved. He accepted that there would be an adverse effect but this was not a consideration in relation to the licensing objectives
· The previous Safer Neighbourhood Team Sergeant had been very involved with regards to the public nuisance issues and had significant input into the Artesian Well review. However, there had recently been a change in the team and the new Sergeant did not feel he knew enough to contribute meaningfully to the police representation
· In relation to Vesco News, off licences mixed in with late night venues were always a concern to police as they led to problems such as pre-loading and litter. Vesco used to open much later but police had persuaded them to close when their alcohol licence finished
· There were other off licences within walking distance but he was not sure exactly how far away they were
· The main issues with ASB and public nuisance were at the weekend but police believed it was sensible to have continuity across the week. Late night disturbances were less acceptable during the week. It would therefore be a concern if the EMRO was restricted to Friday and Saturday only, though there was no significant evidence from a police perspective to support it during the week
At this point in the proceedings, the time being 5.25pm on Thursday 16 January, the hearing was once again adjourned, to be resumed on a date to be agreed with all parties. The Chair apologised for the fact that it had not been possible to conclude the meeting within the two days scheduled but emphasised the importance of doing things properly and thoroughly.
The hearing resumed at 10am on Monday 17 February 2014.
The Chair welcomed everyone to the meeting and gave a brief recap as to what had happened so far. It was expected that all evidence against the EMRO would be heard on Monday 17 February 2014, along with questioning, and that closing submissions would then be made on Thursday 20 February 2014, after which the committee would begin its deliberations in private.
The representatives of Artesian Well confirmed that Lana Tricker of LT Law, who had acted for the premises previously, would not be attending.
Jonathan Smith, representing the ALMR, raised the following preliminary issues:
· He questioned whether his presentation would be guillotined after 15 minutes, as had been suggested when the hearing began on 15 January 2014, as he believed some parties had been allowed to exceed this. The Chair confirmed the importance of balance and that all relevant points were heard; to this end, she confirmed that Mr Smith’s presentation would not be officially guillotined
· He stated that some residents who were against the EMRO planned to come on Thursday 20 February to make their representations as they believed that the hearing was formally listed for 17 and 20 February and they were not able to take two days off work to attend. The Chair stated that no assumptions could be made that evidence could be heard on Thursday 20 February and offered a short adjournment in order that the residents in question could be contacted and invited to address the committee today (17 February) since it was anticipated that all evidence would be heard by the end of the day and only submissions would be heard on 20 February. No such adjournment was requested
· The Noise Team wished to play to the committee a number of video clips via YouTube which had been referred to previously. These had not been viewed when the hearing began in January but were being relied upon. Mr Jonathan Smith was bewildered by the fact that the Noise Team were once again seeking to introduce video evidence with no notice. Furthermore, he had attempted to view the clips but found that the links did not work. The Chair stated that Mr Akinola would be asked to outline why the committee should accept this and a determination would then be made
· A number of representations which had not been made on the template form, and did not contain statements of truth, were included in an additional bundle submitted by Ms Tricker, and it was asked how these would be dealt with. The Chair confirmed that it had already been determined on 15 January 2014 that these were not valid representations, and as such the people in question would not be able to address the committee; however, they could be relied upon as evidence and would be given the appropriate weight
· It was believed that one of the representors, a Mr Horsfall, had not received a notice of the January hearing dates. It was confirmed that he had received a notice of hearing for 17 February however
· One valid representation, from a Mr Graham Hutchings, had been erroneously omitted from the representations packs; this would be circulated separately by the Licensing Manager
Jamie Akinola addressed the committee on the video clips mentioned above and stated that:
· The clips had been submitted by a local resident who had made his own representation but they were included as part of the Noise Team’s evidence. There had therefore been a degree of uncertainty as to who would have the opportunity to request that the clips be played. The resident in question did address the committee on 15 January but only offered verbal evidence
· It was felt that the clips were relevant and it would be useful for the committee to view the footage to give more evidence regarding alcohol-related public nuisance
· In response to a question as to why this request had not been made sooner since the resident in question gave evidence on 15 January and the hearing continued on 16 January, including the playing of video footage, Mr Akinola stated that it had been necessary to take legal advice on the issue and this had not happened until after 16 January
· He did not believe it was necessary to give advance notice of the request to view the clips since the YouTube links had already been disclosed, and it was felt that the most appropriate course of action was to play them in open session. The Chair stated that there was a difference between playing the footage at the hearing and giving notice, pointing out that other additional material had been submitted between the adjournment on 16 January and the resumption on 17 February and had been circulated in advance
The legal advisor stated that it was a matter for the committee as to whether to allow the Noise Team to effectively reopen their case in the light of what they had heard.
At 10.35am, the committee withdrew from the meeting together with the legal advisors and clerk to deliberate in private in relation to the preliminary issues raised.
At 10.55pm, Members returned to the meeting and the Chair gave the following response:
· There were serious procedural shortcomings regarding the request to play further video footage and the committee felt this had been sprung on both them and the opponents of the EMRO. Legal advice should have been taken earlier and notice should have been given as there had been plenty of opportunity to do so. The Noise Team had closed their case and no indication had been given that further additional recorded material would need to be shown. However, the videos were referred to in the resident’s written and oral representation and the links were also included in the ALMR representation; therefore it was not considered that any side would be prejudiced if the clips were shown. Whilst the ALMR stated that the links did not work, they had made no attempt to get to the bottom of this. For these reasons, the committee gave permission for the clips to be played; however, given that they were not recorded by the Noise Team, no questions would be allowed
The video clips, which were recorded between roughly 2.10am and 2.30am on 2 June 2013, were then shown in open session.
Presentation by Affected Businesses
Prior to the presentations, the clerk confirmed that extra documentation had been received from LT Law (for Artesian Well) following the adjournment on 16 January, and this had been circulated.
