To consider the attached application for a variation of an existing premises licence made by CK Entertainments Limited, Playhouse and Playroom.
The three councillors that presided over this application were Councillors J Jennings (Chairman), A Lion and R Morgan.
The Chairman welcomed:
Robert Sutherland, Complete Licensing Solicitor;
James Hoffner, Complete Licensing/(DPS);
Richard Bunch, Complete Licensing;
CreshnickShalla, Bar Manager Personal Licence Holder;
Scott Yeoman, Lawsmen Security; and
Richard Vivien, Big Sky Acoustics.
Representing Essex Police
Ronan McManus, Senior Licensing Officer; and
Kelsey Dott, Licensing Officer.
Councillor N Avey, representing Epping Town Council; and
Councillor J Whitehouse, resident.
Representing Epping Forest District Council
Asitha Ranatunga, Barrister.
The Chairman introduced the members and officers present and outlined the procedure that would be followed for the determination of the application.
(a) Application before the Sub-Committee
The Licensing Compliance Officer, Ms D Houghton introduced the application for a variation of an existing premises licence under the Licensing Act 2003, made by CK Entertainments Limited, Playhouse and Playroom, 195-199 Cottis Lane, Epping, Essex CM16 4BL.
The application was for the following licensing activities:
The Provision of Live Music
Sunday to Thursday 11.00 – 00.00, Friday to Saturday 11.00 – 02.00
The Provision of Recorded Music
Sunday to Thursday 11.00 – 00.00 Friday to Saturday 11.00 – 02.00
The Performance of Dance
Sunday to Thursday 11.00 – 00.00 Friday to Saturday 11.00 – 02.00
Anything of a similar description to that of above
Sunday to Thursday 11.00 – 00.00 Friday to Saturday 11.00 – 02.00
Late Night Refreshment
Sunday to Thursday 23.00 – 00.00, Friday to Saturday 23.00 – 02.00
The Sale by Retail of Alcohol
Monday to Thursday 11.00 – 00.00 Friday to Saturday 11.00 – 02.00
On and Off the premises
Opening Hours of the Premises
Sunday to Thursday 10.30 –00.30 Friday to Saturday 10.30 – 02.30
The application had been received on the 9 September 2021 and the Operating Schedule set out the conditions that would be attached to the licence, if the application was granted.
The responsible authorities had received a copy of the application. It had been advertised at the premises, in a local newspaper and all residences and businesses within 150 metre radius of the premises had been individually consulted.
The authority has received six representations of objections, one from Essex Police, one from Epping Town Council, one from a local ward Councillor who was also a resident, and three from local residents. The Objections related to the Prevention of Crime and Disorder, Prevention of Public Nuisance and Public Safety and The Protection of Children from Harm.
(b) Presentation of the Applicant’s Case
Mr R Sutherland stated that the application was detailed in the report and started on page 11 of the agenda. In essence the variation was for increased hours on Fridays and Saturdays of 1 hour from 01:00 to 02:00hrs. There was also a reduction in the hours on Thursdays from all licensable activities by 1 hour therefore from 01:00 to 00:00hrs. In respect of off sales these are in relation to the end of the evening if people have bought bottles of wine or champagne which have not been finished then they would be resealed and if the customer has transport then those items are escorted to the transport with the individual, that was the extent of the off sales.
Mr J Hoffner explained that the venue was made up of three entities, there was the Play House, the Play Room and the Play Fit. The Playhouse was the nightclub element and is the main thrust of the application before you. Playroom was the cocktail bar which was at the rear of the premises and had a terrace and a garden below, the cocktail bar was open in the evening when the nightclub was not trading. Playfit was a fitness studio and when in use the bars were covered up, there were male and female changing rooms and a range of different classes for example yoga, boxing and classes for disabled children.
He further advised that they also employed 5 young people on the Job Centre’s Kickstart Scheme who are local and live in the Epping Forest District area and they are being trained in hospitality, along with people with disabilities an ex-offender to give him stability so that he wont offend again and an ex-serviceman that also came via the Job Centre in Loughton.
Mr Sutherland stated that also employed at the venue were door supervisors who came via the Prince’s Trust, a youth charity that helped young people get into work.
