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A5 ROYAL BOROUGH OF KENSINGTON AND CHELSEA

REPORT BY THE DIRECTOR OF TRANSPORTATION AND HIGHWAYS

HIGHWAYS ACT 1980 (SECTION 115E)

BLUE LAGOON, 286 KENSINGTON HIGH STREET, LONDON, W14 8NZ

LICENSING SUB-COMMITTEE (B)

THURSDAY 16 JULY 2015

This report concerns an application for a new licence that would extend the permitted hours for external tables and chairs at Blue Lagoon, 286 Kensington High Street, London W14 8NZ. The report recommends

that the Committee grant the licence for fewer hours than sought and authorise the Director of Transport and Highways to issue the licence

pursuant to Section 115E of the Highways Act 1980.

HOLLAND WARD FOR DECISION

1 BACKGROUND

1.1 The placing of tables and chairs on the highway is a common occurrence throughout the Royal Borough and is controlled by Section

55 of the Town and Country Planning Act 1990 and Section 115E of the Highways Act 1980.

1.2 On 24 February 2004, the Deputy Leader and Cabinet Member for

Planning Policy and Transportation approved new criteria to be used when assessing applications for tables and chairs on the highway

under Section 115(E) of the Highways Act 1980. In 2008, these criteria were incorporated into the Transport Supplementary Planning

Document (SPD), setting out the Council’s policies and standards in respect of the placing of tables and chairs on the highway. The main

aim of the criteria is to ensure that tables and chairs should not occupy

more than a third of the available footway outside premises. Highways within the Royal Borough are categorised as Busy (core frontages of

Principal Shopping Centres), Medium Use (non-core frontages) and Lightly Used (all other locations). The minimum clear passage required

for pedestrians with tables and chairs in place on footways within these categories is four metres, three metres and two metres

respectively. This therefore makes allowance for the unique nature of the Royal Borough’s roads and ensures that the Council meets its

obligations to take account of safety and obstruction under Section 115(E) of the Highways Act 1980 when considering and issuing

licences. The criteria also ensure that the approach taken is as consistent as possible with that applied by TfL on the Transport for

London Road Network (TLRN). TfL has requested that the Council

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carries out enforcement for tables and chairs on TLRN roads within the

Royal Borough.

1.3 On 17 February 2015, the Cabinet Member for Planning Policy and

Transportation, updated the Council’s policies for granting, renewing,

revoking and refusing tables and chairs licences to incorporate the following:-

o The Council’s overarching principle that consent is solely granted at the Council’s discretion, in accordance with its

policies and for proposals which do not have a detrimental impact on the amenity of the local area or the living conditions

of local residents.

o The ability of Council members to make the decision not to

renew a tables and chairs licence if there is found to be a problem with noise and nuisance and the premises owner has

repeatedly failed to control excessive noise and/or nuisance from their customers outside.

o The ability to place additional conditions that relate to particular premises and are not necessarily standard.

o Those applying for a tables and chairs licence must include all

furniture and other items they wish to place in the licensed area (such as A-Boards, planters), to ensure that they are duly

assessed against the overarching principle above.

1.4 On 4 March 2013, Blue Lagoon, 286 Kensington High Street, was first granted a licence for three tables and six chairs to be placed on the

public highway between the hours of 12:00 and 21.00 on Mondays to Sundays. The current licence for this premises is valid for one year

from 4 June 2014 to 3 June 2015. The current licence is attached at Appendix B.

2. PLANNING PERMISSION

2.1 The Blue Lagoon, 286 Kensington High Street, currently has

permanent planning permission to place three tables and six chairs

outside the premises between the hours of 8:00 and 21:00 on Mondays to Sundays.

2.2 On 5 May 2015 a planning application (reference PP/15/02831) was

submitted that proposed to remove condition 4 (tables and chairs approved hours) of the planning permission in order to allow table and

chairs to remain on the pavement between 21:00 hours and 08:00 hours the following day. The application also proposed that the

terminal hour be changed from 21:00 to 23:30pm on Mondays to Sundays. The planning application was withdrawn on 26 June 2015.

2.3 On 29 June 2015 a planning application (reference PP/15/04020) was

submitted that proposed to remove condition 4 (tables and chairs

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approved hours) of the planning permission in order to allow table and

chairs to remain on the pavement between 22:00 hours and 08:00 hours the following day. The application also proposed that the

terminal hour be changed from 21:00 to 22:00pm on Mondays to

Sundays

2.4 The location of the premises is shown on the plan in Appendix A1.

3. LICENCE APPLICATION

3.1 The applicant has submitted a renewal application for a highways

licence. The request remains to place three tables and six chairs on the footway in front of the premises but the applicant now seeks a new

terminal hour of 11:30 on Mondays to Sundays. The plan in Appendix B shows the configuration proposed in the application.

3.2 This section of Kensington High Street is designated as a secondary

shopping frontage. In such locations our guidelines require at least

three metres clear footway be left following the introduction of tables and chairs in order to allow sufficient space for pedestrian movement.