Mr Mark Banks, for Lost Society, stated that:
· Lost Society had operated at this location for nine years. It had a good reputation and had won many awards. It was one of the best known bars in South London and had visitors from far and wide
· He was the only representative of the premises as both of his business partners believed the process had been one-sided
· The EMRO had become a very emotive matter for the venues, a few dedicated residents and the Noise Team
· He believed that, if the Artesian Well failed in their review appeal, this process would not have happened
· The previous operator ran a licensed venue known as the Tea Rooms for ten years prior to Lost Society opening. Residents had suggested that the Tea Rooms was a food-led enterprise but it was actually a party venue at the weekends
· Lost Society was a cocktail bar and restaurant, not just a vertical drinking venue. Over 30% of their trade was food
· They did not serve pints and did not run drinks promotions except for a cocktail hour
· They had not had any problems with crime and had had fewer than five violent incidents in nine years. Sgt Strange himself had admitted the venues were not problem bars and had commended Artesian Well for helping to apprehend phone thieves
· Lost Society had never been taken to review and Sgt Strange had stated at the Artesian Well appeal that there were no issues with Lost Society
· The venue did not admit patrons under 23
· The on-licensed premises in the proposed EMRO area were popular and it was the number of total patrons which gave rise to problems with dispersal
· The venues had been cooperative in working with the Noise Team, attending meetings and introducing problem-solving measures, such as extra security and barriers. The situation had improved markedly as a result of this
· At times they did not feel that they got enough information from Mr Akinola in terms of responses to emails, and the specific details of complaints were never made clear
· He ran ten bars in the UK, one in the States and one in Stockholm, and Lambeth was the only authority which did not log complaints. Mr Akinola had highlighted that there were no complaints to the Noise Service phone line but without this they were unsubstantiated
· He believed it was unlikely the EMRO process would have happened if the venues were in a more working class area
· It had been stated at the December 2012 meeting that an EMRO was “in the Council’s armoury” if things did not improve, and Mr Akinola had admitted at this hearing that he instigated the consultation. This led Mr Banks to believe that the EMRO proposal was the end product of all of the meetings that had taken place
· The first he knew of the EMRO proposal was a notice on a lamp post
· Lost Society closed at 1am, then Artesian Well later, and Mist on the Rocks later still. This ensured staggered dispersal of patrons. If the EMRO was introduced, there could be up to 600 people all attempting to leave the venues in a short space of time. Even Mr Akinola had admitted he was unsure whether the EMRO would work and this called into question whether it would be appropriate for the committee to recommend it
· The number of people was the problem and if further taxi provision was secured this would go a long way towards resolving the issues
· It had been suggested that the venues could change their business plans if an EMRO was introduced but Lost Society already had a significant amount of food-related trade
· He had decided to put Lost Society up for sale since he felt it likely that the polarised views meant a continued struggle between residents and the Council, and the venues, regardless of the result of this hearing. However, people had been put off buying the premises due to the EMRO proposal
· Lost Society was one of the biggest night time economy employers in the area and up to 20 redundancies may result were the EMRO to be approved
· He had planned to open a micro-brewery in Clapham but had decided that there was now no way he would consider further investment in Lambeth as he had lost confidence in the Council. Mr Hanson of the Clapham Business Community had further stated that an EMRO would have a big impact on the trade in Lambeth
· There was a lot more alcohol-related violence generally before the overhaul of the licensing laws when most premises closed at 11pm
· The guidance stated that EMROs were designed to tackle high levels of alcohol-related crime and disorder, and serious public nuisance. He questioned whether the public nuisance problems at this location were serious enough to warrant this approach
Mr Carmell Azzopardi and Mr Rudi Weller, for Artesian Well, stated that:
· Artesian Well was a family-run business which had been running for 14 years. It had a number of long-serving staff and represented a lifetime’s investment. It was one of the only purpose-built nightclubs in London
· The premises licence was reviewed by the police in 2011 and the decision to reduce the hours was appealed. The verdict of the District Judge was that he did not consider it necessary or proportionate to curtail the hours to the same degree as the Licensing Sub-Committee in order to promote the licensing objectives
· At the review appeal, at which all evidence was fully scrutinised over a number of days, the District Judge found no evidence the venue was poorly managed. Many further improvements had been made since then
· They had tried to improve their operation to lessen the impact on residents
· They felt they were constantly under scrutiny
· They had a last entry of midnight, the earliest of any of the venues. No drinks were allowed outside and a comprehensive dispersal policy had been formulated
· Some of their immediate neighbours opposed the EMRO
· Some people who contributed to the public nuisance had been out in Central London, got the bus back and alighted here; they were nothing to do with the premises
· They had sought to obtain copies of all complaints but these were not forthcoming and this demonstrated a lack of transparency. There was not sufficient complaint evidence to justify an EMRO
· An obvious solution to the current problems would be to review or vary all of the licences to impose a midnight last entry. This would prevent migration between venues but had not even been discussed. Reducing the hours of alcohol sale at Vesco to midnight also would also help
· The District Judge had suggested that reviewing the licences to standardise dispersal policies and last entry conditions would be very helpful
· They had explored the possibility of a taxi rank but it had not been possible to carry this through
· Artesian Well did not allow people to smoke outside, had barriers to help with queuing and employed a number of SIA-registered security staff
· Dispersal would be a bigger problem if the EMRO was introduced as it would be more likely that large numbers of people would leave the venues at the same time
· The police statistics proved that there had been a decrease in ASB over the last 12 months
· Lambeth had a high complaint rate in relation to residential noise (for example, from parties) and this would not be affected by an EMRO
· The threshold of public nuisance was high for an EMRO and it should only be a last resort after other measures had been explored
· No analysis had been carried out of the likely economic impact of an EMRO
· There were questions regarding the decision to consult and the venues were not even told prior to the commencement of the consultation
· It had been accepted that an EMRO would not be likely to be a total solution to the public nuisance issues
· There was no basis in the police figures to support an EMRO
· It felt as though this exercise was designed to destroy the wellbeing of the venues’ management
· At the review appeal, Artesian Well chose not to claim costs despite being invited to do so, as a gesture of good will, and this had shocked the District Judge
· The management got on very well with the previous manager of the Noise Service, who they considered very reasonable, while they felt harassed by the current team. Mr Akinola had objected to a Temporary Event Notice to prevent the venue opening on New Year’s Eve for the first time in many years
· The commentary soundtrack to the Noise Team’s monitoring footage did not suggest it was entirely objective
· Mr McLean told Artesian Well that they were being filmed as an example of good practice to be shared
· There had been no communication from the Noise Team between June and October 2013, when the EMRO consultation notice was put up on a lamp post, and he considered this shoddy treatment
· An additional documentation pack had been submitted by Ms Tricker and though she was not present at the hearing representing Artesian Well, and no mention had been made of the supplementary pack, they were relying on it
Mr Arsid Braho, for Mist on the Rocks, stated that:
· He had not received notice of today’s hearing and thought this was unacceptable. The Licensing Manager stated that all of the hearing notices were sent out at the same time and Mist on the Rocks were included in this. He further stated that the hearing notices all went out on 27 January and Mr Braho confirmed his attendance on 10 February. Mr Braho insisted that he found out about the hearing from a customer but conceded that he did not mention this when notifying Licensing of his attendance
· Mist on the Rocks was a family business which had been operating for roughly a year and they had invested heavily in it
· They had appealed a restriction on entry times as it had been affecting their takings
· 70-80% of their takings occurred after midnight
· The late licence was what had attracted him to the venue and he felt betrayed and misled as it now seemed evidence for an EMRO was being gathered all along. He believed the partnership had been working
· They would go out of business if an EMRO was introduced
· They had been in contact with neighbours and had security staff
· He disputed the evidence base for an EMRO, particularly seven days a week