Mr Sutherland referred the Sub-Committee to pages 78-80 of the agenda and asked them to note the decision of the Licensing Sub-Committee on the 29 July 2019 and set out the reasons why the application was granted at this time:
(1) The Sub-Committee were impressed by the evidence given on behalf of the applicant, in particular the evidence of Mr. Hoffelner. The Sub-Committee were satisfied that there had been a sufficient change of management of the premises which reduced the risk of the previous failures from recurring.
(2) The Sub-Committee had noted from the police evidence that the majority of the previous incidents of crime and disorder occurred between 0100 and 0300. However, we did not agree with the police’s suggestion that there had been a stark reduction in crime since the closure of the premises.
(3) We acknowledge that the applicant has accepted that the decision to revoke the Club 195 licence was correct as a result of a wholesale operational management failure.
(4) However we are concerned that this application proposes to significantly intensify the use of the premises, compared to its operation as Club 195. Club 195 previously opened just one night a week whereas this proposal seeks to open three nights a week.
(5) We would like to give the applicant an opportunity to make good on the promises made to us at the hearing. We acknowledge their collective experience but also have taken into account that the applicant is proposing a brand-new business model with new personnel and with a greater number of nights of operation.
(6) Taking all of this into account, we consider that requiring all licensable activities to cease at 0100, with the premises closing at 0130, strikes a fair balance and was appropriate for the promotion of the licensing objectives, in particular the crime and disorder and public safety objectives.
(7) By granting a premises licence, we have taken into account the applicant’s right to apply for temporary event notices which would give them an opportunity to road test their new model to a later hour and the possibility of making an application to vary the licence we have granted, to extend the hours of operation, if the applicant can demonstrate that doing so would not undermine the licensing objectives.
(8) For completeness we have also considered whether to curtail the hours during which the Garden Terrace may be used, and whether this would cause a public nuisance. We accept the applicant’s evidence that with appropriate mitigation measures, the use of this Terrace by no more than 30 smokers after 11pm will not undermine the public nuisance licensing objective.
Mr Sutherland highlighted that this variation to the licence was for two nights a week, Friday and Saturday and the hours for Thursdays had been reduced from 01:00hrs to 00:00hrs as the Playhouse would only open on Friday and Saturday nights.
Mr Sutherland then referred pages 81/82 of the agenda and the decision made on 1 September 2020 which was to refuse a time limited premises licence to extend the opening hours until 03:00hrs and the reasons given were:
(1) That the Sub-Committee had regard to the reasons for granting of the premises license on 29 July 2019. As explained on that occasion the Sub-Committee were satisfied that ceasing trading at 01:00 was a fair balance to promote the licensing objectives but that the premises had an opportunity to road test trading until 03:00 via a Temporary Event Notice.
(2) That the Sub-Committee heard today the premises had not traded since that license was granted and that no Temporary Event Notices have been submitted.
(3) That the Sub-Committee therefore remain of the view that there was inadequate evidence to demonstrate the premises can be satisfactorily operated, in line with the licensing objectives, until 03:00.
(4) That the Sub-Committee also remained of the view that the premises could seek a Temporary Event Notice to road test the later opening hours.
He advised that the premises had been affected in relation to the Pandemic and the premises was no able to open and operate until the July of this year and he referred to page 13 of the agenda where there was a table that set out all of the Temporary Event Notices (TENs) which listed 18 from the 25 July to 30 October and there was also a late TENs which covered the weekend of the 6 and 7 November, but is not stated in the report as the event had not yet taken place.
Mr Sutherland advised that they had complied with every decision of the Licensing Sub-Committees in 2019 and 2020 and on that basis the Licensing Sub-Committee were asked to agree to extend the licence as requested on Fridays and Saturdays until 02:00hrs.
Mr Sutherland stated that he would like to address the objections that had been received starting with the Police objections which were set out on pages 36 to 42 of the agenda. He understood that the Sub-Committee would be viewing police bodycam footage later in the meeting, regarding an incident that happened in July 2021 and this was the applicants opportunity to set out the events that led up to the circumstances that occurred when the police arrived on the scene. Today there are three people at this meeting who witnessed the events of that night and this incident would not have happened if it had not been for the actions of the Police officers that attended that night. It is very much our view that the situation was in control until the Police took over and it was at that stage that the problems arose.