The proposed configuration leaves a footway width of 4.3 metres and is therefore acceptable. A photograph of the establishment is attached

as Appendix C.

4 CONSULTATION

4.1 The Council consulted interested frontagers (i.e owners and occupiers of adjoining premises) and local residents in accordance with Section

115E (20) and 115G(2) of the Highways Act 1980. Officers sent consultation letters to the freeholder, the leaseholder and the three

Holland Ward Councillors. Officers also sent consultation letters to the adjoining premises and attached a notice advertising the application to

the sign post in front of the premises. The proprietors also placed a

notice in the premises window. The consultation period ran from 14 May to 10 June 2015.

4.2 I have received an objection to the application from the Holland Ward

Councillor, Councillor Collinson. Councillor Collinson has objected on the grounds of Noise and Nuisance. It was felt that the disturbance

caused by patrons and staff up to 11:30pm would have an adverse effect on the residents who live in the flats above the premises. This

objection is attached at Appendix D.

4.2 No objections were received from freeholders or leaseholders.

5 NOISE AND NUISANCE AND ENFORCEMENT

5.1 The Council’s Noise and Nuisance Officer has advised no complaints

have been received arising from the use of the external area. They consider that a 23:30 hour is too late for the location of the tables and

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chairs outside the premises due to the proximity of residents in the flats

above. They consider that a terminal hour of 22:00 would be appropriate.

5.2 The Council’s Contracts and Enforcement team has advised that Blue Lagoon has a Verbal Warning against its record. The last recorded

infringement was on 3 October 2014 (TC19) when they were issued with a Written Warning, the previous (verbal) warning having occurred

on 2 February 2014 (TC05). As it is more that 12 months since the earlier warning the Written Warning of 3 October 2014 (TC19) has been

reduced to the status of a Verbal Warning as per the Regulation and Enforcement Review Sub Committee recommendations with regard to

the 12 month rule. Verbal and written warning letters are attached as Appendix E.

5.3 If the Sub-Committee is minded to grant a licence, the warnings

outlined in paragraph 5.2 would no longer be valid and could not be considered for any future applications. The procedure set out in

Appendix F would be followed again by the Council’s Contracts and

Enforcement Officers. Under this procedure, if any breaches are witnessed after two warnings, the breaches will be reported to the

Regulation and Enforcement Review Sub Committee and enforcement action under Section 115K of the Highways Act can be authorised.

6. NEIGHBOURING PREMISES

6.1 There are seven neighbouring premises with valid licences in the vicinity

of 286 Kensington High Street. Details of these premises are outlined in

Appendix A2. The location of these premises is shown on the location plan at Appendix A1 by blue numbered circles.

7. LEGAL IMPLICATIONS

7.1 I have consulted the Tri Borough Director of Law and Administration

and the legal implications are included in the report. Members are reminded that there is no procedure for an appeal to the Council, if the

licence is refused. There would be a risk therefore that in those circumstances applicants could apply to the High Court to challenge the

Council’s decision by way of Judicial Review on a point of law.

8. RECOMMENDATIONS

8.1 The Committee is recommended to agree to the Director of

Transportation and Highways issuing a licence under Section 115E of the Highways Act 1980 to Blue Lagoon, 286 Kensington High Street for

a period of one year under S115E of the Highways Act 1980 for three tables and six chairs outside the premises between the hours of 8am

and 10pm on Mondays to Sundays, provided that;

Tables and chairs are removed from the highway by the terminal hour.

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The tables and chairs configuration, as shown in Appendix B, is strictly adhered to.

That the licence conditions, set out in Appendix G, are strictly adhered to.

A-boards, umbrellas, patio heaters or space heaters shall not be

permitted.

Mahmood Siddiqi

Director of Transportation and Highways

List of background papers: None

Contact Officer: Karen Brodie, Transportation Licensing Officer, Transportation and Highways

Tel: 020 7361 3396 E-mail: Karen.Brodie@rbkc.gov.uk

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Premises in the Vicinity of Blue Lagoon, 286 Kensington High Street

Premises Name and Address

Number of Tables and Chairs

Hours and Days Permitted

1 Pizzicotto, 267 Kensington High Street

3 tables and 7 chairs Between the hours of 10am and 11pm on Mondays to Sundays

2 Down to Earth 240-242 Kensington High Street

4 tables and 16 chairs between the hours of 8am to 8pm Monday to Sunday

3 Yo! Sushi 204-206 Kensington High Street

6 tables and 12 chairs between the hours of 7am and 10pm on Mondays to Sunday

4 Cafe Tarte Ltd, 270 Kensington High Street

1 table and 2 chairs Between the hours of 7am and 10pm on Mondays to Sundays

5 Byron Hamburgers, 222 Kensington High Street

4 tables and 8 chairs Between the hours of 9am and 9pm on Mondays to Sundays.

