Agenda item - McDonald's Restaurant, 157-163 Western Road, Brighton : Application to Vary Existing Premises Licence

Report of the Head of Environmental Health & Licensing (copy attached)

97.1    The Panel considered a report of the Head of Environmental Health and Licensing requesting that they determine an application for variation of the premises licence by McDonald’s, 157 – 163 Western Road, Hove.

 

97.2    Inspector Harris was present to make representations on behalf of the Police and was accompanied by Mr Bateup of the Police Licensing section. Councillor Kitcat in attendance to make representations in his capacity as a Local Ward Councillor and on behalf of local residents. Mr Cornell was in attendance to make representations on behalf of the applicant, Mr Turen the applicant was also present.

 

97.3    Before proceeding to formal consideration of the application. Mr Cornell suggested that in the interests of facilitating the proceedings he would be happy to refer the Panel to the two stage process required in reaching their decision. The Chairman, Councillor Lepper explained that individual Members of the Licensing Committee sat as on Panels to determine licensing applications on a regular basis. and, that they would follow their agreed procedures for hearing and determining an application. These procedures were in line with national policy and guidance. All parties present would have the opportunity to seek clarification, ask questions and to make their representations at the appropriate time.

 

97.4    Mr Whitelegg, Senior Environmental Health Officer outlined the details of the application for variation referring to the current premises licence which allowed the provision of late night refreshment on Fridays and Saturdays from 23.00 until 00.00. The proposed variation was to extend the opening hours and provision of late night refreshment on Sundays to Thursdays from 23.00 to 00.00 on Friday nights/Saturday mornings and Saturday nights Sunday mornings from 00.00 until 05.00.

 

97.5  Mr Whitelegg explained that the premises was located within the Cumulative Impact Area (CIA) in the Brighton city centre. The effect of this special policy was that applications for new premises licences or club premises certificates within the Area, or variations which were likely to add to the existing Cumulative Impact, would normally be refused following relevant representations. This presumption could be rebutted by the applicant if they could show that their application would have no negative Cumulative Impact.

 

97.6  Two representations had been received from a Local Councillor and from Sussex Police expressing concerns relating to Prevention of Crime and Disorder, Cumulative Impact and Prevention of Public Nuisance.

 

97.7  Councillor Watkins sought clarification at this point as to whether the Council’s policy in relation to the CIA also applied to premises where hot food was sold irrespective of whether or not alcohol was on sale. It was confirmed that was so.

97.8  Inspector Harris then gave her submission. Before detailing and amplifying the Police’s concerns as set out in their letter of representation she stressed that the operating schedule submitted was specific to McDonald’s. If the variation requested was granted it would not be enforceable in relation to any other hot food business which might operate from the premises in future, although any hours of operation granted would remain in place.

 

97.9    The Police did not consider that the applicant had made a sufficiently compelling case to rebut the presumption against granting permission. Whilst the premises did not sell alcohol, if open for longer hours it would provide a further late night venue 24 hours a day on Friday and Saturday nights, within an area already where the number of licensed premises was at saturation point and crime, disorder and public nuisance had reached problem levels. Whilst the premises was not generally considered problematic however, the premises had ready given rise to 999 calls asking for police attendance on a number of occasions over the last year, these instances had occurred within the existing hours of operation.

 

97.10  Inspector Harris went on to state that the police were concerned that no proactive measures had been suggested in order to seek to prevent crime and disorder and prevention of public nuisance. The measures proposed were considered to be totally inadequate in relation to the longer hours of operation proposed. When premises were open for extended hours dedicated and properly qualified door staff were provided as standard, the services of a mobile support unit were not considered sufficient. The applicant had failed to demonstrate that they were aware of the issues which arose in relation to premises which were open very late at night. In the absence of the very robust measures required they considered that this premises would give rise to a negative impact which would result in noise and other nuisance to residents. When queues formed in large premises and customers had been drinking before hand this tended to result in “flashpoints” as arguments or violence could erupt. The Police were disappointed that this had not been recognised and that measures had not been suggested to address any potential problems.

 

97.11    Mr Cornell enquired whether the police and the panel were aware that the applicant also ran the McDonalds premises located at Brighton Marina and that that premises which was open until a very late hour had not give rise to instances of crime and disorder or public nuisance. The relevance of some of the instances set out in the extracts of the police incidence reports was also queried as some did not relate directly to the premises itself or to the directly to the concerns raised in relation to the licensing objectives.

 

97.12    The Chairman stated that the manner in which a separate establishment located elsewhere was not relevant as each application was considered on its merits. In the case of premises situated within the CIA the onus was on the applicant to rebut the presumption of refusal.

 

97.13    Inspector Harris stated that as part of the Marina Estate (which was not located in the CIA) had its own additional security arrangements in place. Whilst the premises did not sell alcohol, if granted the premises would provide another late night venue open 24 hours a day on Friday and Saturday nights in an area already sufficiently heavily populated with licensed premises that it had reached saturation point. Operation Marble, the policing initiative within the city centre at weekends stood down from 4.00am. If incidents arose after that time it created significant pressures for the police by diverting a depleted number of officers from elsewhere in the city if there was several incidents that created difficulties. Given its location on the periphery of the CIA incidents at any other time would pull officers offers away from the central core area where their numbers were already stretched.