Mr Hoffener advised that they had now hired a CCTV van which was parked on Epping High Street, at our cost because we are not able to get access to the CCTV from the Council. This is not hired every night only on a risk assessed basis when the club is running at capacity. He pointed out a few inaccuracies in the police report and stated that the staff body cameras were recording on that evening it was just that they could not reach the range of 160m where the incident took place.
Mr Hoffener advised in relation to an incident which occurred on the 9 October, between two women who had a minor altercation inside the club, one slapped the one. They were immediately separated by the door staff and myself, one was placed in the office and the other was ejected. The woman that was ejected decided to call the police and make false allegations to the police because she didn’t agree with being ejected. I did not eject both parties out at the same time as this would have escalated and they would have continued arguing outside, once the first eject woman had left the area the second was then also ejected. Mr Hoffner hoped that Essex Police thought they had acted responsibly by separating them.
(c) Questions for the Applicant from the Sub-Committee
Councillor A Lion asked for some clarity on the hours of operation.
Mr Hoffener advised that the nightclub would operate on Fridays and Saturdays only until 2am.
Councillor Morgan asked how they prevented knives and weapons being brought into the premises and how many of the customers were checked.
Mr Hoffener stated that everyone that came into the venue, when the nightclub element was open were are greeted at the door and then they would queue up to have their ID scanned, which was a condition of the licence. There was an exception for up to 20 people a night which meant if one person in a group did not have ID then details would be taken and they would be let in. Under no circumstances would a group of 20 people be let in without ID. After ID has been scanned they have to walk through a metal detecting search arch where two members of security stand and also do further checks with metal detecting wands. After this they get a pat down search and anything found was disposed of including drugs and they would also get ejected from the premises. Any weapons found then they would be detained and the police would be called.
Councillor Morgan asked for more details about alcohol in bottles being taken out of the club.
Mr Hoffner advised that if people had started a bottle of wine or champagne and the club was closing and they were being asked to leave the potential for an argument could start therefore by them resealing the bottle and escorting the person and bottle to a waiting vehicle could potentially alleviate this problem.
(d) Questions for the Applicant from the Objectors
Councillor J Whitehouse stated that he did visit the premises and it helped to understand where the CCTV was and some of the operation policies. He asked about the difference between the TENs applications and the licence, if granted as the TENs was limited to 500 people including staff but under the licence it would be 700 people excluding staff. What capacity has the venue been operating at under the TENs applications.
Mr Hoffener stated that TENs had been tested but obviously not operated with full capacity to 2am. He further advised that the venue had run to full capacity on Friday evenings to 1am with the current licence and to 2am with 499 people on Saturday nights with a TENs licence.
Mr McManus, representing Essex Police referred to the incident between the unknown males and how disappointed Mr Bunch was with how Essex Police dealt with the situation asked Mr Bunch that he being a retired service police officer that he would be aware of what Code G of the Police and Criminal Evidence Act was and if he could explain to the Panel the relevance of it because it would be important in this case.
Mr Bunch advised that he had been out of the police force for so long that Code G had completely escaped him.
Mr McManus explained that Code G was introduced in 1984, every person that was arrested each individual officer has got to ask the question “do I need to arrest this person right here, right now”. If the individual and the victim was known to the police could they not be invited into a police station at a later date because taking someone’s liberty away was a very specific and powerful piece of legislation therefore Code G was introduced for this very reason and my understanding was at that time although they had been detained that both the suspect and victim were unwilling to provide a statement of the Officers so therefore at the very start the grounds for arresting the suspect or suspects would have been removed and potentially could have made the arrest unlawful.
(e) Presentation of the Objectors
Kelsey Dott, representing Essex Police advised that Essex Police felt that due to the incidents of crime and disorder and public nuisance at the premises that by having the premises open until 02:00 hrs would cause further incidents.
The premises had been operating under TENs until 02:00 hrs and so had not been running at full capacity. Essex Police felt, on the balance of probabilities, that by increasing this number up to their maximum capacity of around 700 that there would be more incidents that would take place at the premises involving crime and disorder and public nuisance. This was based on the incidents that had already been recorded.