6 Nandos, 229-231, Kensington High Street

6 tables and 12 chairs Between the hours of 11am and 10pm on Mondays to Sundays

7 Il Portico 277 Kensington High Street

2 tables and 8 chairs between the hours of 12 midday and 3pm and 6pm and 11pm on Mondays to Saturdays

APPENDIX A2

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APPENDIX B

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APPENDIX C

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From: Deborah Collinson [mailto:cllr.collinson@rbkc.com]

Sent: 02 June 2015 14:05 To: Tables and Chairs: TELS-HwayTraf

Cc: Cllr, Feilding-Mellen, Rock; Cllr, Lightfoot, Warwick; Cllr, Collinson, Deborah

Subject: Re: Blue Lagoon, 286 Kensington High Street

Dear Ms Fleming,

I wish to object to this application to place tables and chairs outside on the pavement until

11.30pm, seven days a week and also to leave them out from 9pm until 8am the following

morning because of noise and nuisance.

This is a predominantly residential area without a night time economy. The restaurant is

situated underneath a block of flats and to have people being served food and drinks until

11.30pm, plus the disturbance which would result with people leaving at that time in cars,

chatting in the street to say goodbye and clearance of the tables, which could go on for

some time and would not be fair on the residents who live there. The movement of chairs

and plates and glasses would have an adverse effect on the residents' rights to enjoy their

amenity.

The customers who smoke would cause disturbance to the residents above if they have

their windows open.

I would also object to the Removal of condition 4 (tables and chairs approved hours) of

planning permission 12/03954 to allow table and chairs to remain on the pavement

between 21:00 hours and 08:00 hours the following day. Even if they were disabled they

could still be used by people purchasing alcohol and food further East and West in

Kensington High Street and then heading to this venue to drink and eat. This would also

affect the street scene there as, even though there is sufficient pavement width, it would be

cluttering an otherwise clear street.

I consider 9pm or thereabouts and the removal of the tables and chairs is perfectly

reasonable. There is a very good reason why the condition 4 was put on in the first place.

I suggest that the venue reconsider their application and reduce the hours they are seeking.

Has anyone checked that they are displaying the correct notices?

Kind regards

Cllr. DAC

APPENDIX D

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APPENDIX E

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APPENDIX F

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TABLES AND CHAIRS LICENCE CONDITIONS

1. The licence holder shall not in any way interfere with the surface of the public highway.

2. The licence holder shall indemnify the Council from and against any claim in respect of any

injury, damage or loss arising directly or indirectly out of the grant of this consent and the use by the public of the amenities.

3. If the Council serves a Notice on the licence holder requiring him/her to take such steps as are necessary to remedy any breach of the terms of this consent, and the licence holder fails to comply with the notice the Council may itself take the steps required by the Notice and recover from the licence holder any expenses incurred.

4. This consent may be withdrawn by the Council at any time upon the Council giving to the licence

holder seven days notice in writing. Upon withdrawal of the consent the licence holder shall remove the amenities from the public highway and, in default, the Council may remove the amenities and recover from the licence holder its costs in so doing.

5. Any notice to be given to the licence holder shall be deemed to be sufficiently served if addressed to the licence holder and sent by post or left at the premises.

6. This consent is without prejudice to, and shall not be construed as derogating from, any of the rights, powers and duties of the Council pursuant to any of its statutory functions or in any other capacity and, in particular shall not restrict the Council from exercising any of its powers or duties under the Highways Act 1980 (as amended).

7. The licence holder shall not place any item on the public highway or attempt to exercise any permission unless he/she has obtained both a valid licence to place the said objects on the public highway and has a current planning permission for the land use, if necessary.

8. The licence holder must ensure that the licence is displayed at all times within the window of the property, so that it is clearly visible from the public highway.

9. The licence holder will ensure that the pavement area around the premises occupied by the tables and chairs used in accordance with this consent shall be inspected, swept and cleaned regularly so as to be free of litter at all times whilst the premises are open for business to members of the public. The licence holder will provide litter bins within the area designated under this consent of a number and type as may be specified by the Council, and shall remove all such bins from the

designated area for storage within the premises at the close of business A windproof receptacle for cigarette butts and ash will be provided on each table.

10. The licence holder shall ensure that any spillages are promptly removed from the highway and

restore the affected area of highway to a clean and safe condition. It is the responsibility of the licence holder to ensure that the premises frontage is washed down on a daily basis. The Council will recharge the licence-holder the full cost of any remedial work to remove any residual staining of the highway outside his or her premises, including the replacement of the paving stones if necessary, by pavement stones of an equivalent quality and to an equivalent standard.

11. The licence holder shall remove the amenities from the public highway immediately if requested

to do so by the Council, its agents, contractors or licensees or by a Police Officer if the area

occupied by the amenities is required to facilitate safe pedestrian passage. The licence holder shall not reposition the amenities on the public highway until notified by the Council, its agents, contractors or licensees or the Police that he/she may do so.

12. The licence holder shall remove or store the tables and chairs so that they are unable to be used

outside of the hours of the licence. 13. The licence holder shall ensure that tables and chairs are removed by the terminal hour.

APPENDIX G