Operating hours and restaurant conditions

Southwark Council has fought off a challenge by the operator of Rock Island Bar and Grill who sought to extend its operating hours and remove the “restaurant condition” from its premises licence just six months after it was granted. Gary Grant explains how.

The Rock Island appeal, heard before District Judge Karim Ezzat at Camberwell Green Magistrates’ Court, also raised an interesting legal issue on the jurisdiction of the appeal court to consider a licence variation that was previously withdrawn before the licensing sub-committee.

The iconic corner building on the Old Kent Road had previously operated as the “Thomas a Beckett” pub, famous in its heyday for hosting a boxing gym on the first floor at which Muhammed Ali, Sir Henry Cooper, Joe Frazier and Sugar Ray Leonard all trained or sparred. The South London venue also played a role in Britain’s musical heritage: its second floor was used as a rehearsal space for David Bowie’s seminal 1972 album The Rise And Fall Of Ziggy Stardust And The Spiders From Mars.

After a series of incremental licence variations the Thomas a Beckett had morphed into a 500 capacity nightclub. Serious violence and public nuisance issues blighted the neighbourhood and led to its licence being revoked at summary review proceedings in 2015.

After two vacant years the current operator of Rock Island took over the lease. He lodged a new premises licence application describing the upcoming venue as a “restaurant”. Moreover, a full restaurant condition was offered in the operating schedule providing that alcohol could only be sold to customers ancillary to their table meals.

On that basis, and despite concerns from residents, in January 2017 Southwark Council granted a premises licence to the operators of Rock Island on the strict understanding that the venue would be run as a restaurant and only as a restaurant (albeit with a small “holding-bar”). There was clearly a political will to enable this famous old building to be put into proper use once again. However, within months, Rock Island lodged a series of Temporary Event Notices and began marketing itself as a late night alcohol-led “party-venue”. They applied to vary the freshly granted premises licence by: (i) extending the operating hours to 02:30hrs at weekends and to 01:00hrs midweek; (ii) removing the restaurant condition; and (iii) increasing their customer capacity limit by nearly 50%. The operator asserted that this “flexibility” was essential to sustain the business model.

The variation application was refused by Southwark’s licensing sub-committee in June 2017, save that an additional hour was permitted at weekends. In the course of the sub-committee hearing the operator, represented by experienced Counsel, withdrew that part of the variation application seeking to increase the maximum capacity of the venue (a step later re-visited in the appeal court).

At the magistrates’ court appeal heard over two days, Southwark was able to call evidence from licensing and environmental protection officers, the police, public health and residents all attesting to the disproportionate adverse impact that a late night alcohol-led premises would have on the locality when compared to the existing food-led venue. Indeed, the carefully crafted premises licence was only granted on the basis that the venue was to be food-led and could not morph into a late night bar.

The Council submitted, and the District Judge accepted, that the problems of the past, albeit under different operators, were relevant to the issues on appeal. The previous operation of the Thomas a Beckett showed that the premises was in a noise-sensitive location and had the potential to disturb residents unless very strictly controlled by appropriate conditions. The licensing objectives looked to the prevention of crime and disorder and public nuisance and past events could be a guide to what may happen in the future if the restraints on the current licence were removed. This is not the same as simply “visiting the sins of the father upon the son”.

Despite his attempts, the operator was not entitled to portray itself as an exemplary operator with an “outstanding compliance record”. Not least because he had been found to be operating in breach of conditions on his premises licence on no fewer than five separate occasions over the first five months of Rock Island’s operation.

The District Judge accepted that the Council had to carry out a balancing exercise between the commercial interests of the operator and the wider public interest of not exposing local residents to undue disturbance in the early hours of the morning. The operator had failed to satisfy the burden upon him to demonstrate that the decision of the Council was wrong at the time it was made or at the time of the appeal in light of the evidence adduced before the Court. In fact, it was clear the Council had already carried out that balancing exercise in an appropriate and proportionate manner.

At the outset of the appeal the operator invited the Court to consider the increase in capacity as well the extension of hours and removal of the restaurant condition. However, when it became clear that this part of the variation application had been withdrawn at the sub-committee stage, the Court took the view that it had no jurisdiction to consider this issue on appeal.

The powers of the appeal court are constrained by section 181(2) of the Licensing Act 2003. A magistrates' court may—

(a) dismiss the appeal,

(b) substitute for the decision appealed against any other decision which could have been made by the licensing authority, or

(c) remit the case to the licensing authority to dispose of it in accordance with the direction of the court,

and may make such order as to costs as it thinks fit.

However, since the variation to the capacity condition had been withdrawn from the consideration of the sub-committee at the hearing back in June, it would not have been open to the Council to grant the capacity variation. It follows that the magistrates’ court on appeal had no power to do so either. After some consideration, the point was conceded by Counsel acting for the operator.

Whilst the Court’s approach to this point remains informative rather than binding, it does highlight the potential consequences on a future appeal if important concessions are made by an applicant before the licensing sub-committee.

The appeal was therefore dismissed on 21 November 2017 and the operator was ordered to pay £10,000 towards the Council’s costs.

Gary Grant of Francis Taylor Building acted for the London Borough of Southwark instructed by Debra Allday of Southwark’s Legal Services and Andrew Heron, Principal Licensing Officer.