 

97.14  A large number of residential properties were situated in the streets radiating off Western Road and complaints were already received in relation to late night noise public nuisance and crime and disorder. Those who had been drinking gravitated towards premises which were open late at night and additional numbers of people would therefore be attracted into the area. People who had consumed large amounts of alcohol did not sober up immediately when consuming hot food and generated a lot of noise, even if not causing any other nuisance. The net result was twofold, premises which were open late acted as a magnet encouraging customers into the area and delaying dispersal as those individuals then remained in the area to eat food either in the premises outside on the street.

 

97.15  Mr Cornell sought clarification that the premises was on the north western boundary of the CIA, it was confirmed that it was. As such Mr Cornell enquired whether in view of its location customers would be visiting the premises in order to purchase food on their way home and as such they would not remain in the area. Inspector Harris did not agree with that view and reiterated her earlier comments.

 

97.16  Inspector Harris stated that the incidents set out did not relate to a large number of incidents nor did they indicate that the police had concerns about the manner in which the premises were managed and run. They did illustrate however, that incidents occurred when the clientele and on-street situation was markedly different that very late at night or early in the morning.

 

97.17  Mr Cornell sought clarification of the times at which incidents had occurred and queried the basis on which the police believed there would be a greater likelihood of incidents later in the evening. Inspector Harris stated that her concerns were based on her operational experience of the CIA and the times at which the greatest number of incidents occurred and they type of incidents which occurred.

 

97.18  Councillor Kitcat then had the opportunity to give his submission. He stated that he was speaking on behalf of a number of his residents of his ward who had approached him expressing grave concern in relation to the significant increase the premises proposed hours of operation. Residents already suffered from late night noise and early morning deliveries. A number of other local businesses had sought (as a result of consultation with residents) to operate during hours which provided a period of “truce” which sought to give residents a few uninterrupted hours of sleep each night, the applicant had not sought to do this.

 

97.19    If approval was given that would result in an increase of opening times of 5 hours on Friday and Saturday nights and by one hour ever other night of the week. He believed that such a change would contribute to the cumulative impact on the night time economy on local residents in the area and that the likelihood of public nuisance, crime and disorder and risk to public safety would increase. Later hours of operation would result in people queuing for food, hanging around to eat it and in consequence leaving the area more slowly. He was aware that the proposed changes on Friday and Saturday nights would result in the premises being open past the time at which Operation Marble, when there would be less policing available to deal with any trouble which might arise in the area. As noise generated by people coming home late at night was already an issue for residents he considered that if granted the additional hours of operation would exacerbate that situation.

 

97.20  Mr Cornell queried whether Councillor Kitcat as Green Councillor had a predisposition against any application by McDonalds. Councillor Kitcat stated that this was not the case, his objections were made purely on the basis of the proposed hours of operation and location of the premises. A number of residents lived in close proximity to it and he was setting out their concerns and his own as a Local Ward Councillor.

 

97.21  Mr Cornell then gave the submission on behalf of the applicant. He stated that the applicant had an impeccable record over some years standing of running trouble free premises. By the Police’ own admission there were no concerns in relation to the way in which the premises were run and he considered that the extrapolation that had been made regarding concerns that there would be a significant increase in incidents which would compromise the licensing objectives was flawed. The Police advised premises holders to call them in the event of trouble, therefore by so doing on those few occasions when it had proved necessary Mr Turen and his staff had acted responsibly .He considered that there was no reason to believe that there would be any increase in incidents per se. The premises would not be run differently than if it were to close at an earlier hour. Given the nature of the business a number of customers would purchase and eat food on the premises, this would contain any noise and they would then go home. Those taking away food were likely to go straight home and he did not consider that would necessarily remain on the street eating.

 

97.22  Mr Turen the applicant then gave his submission in support of his application he referred to the fact that he had long experience of operating that branch of McDonalds and other branches including that situated at the Marina, over thirteen years in total. He lived in the City and would continue to run the premises as he had always done. He would ensure that the premises were adequately controlled and that customers behaved well whilst in the premises and were encouraged to leave considerately. He had experience of dealing with people who were dunk and in diffusing situations when they were.

 

97.23  Mr Turen stated that he had always worked cooperatively with the police and local residents. In addition to those leaving nightclubs his business would also be used by local residents and shift workers either before or after they went on shift.

 

97.24  Councillor Watkins sought clarification regarding whether permission was sought in relation to the entire premises or just to the ground floor area. He also sought confirmation regarding the capacity of the premises in terms of tables and chairs. Mr Turen explained that the upper floor seating area could be taped off later in the evening which would allow only the upper floor toilet facilities to be used. One disabled toilet was located on the ground floor. Councillor Watkins referred to the submitted plans stating that they indicated that 70 staff could be accommodated on the ground floor of the premises. Mr Turen explained that the plan was indicative and did not equate to the precise location and number of tables within the premises.