· Mist on the Rocks was only busy on Saturdays and the vast majority of the Noise Team’s filming was also on Saturdays; this gave a false impression as to the real situation
· The area was improving and the police evidence proved this
· They had been compliant in every way yet risked losing everything
Mr Jonathan Smith and Mr Michael Clarke, for the ALMR, stated that:
· The ALMR was the only trade body representing the late night industry. They had 13,500 members, who in turn employed 325,000 people
· Artesian Well were members, and Lost Society were when the ALMR’s representation was made, though no longer
· The perception in the local media was that the Council was introducing an “alcohol ban in Clapham bars”. Though this was inaccurate, the headlines could adversely affect the licensed trade in the borough
· If recommended, this would be the first EMRO in the country
· There were three key questions which needed to be considered by the committee: whether they believed the EMRO should be approved in the terms outlined; if yes, whether there were no other alternatives; and if yes to both, was the EMRO appropriate and proportionate
· An EMRO was a powerful tool, as set out in the guidance
· The Council’s Licensing Policy talked about transparency yet this process had been anything but. The Licensing Committee was not consulted on the EMRO or its terms, and there had been no formal delegation of this decision to officers. Instead Mr Akinola had approved the consultation along with other officers, whilst advising line management. It was believed this was authorised on 23 August 2013. Sgt Strange had not been involved
· No evidence had been put forward to justify a consultation. Other authorities which had considered an EMRO, such as Blackpool, Norwich and Hartlepool, had proper consultation documents, while all Lambeth had put forward was 39 pages of incomplete email correspondence and edited video footage which was not time-stamped, the vast majority of which was taken on Saturdays. On the one Friday, it was acknowledged that it had been quiet and nothing had really happened
· Para. 16.8 of the guidance stated that the decision as to whether to recommend an EMRO had to be evidence-based, and encouraged committee members to draw on their experience of decision making under the Licensing Act 2003. He suggested that there was insufficient evidence for any decision
· The venues were not given any information on the EMRO until 24 days into the consultation
· He had asked on three occasions to see emails relating to the EMRO consultation but nothing had been forthcoming
· It was stated by Noise Officers on 2 June 2013, in the last video footage recorded prior to the consultation beginning, that door staff were doing a good job and the lack of taxis was the biggest problem. There then followed four and a half months without any engagement prior to the start of the consultation. The EMRO process so far had been a procedural mess
· He understood that all of the venues had sound limiters and that noise breakout was not a problem
· It was not possible to see who was making comments to whom in the Noise Team’s representation, in terms of residents, as all names had been redacted except those of the venues and Council officers
· No list of complaints had been forthcoming despite being requested
· A Freedom of Information request on the number of complaints logged with Environmental Health since 2010 had revealed that there had been four in 2010, five in 2011, three in 2012 and five in 2013
· The DVD footage seemed to have been edited from 15 hours to nine, and then again to six. There was no footage from inside complainants’ homes and none of the clips extended beyond 2.45am despite the fact that Mist on the Rocks, which had a capacity of 150, closed at 3am. The video footage did not back up residents’ claims of extreme unruly behaviour and buses and lorries drowned out the street noise
· The filming showed people buying alcohol from Vesco and drinking whilst waiting for taxis
· Sgt Strange’s representation stated that the police believed an EMRO would significantly reduce crime and disorder, yet the statistics presented showed that this was simply not the case. It was also accepted that there was not the evidence for the police to instigate an EMRO consultation on crime and disorder grounds
· The local health club had more incidents of crime in the seven months immediately preceding the EMRO consultation than the proposed EMRO area
· Despite the Noise Team’s assertions to the contrary, the evidence showed that ASB was seasonal. There had also been no attempt to assess how many people were in the venues at various times. These points should have been taken into account when considering the terms of the EMRO
· The Licensing Authority had previously decided that Mist on the Rocks should not allow entry later than 1am and this did not square up with an EMRO starting at midnight
· In terms of the proposed area, he questioned why nearby Tonki Gorilla, which had a 2am licence, and Forbidden Temple, which closed at 3am, were not included. If the EMRO was introduced, people would simply go to these premises instead
· There was also scant evidence to support an EMRO seven days a week. It had been accepted that Fridays were much quieter than Saturdays, and Artesian Well was not licensed beyond midnight Sunday to Thursday. The Mist on the Rocks licence submitted also suggested that they could only open until 11pm Sunday to Thursday. Furthermore, were an EMRO to be introduced, they would use the 24 occasions a year where they were allowed to open later (as stated on the licence) on Saturdays. The Licensing Manager believed the hours stated to be inaccurate and stated he would confirm them following the adjournment for lunch
· It was questioned why Mist on the Rocks were included at all if their dispersal was not a problem, as had been stated by Mr McLean
· It had been suggested that, if the EMRO was only at weekends, the venues would open later during the week; however, it was considered unlikely that all their patrons would simply change their late night out to another day and it was accepted that Fridays and Saturdays were the worst days in terms of ASB. It had been argued that the venues would put in TENs if the EMRO was restricted to Fridays and Saturdays but the Noise Team would be able to object to these and then they would be brought before the Licensing Sub-Committee to assess the evidence and decide whether to allow them to go ahead
· Paragraph 16.9 of the guidance stated that alternative measures had to be considered, which could include reviews of individual licences. Though it had been submitted that it was difficult to link public nuisance with specific premises, the District Judge had done this in relation to Artesian Well. Furthermore, there were only three on-licensed venues and they all closed at different times
· The Noise Team had stated that they wanted to go for an EMRO before considering reviewing Vesco’s licence in relation to them breaking a voluntary agreement but this did not fit with the guidance in terms of exhausting other options first
· Mist on the Rocks were now operating a 1.30am last entry but this had not been given time to be properly assessed prior to the EMRO consultation beginning
· Reviews were better than an EMRO as they were more targeted and enabled the committee to look at opening hours
· The premises had engaged and a lot of positive comments had been made about the improvements which had been carried out
· It was considered that, were the EMRO to be introduced, three things might happen: everyone may disperse from all the venues at or shortly after midnight; people would stay in the venues and stockpile drinks, then leave at their usual time; or the venues may have to close due to the economic impact. However, there had been no proper assessment as to what the effect of the EMRO would be and whether it may actually have a negative impact on the licensing objectives due to the possibility of hundreds of patrons all seeking to disperse at the same time. In all scenarios other than the venues shutting down, the EMRO was neither proportionate nor justified, and if they did all close, it was important to think about the economic impact, which was in fact a relevant consideration. The night time economy was a large sector in Lambeth and investment would likely be threatened if an EMRO was brought in
· The committee could make recommendations as to how best to proceed if they did not wish to recommend an EMRO. This had happened in both Hartlepool and Blackpool
Mr Jegatheesan of Vesco News was present at the hearing but indicated that he did not wish to address the committee.
At this point in the proceedings (1.20pm on 17 February), the committee adjourned for lunch and reconvened at 2.30pm.
Upon resumption, the Chair asked Mr Akinola to clarify when the decision to consult on the EMRO had been made, as per the query on 16 January (see above). Mr Akinola stated that an initial officer meeting took place on 5 August 2013 at which Noise, Community Safety and Legal were represented. On 21 August 2013 an options paper was forwarded to the Cabinet Member for Safer and Stronger Communities with the recommendation that an EMRO was the preferred option. The Cabinet Member asked officers to proceed with the consultation on that basis.
It was also clarified by the Licensing Manager that the Mist on the Rocks licence allowed for the supply of alcohol until 3am on Fridays and Saturdays, and 1am Sunday to Thursday.
The Legal Advisor then publicly announced advice on two issues that he had imparted to the committee members previously. Firstly, he stated that the EMRO, if approved, would override any TENs or anything in the affected premises’ licences, including the 24 extra discretionary days on Mist on the Rocks’ licence. Secondly, regarding possible modification to the EMRO, it was his view that the scope could not be expanded without further consultation but that the committee could recommend an EMRO with narrower terms.