At 02:00 hrs the only mode of transport for people to disperse in the area was by local taxi companies and as stated in Essex Police’s objection people have been seen waiting around in the High Street still at 03:00 hrs for taxi’s to pick them up and thereby causing a public nuisance.
It was the belief of Essex Police that these premises should remain open until 01:00 hrs instead of 02:00 hrs. This was to prevent crime and disorder.
A short video from a Police Officers body worn camera was shown in private session by Essex Police regarding one of the incidents that happened.
Kelsey Dott stated that as can be seen in the video that happened over an hour after the premises had closed, the camera recorded the incident at 03.05 hrs for 6 minutes and as you can see Epping High Street was still full of people hanging around. Essex Police are of the opinion that the local taxi companies do not have the capacity to take that amount of people away from the area.
It should also be noted that this incident happened whilst a TENs was running so therefore the venue had a maximum of 499 people, including staff in attendance. Therefore if an hour and 10 minutes after the venue had shut there were still people hanging around causing a public nuisance how long would people be hanging around if the club was at full capacity until 02:00 hrs.
Councillor J Whitehouse stated that there had been a nightclub running at those premises for a long time and that he didn’t object to a successful business so long as it did not unreasonably impact on the area where it was located. He expressed concern regarding the later hours of opening which were being proposed and stated that although there were a lot of conditions being imposed upon the venue, the later the venue was open the greater the risk of crime and disorder and public nuisance which was evidenced by what had happened previously. Epping was a market town which got quieter as the night went on.
(f) Questions for the Objectors from the Sub-Committee
Councillor Morgan stated that the Applicants had applied for thirteen TENs and asked if the Police had objected to any of them.
Mr McManus stated that TENs were a permissive piece of legislation and had taken into account the previous Licensing Sub-Committee who stated that they wanted the venue to test their regime using TENs. Essex Police felt that they should give the venue the opportunity to move forward as this was a permissive piece of legislation whereas this was now a condition of the licence for change.
(g) Closing Statement from the Objectors
Councillor N Avey representing Epping Town Council advised that he had sat through a number of applications from the venue when it was operating as Club 195, under different owners and management and stated that Members had long memories and previously there was a lot of trouble with Club 195. Today on the face of it the applicants have made a lot of effort to be compliant. I do have some doubts about their business model of how you can make nightclub in a market town like Epping but with all the conditions that have been imposed how can you make a business like that work. The Applicants seem very clear that they can make it work but I think as Councillor Whitehouse and the Police were saying if people come out of the venue at 02:00 hrs there was a problem with clearing the area, the underground was closed and there was a lack of transport therefore people were hanging around that would be when you would get problems.
I think everyone in Epping would remember when Club 195 was operating and the gladiatorial fight that took place in one of the car parks in Epping at around 3am, obviously Epping would not want a repeat of that. The Town Council therefore wishes the venue to close at 01:00 hrs and not 02:00 hrs as proposed.
(h) Closing Statement from the Applicant
Mr Sutherland advised that they were looking to establish to the Committee the reasons why this application should be granted. Looking back at the original decision that was made and was set out on page 79 of the agenda that the Committee in granting the premises licence were taking into account the applicants right to apply for temporary event notices which would give them an opportunity to road test the new model to a later hour and then the possibility of making an application to vary the licence we have granted to extend the hours of operation, if the applicant could demonstrate that by doing so would not undermine the licensing objectives.
The pandemic struck and the premises remained closed and only opened in the summer of 2021. The premises had exhausted the extent of TENs and the Applicant had sought to demonstrate to the Sub-Committee either through the extension of hours on occasions or without the extension of hours but with a full capacity of up to 700 customers. The systems that have been put into place by the Applicant promote the licensing objectives and we believe that we have successfully upheld these objectives.
The objections received from Essex Police have been dealt with by Mr Bunch in his report and we believe the majority do not relate to the operation of the premises.
(i) Consideration of the Application by the Sub-Committee
The Chairman advised that the Sub-Committee would withdraw from the Council Chamber to consider the application in private.
During their deliberations in private the Sub-Committee received no further advice from the officers present.
The decision of the Sub-Committee was to grant the application with conditions and a summary of the decision (without reasons) was read out after the hearing on 2 November 2021 following deliberation by the Licensing Sub-Committee. The full decision can be found below.