 

97.25  Councillor Lepper, the Chairman asked whether or not any toilet facilities were located on the ground floor and Mr Turen explained that one disabled toilet was located on the ground floor. Councillor Lepper also enquired why Mr Turen had not sought to provide SIA door security staff on Friday and Saturday nights. He explained that he had access to a mobile security team and that in addition those additional staff clearing tables would be on hand to assess whether customers coming in to the premises were drunk and to identify potential trouble. Councillor Lepper then enquired regarding whether any special measures would be put into place to protect vulnerable female members of staff either whilst serving customers with food or whilst clearing tables on the other side of the counter. In answer to further questions Mr Turen stated that the staffing levels provided were based on turnover. After 10.30pm there would be at least two dedicated serving and a manager would also be on site at all times.

 

97.26  Councillor Lepper enquired regarding measures which would be taken to seek to ensure that on street disruption did not occur later on in the evening. Mr Turen stated that customers would be asked to leave quietly and was of the view that those taking food away from the premises where unlikely to remain in the vicinity to eat it.

 

97.27  Councillor West enquired whether Mr Turen would be prepared to engage additional door staff if the Police were of the view that this would be beneficial in preventing those who had consumed excessive quantities of alcohol from entering the premises. Mr Turen confirmed that if required to do so he would reiterating however that he considered that the measures he would have in place would be robust.

 

97.28  Inspector Harris asked Mr Turen whether he appreciated that the character of the city late at night was totally different, the potential for crime and disorder and public nuisance was all the greater because a number of individuals had consumed large amounts of alcohol. Mr Turen stated that whilst the premises was family focused during the day he did have experience of dealing with people who were drunk and of the problems which could result. As someone who lived close to the city centre he was also aware of the problems caused by late night noise.

 

97.29  Councillor Watkins sought clarification as to the means by which the upper floor of the premises could be removed from use in the evening. Mr Turen explained that a security barrier could be brought down which would prevent access to the seating area.

 

97.30  In the absence of any further questions Mr Whitelegg gave the closing submission on behalf of the licensing authority.

 

97.31  Inspector Harris reiterated the concerns expressed by the police stating that in their experience those seeking late night hot refreshments did disperse more slowly from an area and to generate noise in doing so, there was a greater likelihood of nuisance and crime and disorder taking place when people had been drinking and the measures suggested by the applicant did not indicate a full awareness of these issues nor was it considered that the applicant had made a compelling case for rebuttal of the Council’s policy in  relation to the CIA.

 

97.32  Councillor Kitcat then gave his closing submission stating that he was very concerned regarding the impact of the proposals on local residents. There would be increased chance of public nuisance, crime and disorder and risk to public safety and therefore a negative public impact.

 

97.33  Mr Cornell gave his submission on behalf of the applicant stating that he considered that there was a two stage process which the Panel needed to engage in when arriving at their determination of the matter. The applicant had a proven track record over a number of years running a large premises and had illustrated that he was well aware of the issues associated with running a late night establishment in the city. Given its location on the outer periphery of the CIA the assertion that it would attract large numbers of people or that they would remain in the area rather than buying their food on the way through it was refuted. A strong case had been made to show that the business was well run and would not result in any increase in cumulative impact.

 

97.34  The Chairman stated that the Panel had listened carefully to those making representations. The Panel have no reason to think that this operation was not a responsibletrader. That is not what is being questioned here. What the Panel had had to consider was whether by increasing the licensable hours it would promote the Licensing Objectives.

 

            The application premises’ is situated in the Cumulative Impact Area (CIA).

 

            The Council’s Licensing policy stated that applications for variation which were likely to add to the existing impact would normally be refused following relevant representations. This presumption could be rebutted by the applicant if they can show that their application would have no negative impact.

 

            The Panel had given thought to the individual circumstances of these premises and the applicants’ view that the proposed variation would not add to the problems of cumulative impact in this area.

 

            However, the Panel believed that allowing this variation would be likely to add to problems of cumulative impact in the area.

 

            The Panel believed that the extended hours requested would cause an accumulation of people in the area and would impede dispersal, leading to problems ofpublic nuisance and the potential for crime and disorder. They shared the concerns of the Police in this respect and to allow the variation would undermine the licensing objectives of the prevention of public nuisance and the prevention of crime and disorder.

 

            The Panel had considered whether it would whether it would be appropriate to add conditions to the licence but did not feel that this would be effective in preventing these problems.

 

            The Panel had no doubt that McDonald’s were a responsible operation and that the premises were generally managed well. However, given the problems experienced in this area they considered that if granted this application would have a negative cumulative impact and therefore the application for variation of the premises licence was refused.

 

97.35  RESOLVED – That the application for variation of the Premises Licence by McDonald’s, 157 – 163 Western Road, be refused for the reasons set out in paragraphs 97.34 above.

 

            Note: The Legal Adviser to the Panel referred to the appeal rights available to the applicant stating that full details of these would be set out in the decision letter which to be sent to them.