In response to questions from the committee, the businesses’ representatives stated that:
· Lost Society and Artesian Well had sought support for their opposition to the EMRO via their websites. This included a model letter and advice was given to supporters that it would be helpful for them to state that they had not witnessed any incidents; however, they only expected people to include this if it was true in their experience. Both of their websites suggested that Lambeth were seeking to roll out EMROs at various locations throughout the borough but they accepted they had no evidence for this and it could be considered scaremongering. They did however believe that the wider trade were concerned this could be the case
· Mr Weller felt he had been misled at the meeting with Noise on 10 June 2013 and that the EMRO was now a foregone conclusion. He also thought the premises had never had any help from the authorities, only monitoring. The committee members stressed that whether or not to recommend the EMRO was their decision and nothing had been pre-determined
· Mr Banks believed standardising the last entry times to midnight, which was currently the case at Artesian Well, would go a long way towards addressing the problems and was worthy of serious consideration. Mr Braho expressed concern that Mist on the Rocks would be affected most by this but believed it would be preferable to an EMRO
· Patrons started leaving Mist on the Rocks at around 2am and there was no big exodus at 3am as dispersal was naturally staggered
· Artesian Well and Lost Society had begun using Greyhound Cars, who had a much bigger fleet than the local firm, Silverthorne (approximately 300 as opposed to 30), as a taxi provider over the last two weekends. Patrons waited inside the venues and were then walked by security staff to their taxis when they arrived. This had worked very well. Mr Braho confirmed that Mist on the Rocks were already using Greyhound and had done so since opening. The Chair stated that this could be an important development in favour of the venues and was surprised that nothing had been put before the committee in relation to this agreement. Mr Weller explained that they believed they were locked into a contract with Silverthorne and had only very recently discovered it was an agreement which could be broken. The Chair requested that letters from the venues collectively, and from Greyhound, outlining their understanding of the taxi agreement be submitted to the clerk prior to the commencement of the hearing on Thursday morning
· It was acknowledged that there was some substance to residents’ complaints but they had failed to engage properly with the venues to try to tackle the issues
· Artesian Well had arranged two noise tests from neighbours’ flats and the results of both were that no disturbance could be heard over and above background noise. The Chair again questioned why these reports had not been submitted to the committee
· London had a 24 hour culture and public nuisance did not start and end with the three venues. Also, the proposed EMRO area was a mixed use area and it was therefore reasonable that residents should expect some level of noise
· Lost Society had its highest density of customers between 9.30pm and 11.30pm. The restaurant ran until 11pm and they tried hard to retain patrons when they had finished their meals by offering music and a good atmosphere
· 70-80% of Mist on the Rocks’ trade was after midnight
· In response to the suggestion that the venues’ business plans might have to change if the EMRO was approved – for example, to a more food-led enterprise – Mr Azzopardi stated that it was likely this would be prohibitively expensive as they were only just breaking even. Mr Braho stated that Mist on the Rocks would need to look at installing a kitchen and opening on days they were currently closed
· Mr Smith had opposed the EMRO proposals in Norwich, Hartlepool and Blackpool, all of which were different. He could envisage supporting an EMRO but only if the terms and expected impact were deemed appropriate and it was a last resort
· Mr Smith believed Clapham had a reputation as a vibrant and diverse night time economy with many independent operators. He acknowledged that a Cumulative Impact Zone had been implemented but these were not unusual. In relation to public nuisance, responsible licensed premises operators themselves were the most able and motivated people to tackle such issues
· Mr Smith would expect a log of complaints to be kept by residents, or for calls to be logged with the Noise out of hours service, as hard evidence needed to be provided for hearings such as this
· Had full details of complaints been made available to the venues, they could have checked CCTV, investigated incidents themselves and even banned people who had caused trouble
· Some people had a lower tolerance of noise than others and it was believed one local resident, who strongly supported the EMRO, had sent a letter to his neighbour asking them not to talk loudly in their garden
· The full judgment of the District Judge with regards to the Artesian Well review appeal was included in Representations Pack 6 on p101
· There had been two meetings arranged between the venues and residents but only two residents turned up to the first one, and none to the second
· It was acknowledged that the venues were part of the community and they would have to be part of the solution going forward regardless of the outcome of this hearing. This included engagement and openness with residents and the Noise Team, and working cooperatively with the other venues. Transparency was key, however. Mr Akinola agreed that a key part of the Noise Team’s role was engagement with licensed premises and communities and he believed that the relations between the venues were better as a result of his actions; however, he reiterated that views had become strongly polarised in this case and he believed an area-based solution was necessary
· Mr Braho denied that he was isolated from the Artesian Well and Lost Society management and stressed his commitment to cooperate
In response to cross examination from Mr Akinola, the businesses’ representatives stated that:
· The paragraph highlighted by the ALMR in the District Judge’s verdict in relation to the Artesian Well review was to stress the importance of considering all options before attempting to implement an EMRO. Mr Banks and Mr Braho stated that the main thing they took from the verdict was the importance of partnership working going forward and Mr Braho believed that, since improvements had been made, an EMRO was not needed. It was acknowledged that the judgement did refer to the intolerable effect of the collective premises on local residents and also stated that the impact had not been exaggerated but Mr Braho believed there had been exaggeration in some residents’ complaints since the verdict
· Said verdict was now over two years old and it had been acknowledged on all sides that the situation had improved since
· In relation to the statement in Mr Sidrit Braho’s representation suggesting that a handful of residents were driving the complaints, Mr Akinola asked how he squared this with the 90 or so representations received in support of the EMRO. Mr Braho stated that he thought some residents were strongly encouraging others and some households had made multiple representations, and suggested this had exaggerated the amount of support there was for the EMRO proposal. Mr Akinola countered that representations had been received from the Safer Neighbourhood Panel chair and vice chair, and also from representatives of residents’ groups, and that these spoke for many people. Mr Weller stated that the Artesian Well had attempted to meet with the chair of a prominent residents’ group but they were asked to leave the meeting. He also pointed out that, though there were around 90 representations in support of the EMRO, there were around three times as many opposing it
· Mr Smith believed that Councillor Wellbelove’s letter to local residents regarding the EMRO was misleading and was canvassing support
· Artesian Well sometimes used TENs for events such as private functions, Halloween and bank holidays. Mr Azzopardi stated that such temporary events were fairly rare and not hugely profitable and therefore relatively unimportant from an economic perspective. Mr Banks stated that Lost Society was only allowed to open until 1am due to their planning permission and so they did not make much use of TENs. He estimated that only two had been given in the last year – at Halloween, for which they were well known, and New Year’s Eve. Mr Braho stated that he had never needed to use TENs as they were permitted to open until 3am at the weekend and there was no point in using them during the week. He conceded, however, that in the event of a weekend-only EMRO, he would have to look at desperate measures, which could include holding events during the week
Sgt Strange informed the committee that he did not wish to cross examine those against the EMRO proposal but stated that he believed a midnight last entry time for all of the venues would be helpful in tackling the public nuisance issues.
Presentation by Interested Parties (3)
Local resident Carly Hawken, speaking against the EMRO proposal, stated that:
· She lived above Mist on the Rocks and used to work there but no longer did
· She had often worked shifts and found that Wandsworth Road was far noisier during the day. If windows were closed, it was not possible to hear noise from the venues’ patrons, though buses could be heard. Some local residents could be noisy so it was unfair to blame all noise on the licensed premises
· If the venues had to close and there were no security guards patrolling the vicinity, she would feel less safe and may have to consider moving
· In relation to the reference by another resident to an accident involving a woman being run over, she stated that she had witnesses this and it had happened at around 5pm, and was thus completely unrelated to the venues
· When she worked for Mist on the Rocks, she had attended a meeting at which Mr Akinola and Mr McLean were present and noise was mentioned. In response to this, Mr Braho had asked her to instigate procedures aimed at ensuring gradual dispersal and minimising noise, such as lowering the music and increasing the lighting prior to the terminal hour and asking patrons whether they would like taxis to be booked
· The video footage shown to the committee showed people standing on the pavement outside Mist on the Rocks talking in June 2013; however, if further filming had been done later in the year the situation would have been seen to be much improved as people were told to stay within the curtilage of the premises
· A resident who was a strong proponent of the EMRO proposal had knocked on her door in November 2013 and asked her to sign a representation in support of the EMRO. When she declined, he responded in a hostile manner
· The Noise officers had never said that they were filming to gather evidence in support of an EMRO
In response to questions, Ms Hawken stated that:
· She had never been invited to any residents’ meetings
· She acknowledged that there was some validity to residents’ complaints regarding dispersal problems but wished this to be managed better rather than introducing an EMRO, which would threaten jobs
· Mist on the Rocks was not especially busy and dispersal at 3am was not problematic
· People who chose to move to the area had to accept a certain degree of disruption in relation to the licensed premises and some residents were more relaxed about this than others
· The footage presented by the Noise Team was not very professional or consistent as it was not time stamped and had been edited
At 5.50pm on Monday 17 February, in closing the day’s proceedings, the Chair stated that evidence had now been concluded and that summing up, along with short submissions from any residents who had not yet had a chance to address the committee, would be taken on Thursday morning. The committee would then adjourn to consider its decision.
