Entertainment & alcohol licensing
News: Brave operator wins appeal against Westminster
(Press Article)- Date: 07/01/2008
- Author/Solicitor: James Anderson
On the 14th June, Fudge, a small cocktail bar on Bear Street, just off Leicester Square in Westminster was granted an extension to the hours it could sell alcohol on Fridays and Saturdays, enabling it to trade until 01.00am. This was a partial grant only, as the application was submitted to extend the terminal hour for the sale of alcohol until 12 midnight on Sundays to Wednesdays, 01.00am on Thursdays and 02.00am on Fridays and Saturdays. This initial decision sparked an appeal process for Fudge with specialist licensing solicitors, Poppleston Allen.
In the 'West End Stress Area' and indeed in the other stress areas within Westminster there is a presumption that an application for a variation of hours will be refused unless the applicant can indicate that there are 'exceptional circumstances'. These 'exceptional circumstances' must be relevant to the reasons for the policy and therefore must not adversely affect the cumulative impact on the stress area itself. As the policy makes clear, an exception will be found in only 'genuinely exceptional circumstances'.
Some would have said that the initial decision gave reason for celebration for the owners of Fudge, who were then, as they are now, one of the few operators to be granted anything above minimum core hours, as outlined in the policy. But owner, Ferdy Konig, was determined, and proceeded to challenge the decision on appeal.
Commenting, James Anderson, Partner at Poppleston Allen said: "It's a brave operator, particularly of the independent variety, that takes on Westminster on appeal because very few - in fact I can only think of two, Movida and Zebrano - have enjoyed success before the Magistrates on appeal. Our client, whilst trusting of our ability, also had to weigh up the risk of losing and having to pay Westminster City Council's legal costs.
"Fudge presented a unique case because there had not been a refusal of the application in full, but a refusal in part only. This meant that the Councillors sitting as the Licensing Committee on 14th June must have found 'exceptional circumstances' to grant in part until 01.00am on Fridays and Saturdays. In other words, Fudge had pushed the door open but had only got part of the way through it. One of the main grounds for appeal was based on the fact that initially, the Licensing Committee were convinced that there were exceptional circumstances, such that 01.00am on Friday and Saturday would not adversely affect the cumulative impact, but there was no other evidence before that Committee, which justified not granting the application in full. On Fridays and Saturdays, the Committee decided that to grant until 01.00am would be an exception, but to grant until 02.00 would not. With this in mind, we set about representing our client in the appeal process."
The appeal took place on Friday 14th December and the Magistrates were asked to grant the original application in full; that is the sale of alcohol until midnight on Sunday to Wednesday inclusively, 01.00am on Thursday and 02.00am on Fridays and Saturdays.
James added: "Westminster argued that any further grant of extended hours would be contrary to policy and would have a negative impact on the 'West End Stress Area' in terms of cumulative impact. The Magistrates decided to allow the appeal on Monday to Saturday, but not Sunday.
"Whilst the Magistrates did not specifically indicate those matters which convinced them to find exceptional circumstances, the following matters were highlighted in their judgement as important:
1. The occupancy was restricted from a possible 200 to 110 with seating for 70 customers.
2. There was no objection from residents.
3. The bar is different to other premises nearby in that it is a small cocktail bar without dancing, in an area where there are so few residents (only five within a 75 metre radius).
4. There were no incidents of disorder at the premises.
5. The Licensing Committee had already found exceptional circumstances in granting until 01.00am in the Stress Area on Fridays and Saturdays.
"It's perhaps only the third appeal which has been allowed and Movida is, in any event, the subject of a judicial review challenge, as I understand from Westminster.
"In summary, I have to say that the task of making an application in the 'Stress Area' is still a difficult one, but at least it is possible for some deserving operators to be able to develop their business and, we believe, have a beneficial effect on the area generally."
For more information on contact James Anderson on 0115 953 8500