The decision of the Licensing Sub-Committee (LSC) was that the application to vary the premises licence in respect of PLAY HOUSE AND ESSEX ROOF GARDEN 195 – 199 COTTIS LANE EPPING CM16 4BLbe granted on the following basis, subject to the following conditions which in the opinion of this LSC are reasonable, proportionate and in the public interest for the promotion of the licensing objectives:
(i) The effect of this variation was that the nightclub operation of the premises will be extended for an additional hour to 0200hrs (plus an additional 30 minutes opening time) on Fridays and Saturdays only. There will also be a reduction in licensable activities of 1hr to midnight on Thursdays (as applied for), plus 30 minutes opening time.
(ii) The part of the variation application seeking to allow off-sales of alcohol (for customers to take unfinished drinks off the premises in re-sealed receptacles) was refused.
(iii) The variation of the licence granted by this decision shall be time limited to a period of 9 months from the date of service of this decision.
(iv) The grant of this variation was subject to the existing conditions on the licence and conditions consistent with the Operating Schedule.
(1) The applicant clarified that the variation application relates only to the nightclub operation of the premises (known as Playhouse), that it sought an additional hour of operation on Fridays and Saturdays only, and a reduction of 1hr on Thursdays. The applicant also clarified that the off-sales sought were only to allow customers with unfinished drinks at the end of the evening to have them re-sealed and placed in their vehicle to take away from the premises, and that that could be conditioned.
(2) The LSC was mindful of the location of the premises, which was situated off the High Street in Epping, but also its proximity to residential premises both above shops and in the surrounding area. The LSC was also aware that there was limited public transport available in the area at the hours sought. There are no buses at this time. The last Tube train from Epping is at 0120hrs. The night Tube service was from Loughton and, due to COVID-19, was not anticipated to be running again until late November 2021. This means that, unless walking, a significant proportion of customers are likely to be reliant on taxis or their own private cars to leave the area.
(3) The LSC noted the limited availability of taxis at late hours as set out in the Police representation, but also had regard to the fact that operators such as Uber could assist customers. The LSC considers that the use of taxis and the private car to leave the area was likely to lead to at least low-level nuisance and ASB given the large numbers likely to attend the venue (capacity 700). The Taxi Service aspects of the Dispersal Strategy would have to be particularly well managed and strictly applied for the public nuisance and crime & disorder licensing objectives not to be undermined.
(4) The LSC was aware of the history of the operation of the premises as a nightclub (Club 195) operating on Saturdays until 0300hrs. The premises are under different management now (who cannot be blamed for the previous operation), but the crime & disorder and public nuisance issues which led to revocation of that licence in January 2019 illustrate the sorts of issues which can arise if nightclub premises in this location are not managed to a particularly high standard.
(5) When granting the current licence on 29 July 2019, the LSC noted (as relevant) that that application was to significantly intensify the use of the premises, that the applicant should have an opportunity to make good on its promises, and that requiring all licensable activities to cease at 0100hrs (closing at 0130hrs) struck a fair balance which was appropriate for the promotion of the licensing objectives. The right of the applicant to apply for TENs, with an opportunity to road test their new model, was referred to. A subsequent variation to 0300hrs was refused on 1 September 2020 because no TENs had been applied for and there was inadequate evidence to demonstrate that the premises could be satisfactorily operated to those later hours.
(6) The LSC considered carefully the evidence that the premises have operated a series of TENs between 25 July and 30 October 2021 as detailed in the Licensing Officer’s Report. The LSC also carefully considered the Police representation in response to the application, the Applicant’s Report dated 2 November 2021, and the oral representations at the hearing together with the body worn footage of the incident on 25 July 2021. The LSC does not consider that the Police can be criticized for failing to object to the TENs applications. The LSC accept the Police’s comment that, given the LSC’s decision and its reference to road testing longer hours through TENs, it would have been unfair of the Police to have objected to the TENs.