The hearing resumed at 10am on Thursday 20 February.
On opening the final day’s proceedings, the Chair indicated that submissions would be taken from residents against the EMRO who had not been able to attend on previous days due to work commitments, as per the comments on Monday 17 February; however, no questions would be allowed as evidence had been concluded and these would therefore be treated as closing statements. There would then be summing up from all relevant parties, after which the committee would retire to consider its decision, notice of which would be sent out within the required ten working days.
In relation to the request on Monday 17 February for letters clarifying the taxi situation, it was confirmed that three letters had been received from Artesian Well: one cancelling their agreement with Silverthorne, one instructing Greyhound, and one from Greyhound themselves confirming the agreement. Mr Banks stated that Lost Society were still using Silverthorne in order to maximise the amount of provision available but could also use Greyhound and Unity.
An agreed taxi policy signed by representatives of the three on licensed venues was handed to the committee, as was a list of further measures which would be taken. This was signed by all four of the affected premises and included installation of ScanNet, free bag checks, increased cooperation between door staff and a midnight common last entry (on licensed venues only); and the extension of barriers, fortnightly meetings of the venues, and quarterly, minuted meetings between the venues, Council, and residents (all four premises)
Presentation by Interested Parties (4)
The following residents made statements to the committee opposing the EMRO:
· Herold Riley: had lived in the area for 17 years and thought an EMRO was too stringent. Jobs would be lost and the reputation of Clapham would suffer. The ASB reported did not tally with his personal experience and the venues had worked well with the community
· Dave Hanson, Chair of Clapham Business Community (CBC): Stated that CBC, which consisted of retail outlets, art exhibitions, cafes, bars and restaurants, had been put together by a series of meetings facilitated by the Council to tackle any issues and ultimately form a Business Improvement District (BID). He was concerned at the speed of the process and the consultation and believed it was necessary to explore further partnership working before even considering an EMRO. He did not think the proposed EMRO would totally address the problems as there would likely be even more people on the streets at midnight. Clapham’s economy would also be adversely affected. The venues were well managed and were involved in the Pub Watch scheme, which shared good practice; the Best Bar None scheme was also being explored and these initiatives should be taken further before proposing an EMRO. Artesian Well were members of CBC while Mist on the Rocks and Lost Society were involved in Pub Watch
· Chris Olie: Had lived in North Street for the last seven months and had never come across any ASB in the area. He found Artesian Well to be very professional and was concerned that the EMRO would lead to job losses
· Alasdair Killin: Had lived next door to Mist on the Rocks since September 2013 and had not once been disturbed or woken up. There were large numbers of people in the area on Saturday nights but the atmosphere was not at all hostile. He did not believe the area was too noisy and liked the fact that there were people around as it made him feel safer
Mr Arsid Braho, for Mist on the Rocks, stated that:
· He felt the whole process had given rise to tension and hostility and he had had to throw everything at it. If the committee did not recommend an EMRO and the venues were given another chance, he was aware that they would all have to coexist and help build trust. He reiterated his commitment to working in partnership, including shared security arrangements which would see Mist on the Rocks contribute to Artesian Well’s stewards staying on for an extra hour. The new taxi arrangements would also help matters. He would work with neighbours and encourage their input, and was willing to consider a midnight last entry subject to resident approval, as proposed in the joint agreement. He felt unlucky as Mist on the Rocks had only been open for a year and had spent several months of that attempting to vary the licence and bring a subsequent appeal; this meant it had been difficult to build a strong customer base and any further restrictions would have a serious impact on the business
Mr Mark Banks, for Lost Society, stated that:
· A major problem that had become apparent during the EMRO process was one of mistrust and a lack of transparency, particularly surrounding the details of complaints, which should be logged and substantiated in future. The Noise Team seemed to be neglecting the progress made since the Artesian Well review and were being regressive and negative. They also admitted they did not know whether the EMRO would solve the problems. Support for the EMRO had been canvassed but only around five residents had attended the hearing to speak in favour of it. It was accepted that there was not a high level of alcohol-related crime in the area and residents had stated that they felt safe. The decision on whether or not to recommend the EMRO would affect Lambeth’s reputation and would signify either cooperation and dialogue, or inappropriate legislation and job losses. Referring to the list of further measures signed up to by all of the venues, including regular meetings with residents and the council, he stated that this was the best way to progress the situation. Trust, belief and hope were needed for things to move forward
Mr Rudi Weller, for Artesian Well, stated that:
· The process, including this hearing, had highlighted that getting all of the venues together with council officers could be a pleasurable experience and lead to progress. It was acknowledged on all sides that the venues were well-run. He believed that the common last entry time proposed was an important part of the solution, though he believed that Mist on the Rocks should be allowed to admit patrons up to 12.30am to prevent crowds of people turning up just after midnight, discovering they had nowhere to go, and becoming agitated. Artesian Well had made great progress since their review in terms of tackling the public nuisance issues and the District Judge had imposed strict conditions, also saying that he hoped the venue would be given time to implement these and demonstrate improvement. They had been complimented on having the best procedures in the area and had shared their dispersal policy. The current Noise Team was established shortly after the appeal and it would have been courteous for them to introduce themselves at that point but this never happened; hence their relationship was not as good as that with the previous noise enforcement manager. The new team also blocked a temporary event planned for New Year’s Eve. The video footage submitted showed no more than minor disturbance. The venues had asked whether complaints were being made between June and October 2013 and were told there were not. Though relations had broken down and they had felt victimised by the Noise Team, the Artesian Well management were committed to working collaboratively with all sides in future. Finally, he objected to the critical comments of some residents in their representations regarding the use of Hedonism and Bacchanalia on their website as these were being used in their historic senses and not in the modern, negative interpretation
Mr Jegatheesan, for Vesco News, stated that:
· Few people came by the shop and he had no problems with the neighbours or in the premises. There were also two other off licences in the area. Though they were principally aimed at the three on-licensed venues, he confirmed that he had read the list of further suggested measures and was happy with them. He already closed earlier on some nights if he was not busy, and was prepared to cease selling alcohol from 1am in future
Mr Jonathan Smith, for the ALMR, stated that:
· The Licensing Act talked a lot about partnership working and initiatives but it seemed a wedge had been driven between the venues and council officers and residents. In his experience, considering an EMRO tended to entrench views and did not help to progress partnerships. Constructive recommendations were made in Blackpool and Hartlepool and it was sad that the committee itself did not ratify the decision to consult prior to the consultation going ahead as similar measures could have been explored prior to the EMRO process starting. There were many questions over what had happened in summer 2013 between the footage being taken in June, which had garnered positive comments from Mr McLean, and the consultation beginning in October. The EMRO essentially constituted four licence reviews with no right of appeal, yet the venues only found out via a notice on a lamp post following four months of silence. The Noise Team’s evidence consisted of 39 pages of incomplete email trails and edited video footage which was not time stamped, and it was queried whether such evidence would have been considered sufficient at a single licence review hearing. The action plans and further measures put forward could have resulted from discussions. It was possible to rebuild trust and the regular meetings proposed would be a big part of this, but council support was undoubtedly needed to bring all sides together. The police representation did not support the EMRO at all and was more helpful to the venues than the Noise Team; there had been a low level of crime, particularly after the Artesian Well helped police catch a group of phone thieves, and the ASB recorded corresponded to a wider area and could not be linked to the premises. There should have been more analysis of, and time given to, assessing the changes made by Artesian Well following the District Judge’s verdict. Other measures should have been explored before an EMRO, such as individual licence reviews – which would also allow the committee to rule on closing times – yet this had not happened. The EMRO guidance stated that ASB, as well as being recurrent, had to not be attributable to a single premises, yet the Licensing Sub-Committee and the District Judge had done exactly this in relation to the Artesian Well. There were only four licensed premises and all had different closing times. The earlier last entry times and taxi policy proposed would lead to significant improvements, and an EMRO may make the situation worse in terms of the number of people on the streets, which in turn could lead to greater public nuisance and public safety issues, thus having a negative impact on the licensing objectives. It was therefore submitted that the proposed EMRO was not proportionate, necessary, reasonable or justified
