1 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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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
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.