(7) The LSC consider that of the incidents referred to by the Police, only those on 25 July, 8 August, and 9 October are directly associated with the operation of the premises (the incident of 22 August 2021 occurred outside the George and Dragon, but the victim had been at the Playhouse earlier). Of those incidents, the management cannot be blamed for their response to them, and it was acknowledged that it was not uncommon for incidents of crime & disorder to occur at late night venues selling alcohol. Equally, the LSC does not consider that the Police can be blamed for their response to the 25 July 2021 incident. Police Officers attending such an incident have to exercise their own judgment as to arresting individuals in often difficult situations.
(8) At the same time, the body worn footage of 25 July 2021 does reveal the numbers of people at the end of the High Street near to the premises at 0300hrs, many of whom are likely to have been its customers. This was the night of the first TEN, but the footage does show the nuisance and ASB likely to arise when the premises operates to later hours, which does give rise to real concerns for the LSC.
(9) Moreover, the applicant confirmed at the hearing that a total of 3000 customers had attended the TENs. The TENs took place across 18 days. That indicates that the average number of customers per day of TEN (c.166) was very significantly lower than the 700 capacity which the premises could operate to if the variation were granted. The operation of the premises on other days has been in line with the earlier hours on the licence.
(10) The LSC notes that, as the country comes out of COVID, there has been a slow return to normality, which may have been reflected in lower numbers attending late night licensed venues.
(11) Given the relatively low numbers who attended for the TENs, the LSC’s concerns as to public nuisance and ASB consistent with what was seen at the incident of 25 July in particular, the concerns raised by the Police, Town Council, Mr. Whitehouse (who all attended the hearing), and 2 further local residents (in writing), the LSC was not satisfied, as a matter of judgment, that the grant of a permanent variation would promote the licensing objectives of the prevention of crime & disorder and the prevention of public nuisance.
(12) However, given the premises have been able to operate a series of TENs on the above basis for later hours without significantly undermining the licensing objectives, the LSC was prepared to grant a time limited variation of 9 months.
(13) During the hearing and in its final statement, the applicant specifically raised the possibility of granting a time limited variation, if the LSC had concerns as to the effect of granting a permanent variation. The applicant stated that the principle of a time limited variation was acceptable. The applicant sought such a variation until 3 January 2023 (14 months). The applicant also stated that a reduction to 500 customers could be considered by the LSC and would be acceptable, if the LSC had concerns.
(14) The LSC does have concerns that the TENs over a limited period this year have not allowed the full effects of opening to later hours, with large numbers of customers, to be considered. To that end, the LSC considers that a period of operation, at full capacity, will give the premises a chance to prove that the premises can be operated to the highest standards required to promote the licensing objectives.
(15) As to the length of the variation, the LSC considers that a period of 9 months from this decision will provide a proper and full opportunity for the premises to demonstrate that it can operate to the later hours. The premises will be able to operate through the winter and spring, and for the whole of June and July when customers may be more inclined to remain outside after the premises are closed. This strikes a fair balance with the concerns of the objectors (including residents) which the LSC share.
(16) The LSC has considered the list of conditions which appear on the existing licence and those offered through the Operating Schedule. It does not consider it would be appropriate or proportionate to add to those conditions in the circumstances.
(17) The LSC also takes its decision in full knowledge of the review mechanism under the Licensing Act 2003. It will be open to responsible authorities and other persons to bring a review if there was evidence that the licensing objectives are being undermined during the 9 month period, though there will be the cut off of the time limited variation for the later hours. It was not considered appropriate at this stage to grant a permanent variation, placing the burden on others to bring a review.
(18) The LSC specifically asked the applicant about how the off-sales condition would work. The explanation given - that this would avoid conflicts at the end of the evening - was unconvincing. Under the terms of the licence, the last sale of alcohol must take place 30 minutes before the premises close. That should provide ample time for finishing drinks, and customers (and staff) should know that customers will not be able to drink thereafter or take their drinks away. A complicated condition allowing for alcohol to be re-sealed and taken to a vehicle by staff would not be appropriate or proportionate given the regulation which should be brought about by the permitted hours. Such a condition would also be very difficult to enforce, particularly at the end of the evening. As a result, that part of the application was refused. For the avoidance of doubt, the refusal of the off-sales part of the variation application does not affect the terms of the existing licence (though it should be noted that the existing licence only allows for on-sales in any event).
The applicant and persons who made relevant representations are reminded of their right of appeal to the Magistrates’ Court within 21 days of date of the written notification of this decision.