Sgt Steve Strange stated that:
· There had been problems with public nuisance and ASB in this area for many years and the operators of the premises were well aware of this. A number of measures had been implemented in the last few years, particularly by Artesian Well, and it was not disputed that progress had been made; however, the impact on residents was still unacceptably high. It was accepted that the venues were well run but this was the wrong place for late night venues as it was a highly residential area. He believed that an EMRO would fundamentally change the dynamics of the venues as it was considered more likely that people would move on at midnight as opposed to stockpiling drinks. The taxi developments were very welcome but there seemed no prospect of a taxi rank, meaning there would be problems with double parking. It would also take a long time for all patrons who wanted taxis to be walked to their cars, and this increased the possibility of them deciding to look for a cab independently. He totally supported the ScanNet proposal but was unsure this would have an impact on dispersal. He did not consider that the midnight last entry proposal would have much effect as it was already in place at two of the three on-licensed venues
Mr Jamie Akinola, for the Council’s Noise Team, stated that:
· When developing his submission, he was particularly mindful of the comments of residents in support of the EMRO, which told of intolerable public nuisance, urination, shouting, screaming and fighting. Some had dismissed this as exaggerated but as the relevant responsible authority, with a duty to promote the licensing objectives, the Noise Team took the view that there was a significant amount of evidence suggesting that there remained problems with serious and recurrent public nuisance. The majority of residents who lived close to the venues were for the EMRO and this could not be flippantly written off. Economic impact had been mentioned but he submitted that considerations should relate only to the licensing objectives. Mr Smith had given the impression that dialogue between council officers and the premises suddenly stopped in June 2013, yet he submitted that he and Mr McLean stated clearly that dialogue continued, particularly with Artesian Well and Lost Society. There was no immediate change of tack, as had been suggested. At the instigation of the meetings between Noise and the venues, which was his initiative, it was difficult to get the premises’ management to talk and they mostly blamed each other. In relation to Mr Smith’s assertion that an EMRO should be a last resort, his reading of the guidance did not concur with this; it merely stated that other measures had to have been considered, and that an EMRO had to be justified and proportionate. He had considered all other alternatives at length but an area-based solution was thought to be the best option. He was not convinced by the further measures put forward by the venues, including partnership meetings, as it was too late in the day. Also, the venues had not been able to agree previously on a midnight common last entry policy and Mr Braho seemed reluctant even now, and in any event he did not believe this would solve all the problems. The ASB was driven by alcohol and he did not believe that the list of measures would deliver the improvement needed. The venues had pointed to taxis being a major issue but this assumed that the vast majority of patrons would always want taxis, and this was unlikely. Many residents no longer had any wish to engage directly with the premises and had decided not to log complaints via the Noise hotline and this explained why the number of logged complaints was so low; however, he reiterated that complaints were being submitted in confidence to Councillors and senior officers, hence the redaction in the 39 pages of email correspondence. Those in support of the EMRO focused on the impact of the availability of late night alcohol on the community while those against were most concerned with economic impact and ignored other residents. It was accepted that the EMRO was not a panacea but it would reduce alcohol-related ASB and could lead to a positive change in the nature of the venues’ operations. It had been said that to propose an EMRO all week was Draconian but the venues, when questioned, said they would use TENs and hold events in the week if the EMRO was only in operation at the weekend; therefore an EMRO seven days a week would have a greater positive impact on the licensing objectives. He asserted that the Noise Team’s approach was to try to work collaboratively with the venues and promote partnership working, while also making clear to them the courses of action which would be considered. In summer 2013, monitoring suggested that the agreed measures weren’t having sufficient impact and he made no apology for proactively responding to residents’ concerns. To conclude, he believed the EMRO proposal to be reasonable, justified and proportionate and requested that the committee recommend it to Council
In closing the meeting, the Chair praised all involved for the professional way in which the hearing was conducted. She stated that the committee was aware of the job facing it, and the implications, in making its decision. The committee would begin its deliberations in private immediately and produce a full written decision, which would be well-reasoned, justified and clear, within ten working days as specified in the regulations.
The meeting ended at 12.00pm on Thursday 20 February 2014.
1.1. To be read in conjunction with the approved minutes of the full hearing (http://moderngov.lambeth.gov.uk/ieListDocuments.aspx?CId=114&MId=8902&Ver=4)
1.2. This hearing was held to consider the representations made in relation to the proposal to make an Early Morning Restriction Order for the corner of Wandsworth Road and North Street in Clapham and to decide whether to recommend that the Council adopt such an EMRO. We bear in mind that we should only do so if it is appropriate for the promotion of the licensing objectives.
1.3. We received representations in 6 packs and read them all. We also received other documents during the hearing and between the part heard hearings. One of the representations, from Graham Hutchings, was initially left out of the packs and was received and read separately. We were told that there were 92 representations in favour of the proposal and 365 that were opposed to it, excluding those that had been withdrawn, or where an address had not been given. We also received and considered additional documentation (see above link for details) submitted by the Association of Licensed Multiple Retailers (ALMR) and LT Law (on behalf of Artesian Well).
1.4. At the start of the hearing we heard representations from the Association of Licensed Multiple Retailers and on behalf of Artesian Well to the effect that we ought not to proceed because of shortcomings in the way that notification of the hearing had been given, and that the power had not been delegated to officers who made the decision to begin the consultation process. Additionally complaint was made that representations had been wrongly rejected, and certain persons were not notified of the hearing, because they had not been made on the form provided by the Council. We decided that we were able to proceed, for the reasons given in the minutes of those hearings (see above link).
1.5. We heard from parties in favour of the EMRO: Environmental Noise Team, Metropolitan Police, the ward councillor and residents as set out in the minutes.
1.6. We heard from parties opposed to the EMRO: representatives of Artesian Well (“AW”), Mist on Rocks (“MoR”), Lost Society (“LS”) (the three premises affected by the proposal that are licensed to sell alcohol for consumption on the premises, referred to here as “the venues”) and the ALMR. Mr Jegatheesan, who is both the premises licence holder and DPS of Vesco (the off-licence affected), attended the hearing and addressed us in closing submissions.
1.7. We also watched extracts of video footage recorded by the Council’s Noise Team (“NT”), and four short videos posted on Youtube taken by a resident and referred to in the representations of ALMR and NT.
1.8. We have had regard to the Act, the Guidance issued under s.182 and Lambeth’s Statement of Licensing Policy.
2. Evidence supporting the introduction of an EMRO
2.1. Evidence received at the hearing is recorded in greater detail in the minutes. We provide a summary only here of what we heard and read in the representations.
2.2. Residents’ complaints related principally to the behaviour of patrons of the four licensed premises after they had left these premises and before they had left the area. There was also mention of disturbance from people arriving at the venue, but this was to a much lesser degree.
2.3. Noise: This appears principally to be a problem on dispersal from the three venues onto Wandsworth Road, and onto North Street. The complaints related to shouting, boisterous behaviour, fighting/playfighting, screaming, singing, people talking loudly on mobile phones; banging of car doors (taxis), tooting of horns from traffic avoiding passengers or minicabs picking people up. This has the effect of waking up residents trying to sleep, or preventing them from getting to sleep and being woken up in the early hours of Saturday and Sunday morning (i.e. following on from Friday and Saturday nights).
2.4. There were reported incidents of people urinating in front gardens, or on the street, mistakenly ringing doorbells, or sheltering in doorways in the early hours of the morning. In one short video (one of the Youtube clips) there is someone urinating against the shuttering of Vesco on a busy street. This shows the uninhibited, inconsiderate behaviour demonstrated by the people at this time. There has also been damage to bins and vomit, urine and broken glass found on the streets either immediately in front of the venues or within the vicinity.
2.5. Residents also talked about feeling intimidated by the crowds of people and their uninhibited behaviour, and about feeling unsafe when returning home late at night.
2.6. We accept that these complaints demonstrate a public noise nuisance. It is unreasonable to be woken up at 2am by someone shouting or screaming close to your location. It is not right to say that residents should be expected to tolerate this because they live near these venues. At the same time this is something that can happen occasionally in even the quietest locations. We also bear in mind as was evident on the videos that Wandsworth Road is busy with traffic at all times that the premises are open with cars and some heavier traffic in particular with regards to a late night bus route.
2.7. We do not accept that these complaints are the result of a few people who are opposed to the venues and exaggerating their complaints. The representations are too widespread to be made up; we accept that the accounts were genuine. However we are aware that they are accounts of problems that have been endured for a number of years, and that in recounting these, residents are not necessarily always relating the situation as it is at present. This is understandable, but we have to focus on matters as they stand at the present.
2.8. However it is apparent and it was agreed that there have been significant improvements from the situation in 2011. As to the other matters complained of (the nuisance other than noise such as broken glass, vomit and urination), while no doubt there are still occasional unpleasant incidents, we were not persuaded that they amounted to a public nuisance attributable to these licensed premises at the present time.
2.9. There was criticism from the venues that complaints had not been logged with the Council’s Out of Hours Noise service. We quite understand residents’ decisions not to report each individual incident to the Out of Hours Noise Service at the time they occur. At the same time the residents’ complaints would have carried more weight if they had included more detail of contemporaneously recorded complaints. While this is burdensome, the lack of it makes it hard to establish the pattern and form a strong evidence basis for the council to take targeted action.
2.10. There were some complaints of risks from broken bottles/glass. It seems likely that these relate to Vesco, as no other venue allows customers to take glass onto the streets. We did not find this to represent a significant public safety concern at this time.
2.11. There was concern expressed by residents over the safety of drunk people crossing Wandsworth Road and walking in the roadway, without proper care and risk of collision with traffic. This related often to customers crossing between MoR and LS/AW. However there was no evidence presented to us that there was a history of increased accidents on this road in the late evening or early morning despite the venues operating here for some time.
2.12. We were told of one pedestrian who had been hit at the junction of Wandsworth Road and North Street. There was no evidence that this related to licensed venues or occurred during the period of the proposed EMRO and we therefore gave it no weight.
Crime and Disorder
2.13. Sergeant Strange, of Lambeth Police Licensing team, made a representation and addressed us in relation to crime and disorder on behalf of the police. The majority of crime linked to these premises appears to be thefts, and he agreed that crime records were not out of the ordinary for licensed premises of this type. He agreed that the crime statistics would not have justified an EMRO on their own; and there was no significant history of violent offences in any of the premises. Action taken by AW in cooperation with the police had led to significant reduction of thefts, through catching a gang targeting customers of the venue for mobile phone thefts.
Summary of Evidence contrary to the introduction of an EMRO
2.14. The venues appear to have a loyal following of customers. There were written representations from large numbers (approximately 350) of customers who say how much they like visiting these premises (usually just one of them), that the premises are well-run, and they have never seen any trouble.
2.15. We did not accept that these representations undermine the evidence of residents who support the EMRO. Customers leaving the premises, having been drinking and coming from a noisy venue, are likely to have very different perceptions of the behaviour of others on the streets from residents in their homes.
2.16. Some residents made representations against the EMRO and said they do not have a problem with the premises, even some who live adjacent to, above or opposite the venues. We accept that people are affected by noise and other nuisance in different ways and, while we accept that some residents have not noticed the nuisance, this does not undermine that the views of many residents are genuinely felt.
3. Video Evidence
3.1. We watched excerpts from 6 hours of video footage taken by NT over 6 days in June and October 2013. The footage itself had been edited down from 9 hours originally to 6 hours. NT accepted that the way this was produced could have been better, with the benefit of the experience they now have. It would have been very helpful if the footage was time and date stamped. Overall we found this video evidence useful as a cross-check against the residents' concerns, but accepted it was only a snapshot. It was not put forward as a comprehensive account, indeed it had been edited in part to address concerns around the Data Protection Act. We accept that it was edited fairly and attempting to present a balanced picture, neither exaggerating problems nor avoiding them.
3.2. It showed that the corner of North Street and Wandsworth Road was busy when the AW's customers left at the end of the night. There was a small group of people outside MoR, at times enough to block the pavement. Vehicle noise appeared to be the dominant noise source, where the traffic was busy, including buses. The video footage did not extend to areas further up North Street.
3.3. The behaviour of patrons leaving appeared generally orderly and good-humoured. There was no suggestion that there was a risk of violence or aggression breaking out. Security appeared to be proactive in assisting patrons to taxis and to disperse. The impression was that there was a peak busy period around AW's closing and then LS's. We accept that they were coming out of premises where it may have been noisy and some of them had been drinking. Many of them appeared not to be in a hurry to leave the immediate vicinity, hanging around either waiting for a taxi, considering whether to attempt entry to another local venue or deciding what to do next.
3.4. Evidence did show that people are coming out of either AW or LS and visiting Vesco to purchase alcohol, sometimes in glass bottles. We saw one individual opening his bottle on railings and others drinking. We consider that the availability of alcohol in such proximity undoubtedly encourages people to linger on the streets, and compounds their levels of intoxication, and significantly increases the potential for disturbance for residents.
3.5. We also viewed 4 short clips taken by a local resident, Patrick Watson, in June 2013 and posted on Youtube. He is a strong proponent of the EMRO. We took that as likely to represent a “worst-case” scenario, which was backed up from commentary he gave over the recording. Nonetheless this did not present a significantly different picture from the footage recorded by NT.
3.6. Regarding the evidence of NT: We were impressed that the NT had been proactive following the appeal in AW to encourage the venues to address the problems revealed by residents’ complaints, and accept that Jamie Akinola had taken the initiative with this and is to be commended for doing so at a time when the premises’ licence holders were not always enthusiastic to engage or take the problems seriously. These meetings continued from December 2012 through to June 2013.
3.7. However there was a marked lack of evidence about what had happened over the summer, between the filming in June 2013 and the decision to advertise the EMRO consultation in October 2013. We found this surprising, given the serious potential consequences of such an Order. We agreed with the venues and the submissions of the ALMR that there had been a lack of transparency in the decision-making and a failure properly to communicate to the venues that an EMRO was being considered. The venues gave uncontradicted evidence that the first that they knew of the start of the consultation on the proposed EMRO was when it was advertised on the Council website and on the street.
3.8. We do however accept that the venues were reluctant to provide a coordinated approach and that there had been a breakdown in communication on both sides. There had been a failure on the part of the venues to recognise their individual responsibility to resolve a collective problem, which has only lately been rectified in the latter stages of the hearing before us.
4. Can the matters complained of be attributed to particular licensed premises?
4.1. Vesco: As we have referred to above, Vesco's ability to sell alcohol has a significant role in increasing the potential for disturbance, including among other things the failure of customers failing to disperse quickly and quietly and the litter generated from the items purchased from Vesco, caused by customers leaving the three venues. We were not convinced that Mr Jegatheesan appreciated the scale of the issues in this location or understood the role Vesco played in exacerbating them. Some of the problems of dispersal can be directly attributable to individual premises. The presence of large numbers of people on the street can only be explained by the closing of particular venues because each has a different closing time. The exception was Mist on Rocks, for which we did not have significant complaints around their closing time, notwithstanding that they have the latest closing times. Mr Braho, a director of Mist on Rocks, explained this by saying that his customers tended to disperse gradually, with few patrons remaining to closing time, which seems a credible explanation.
4.2. However MoR does play a part in the overall disturbance to residents, in that it provides the prospect to customers leaving LS and AW that they might be admitted to MoR. Even though only a few customers actually get admitted, this possibility encourages people to linger in the area and to cross the road between the venues, which add significantly to the prospect of disturbance to residents.
5. Do the matters complained of arise from the operation of the four licensed premises within the area of the proposed EMRO?
5.1. It is clear that some of the people on the streets at this time have not been visiting the four premises at all, but are travelling through the area either using the bus or walking. It becomes harder to attribute nuisance reported further up North Street and further afield to the activities of the four premises affected by the EMRO.
5.2. Equally it is clear that the busy periods on the Wandsworth Road seen in the video coincide with the closing times for AW and LS, and that the bulk of the people seen at these busy times have visited one of these two venues. The number of people on the streets at this time has a particularly marked effect on the risk of disturbance. The sheer number of people encourages and requires customers to raise their voices, and makes it less likely that they will disperse quickly and quietly. It also reduces the prospect that those who want to depart in a taxi can do so.
6. Do the representations indicate recurring problems of the type an EMRO is designed to address?
6.1. EMROs are designed to address recurring problems such as high levels of alcohol-related crime and disorder in specific areas at specific times; serious public nuisance and other instances of alcohol-related anti-social behaviour which is not directly attributable to specific premises.
6.2. The effect of an EMRO would be to prohibit the sale of alcohol after midnight. The venues could remain open, and provide regulated entertainment and a place for people to consume alcohol already bought, until closing time in their licence.
6.3. We were told that one of three things could happen: Firstly, the customers of all 3 venues could disperse collectively and congregate on the streets at the same time. Secondly, customers could stockpile drinks at the terminal hour and remain in the venues, rendering the EMRO ineffective, and thirdly that the venues could cease trading because of the effect of the EMRO.
6.4. In practice we accept it is not possible to be absolutely certain what effect the EMRO would have. We anticipate it is probable that the EMRO would mean that these operations would not continue in the same form. We think it unlikely that customers would stockpile drinks, as this would cause severe management difficulties for the venues. We think it more likely that customers looking to continue drinking after midnight would look elsewhere for a venue, rather than visiting this area. Since a significant amount of trade for all three venues depends on sales after midnight we think it most likely that each venue would have to adapt its business model.
6.5. While it is still possible that there would be a busy period around midnight, it is likely that this would be short-lived, and therefore customers would not face being woken at 1am or 2am. In that respect an EMRO could potentially address the concerns raised by residents. Nevertheless we accept that it is possible the change would make the current businesses unviable and therefore it is right to consider whether this is an appropriate and proportionate response to the problem.
7. Are other measures available that would promote the licensing objectives to the same or similar extent?
7.1. We applaud the agreed list of actions proposed by LS and signed by all four premises. We endorse these steps and welcome this approach, which was clearly absent prior to the institution of this process. We expect to see that this would lead to a significant improvement in the situation for residents.
7.2. The suggested step of having a common last entry point of midnight may need further thought. We recommend that LS should apply to vary its licence to make its last entry at midnight to demonstrate its commitment to this new approach. A more flexible approach may be necessary for MoR, but we consider at a minimum there needs to be a last entry time for Mist on Rocks of no later than 00:30, to ensure that customers leaving LS/AW do not cascade there and the dispersal period is not extended unreasonably. We would expect LS and MoR to apply for a variation to their licence to make these last entry times a condition of their licence to demonstrate their commitment to this regime, and so that the other venues can have confidence they will be adhered to.
7.3. The venues have reviewed arrangements for taxi firms, with a larger cab firm being employed by AW to increase the availability of cabs, with a total of three firms available across the three venues, and this is very much to be welcomed. We were told this has produced a significant improvement in dispersal in the two weeks it has operated, and we would expect this situation to continue and improve further.
7.4. There will be quarterly minuted meetings between the venues, the Council and residents. It is important that the venues accept responsibility to coordinate these. Improved working relationships with operators, NT and residents were agreed to be needed and possible.
7.5. Vesco: Most of the steps proposed are not relevant to Vesco. We would like to see Vesco give serious consideration to its stopping selling alcohol on Friday and Saturday at midnight. If not, we recommend that NT or LA gives serious consideration to reviewing its licence to force this change.
8.1. Given the above proposed changes we are not minded to recommend an EMRO at this stage.
8.2. The LC recommends that the Council take the following additional/alternative steps:
8.3. We recommend the Council investigate alternative methods for residents to record complaints more easily and contemporaneously and consistently. The lovecleanstreets smartphone app provides a good example of how this might be achieved.
8.4. We recommend that if residents experience further problems they should keep a contemporaneous record of these and provide regular updates through the noise team.
8.5. We would also like to see all four premises engage with Clapham Business Community (CBC).
8.6. We further recommend that the proposed Clapham BID boundaries be considered to include this area.
8.7. Given the renewed commitment by the premises to carry out further steps to ameliorate the situation we do not feel that an EMRO is justified at this stage. However the Licensing Committee does not rule out recommending to Council that an EMRO be made in future if the current proposed approach does not lead to a significant improvement.
8.8. We would hope that residents will engage with any review process to support these recommendations and the NT.
8.9. We would like licensing officers to provide a report to the LC in 6 months time from today, setting out an objective assessment of what, if any, progress has been made. For the purposes of this report, officers are asked to instigate a parallel informal consultation (of at least 6 weeks in length) and to integrate any evidence or comments received. All interested parties, including local councillors, are to be invited to participate in this exercise.
8.10. If matters have not significantly improved within this time the Council is likely to recommend that NT or LA seriously consider bringing a review of all four licensed premises or to re-institute EMRO proceedings.
8.11. There is no right of appeal to the Magistrates’ Court against this decision. Any challenge has to be by way of judicial review to the High Court. We would recommend anyone considering taking this step to take legal advice before doing so.
RESOLVED: To recommend that Council does not introduce an EMRO and that the recommendations above (see section 8) be implemented.